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Court of Criminal Appeal 14 May 2015

Perish, Anthony v R

[2015] NSWCCA 98

Homicide
EVIDENCE ORDERS TO PRODUCE LEGITIMATE FORENSIC PURPOSE WHERE WITNESS UNAVAILABLE FOR CROSS EXAMINATION ORDERS TO PRODUCE

Citation: Perish, Anthony v R [2015] NSWCCA 98
Court: Court of Criminal Appeal, New South Wales
Date: 14 May 2015
Judge(s): R A Hulme J

Background

The applicant was convicted of murder and conspiracy to murder in connection with the death of Terrence Falconer in November 2001. His appeal to the Court of Criminal Appeal included a ground based on fresh evidence, namely a sworn affidavit obtained from a key Crown witness (referred to as "E") shortly before that witness died in March 2014. In the affidavit, E retracted his earlier cooperation with police and absolved the applicant and his co-accused of responsibility for the murder.

The Crown sought to investigate the circumstances in which E's affidavit came into existence. It obtained orders requiring several legal practitioners, including a barrister and solicitor who had attended E in hospital and in prison, to produce all documents relating to their involvement with E between October 2012 and March 2014.

The applicant opposed the Crown having access to a subset of those produced documents. He raised two objections: first, that certain documents were protected by client legal privilege under s 119 of the Evidence Act 1995 (NSW); and second, that the Crown had failed to establish a legitimate forensic purpose for access to some of the remaining documents.

  • Whether the Crown had established a legitimate forensic purpose for access to documents produced under the orders to produce.
  • Whether client legal privilege under s 119 of the Evidence Act 1995 (NSW) attached to specific documents and, if so, whether that privilege had been lost or waived.
  • Which documents, if any, the Crown was entitled to access.

Decision

On legitimate forensic purpose, the court applied the established principle that the Crown must demonstrate a purpose going beyond speculation or curiosity. Because E was now deceased and unavailable for cross-examination, the Crown had a clear interest in examining the circumstances in which the affidavit was prepared and executed. Documents capable of shedding light on that process, including those touching on E's credibility and the conduct of those who attended him, met the legitimate forensic purpose threshold.

On client legal privilege, the court assessed each document or group of documents individually. Privilege under s 119 protects confidential communications made for the dominant purpose of providing professional legal services in connection with proceedings. The court found that privilege attached to a number of documents, including correspondence between the applicant's legal representatives concerning the preparation and transfer of materials related to the appeal, and emails concerning the preparation of a witness affidavit and a recorded conference with E.

For other documents, the court was not satisfied that privilege had been established or, where the documents were created by or for the Crown itself, that any legitimate forensic purpose existed. The court granted the Crown access to a defined subset of documents produced by the barrister and the legal clerk, while declining access to those properly covered by privilege or lacking forensic relevance.

The court also acceded to the applicant's request for a seven-day stay before any access orders took effect, to allow the applicant to consider whether to seek determination of the matter by the full Court under s 22(2) of the Criminal Appeal Act 1912 (NSW).

Orders Made

  • After seven days from the date of judgment, the Crown is permitted access to the following documents:
  • From Ms Dymphna Hawkins: documents B, C, G, H, S, T, U, X, Y and MM
  • From Mr Robert Candelori: documents H, I and K

Key Takeaways

  • Legitimate forensic purpose was established where documents related to the credibility of a deceased witness whose affidavit formed a ground of appeal, particularly because cross-examination of that witness was no longer possible.
  • Client legal privilege under s 119 of the Evidence Act 1995 (NSW) attached to confidential communications between legal representatives made for the dominant purpose of providing legal services in connection with the appeal proceedings.
  • Where privilege was found to apply and no basis for its loss was demonstrated, access by the Crown was refused regardless of any potential forensic relevance.
  • A seven-day stay of access orders was appropriate to preserve the applicant's ability to seek a referral to the full Court under s 22(2) of the Criminal Appeal Act 1912 (NSW).
  • Documents created by the Crown itself, produced in response to orders to produce, were found to lack legitimate forensic purpose for the Crown's own access, and the applicant's objections to those documents did not improve his credibility in opposing access to other materials.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 22
- Evidence Act 1995 (NSW), Pt 3.10, ss 75, 117, 119, 131A, 142

Cases:
- Alister v The Queen [1984] HCA 85; 154 CLR 404
- Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2) [2014] FCA 481; 312 ALR 403
- Attorney-General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; 182 A Crim R 536
- Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
- Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2009] NSWSC 225; 74 NSWLR 469
- Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162
- Commissioner for Railways v Small (1938) 38 SR (NSW) 564
- Morony v Reschke [2014] NSWSC 359
- Perish v R; Perish v R; Lawton v R [2014] NSWCCA 233
- R v Saleam (1989) 16 NSWLR 14
- Regina v Saleam [1999] NSWCCA 86
- Re Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) [2006] NSWSC 899; 203 FLR 1