Citation: [2018] NSWSC 297
Court: Supreme Court of New South Wales
Date: 8 March 2018
Judge: Bellew J
Background
This decision arose as a procedural ruling during the murder trial of the accused, who was charged with the murder of the deceased. The Crown's principal witness was Fortunato Gattellari, who had pleaded guilty to his own role in the murder. Gattellari had previously been represented by solicitor Sundip Ghedia, at least until around mid-October 2010 and possibly through to sentencing in 2011.
Central to the trial was an allegation that, at the time of his arrest, Gattellari had demanded that the accused deposit $1 million into the solicitor's trust account to cover legal fees, threatening to implicate the accused in the murder if the money was not paid. Gattellari denied any blackmail but acknowledged requesting the money. Evidence of this request was relevant to Gattellari's credit as a witness.
During cross-examination, Ghedia was asked about conversations with Gattellari in October 2010, including whether Gattellari had initially protested his innocence. Ghedia indicated he would need to refer to his file notes, prompting the accused's senior counsel to seek production of those notes. The Crown objected on the basis of client legal privilege.
Legal Issues
- Whether client legal privilege over Ghedia's file notes and related communications had been waived by Gattellari.
- Whether the scope of any waiver was limited to the specific issue of the $1 million payment request, as the Crown contended.
- Whether the questions sought to be put to Ghedia were permissible under the Evidence Act 1995 (NSW).
Decision
The court focused on a waiver document signed by Gattellari on 10 June 2014. In that document, Gattellari expressly consented to and waived "any legal professional privilege" in respect of Ghedia's representation of him in matters relating to the murder of the deceased. Bellew J found the terms of this waiver to be broad and unqualified, containing no limitation of the kind the Crown suggested.
The Crown argued the waiver should be read as confined to the $1 million payment issue, relying on the forensic purpose that originally motivated the subpoena to Ghedia in 2016. Bellew J rejected this argument. The original forensic purpose of seeking documents did not, in his Honour's view, define or confine the scope of the waiver, particularly given its express and unqualified terms.
Bellew J held that, under s 122(1) of the Evidence Act 1995 (NSW), Gattellari had "consented" to the adducing of the relevant evidence within the meaning of that provision. Alternatively, even if that conclusion were wrong, the execution of the broad waiver amounted to conduct inconsistent with maintaining an objection to the adducing of privileged material, engaging s 122(2). Either pathway led to the conclusion that privilege had been lost.
The court therefore ruled that the questions sought to be put to Ghedia by the accused's senior counsel were permissible and not protected by client legal privilege.
Orders Made
• The questions sought to be put by senior counsel for the accused are permissible and not covered by client legal privilege.
Key Takeaways
- A broad, unqualified written waiver of legal professional privilege will be interpreted according to its express terms; courts will not read in limitations based on the forensic purpose that originally prompted the subpoena or the waiver.
- Under s 122(1) of the Evidence Act 1995 (NSW), a client's express written consent to disclosure is sufficient to displace client legal privilege over the relevant communications.
- Where s 122(1) is not satisfied, s 122(2) provides an alternative basis for loss of privilege: executing a broad waiver of privilege can itself constitute conduct inconsistent with maintaining a privilege objection.
- The Supreme Court confirmed that both s 122(1) and s 122(2) may apply in the alternative to the same factual circumstances, and satisfaction of either is sufficient to displace privilege.
- A prior ruling on privilege in the same proceedings (here, R v Medich (No. 9)) does not foreclose separate privilege questions arising from different documents or different waiver instruments.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), particularly s 122 (Loss of client legal privilege: consent and related matters)
Cases:
- R v Ronald Edward Medich (No. 9) [2016] NSWSC 191