Citation: R v Gatt (No 6) [2018] NSWSC 487
Court: Supreme Court of New South Wales
Date: 30 April 2018
Judge(s): Schmidt J
Background
The accused, Mr Gatt, was on trial for murder. The Crown called as a prosecution witness Mr Borg, who had already been convicted and sentenced for his role in the same murder. Mr Borg had received a sentencing discount both for his guilty plea and for his promised assistance at Mr Gatt's trial.
During the proceedings, Mr Gatt sought access to two letters sent by Mr Borg's solicitors to the Director of Public Prosecutions in the course of plea negotiations. Those negotiations had preceded Mr Borg's eventual guilty plea to the murder charge. The letters were said to be relevant because Mr Gatt was challenging Mr Borg's credibility and reliability in cross-examination.
The Crown had already disclosed some portions of the letters to Mr Gatt before trial, including content revealing that Mr Borg had offered to plead guilty to lesser charges, provide a further statement, and give evidence against Mr Gatt. The dispute concerned whether the remaining, undisclosed portions of the letters had to be produced.
Legal Issues
- Whether the two letters, or the undisclosed portions of them, were protected by legal professional privilege at common law
- Whether "without prejudice" privilege applied to plea negotiations in criminal proceedings
- Whether legal professional privilege had been waived by prior partial disclosure of the letters
- Whether the letters were privileged under section 119 of the Evidence Act 1995 (NSW)
- Whether the "Cox v Railton" exception (no privilege in communications made to facilitate crime or fraud) applied to admissions contained in the letters
- Whether section 123 of the Evidence Act entitled Mr Gatt, as a co-accused (or former associated defendant), to adduce the letters
- Whether the Crown was obliged to produce the balance of the letters in answer to Mr Gatt's call
Decision
Schmidt J held that, apart from the portions already disclosed, the letters were privileged at common law. They had been prepared and sent by Mr Borg's solicitors solely for the purpose of the criminal proceedings, in order to persuade the prosecutor to accept a plea to a lesser charge rather than pursue the murder charge. That purpose fell squarely within the scope of legal professional privilege as described in Attorney-General (NT) v Maurice.
On the question of admissions, the court accepted that there is no privilege attaching to admissions of criminal conduct, and that this was why the Crown had been correct to disclose the portions of the letters identifying the offences Mr Borg admitted committing. However, the balance of the letters, consisting of submissions by Mr Borg's solicitors urging the exercise of prosecutorial discretion, did not lose their privileged character simply because some parts of the letters had been disclosed.
The court found that privilege had not been waived in respect of the undisclosed portions. Waiver requires conduct by the privilege holder that makes it unfair to maintain confidentiality. Here, Mr Borg had made no voluntary disclosure of the disputed portions to Mr Gatt. The partial disclosure by the Crown of the admissions did not extend to waiving the balance of the correspondence.
On the Evidence Act analysis, the court found that even if Mr Borg could be characterised as an "associated defendant" at the time the letters were written, he was no longer one at the time of Mr Gatt's trial, having already been prosecuted and sentenced. Consequently, section 123 did not entitle Mr Gatt to adduce the balance of the letters. In any event, following DPP (Cth) v Galloway, an accused has no right under section 123 to compel production of documents that are privileged under section 119 where that privilege has not been waived. The Crown was therefore not obliged to produce the letters in answer to Mr Gatt's call.
Orders Made
• The Crown was not obliged to produce the letters to Mr Gatt in answer to his call.
Key Takeaways
- Legal professional privilege protects communications made by a solicitor to a prosecutor in the course of plea negotiations, where those communications were prepared solely for the purposes of the criminal proceedings, even in the context of a co-accused's trial.
- Admissions of criminal conduct embedded in privileged documents do not attract privilege and may be disclosable, but partial disclosure of admissions does not automatically waive the privilege attaching to the balance of the same correspondence.
- Under section 123 of the Evidence Act 1995 (NSW), a person must be an "associated defendant" at the time of the trial (not merely at the time the documents were created) to enliven that provision's exception to the section 119 privilege.
- Consistent with Carter v The Managing Partner Northmore Hale Davy and Leake (1995) 183 CLR 121, an accused cannot compel production of documents subject to legal professional privilege by subpoena or call, even where those documents may assist in challenging a prosecution witness's credibility.
- The court confirmed that without prejudice privilege can apply to plea negotiations in criminal proceedings, analogously to its operation in civil settlement negotiations.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 87, 88, 119, 122, 123, 131
Cases
- Attorney-General (NT) v Kearney (1985) 158 CLR 500
- Attorney-General (NT) v Maurice (1986) 161 CLR 475
- Carter v The Managing Partner Northmore Hale Davy and Leake and Others (1995) 183 CLR 121
- DPP (Cth) v Galloway (a pseudonym) (2014) 46 VR 809
- Fisher & Co v Apollinaris Co (1875) 32 LT 628
- Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512
- Potier v R [2015] NSWCCA 130
- R v Bell; Ex parte Lees (1980) 146 CLR 141
- R v Borg [2017] NSWSC 746
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Winchester (1992) 58 A Crim R 345
- State of New South Wales v Jackson [2007] NSWCA 279
- Towney v Minister for Land & Water Conservation (NSW) (1997) 76 FCR 401
- Warburton v The Director of Public Prosecutions (NSW) [2017] NSWSC 69