Citation: Nadere v State of New South Wales [2015] NSWDC 336
Court: District Court of New South Wales
Date: 20 November 2015
Judge: Neilson DCJ
Background
The plaintiff brought civil proceedings against the State of New South Wales, with the underlying claim related to a prosecution that had been discontinued in his favour in June 2012. The Director of Public Prosecutions (DPP) had withdrawn charges against the plaintiff on 19 June 2012, and the defendant's defence pleaded that this termination was on discretionary grounds.
During interlocutory proceedings, the plaintiff sought access to documents held by the Office of the DPP (ODPP), including internal legal advice prepared by the ODPP solicitor handling the matter. The plaintiff also sought access to unredacted portions of a case report entered into the NSW Police computerised records system known as COPS, which contained a summary of the legal advice given by the ODPP solicitor to police regarding the reasons for discontinuing the prosecution.
The defendant claimed legal professional privilege over both the internal ODPP documents and the redacted portions of the COPS record. The plaintiff conceded privilege attached prima facie but argued it had been waived in two distinct ways.
Legal Issues
- Whether the DPP waived legal professional privilege over internal advice by disclosing, in response to particulars, that the prosecution was discontinued on "discretionary reasons"
- Whether entering a summary of privileged legal advice into the COPS database constituted disclosure to a third party sufficient to waive privilege under section 122 of the Evidence Act 1995 (NSW)
Decision
On the first issue, the court rejected the argument that the decision to discontinue the prosecution itself waived the underlying legal advice. Neilson DCJ reasoned that a lawyer's opinion about the strength of a case is not disclosed simply because proceedings are discontinued, just as it would not be disclosed in the course of a contested hearing. The fact that some discretionary consideration led to the discontinuance did not, in the court's view, expose the substance of any legal advice on which that decision was based.
On the second issue, the court examined an unredacted copy of the COPS case report and found that it clearly recorded the substance of legal advice given by the ODPP solicitor to the investigating officer, Detective Senior Constable Hicks. The document was marked "in confidence" and no person other than the ODPP solicitor and, subsequently, the defendant's current solicitor had accessed it since the final entries were made on 20 June 2012, the day after the prosecution was discontinued.
The court took judicial notice that COPS is not publicly available and that any internal access is automatically recorded. Applying the principle from Seven Network Ltd v News Ltd, Neilson DCJ held that disclosure of legal advice from one officer to another within the same organisational structure does not constitute disclosure to "another person" so as to waive privilege. The ability of other police officers to access the report in theory did not amount to a waiver, particularly given that no such access had occurred.
Orders Made
- The notice of motion filed on 14 October 2015 was dismissed
- The plaintiff was ordered to pay the defendant's costs
- Exhibit 2-2 (the unredacted COPS document) was returned to the defendant's solicitor
Key Takeaways
- The District Court confirmed that a decision to discontinue a prosecution does not, without more, waive legal professional privilege over the internal legal advice that informed that decision.
- Under section 122 of the Evidence Act 1995 (NSW), waiver requires disclosure of privileged material to a person outside the privilege relationship; communication between officers within the same organisation does not meet that threshold.
- Recording legal advice in a restricted internal police database (COPS) does not constitute disclosure to "another person" for the purposes of waiver, provided access is controlled and monitored.
- The principle drawn from Seven Network Ltd v News Ltd [2005] FCA 864, that internal corporate disclosure does not destroy privilege, was applied in this context to communications between the ODPP and police as part of a prosecution function.
- Actual access to a document, rather than theoretical accessibility, was treated as the relevant consideration in assessing whether any waiver had occurred.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), section 122
Cases
- Seven Network Ltd v News Ltd [2005] FCA 864
- Arrow Pharmaceuticals Ltd v Merck and Co Inc [2004] FCA 1131
Secondary Sources
- Stephen Odgers, Uniform Evidence Law (11th ed)