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Court of Criminal Appeal 24 June 2021

Lazar v R

[2021] NSWCCA 132

Public order & justice offences
LEGAL PROFESSIONAL PRIVILEGE IMPLIED OR IMPUTED WAIVER WAIVER BY DISCLOSURE OF SUBSTANCE HELD WAIVER ESTABLISHED

Citation: [2021] NSWCCA 132
Court: Court of Criminal Appeal, NSW
Date: 24 June 2021
Judge(s): Beech-Jones J

Background

The appellant was convicted in the District Court of an offence under s 319 of the Crimes Act 1900 (NSW) following a judge-alone trial. Before and after his trial, he was found unfit to be tried in separate proceedings. In his appeal against conviction, he argued that a miscarriage of justice may have occurred because he may also have been unfit during the trial itself.

On appeal, his current lawyers indicated they could not obtain instructions from him to waive legal professional privilege over communications between him and his trial lawyers, given his current fitness status. The Crown sought access to documents and communications from those trial lawyers bearing on his fitness during the trial. This created an impasse about whether privilege had been waived at all.

The judgment concerns a procedural application by the Crown for access to documents produced by the appellant's former lawyers in response to Witness Orders issued under the Supreme Court (Criminal Appeal) Rules 2021. The central question was whether, by raising unfitness as a ground of appeal supported by detailed submissions and affidavits, the appellant had waived legal professional privilege over relevant communications with his trial legal representatives.

  • Whether the appellant waived legal professional privilege over communications with his trial lawyers by raising, in his appeal, a ground contending he may have been unfit to stand trial
  • Whether that waiver was implied or imputed from the conduct of the appeal proceedings, including by the disclosure of the substance of those communications
  • Whether the scope of the Witness Orders was appropriate, given they extended beyond the period of the trial itself

Decision

Beech-Jones J found that the appellant had waived legal professional privilege in respect of at least some of his confidential communications with his trial legal representatives. The waiver arose from the appellant's own conduct in mounting the appeal: by filing detailed written submissions and affidavits raising the fitness ground, he put the substance of those privileged communications directly in issue. That is the form of waiver commonly described as implied or imputed waiver, or waiver by disclosure of substance, drawing on the principles in Mann v Carnell (1999) 201 CLR 1 and related authorities.

The court drew on the principle that privilege may be waived when a party acts inconsistently with maintaining the confidentiality that the privilege exists to protect. Putting the communications between a client and their trial lawyers squarely in contest, through the vehicle of appeal grounds and supporting affidavits, creates precisely that inconsistency.

However, the court also found that the scope of the Witness Orders was wider than necessary to resolve the waiver question. The orders sought documents from a period extending well beyond the trial itself, and not all documents produced by the former lawyers had been assessed. Beech-Jones J excused the former lawyers from further compliance with the Witness Orders until further order, with directions for the parties to confer on a more targeted means of obtaining the relevant evidence.

The judgment also addressed, at least briefly, the distinct position that arises in fitness hearings under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, noting that waiver questions in that context are governed by s 122(3) of the Evidence Act 1995 or its common law equivalent, rather than the broader implied waiver doctrine applied here.

Orders Made

  • The former trial lawyers (William Brewer, Barbara Coorey, Cassandra Simone, and Bryan Wrench) were excused from further compliance with the Witness Orders dated 8 June 2021, until further order.
  • The parties were directed to confer on the means by which the Crown could obtain further evidence in response to the affidavits filed on behalf of the appellant.
  • The parties were directed to advise the Court by 10 July 2021 whether they objected to publication of the judgment on Caselaw, and to address any application under s 7 of the Court Suppression and Non-publication Orders Act 2010.
  • The matter was listed for further directions at 9:00am on 22 July 2021 before the Registrar of the Court of Criminal Appeal.
  • An interim suppression order under s 10 of the Court Suppression and Non-publication Orders Act 2010 was noted over certain medical reports, subject to further submissions if an extension beyond 22 July 2021 was sought.

Key Takeaways

  • Waiver of legal professional privilege can be implied where an appellant places the substance of privileged communications with trial lawyers directly in issue, such as by filing detailed grounds of appeal and supporting affidavits contending unfitness at trial.
  • The principle from Mann v Carnell applies: inconsistency between the act of raising a privilege-dependent ground and the maintenance of confidentiality is sufficient to establish implied waiver, even where no express waiver is given.
  • A party's inability to provide express instructions waiving privilege (for example, due to current unfitness) does not preclude a finding that privilege has been waived by conduct already undertaken in the proceedings.
  • Witness Orders issued under the Supreme Court (Criminal Appeal) Rules 2021 must be appropriately scoped: orders extending to documents outside the relevant trial period were found to be broader than necessary for the waiver determination.
  • In formal fitness hearings under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the court indicated that privilege waiver questions are addressed under s 122(3) of the Evidence Act 1995 or the common law equivalent, a distinct pathway from the implied waiver doctrine engaged on these appeal facts.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 10, 12, 22
- Crimes Act 1900 (NSW), s 319
- Evidence Act 1995 (NSW), s 122(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 16(1)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 39, 44(4)
- Supreme Court (Criminal Appeal) Rules 2021, r 4.3
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 10

Cases
- Mann v Carnell (1999) 201 CLR 1
- DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499
- Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303
- R v Presser [1958] VR 45
- R v Lazar; R v Constantinidis [2020] NSWDC 3
- Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48
- ASIC v ANZ Banking Group Ltd (No 2) [2020] FCA 1013
- Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526
- State of NSW v Public Transport Ticketing Corporation [2011] NSWCA 60
- R v RTI (2003) 58 NSWLR 438