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Supreme Court 8 August 2024

R v Diallo & Ors (No 7)

[2024] NSWSC 978

Public order & justice offences
EVIDENCE CLIENT LEGAL PRIVILEGE WHETHER PRIVILEGE WAIVED OR LOST MULTIFARIOUS COMPLICATIONS BROAD OR STRICT APPROACH CONSIDERATION OF AUTHORITIES

Citation: [2024] NSWSC 978
Court: Supreme Court of New South Wales
Date: 8 August 2024
Judge(s): Hamill J

Background

Five young men face trial for the murder of Darcy Moore, who was fatally stabbed in Blacktown in September 2021 during a melee between two rival youth groups. The prosecution sought to call a witness, identified as KL, who witnessed Mr Moore's death. KL is himself a young person who has pleaded guilty to an unrelated murder and is awaiting sentence in separate proceedings.

As part of KL's own sentencing case, his lawyers obtained a psychological report from Dr Katie Seidler and a psychiatric report from Dr Andrew Ellis. Both experts concluded that KL met the diagnostic criteria for PTSD, caused in part by witnessing Mr Moore's death. Those reports were served on the ODPP for the purpose of KL's own criminal proceedings (a possible plea traversal application).

When called to give evidence on a pre-trial Basha inquiry in the murder trial, KL repeatedly answered "no comment" and refused to answer questions, even after being directed to do so. The prosecutor pressed for production of the expert reports. KL, through his lawyers, objected on the basis of client legal privilege and litigation privilege.

  • Whether KL's client legal privilege over the psychological and psychiatric reports had been waived or lost under s 122 of the Evidence Act 1995 (NSW), because his conduct was inconsistent with maintaining the privilege.
  • Whether service of the reports on the ODPP in KL's separate murder sentencing proceedings constituted a voluntary disclosure of their substance, or was compelled by law.
  • Whether the disclosures made in KL's solicitor's affidavit (read on the voir dire regarding KL's self-incrimination objection) amounted to disclosure of the substance of the privileged communications.
  • Whether KL's refusal to answer questions during the Basha inquiry, or his general demeanour, was relevant to whether privilege had been lost.

Decision

Hamill J held that neither client legal privilege nor litigation privilege had been waived or lost. His Honour worked through several distinct bases on which the prosecution argued waiver, and rejected each one.

Service of reports on the ODPP. The prosecution argued that serving the expert reports on the Crown in KL's separate sentencing proceedings was conduct inconsistent with maintaining privilege. Hamill J found this was not a voluntary, unrestrained disclosure. The reports were served for a defined forensic purpose (a possible plea traversal under s 151 of the Criminal Procedure Act 1986) within the framework of criminal sentencing. His Honour found, without needing to decide whether service occurred strictly "under compulsion of law" within s 122(5)(a)(iii), that the service was at least analogous to compelled disclosure and was not inconsistent with maintaining the privilege against the world. The ODPP, as the receiving party, was also subject to the implied undertaking from Hearne v Street (the so-called Harman undertaking), which restricts use of documents received through compulsory court processes to the proceedings in which they were obtained.

Solicitor's affidavit disclosures. KL's solicitor swore an affidavit in these proceedings to support an objection under s 128 of the Evidence Act (privilege against self-incrimination). That affidavit disclosed that KL "witnessed the death of Darcy Moore" and met the criteria for PTSD "as a result, in part, of witnessing" that death. Hamill J acknowledged this disclosure was carefully crafted to strike "a fine balance between candour and maintenance of privilege." It revealed only the fact and general nature of KL's condition, not the substance of the expert opinions, the history KL gave to the experts, or the reasoning in the reports. His Honour concluded this limited disclosure did not amount to revealing the "substance of the evidence" under s 122(3)(a).

KL's conduct in the witness box. The prosecution submitted that KL's refusal to answer questions about what he told the experts was itself inconsistent with maintaining privilege. Hamill J rejected this argument firmly. A witness's demeanour, including a "contemptuous but courteous" refusal to answer, could not logically support a finding of waiver. If anything, KL's consistent refusal to engage with the topic reinforced his maintenance of privilege rather than undermined it.

Fairness considerations. Hamill J emphasised that KL was a child at the time of the relevant events and throughout most of the legal proceedings. His decisions were guided by experienced lawyers. While the prosecution's frustration at not being able to probe KL's account of the stabbing was understandable, fairness did not require stripping privilege from a young person who had maintained it throughout.

Orders Made

  • The call for production of the psychological and psychiatric reports was refused.
  • Client legal privilege and litigation privilege were held to remain intact over both reports.

Key Takeaways

  • Service of expert reports on the prosecution for a defined forensic purpose in criminal sentencing proceedings does not automatically waive privilege in unrelated proceedings. The Supreme Court recognised that the implied Harman undertaking may protect against cross-use of such material, and placed significant weight on the circumstances and limited purpose of the disclosure in determining whether waiver had occurred.

  • A precise distinction exists between disclosing the existence of privileged material and disclosing its substance. KL's solicitor revealed only sufficient information to support the s 128 self-incrimination objection (namely the diagnosis and its general cause) without disclosing the underlying history, reasoning, or opinions, and Hamill J assessed with care whether the disclosure crossed from reference to the "fact of" privileged material into revelation of its "substance."

  • Where a witness refuses to answer questions, even in a contemptuous manner, that refusal does not operate as conduct inconsistent with maintaining privilege. The Court drew a clear distinction between outright refusal to answer and inconsistent selective disclosure, treating the former as not amounting to waiver.

  • Under the implied undertaking recognised in Harman and Hearne v Street, the prosecution's ability to deploy material received in one set of proceedings in another is meaningfully constrained. Hamill J's reasoning indicated that use of documents across proceedings may require leave of the court or consent of the relevant party.

  • No blanket rule was established that service of reports in criminal proceedings can never amount to waiver. The outcome turned on a specific combination of factors: the compulsory procedural context, the implied undertaking, the limited nature of other disclosures, and the fact that the privilege holder was a child acting on legal advice. The Court's reasoning indicated that different factual circumstances could yield a different result.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 38, 117, 118, 119, 122, 128, 131A
- Criminal Procedure Act 1986 (NSW), s 151
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
- GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
- Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
- Harman v Secretary of State for Home Department [1983] 1 AC 280
- Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46
- Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37
- Akins v Abigroup Ltd (1998) 43 NSWLR 539
- Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36
- R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066