Citation: R v Rogerson; R v McNamara (No 31) [2016] NSWSC 195
Court: Supreme Court of New South Wales
Date: 29 March 2016
Judge: Bellew J
Background
The accused McNamara was in custody following his arrest when he telephoned his daughter. During that call, he discussed details from the autopsy and toxicology reports relating to the deceased, and asked his daughter to relay that information to his solicitor, Hudson Lu, whom she was meeting that afternoon.
The Crown sought to tender a transcript of part of that telephone conversation as evidence at trial. Defence counsel objected, arguing the conversation was protected by client legal privilege under the Evidence Act 1995 (NSW).
Critically, before the call began, a recorded message notified both parties that the conversation would be recorded and might be monitored. It was accepted that McNamara heard that message and therefore knew of the recording when he spoke.
Legal Issues
- Whether the conversation constituted a "confidential communication" within the meaning of s 117 of the Evidence Act 1995 (NSW)
- Whether the dominant purpose of the conversation was the provision of professional legal services, so as to attract litigation privilege under s 119
- Whether any privilege had been lost because McNamara, knowing the call was being recorded, had "knowingly and voluntarily" disclosed the substance of the conversation under s 122(4)
Decision
Bellew J found that the conversation did constitute a confidential communication. The daughter was acting as an agent or conduit between McNamara and his solicitor, and the circumstances of the communication carried an implied obligation of confidentiality.
On the dominant purpose question, his Honour was satisfied that the communication would not have been made but for the purpose of providing instructions and information to the solicitor for use in McNamara's legal representation. The entirety of the relevant exchange concerned forensic matters McNamara wanted his lawyer to address. That was sufficient to establish dominant purpose under s 119.
The most contested issue was whether privilege had been lost under s 122(4), which provides that privilege is waived where a person "knowingly and voluntarily" disclosed the substance of the communication to another person. The Crown argued that simply making the call, with knowledge of the recording, amounted to such disclosure. Bellew J rejected that as an oversimplification. His Honour accepted that McNamara's subjective intention is a relevant consideration, drawing on Sovreign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521, where Austin J held that the "knowingly and voluntarily" language does not apply where everything points to an intention to claim privilege.
Although McNamara did not give evidence on the application, his Honour concluded that the nature and content of the conversation, and its dominant purpose, pointed to an intention that it remain privileged. The mere fact that McNamara knew the call was recorded did not, without more, establish that he knowingly and voluntarily waived privilege over a communication directed to his own solicitor through a family intermediary. The objected-to portion of the conversation was excluded.
Orders Made
• The evidence of that part of the conversation to which objection was taken shall be excluded.
Key Takeaways
- A communication made through a third-party intermediary (such as a family member) can still attract litigation privilege under s 119 of the Evidence Act 1995 (NSW), provided the dominant purpose of the communication is the provision of legal services.
- The "dominant purpose" test requires that the communication would not have been made but for the purpose of obtaining or providing legal services. Where the entirety of the relevant exchange concerns instructions or information directed to a solicitor, that purpose may be satisfied.
- Under s 122(4), "knowingly and voluntarily" disclosing the substance of a privileged communication requires more than simply being aware that a jailhouse call is recorded. A person's subjective intention to maintain privilege remains a relevant consideration.
- Privilege is not automatically lost because a communication takes place in a monitored or recorded environment. The Crown's argument that awareness of monitoring equated to voluntary disclosure was rejected as an oversimplification.
- Where all available circumstances point to an intention to assert privilege, a court may decline to find waiver even in the absence of evidence from the privilege-holder.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 117, 119, 122
Cases
- Asahi Holdings (Australia) Pty Ltd v Pacific Equity Parties Pty Ltd [2013] FCA 998
- Boensch v Pascoe [2007] FCA 532
- Esso Australia Resources Ltd v Federal Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49
- Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404
- Re Griffin (1887) 8 LR (NSW) 132
- R v Braham and Mason [1976] VR 547
- R v Sharp [2003] NSWSC 1117; (2003) 143 A Crim R 344
- Sovreign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521
- Sparnon v Apand Pty Ltd (1996) 68 FCR 322
- State of NSW v Jackson [2007] NSWCA 279
- Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47
- Tabcorp Holdings Ltd v Victoria [2013] VSC 302
- Westpac Banking Corp v 789 TEN Pty Ltd [2005] NSWCA 321