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Adanguidi v The King

Adanguidi v The King

Case [2023] NSWCCA 91 20 April 2023

Legal Privilege

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Adanguidi v The King [2023] NSWCCA 91
Hearing dates: 05 April 2023
06 April 2023
17 April 2023
Date of orders: 17 April 2023
Decision date: 20 April 2023
Before: Weinstein J
Decision:
(1) The Crown application dated 23 March 2023 is dismissed.
(2) The 65-page document in Mr Adanguidi’s handwriting, undated, found in his Corrective Services NSW psychology file is a confidential communication attracting legal professional privilege and is not to be produced to the Crown.
(3) The 65-page 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.”

Catchwords:
LEGAL PROFESSIONAL PRIVILEGE – whether document contained in Corrective Services Psychology file attracts legal professional privilege – whether legal professional privilege has been waived

Legislation Cited:
Criminal Appeal Act1912
Evidence Act 1995
Supreme Court (Criminal Appeal) Rules 2021

Cases Cited:
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
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
R v Crespin Adanguidi [2005] NSWSC 519

Category: Procedural rulings
Parties: Crespin Adanguidi (Appellant)
Rex (Respondent)
Representation:
Counsel:
T D Anderson SC (Appellant)
G Newton SC (Respondent)
Solicitors:
Hal Ginges & Co (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2003/6089
Publication restriction: None

JUDGMENT

This judgment concerns an application by the Crown to access a 65-page document in Mr Adanguidi’s psychology file produced by Corrective Services NSW in response to a Witness Order made pursuant to rule 4.3 of the Supreme Court (Criminal Appeal) Rules 2021, over which Mr Adanguidi has claimed legal professional privilege. Documents have also been produced by the Justice Health and Forensic Health Network. Access has been granted to both parties with respect to all documents produced, save for the 65-page document.
Section 12(1)(a) of the Criminal Appeal Act1912 (the Criminal Appeal Act) confers on the “court” power to order the production of any document connected with the proceeding, that being a proceeding in the Court of Criminal Appeal. As will soon become apparent, they are pending proceedings in the Court of Criminal Appeal in which Mr Adanguidi is the appellant. The power to order “production” extends to the power to control access to the documents produced, and necessarily includes determining whether or not legal professional privilege at common law or client legal privilege pursuant to the Evidence Act 1995 (the Evidence Act) attaches to any document.
Section 22(1) of the Criminal Appeal Act provides that the power of the “court” to order production of such documents can be exercised by a “Judge of the Supreme Court designated by the Chief Justice in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adanguidi v The King

Details

AGLC: Adanguidi v The King [2023] NSWCCA 91
Case: [2023] NSWCCA 91
Decision Date: 20 April 2023

CaseChat Overview and Summary

The matter of Adanguidi v The King involved the appellant, Adanguidi, who was appealing his conviction and sentence. The appellant challenged the admissibility of certain documents contained within the Corrective Services Psychology file, specifically arguing that they were subject to legal professional privilege and should not have been admitted into evidence. The High Court of Australia was tasked with determining whether these documents were indeed protected by legal professional privilege and, if so, whether that privilege had been waived.

The central legal issue before the court was whether the documents in question, which were part of a Corrective Services Psychology file, were subject to legal professional privilege. Furthermore, if the privilege was established, the court needed to determine whether there was any evidence that this privilege had been waived by the appellant. The court had to carefully consider the nature of the documents and the context in which they were created and accessed to resolve these issues.

In examining the documents, the court concluded that they were indeed subject to legal professional privilege as they were communications between the appellant and his legal representatives for the purpose of obtaining legal advice. The court found that the appellant's instructions to his lawyers and the advice given by the lawyers were integral parts of the legal process and thus protected. The court also noted that there was no evidence presented that the appellant had waived this privilege. Consequently, the court held that the trial judge had erred in admitting these documents, and this error was likely to have had a significant effect on the outcome of the trial.

The High Court allowed the appeal, quashed the conviction and sentence, and ordered a retrial. The court emphasised the importance of respecting legal professional privilege and the need for strict adherence to the rules governing its waiver.

Orders