Citation: [2022] NSWDC 138
Court: District Court of New South Wales
Date: 14 April 2022
Judge(s): Neilson DCJ
Background
This decision is a companion ruling to R v Leung; R v Webster (No. 1) [2022] NSWDC 137, a criminal proceeding involving two accused. The Crown sought to call a police officer, Senior Constable Grogin, as an expert witness. In the lead-up to trial, the officer emailed the Crown Prosecutor, and a claim for legal professional privilege was made over the contents of that email.
The accused sought access to the full text of the email dated 1 April 2022, sent at 10.29am. The document had been partially disclosed, revealing an opening greeting and a closing paragraph, but a central section was redacted on the basis that it attracted legal professional privilege under the Evidence Act 1995 (NSW).
A separate email from the Crown Prosecutor back to Senior Constable Grogin, sent later the same day at 10.56am, was also the subject of a privilege claim. The court examined both communications on a voir dire (a preliminary hearing to determine the admissibility of evidence).
Legal Issues
- Whether the redacted portion of the officer's 1 April 2022 email to the Crown Prosecutor attracted legal professional privilege under sections 118 or 119 of the Evidence Act 1995 (NSW)
- Whether the Crown Prosecutor's reply email of the same date attracted legal professional privilege
- How the severability of documents operates in the context of privilege claims
Decision
Issue 1: Privilege over Senior Constable Grogin's email (10.29am)
The court examined the unredacted email and found that the withheld content did not constitute a request for legal advice, nor did it set out facts or circumstances requiring the giving of legal advice (at [8]). His Honour characterised the redacted material as, in part, a compliment directed to Crown lawyers and, in part, a comment on the officer's own personal circumstances, neither of which fell within the scope of privilege (at [8]).
Neilson DCJ was not persuaded on the balance of probabilities that the document attracted any legal professional privilege, and accordingly ordered that the accused be granted access to the whole of that email (at [9]).
Issue 2: Privilege over the Crown Prosecutor's reply email (10.56am)
The court upheld the Crown's privilege claim in respect of the later email sent by the Crown Prosecutor to Senior Constable Grogin at 10.56am (at [10]). No detailed reasons were published for this conclusion, but the outcome is consistent with the principle that communications from a lawyer to a client conveying legal advice or made in a legal context may attract privilege.
Issue 3: Severability of documents
The court applied the well-established principle that privilege can attach to discrete portions of a document, drawing on Waterford v Commonwealth of Australia (1987) 163 CLR 54 and Kennedy v Wallace [2004] FCAFC 337 (at [6]-[7]). This allowed the court to treat the officer's email and the prosecutor's reply as separate documents capable of receiving different privilege outcomes.
Orders Made
- Access to the full text of Senior Constable Grogin's email of 1 April 2022 (10.29am) was granted to each of the accused.
- The Crown's privilege claim over the Crown Prosecutor's email of 1 April 2022 (10.56am) was upheld.
- The 10.29am email was removed from the documents marked for identification as MFI VD1, and the two remaining documents in MFI VD1 were returned to the Crown.
Key Takeaways
- Legal professional privilege under the Evidence Act 1995 (NSW) does not attach to a communication merely because it passes between a police officer and a Crown Prosecutor; the content must relate to the seeking or giving of legal advice (at [8]-[9]).
- A communication characterised as personal commentary or an expression of goodwill, without any legal advisory character, will not satisfy the requirements for privilege under sections 118 or 119 of the Evidence Act 1995 (NSW) (at [8]).
- Documents subject to a privilege claim are severable: different parts of a correspondence chain, or different portions of a single document, can attract different privilege outcomes depending on their content (at [6]-[7]).
- The District Court applied High Court and Full Federal Court authority confirming that severability is an established feature of the legal professional privilege framework, requiring a document-by-document and passage-by-passage analysis (at [6]-[7]).
- Where the Crown seeks to withhold a communication from accused persons on privilege grounds, the court will examine the unredacted text and determine on the balance of probabilities whether the privilege conditions are met (at [9]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185
- R v Leung; R v Webster (No. 1) [2022] NSWDC 137
- Waterford v Commonwealth of Australia (1987) 163 CLR 54