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Supreme Court 28 October 2019

R v Kinghorn (No 5)

[2019] NSWSC 1473

Public order & justice offences
PRACTICE AND PROCEDURE SUBPOENAS CLAIMS FOR PRIVILEGE

Citation: R v Kinghorn (No 5) [2019] NSWSC 1473
Court: Supreme Court of New South Wales
Date: 28 October 2019
Judge: Adamson J

Background

This decision is the fifth in a series of rulings in a criminal prosecution brought by the Commonwealth Director of Public Prosecutions (DPP). The accused had applied for a permanent stay of proceedings, and the DPP, the Commissioner of Taxation, and the Australian Federal Police each sought to maintain privilege over a range of documents produced under subpoena.

In the immediately preceding decision, R v Kinghorn (No 4) [2019] NSWSC 1420 (the "Privilege Reasons"), Adamson J ruled on a sample of 20 documents. A central concept throughout these proceedings is what the court calls "imputed waiver": the principle that privilege may be lost, not by express disclosure, but because maintaining it would be inconsistent with the DPP's conduct of the prosecution and its opposition to the stay application.

The DPP sought rulings on a further bundle of documents (MFI 15) to inform future access decisions and to provide a broader record for any appeal under section 5F of the Criminal Appeal Act 1912 (NSW). Before turning to those new rulings, the court also reconsidered one of its earlier rulings on its own initiative.

Legal Issues

  • Whether the court has jurisdiction to revisit and vary one of its own earlier privilege rulings before access is granted.
  • Whether each document in the new bundle (MFI 15) attracts legal professional privilege under sections 117, 118, or 119 of the Evidence Act 1995 (Cth) or at common law.
  • Whether privilege over any part of those documents has been lost by imputed waiver, given the DPP's conduct in maintaining the prosecution and opposing the stay application.

Decision

Issue 1: Court-Initiated Variation of Earlier Ruling on Document 16

On reviewing the Privilege Reasons, Adamson J identified an error in the ruling on document 16. The court noted its inherent jurisdiction to recall a judgment or order on its own initiative where the judge believes he or she has erred in a material matter, citing Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, and confirmed that this course is available where the error can be corrected without expensive appellate proceedings (at [6]). Because the access orders had been stayed by consent before any access was actually granted, the court was satisfied it remained open to vary the ruling (at [7]).

The error was that the earlier ruling had found imputed waiver over the whole of a legal advice (document 16), when only those parts of the advice touching on section 264 income tax examinations of the accused had given rise to the inconsistency underpinning imputed waiver. The court varied the ruling to confine access to only those specific portions of the document where maintenance of privilege would be inconsistent with the DPP's conduct of the proceedings (at [9]-[10]).

Issue 2: Rulings on Documents in MFI 15

The new bundle comprised legal advices and internal DPP documents. The court found that most documents attracted privilege as communications prepared by lawyers for the dominant purpose of providing legal advice or litigation advice. For documents where no part engaged the s 264 examination issue, privilege was upheld in full with no imputed waiver, including the Peter Neil SC advice of 29 August 2013 (at [15]), the supplementary Neil advice of 25 September 2013 (at [16]), the undated Neil and Ranken joint advice (at [18]), and the three joint advices and internal minute concerning the Queensland Court of Appeal's decision in R v Leach (at [39]-[43]).

For documents that did engage the use or dissemination of the section 264 examinations, the court applied a targeted approach: imputed waiver was confined to the specific passages where disclosure of the DPP's reasoning or conclusions about those examinations would be inconsistent with the prosecution's position. Examples include specified passages in the AFP cover letter of 19 November 2015 (at [19]), the undated Ginges memorandum (at [22]-[25]), the Ginges memorandum of 28 February 2017 where only the first sentence of paragraph 20 was affected (at [26]), and the committal report of 11 July 2018 where the court carefully declined to extend imputed waiver beyond identified passages despite substantial discussion of the examinations (at [35]-[37]).

Issue 3: Documents with No Imputed Waiver Despite Referential Links

The court found no imputed waiver in respect of the draft unsigned statement of George Montanez, even though it was referred to in emails that were themselves subject to imputed waiver (at [33]). Similarly, the disclosure certificate signed by Federal Agent Hiscoe attracted no imputed waiver (at [38]).

Orders Made

  • Rulings on privilege made in respect of documents in MFI 15.
  • The earlier ruling on document 16 (CDP.501.001.2776) varied to confine imputed waiver to specified portions only.
  • Parties requested to provide agreed draft short minutes incorporating all rulings, including the variation; if agreed, orders to be made in chambers.

Key Takeaways

  • A superior court has inherent jurisdiction to recall or vary its own judgment on its own initiative before access is actually granted, where the judge is satisfied that a material error was made and no party is prejudiced by the correction. The Supreme Court exercised that jurisdiction here without requiring the parties to apply or to be heard, given the variation benefited the privilege-claiming party and the access orders remained stayed (at [6]-[7]).

  • Imputed waiver of legal professional privilege operates by reference to inconsistency: it arises only where maintaining privilege over a particular portion of a document would be inconsistent with the party's conduct of the proceedings. It does not automatically extend to an entire document merely because some parts of it are tainted (at [9]-[10]).

  • Where a legal advice addresses the admissibility or use of specific evidence that is central to a stay application, the court's conclusions on admissibility may be subject to imputed waiver even if the underlying legal reasoning retains its privilege (at [22]).

  • A document referred to in a communication that is itself subject to imputed waiver does not automatically lose its privilege. Each document is assessed individually on its own terms (at [33]).

  • Under sections 117, 118, and 119 of the Evidence Act 1995 (Cth) and the common law, the dominant purpose test governs whether a document attracts privilege in the first place; only after that threshold is met does the question of imputed waiver arise.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (Cth), ss 117, 118, 119

Cases
- Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
- Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4
- Nominal Defendant v Livaja [2011] NSWCA 121
- R v Kinghorn (No 4) [2019] NSWSC 1420
- R v Leach [2019] 1 Qd R 459; [2018] QCA 131