Citation: R v Ronald Edward Medich (No. 9) [2016] NSWSC 1917
Court: Supreme Court of NSW
Date: 16 December 2016
Judge(s): Bellew J
Background
The accused faced trial for murder, with the principal Crown witness being a co-offender who had already pleaded guilty and was serving a sentence. A subpoena was issued to a solicitor who had previously acted for that witness following his arrest in 2010, seeking documents relating to bail and legal fee arrangements.
The Crown's forensic purpose was to explore whether the accused had provided money to the witness to assist with bail and legal fees. That issue was said to bear directly on the witness's evidence at trial, which was due to commence on 30 January 2017.
The solicitor served with the subpoena failed to appear when it was first returnable, produced documents without accompanying correspondence, and then informed the Crown he would not attend the hearing because he was on leave. Bellew J determined the privilege question without any assistance from the solicitor.
Legal Issues
- Whether client legal privilege attached to the documents produced in response to the subpoena under s 119 of the Evidence Act 1995 (NSW)
- Whether any such privilege had been lost under s 122(3) of the Act by reason of the witness's prior voluntary disclosure of the substance of the privileged material
Decision
Issue 1: Whether privilege attached to the relevant document
Of the five documents produced, only the second and third pages of the fifth document fell within the terms of the subpoena and were relevant to the Crown's stated forensic purpose (at [15]-[16]). The court was satisfied that document was confidential in nature and had been prepared for the dominant purpose of allowing the witness to receive legal advice, thereby attracting client legal privilege under s 119 of the Act (at [16]).
Issue 2: Whether privilege had been waived
Section 122(3) of the Act provides that privilege is lost where a person has knowingly and voluntarily disclosed the substance of the evidence to another person (at [17]). Bellew J found that the witness had done precisely that in a statement made to police, where he recounted the substance of the communications that the privileged document recorded (at [17]). Privilege over the fifth document was therefore lost, and both the Crown and the accused's solicitor were entitled to access it (at [17]).
The other documents
The first document did not fall within the scope of the subpoena at all, and its production was noted as a further reflection of the solicitor's unsatisfactory approach (at [11]). The fourth document raised a real question about whether it fell within the subpoena schedule, and the court did not grant access to it (at [14]).
Orders Made
- Access be granted to the fifth document identified at [15] of the judgment.
Key Takeaways
- Under s 122(3) of the Evidence Act 1995 (NSW), a client loses privilege over a communication where they have knowingly and voluntarily disclosed its substance to another person, such as in a statement to police (at [17]).
- The dominant purpose test under s 119 of the Act applied in the usual way: a document prepared predominantly to enable a client to receive legal advice attracts client legal privilege, even where it is produced on subpoena by the former solicitor (at [16]).
- A solicitor's failure to appear in response to a subpoena, failure to provide accompanying correspondence with produced documents, and refusal to attend a hearing due to personal leave were each characterised by Bellew J as falling short of the diligence reasonably expected of an officer of the court (at [4]-[6]).
- Where a solicitor asserts privilege on behalf of a former client but declines to appear, the court may determine the privilege question without the solicitor's assistance, relying on the documents themselves and submissions from other parties (at [6]-[17]).
- Not every document produced in response to a subpoena will fall within its terms; the court examined each document individually against the schedule before ruling on access (at [11]-[16]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Not stated