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Court of Criminal Appeal 20 April 2023

Adanguidi v The King

[2023] NSWCCA 91

Homicide
LEGAL PROFESSIONAL PRIVILEGE

Citation: Adanguidi v The King [2023] NSWCCA 91
Court: Court of Criminal Appeal, NSW
Date: 20 April 2023
Judge(s): Weinstein J

Background

The appellant was convicted in 2005 of three murders and sentenced to life imprisonment. His defences at trial, mental illness and substantial impairment, were rejected by the jury. Following a successful application under s 78 of the Crimes (Appeal and Review) Act 2001, his case was referred back to the Court of Criminal Appeal as a fresh appeal, relying on new psychiatric evidence.

In preparation for the appeal, a Witness Order was made requiring Corrective Services NSW to produce documents from the appellant's psychology file. Among those documents was a 65-page handwritten document over which the appellant claimed legal professional privilege. All other produced documents were made available to both parties; only this document remained in dispute.

The Crown applied for access to the 65-page document. Weinstein J heard the application and made orders on 17 April 2023, with reasons delivered on 20 April 2023.

  • Whether the 65-page document attracted legal professional privilege at common law or client legal privilege under the Evidence Act 1995
  • Whether the appellant had expressly or impliedly waived any privilege attaching to the document

Decision

Does privilege attach? Weinstein J found, on the balance of probabilities, that the 65-page document was a confidential communication created by the appellant at the request of his then-solicitor in February 2003. The solicitor had suggested to the appellant that he write down the background to his arrest so the solicitor could understand the matter. The document was prepared for the dominant purpose of obtaining legal advice and assistance in connection with the pending criminal proceedings. Those circumstances satisfied the requirements for legal professional privilege to attach.

How did the document end up in the psychology file? The evidence supported a finding that the document was taken from the appellant by a nurse on 16 February 2003, during an incident in which the appellant was placed under observation after showing signs of distress. A contemporaneous note in the Justice Health file recorded staff observing the appellant writing while tearful and placing him on a risk intervention. The appellant had been told by another inmate that the document was found by a nurse and destroyed. He was distressed by this and never prepared another written instruction for a lawyer before trial.

Was privilege waived? The Crown initially relied on both implied and express waiver. The implied waiver argument was abandoned at the hearing. The express waiver argument was based on signed consent forms on the psychology file, in which the appellant acknowledged his file could be accessed by court subpoena. However, the Crown conceded that if Weinstein J found the appellant believed the document had been destroyed, no waiver could have occurred. Having made that finding, the court concluded that the appellant could not have waived privilege over a document he believed no longer existed. There was no express waiver.

Orders Made

  • The Crown's application dated 23 March 2023 is dismissed.
  • The 65-page handwritten document found in the appellant's Corrective Services NSW psychology file is a confidential communication attracting legal professional privilege and is not to be produced to the Crown.
  • The document is to remain on the court file in a sealed envelope marked "Privileged document. Not to be opened by any person other than a Supreme Court judge."

Key Takeaways

  • A handwritten document prepared by an accused person at a solicitor's request, for the dominant purpose of providing the solicitor with background information to assist in legal representation, can attract legal professional privilege even when the document never physically reached the solicitor.
  • The court confirmed that the power to order production of documents under s 12(1)(a) of the Criminal Appeal Act 1912 extends to controlling access to those documents, including determining whether privilege attaches.
  • Waiver of privilege, whether express or implied, cannot operate over a document that the privilege-holder genuinely believed had been destroyed. A person cannot waive rights over something they believe does not exist.
  • In dismissing the Crown's application, the court treated the signed consent forms acknowledging possible court access to the psychology file as insufficient to establish express waiver, given the appellant's belief that the specific document in question had been destroyed.
  • The circumstances under which a privileged document came to be held by a third party, here confiscated and placed on a prison file without the appellant's knowledge or consent, were relevant to both the privilege and waiver analyses.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 12(1)(a), 22(1)
- Evidence Act 1995 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021, r 4.3
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(1)(b)

Cases:
- Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404
- Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 442
- R v Crespin Adanguidi [2005] NSWSC 519
- Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278
- Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67
- Lazar v R [2021] NSWCCA 132