AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 2 October 2015

Director of Public Prosecutions (NSW) v Blackman

[2015] NSWLC 25

Domestic & family violencePublic order & justice offences
COMMITTAL PROCEEDINGS CHARGES WITHDRAWN APPLICATION FOR COSTS LEGITIMATE FORENSIC PURPOSE CLAIM OF LEGAL PROFESSIONAL PRIVILEGE

Citation: [2015] NSWLC 25
Court: Local Court of New South Wales
Date: 2 October 2015
Judge(s): Favretto LCM

Background

A police officer faced seven Court Attendance Notices (CANs) alleging assault of his former wife. The Director of Public Prosecutions (DPP) withdrew all seven CANs on 14 July 2015, after which the officer (the applicant) applied for a costs order against the DPP under section 214 of the Criminal Procedure Act 1986.

To support the costs application, the applicant issued subpoenas seeking documents from both the Commissioner of Police and the DPP. The subpoena to the Commissioner was resolved by partial production. The dispute before the court concerned part of the subpoena directed to the DPP.

The DPP objected on two grounds: that the subpoena lacked a legitimate forensic purpose (LFP), and that the documents sought were protected by legal professional privilege (LPP). The applicant argued there was a sufficient LFP and that the DPP had impliedly waived privilege through partial disclosure of documents relating to the decision to withdraw.

Legal Issues

  • Whether the documents sought by the subpoena to the DPP had a legitimate forensic purpose in the context of a section 214 costs application
  • Whether documents containing legal advice and opinion on the complainant's credibility satisfied the legitimate forensic purpose test
  • Whether the DPP's partial disclosure of the Direction of 30 June 2015 and related documents amounted to an imputed waiver of legal professional privilege under section 122(2) and (3) of the Evidence Act 1995
  • Whether documents created by police under Part 8A of the Police Service Act 1990 could be compelled by subpoena

Decision

Issue 1: Legitimate forensic purpose generally

The court confirmed that the test under section 214 is objective, drawing on the language of "reasonable" and "unreasonable" used throughout the provision (at [10]). The court accepted that documents recording the evidentiary basis for decisions to institute, maintain, and withdraw the charges had a legitimate forensic connection to the costs question (at [11], [14]). Those foundation documents, including anything touching on the Deputy Director's concession that "it is not a strong case," plainly bore on the reasonableness of the prosecution (at [14]).

Issue 2: Documents containing legal advice and opinion on credibility

The court drew a distinction between documents recording evidence and those recording legal opinion, including credibility assessments. It held that legal opinions, even if favourable to the applicant, amount to no more than opinion and cannot be said to be likely to materially assist the costs application on an objective analysis (at [16]). The part of the subpoena seeking documents containing legal advice and opinion on credibility was rejected for lacking a legitimate forensic purpose (at [20]). One narrow exception was noted: documents evidencing that the prosecution was initiated or maintained for an improper purpose would fall outside this rejection (at [19]).

Issue 3: Imputed waiver of legal professional privilege

The court applied the framework in Cooper v Hobbs [2013] NSWCA 70 and R v Seller; R v McCarthy [2015] NSWCCA 76, treating the question as one of fact and degree. It found that the Direction of 30 June 2015 disclosed only the Deputy Director's discretionary reasons for withdrawal, and not the substance or reasoning of any legal advice underpinning that decision (at [30]). The references in the Direction to having read legal reports were made in passing, without deploying or reinforcing the reasoning of those advices for forensic advantage (at [30]). The disclosure of the Direction and related documents was made to inform the court on the costs application and was not inconsistent with maintaining privilege over the underlying legal advice (at [32]). Accordingly, the court determined that legal professional privilege had not been waived (at [33]).

Issue 4: Police complaint investigation documents

Documents created for the purposes of a complaint investigation under Part 8A of the Police Service Act 1990 are subject to statutory privilege and cannot be compelled. The applicant did not press this part of the subpoena once the objection was raised (at [7], [8]).

Orders Made

  • The part of the subpoena seeking documents containing legal advice and opinion on credibility was rejected as not satisfying the legitimate forensic purpose test.
  • Legal professional privilege over the remaining documents not produced was not found to have been waived. Determination made in favour of the DPP.

Key Takeaways

  • The test for costs orders under section 214 of the Criminal Procedure Act 1986 is objective, measured against the standard of reasonableness rather than the subjective intentions of the prosecutor (at [10]).
  • Documents recording the evidentiary basis for decisions to institute, maintain, and withdraw charges have a legitimate forensic connection to a section 214 costs application, but legal opinions (including credibility assessments) do not satisfy the legitimate forensic purpose test on that application (at [14], [20]).
  • Partial disclosure by the DPP of a Direction setting out discretionary reasons for withdrawal does not amount to imputed waiver of privilege over underlying legal advices, provided the substance and reasoning of those advices has not been disclosed or deployed (at [30], [32], [33]).
  • Under section 122(3) of the Evidence Act 1995, the waiver analysis turns on whether the "substance" of the privileged communication has been disclosed; passing references to the existence of legal reports, without revealing their content or reasoning, will not ordinarily constitute such disclosure (at [30]).
  • Documents created by police for the investigation of complaints under Part 8A of the Police Service Act 1990 are protected by statutory privilege and cannot be compelled through subpoena, operating through the combined effect of several procedural provisions (at [8]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967, s 3
- Crimes (Appeal and Review) Act 2001, s 70
- Criminal Procedure Act 1986, s 214, 225
- Evidence Act 1995, ss 118, 122
- Police Service Act 1990, s 170
- Supreme Court Act 1970, s 17, Third Schedule

Cases
- Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12
- Attorney-General (NSW) v Chidgey [2008] NSWCCA 65
- Beckett v State of New South Wales (No 3) [2013] NSWSC 791
- Commissioner of Police v Hughes [2009] NSWCA 306
- Cooper v Hobbs [2013] NSWCA 70
- El-Zayet v The Queen [2014] NSWCCA 298
- Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353
- Halpin v Department of Gaming and Racing [2007] NSWSC 815
- Lam v R [2015] NSWCCA 143
- Liristis v Gadelrabb [2009] NSWSC 441
- Osland v Secretary to the Department of Justice [2008] HCA 37
- Pi v State of New South Wales (No 4) [2015] NSWSC 1410
- R v Manley [2000] NSWCCA 196
- R v McFarlane (Supreme Court of NSW, Blanch AJ, 12 August 1994, unrep)
- R v Saleam [1999] NSWCCA 86
- R v Seller; R v McCarthy [2015] NSWCCA 76