Citation: R v Gould [2018] NSWDC 539
Court: District Court of New South Wales
Date: 2 August 2018
Judge(s): Norrish QC DCJ
Background
The accused stood trial on charges of giving false testimony and attempting to pervert the course of justice. A key prosecution witness, a co-accused from earlier related proceedings, had received an undertaking from the Commonwealth Director of Public Prosecutions (CDPP) in February 2015 in exchange for his cooperation. Both the Crown and defence identified the circumstances surrounding that undertaking as central to the trial.
On 27 July 2018, the accused issued a subpoena to the CDPP's office seeking documents relating to communications between the CDPP and the legal representatives of the prosecution witness. Those representatives had met with CDPP officers in late 2013 and December 2013, purportedly without instructions from their client, to discuss potential cooperation and the prospect of an indemnity.
The Crown moved to set aside the subpoena on two grounds: first, that the accused had not established a legitimate forensic purpose; and second, that even if such a purpose existed, the documents were protected by legal professional privilege under the Evidence Act.
Legal Issues
- Whether the accused established a legitimate forensic purpose for the subpoena, including whether the documents were "on the cards" to materially assist the defence
- Whether the documents were protected by legal professional privilege under the Evidence Act
- Whether the CDPP's duty of disclosure overrode any such privilege claim
Decision
Issue 1: Legitimate Forensic Purpose
The court accepted that the accused bears the onus of establishing a legitimate forensic purpose and that the documents must be "on the cards" to materially assist the case, meaning the prospect of assistance falls within a range from barely probable to highly probable (at [15]-[16]). The court found that purpose was established here. The circumstances surrounding the granting of the undertaking to the witness, including how, why, and when the decision was made, were directly relevant to the trial (at [17]-[18]). Both the Crown and defence had raised the undertaking prominently in their opening addresses, and the jury was to be warned about it (at [19]-[21]).
The court examined documents produced in response to the subpoena and found that notes from a conference on 11 December 2013, and a 12-page submission prepared by counsel acting for the witness dated 19 December 2013, contained information about potential crimes including perjury and attempting to pervert the course of justice (at [34]-[35]). Those matters connected directly to the charges the accused now faced. The court rejected the Crown's submission that the documents were relevant only to the earlier, withdrawn charges, finding instead that they had a clear connection to the current proceedings and could be interpreted as a platform for subsequent negotiations (at [31]-[40]).
Issue 2: Legal Professional Privilege
The court noted relevant provisions of the Evidence Act (ss 117, 119 and 122) and acknowledged the discretion of the Director described in R v Petroulias (No 22) (at [25]-[26], [50]). However, it found it unnecessary to conduct a detailed privilege analysis in the circumstances.
Issue 3: Duty of Disclosure
The court held that the CDPP's duty of disclosure prevailed over the privilege claim (at [42]). That duty extended to disclosing material affecting the credibility or reliability of a prosecution witness, and the circumstances in which a benefit or concession was obtained were intrinsically connected to that obligation. The court also found that the witness's statement did not provide a complete picture of the circumstances in which he came to adhere to the undertaking and provide evidence (at [47]-[48]).
Orders Made
- Access granted on a limited basis to some of the subpoenaed documents
Key Takeaways
- The District Court confirmed that an accused issuing a subpoena must establish a legitimate forensic purpose and show it is "on the cards" that the documents will materially assist the case, with that standard spanning a range from barely probable to highly probable (at [15]-[16]).
- Where the circumstances surrounding a prosecution witness's undertaking or indemnity are placed squarely in issue by both parties at trial, documents relating to the negotiations leading to that undertaking can satisfy the legitimate forensic purpose requirement (at [17]-[21]).
- A claim of legal professional privilege over communications between a prosecution witness's lawyers and the CDPP may be overridden by the CDPP's duty of disclosure, particularly where the material bears on the credibility or reliability of a Crown witness (at [42]).
- Documents produced under subpoena revealed that representations made on behalf of the witness, apparently without client instructions, touched on matters central to the current charges rather than being confined to earlier withdrawn proceedings. The court found the Crown's contrary submission did not fully appreciate the significance of that material (at [31]-[32], [39]-[40]).
- A prosecution witness's statement that does not fully address the circumstances in which cooperation was agreed may leave important context about the witness's credibility and motivations unresolved, supporting access to surrounding documents (at [47]-[49]).
Legislation and Cases Referenced
Legislation
- Evidence Act
Cases
- Gould v DPP(Cth) [2018] NSWCCA 109.
- R v Petroulias (No 22) (2007) 176A Crim R 309
- R v Saleam (1989) 16 NSWLR 14