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Supreme Court 14 June 2013

Aouad v R; El-Zayet v R

[2013] NSWSC 760

Public order & justice offences
EVIDENCE CLIENT LEGAL PRIVILEGE WHETHER CONSENT IMPUTED TO CLIENT

Citation: Aouad v R; El-Zayet v R [2013] NSWSC 760
Court: Supreme Court of New South Wales
Date: 14 June 2013
Judge: Price J

Background

Two accused had been arraigned on a murder indictment, with trial set for October 2012. In May 2012, the Director of Public Prosecutions (the Director) directed that there be no further proceedings against either accused. That direction was recorded on page 6 of a legal advice report prepared by a Deputy Director, who had provided advice to the Director on the question of whether to proceed.

On 1 June 2012, when the matter was mentioned before Barr AJ to formally record the termination of proceedings, a Crown Prosecutor appeared and handed up a document to be placed on the court file. That document turned out to be page 6 of the Deputy Director's internal legal advice report, which contained both the legal advice and the Director's written direction. Neither the Director nor the Deputy Director had authorised the Crown Prosecutor to hand up the document.

The issue came to light during a subsequent costs application before Hidden J, when the document was found on the court file. The accused then brought notices of motion seeking access to the document, arguing that privilege had been waived by the act of handing it up in open court.

  • Whether the internal legal advice report attracted client legal privilege under sections 118 and 119 of the Evidence Act 1995 (NSW), including whether the Director was the "client" and the Deputy Director was the "Australian lawyer" for those purposes.
  • Whether client legal privilege was waived when the Crown Prosecutor handed the document to the judge to be placed on the court file.
  • Whether the Crown Prosecutor had the authority, express or implied, to waive the Director's privilege.
  • Whether consent to waiver could be imputed to the Director in the circumstances.
  • Whether the court was functus officio (that is, had exhausted its jurisdiction) at the time the document was handed up, after the accused were discharged.

Decision

Price J held that the document was a privileged communication. The Deputy Director had prepared a legal advice report for the Director in connection with the prosecution, and the Director had recorded his decision on that same document. The Director was the client and the Deputy Director was the Australian lawyer providing legal advice, satisfying the requirements for privilege under the Evidence Act.

On the question of waiver, his Honour found that privilege had not been waived. Waiver requires the authorised act of the privilege holder, and the Director had given no express or implied consent to the Crown Prosecutor to disclose the document. The Director was unaware the matter was even listed on 1 June 2012 and did not know Mr Lungo was appearing. The Deputy Director was equally uninformed.

The Director's Prosecution Guidelines confirmed that disclosure of reasons for prosecutorial decisions remains the province of the Director, and that internal advice of this kind ordinarily attracts legal professional privilege. None of the limited circumstances in Guideline 18 permitted a Crown Prosecutor to waive that privilege without the Director's express consent.

Price J rejected the argument that consent to waiver could be implied from the circumstances. Although another person in the DPP's office may have arranged for the document to be handed up, that did not bind the Director. Only the Director could waive the privilege, and his conduct was not inconsistent with a continuing intention to maintain confidentiality. Both notices of motion were dismissed.

Orders Made

  • Ramzi Aouad's notice of motion is dismissed.
  • Naseam El-Zayet's notice of motion is dismissed.
  • Costs reserved, to be heard by the court.

Key Takeaways

  • Client legal privilege over a DPP internal legal advice report belongs to the Director, not to individual Crown Prosecutors or other ODPP staff who may have contributed to the advice.
  • A Crown Prosecutor appearing in court acts as legal representative for the Director as client; the Director's authority is therefore required before that privilege can be waived.
  • Waiver of client legal privilege requires the act or authorisation of the privilege holder. An unauthorised disclosure by a lawyer, without the client's express or implied consent, does not constitute waiver even where the document ends up on a public court file.
  • The Director's Prosecution Guidelines expressly preserve legal professional privilege over internal ODPP advices, and restrict the circumstances in which a Crown Prosecutor may waive privilege without the Director's consent.
  • Imputation of consent requires something more than the actions of a third party who lacked authority; the Director's unawareness of the disclosure was fatal to any implied-consent argument.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 118, 119, 133
- Director of Public Prosecutions Act 1986 (NSW), s 7(2)(b)
- Crown Prosecutors Act 1986 (NSW)
- Director's Prosecution Guidelines (NSW), Guidelines 12 and 18

Cases
- Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
- R (Cth) v Petroulias (No 22) [2007] NSWSC 692; (2007) 213 FLR 293
- R (Cth) v Petroulias (No 24) [2007] NSWSC 783
- R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
- R v Howard (1992) 29 NSWLR 242
- R v GKA (1998) 99 A Crim R 491
- R v Bunting [2002] SASC 412; (2002) 84 SASR 378
- Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
- Cooper v Hobbs [2013] NSWCA 70
- Beckett v New South Wales [2013] HCA 17; (2013) 297 ALR 206