Citation: El-Zayet v The Queen [2014] NSWCCA 298
Court: Court of Criminal Appeal (also constituted as Court of Appeal)
Date: 10 December 2014
Judges: Beazley P, McColl JA, Emmett JA
Background
Following the quashing of his murder conviction and the ordering of a retrial, the applicant was subsequently discharged after the Director of Public Prosecutions directed that no further proceedings be brought against him. At a court listing to formalise that outcome, the Crown Prosecutor handed up the final page of a confidential legal advising report, bearing the Director's signed direction, to be placed on the court file.
The applicant then sought costs under the Costs in Criminal Cases Act 1967 (NSW). In the course of those proceedings, the document's presence on the court file came to light. The Director asserted privilege over the body of the report and the document was returned to his custody, but the applicant argued the act of handing it up had waived that privilege.
Price J dismissed the applicant's notice of motion seeking access to the document. The applicant pursued leave to appeal to both the Court of Appeal and the Court of Criminal Appeal, prompting the bench to be constituted in both capacities and to address three distinct questions.
Legal Issues
- Whether the Court of Appeal had jurisdiction under s 101 of the Supreme Court Act 1970 (NSW) to hear an appeal from a decision made in an application under the Costs in Criminal Cases Act 1967
- Whether the Court of Criminal Appeal had jurisdiction under s 5F of the Criminal Appeal Act 1912 (NSW) to hear an appeal from an interlocutory decision made in such an application
- Whether the Crown Prosecutor's act of handing the document to the court constituted a waiver of client legal privilege
Decision
Court of Appeal jurisdiction: Beazley P and Emmett JA (McColl JA agreeing) held that the Court of Appeal had no jurisdiction. Section 17 of the Supreme Court Act 1970 removes proceedings specified in the Third Schedule from the Act's operation. Applications under the Costs in Criminal Cases Act fall within those excluded proceedings. Because the exclusion applies to the proceeding as a whole, it captures interlocutory orders made within that proceeding as well. No appeal to the Court of Appeal was therefore available, with or without leave.
Court of Criminal Appeal jurisdiction: McColl JA held that the Court of Criminal Appeal did have jurisdiction under s 5F of the Criminal Appeal Act, treating the costs application as part of the prosecution of offenders on indictment. Beazley P and Emmett JA found it unnecessary to finally decide that question, given their conclusion on the privilege issue.
Waiver of privilege: The majority held that the primary judge erred in applying ss 118 and 119 of the Evidence Act 1995, because those provisions only operate when evidence is adduced in a proceeding. The procedure before Barr AJ involved no adducing of evidence and so the Evidence Act was not engaged. On the common law approach, only the Director, or a person he had authorised, could waive the privilege. The Crown Prosecutor had no implied authority to waive privilege: doing so was neither necessary nor incidental to the task of notifying the court of the Director's direction. Apparent authority to compromise proceedings did not extend to disclosing privileged material. The Crown Prosecutor's conduct was not, on any view, plainly inconsistent with maintaining confidentiality.
Orders Made
The orders below were made by McColl JA in relation to the Court of Criminal Appeal application (Beazley P and Emmett JA having separately dismissed the Court of Appeal summons):
- Leave to appeal granted
- Appeal dismissed
- No order as to costs (both parties had not addressed the jurisdiction question, and costs orders are not customary in criminal proceedings)
Key Takeaways
- The Court of Appeal has no jurisdiction to hear an appeal from a decision made in an application under the Costs in Criminal Cases Act 1967: the exclusion in s 17 of the Supreme Court Act 1970 applies to the proceeding as a whole, including any interlocutory orders within it.
- Sections 118 and 119 of the Evidence Act 1995 only govern privilege where evidence is being adduced; where a document is merely placed before a court without being tendered as evidence, those provisions are not engaged.
- A Crown Prosecutor's authority to handle and conclude proceedings does not carry with it any implied or apparent authority to waive the Director of Public Prosecutions' legal professional privilege over a confidential advising document.
- Conduct said to constitute waiver of privilege must be plainly inconsistent with maintaining confidentiality; handing up a document to be filed, without any express indication that privilege was being relinquished, did not meet that standard.
- McColl JA's analysis suggested the Court of Criminal Appeal can exercise s 5F jurisdiction over interlocutory decisions made in costs certificate applications, though Beazley P and Emmett JA expressly left that question open.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5F
- Supreme Court Act 1970 (NSW), ss 17, 101
- Director of Public Prosecutions Act 1986 (NSW), s 7(2)(b)
- Evidence Act 1995 (NSW), ss 118, 119
- Suitors' Fund Act 1951 (NSW)
Key Cases
- Aouad and El-Zayet v R [2011] NSWCCA 61
- Aouad v R; El-Zayet v R (No 2) [2013] NSWSC 991
- Cassar v NSW Crime Commission [2014] NSWCA 356
- Fairfax Digital Australia & New Zealand Pty Ltd v District Court of New South Wales [2012] NSWCA 172
- Adler v District Court (NSW) (1990) 19 NSWLR 317
- Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303
- Attorney-General (NT) v Maurice [1986] HCA 80; 161 CLR 475
- Waugh v HB Clifford & Sons Ltd [1982] Ch 374