Citation: R v Macdonald; R v Maitland (No 5) [2022] NSWSC 1211
Court: Supreme Court of New South Wales
Date: 7 September 2022
Judge(s): Dhanji J
Background
During the course of a criminal trial, the microphone located in the dock where the accused was seated was inadvertently left switched on. As a result, private conversations between the accused and his solicitor may have been audible to others, including people attending electronically and members of the media.
The accused sought a non-publication order to prevent any dissemination of what may have been overheard. The court treated the application urgently and delivered judgment ex tempore (that is, on the spot, without a reserved written judgment).
Legal Issues
- Whether a suppression order or non-publication order should be made in respect of conversations inadvertently captured by the dock microphone
- Whether the conversations attracted legal professional privilege (the right to keep communications between a lawyer and client confidential)
- Which provisions of the Court Suppression and Non-publication Orders Act 2010 (NSW) provided a proper basis for any such order
Decision
Dhanji J noted that the content of the conversations was not known to the court, nor was it appropriate for the court to be made aware of it. His Honour observed that there was a prima facie presumption that any conversation between an accused person and his legal representative in those circumstances would attract legal professional privilege. Beyond that, the participants' own belief that the conversation was private provided an independent basis for protecting it.
The court identified two grounds under the Court Suppression and Non-publication Orders Act 2010 (NSW) supporting an order. First, under s 8(1)(a), an order was necessary to prevent prejudice to the proper administration of justice, particularly if the captured conversations were properly the subject of legal professional privilege. Second, to the extent any conversations might fall outside privilege, s 8(1)(d) provided a basis because publication would cause undue distress or embarrassment to a party to criminal proceedings.
Having identified both grounds, Dhanji J concluded that a suppression order, rather than the less stringent non-publication order originally sought, was the appropriate remedy. A suppression order prohibits any use or disclosure of the material, whereas a non-publication order prevents only its publication. The broader form of order was warranted given the privileged nature of the communications.
Orders Made
- All conversations between the accused and his legal representative during proceedings on 7 September 2022 up to 1:00 pm are suppressed, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW)
- The suppression order applies throughout the Commonwealth, pursuant to s 11 of the Act
- The order remains in effect until the conclusion of the trial or any related appeal proceeding
Key Takeaways
- A prima facie presumption of legal professional privilege attaches to conversations between an accused and their legal representative, even where those conversations are inadvertently captured through a technical malfunction.
- The Supreme Court treated the parties' reasonable expectation of privacy in those communications as itself a foundation for suppression, independent of formal privilege doctrine.
- Under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), a suppression order may be necessary to prevent prejudice to the administration of justice where privileged communications are at risk of broader dissemination.
- Section 8(1)(d) of the same Act provides a separate, cumulative ground for an order where publication would cause undue distress or embarrassment to a party in criminal proceedings.
- Where both grounds are established, a full suppression order is available and may be preferable to the less protective non-publication order, with the potential to extend its operation throughout the Commonwealth under s 11.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a), 8(1)(d), 9, 11
Cases cited: No cases were cited in the judgment.