Citation: R v Cranston (No 5) [2020] NSWSC 1105
Court: Supreme Court of New South Wales
Date: 24 August 2020
Judge: Payne J
Background
Four accused, referred to here by their roles in the proceedings, faced trial on two counts: conspiracy to dishonestly cause a financial loss to the Commonwealth, and conspiracy to deal with the proceeds of crime. One of the alleged co-conspirators was a lawyer associated with a law firm called Clamenz Lawyers. A significant volume of intercepted telephone recordings and surveillance device recordings formed part of the Crown's brief of evidence.
Two of the accused (an individual represented by counsel and another who appeared for himself) sought to have material in the Crown brief excluded on the basis of client legal privilege. Their argument was that communications involving the Clamenz Lawyers solicitor were protected because that solicitor was acting in a legal advisory capacity. The privilege claim covered dozens of recorded conversations, emails, and other documents.
The procedural history was lengthy. Pre-trial directions hearings spanned several months, complicated in part by COVID-19 restrictions. The court made careful orders giving the applicants ample time to file evidence and submissions in support of their claims.
Legal Issues
- Whether client legal privilege attached to communications recorded by telephone intercept and surveillance devices, where one participant was a lawyer alleged to be a co-conspirator
- Whether the communications were made for the dominant purpose of obtaining legal advice, as required for privilege to apply under s 118 of the Evidence Act 1995 (NSW)
- Whether the fraud/crime exception under s 125 of the Evidence Act applied to defeat any privilege that might otherwise have attached
- Whether the applicants' reliance on the privilege against self-incrimination (under s 128 of the Evidence Act) excused them from adducing evidence in support of their privilege claims
Decision
The application was ultimately withdrawn before the court ruled on its merits. However, Payne J recorded the circumstances in detail, making clear why the application was untenable.
The applicants filed no evidence in support of their claims, even on an information and belief basis. No documents were tendered. The submissions they did file had no evidentiary status, and those submissions did not attempt to address the foundational requirements of any privilege claim in relation to any specific communication beyond the bare fact that a Clamenz Lawyers solicitor was a participant.
The applicants sought to justify this evidentiary vacuum by asserting that adducing the necessary evidence would require them to incriminate themselves. Payne J noted that, even assuming in the applicants' favour that the certificate procedure under s 128 of the Evidence Act was not available to them, that position would not change at any future point before or during trial. An adjournment would have left them in exactly the same position. The underlying difficulty was structural, not temporal.
Given that the evidentiary foundation for the privilege claim was absent and could not be remedied, counsel for one applicant withdrew the privilege objection in full. The other applicant did likewise. The court recorded the withdrawal without determining the substantive questions of privilege.
Orders Made
The key orders made during the pre-trial directions process included:
- Accused Menon to write by 26 May 2020 to possible privilege holders (not on the indictment), providing schedules of witnesses, documents, recordings, and digital items on which the Crown proposed to rely
- The matter was listed on 5 June 2020 for directions on privilege issues, at which possible privilege holders could apply for access to Crown material and the court could make directions for determination of privilege
- Any privilege claim by the two applicants, including claims on behalf of entities they allegedly controlled, was to be filed and served by 4pm on 9 June 2020
- Evidence and written submissions in support of any privilege claim were to be filed and served by 4pm on 12 June 2020
- Any Crown response, including evidence and written submissions, was to be filed and served by 4pm on 3 July 2020
- Both applicants ultimately withdrew their privilege objections entirely
Key Takeaways
- A bare assertion that a lawyer was involved in recorded communications is insufficient to establish client legal privilege; the applicant must adduce evidence addressing the foundational requirements, including the dominant purpose of the communication.
- The Supreme Court recorded that privilege claims made without supporting evidence, even on an information and belief basis, cannot be sustained regardless of how broadly or extensively they are framed.
- Reliance on the privilege against self-incrimination under s 128 of the Evidence Act does not provide a general escape from the obligation to adduce evidence in support of a privilege claim, particularly where the same obstacle would exist at any future hearing date.
- Where one alleged co-conspirator is a lawyer, communications involving that lawyer are not automatically privileged; the dominant purpose requirement and the crime/fraud exception under s 125 remain live questions.
- Procedural fairness was observed throughout: the court provided multiple opportunities and detailed directions before the applicants ultimately withdrew, and the judgment records the procedural history so that the withdrawal cannot later be treated as anything other than a considered step.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 118, 125, 128, 133, 142(1)
- Criminal Code (Cth), ss 11.5(1), 135.4(3), 400.3(1)
- Proceeds of Crime Act 2002 (Cth)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8(1)
Cases:
- R v Cranston (No 2) [2020] NSWSC 1102
- R v Cranston (No 4) [2020] NSWSC 1104