Citation: R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066
Court: Supreme Court of New South Wales
Date: 6 August 2015
Judge(s): Bellew J
Background
Two accused, a former police officer and a private investigator, faced trial for murder and large commercial drug supply arising from the death of a young man in May 2014. The Crown alleged the deceased had been shot when delivering approximately 2.7 kilograms of methylamphetamine. A key Crown witness, referred to here as the witness, had previously been represented in separate drug proceedings by a barrister who later produced documents under subpoena.
The subpoena was issued on the application of one of the accused and directed to the former barrister who had acted for the witness in earlier drug charges. The former barrister produced a large volume of material and claimed client legal privilege over much of it. Counsel for one of the accused challenged that claim, but only in respect of specific paragraphs within a police statement the witness had given on 20 June 2014.
The central question before Bellew J was whether the witness had, through statements made to police, waived client legal privilege over communications with his former lawyers.
Legal Issues
- Whether client legal privilege attached to specific paragraphs of the witness's police statement that referred to legal advice and discussions with his lawyers
- Whether the voluntary disclosure of the substance of legal advice in a police statement amounts to waiver of privilege
- Whether disclosing merely the fact of a legal discussion, without revealing its content, constitutes waiver
- Whether disclosing a decision to plead guilty, without expressly linking that decision to legal advice received, amounts to disclosure of the substance of that advice
Decision
Bellew J examined three specific paragraphs of the witness's police statement. The analysis turned on whether each paragraph disclosed the substance of legal advice or merely acknowledged that advice or discussions had taken place.
In relation to paragraph 16 of the statement, the court found that the witness had gone beyond simply noting that advice was received. He had voluntarily disclosed, to a police officer, the substance and detail of advice given to him by his former barrister regarding the obtaining of statements from other persons to assist his defence. That disclosure was inconsistent with maintaining privilege over those communications, and privilege was lost.
Paragraph 17 presented a different situation. The reference to having a discussion "about my case" disclosed nothing more than the fact that a discussion occurred. It did not reveal the substance of what was discussed, nor did it amount to an implied summary of the legal advice. Privilege was therefore maintained over that paragraph.
Regarding paragraph 32, the accused's counsel argued that the witness had waived privilege by disclosing the "end result" of the advice, namely his decision to plead guilty. Bellew J acknowledged that courts have, in some instances, treated disclosure of the conclusion of advice as disclosure of its substance. However, in this instance the witness made no reference to any advice he had received. He merely noted discussions about his case and then stated his decision. Crucially, there was no express or implied link drawn between the decision to plead guilty and any legal advice, so privilege over that paragraph was also maintained.
Orders Made
• No privilege attaches to the matters disclosed by Lam in paragraph (16) of his statement of 20 June 2014.
Key Takeaways
- Voluntary disclosure of the substance and detail of legal advice in a statement to police constitutes conduct inconsistent with maintaining privilege, resulting in waiver under the principles confirmed in Mann v Carnell.
- A mere reference to the fact that a legal discussion occurred, without revealing its content or substance, does not amount to waiver of client legal privilege.
- Disclosing a decision reached (such as a decision to plead guilty) does not by itself constitute disclosure of the legal advice underlying that decision, unless the speaker expressly or impliedly links the decision to the advice received.
- The distinction between disclosing the fact of advice and disclosing the substance of advice is critical to any privilege waiver analysis, and courts will examine the precise language of the relevant communication carefully.
- Where a witness's police statement contains multiple paragraphs touching on legal matters, each paragraph requires separate consideration; waiver of privilege over one part does not automatically extend to other parts.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases:
- Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
- ESSO Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49
- Osland v Secretary Department of Justice [2008] HCA 37; (2008) 234 CLR 275
- Akins v Abigroup Limited (1998) 43 NSWLR 539
- Telstra Corporation Limited v Australis Media Holdings (1997) 41 NSWLR 277
- Fenwick v Wambo Coal Pty Limited (No 2) [2011] NSWSC 353
- Lam v R; Lam v R [2015] NSWCCA 87
- Adelaide Steamship Co Limited v Spalvins (1998) 81 FCR 360
- Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297
- New South Wales v Betfair Pty Limited [2009] FCAFC 160; (2009) 261 ALR 311
- Fort Dodge Australia Pty Limited v Nature Vet Pty Limited [2002] FCA 501
- Ensham Resources Pty Limited v AIOI Insurance Co Limited [2012] FCAFC 191
- Garratt's Limited v Thanga Thangathurai [2002] NSWSC 93
- R v Rogerson; R v McNamara (No 8) [2015] NSWSC 1036