Australian Crime Commission v Bartlett [No 3]

[2013] WASC 108

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   AUSTRALIAN CRIME COMMISSION -v- BARTLETT [No 3] [2013] WASC 108

CORAM:   EM HEENAN J

HEARD:   17 & 18 DECEMBER 2012, 4 FEBRUARY 2013 & ON THE PAPERS

DELIVERED          :   28 MARCH 2013

FILE NO/S:   INS 107 of 2012

BETWEEN:   AUSTRALIAN CRIME COMMISSION

Applicant

AND

PETER MERVYN BARTLETT
First Respondent

RONALD GEORGE SAYERS
Second Respondent

DEBORAH JEANNE GRACE
Third Respondent

Catchwords:

Criminal law - Procedure - Evidence - Summons to statutory body to produce documents - Application to set aside summons - Claims of legal professional privilege - Inspection of documents

Legislation:

Crimes Act 1914 (Cth)
Australian Crime Commission Act 2002 (Cth)
Criminal Procedure Act 2004 (WA)

Result:

Claim for privilege upheld for 3 documents
Claim for privilege dismissed for 4 documents
Limited orders for production

Category:    B

Representation:

Counsel:

Applicant:     Mr M T Ritter

First Respondent           :     Mr B Zichy-Woinarski QC & Mr M C Boyce

Second Respondent       :     Mr B Zichy-Woinarski & Mr M C Boyce

Third Respondent         :     No appearance

Solicitors:

Applicant:     Australian Crime Commission

First Respondent           :     Clifford Chance

Second Respondent       :     Clifford Chance

Third Respondent         :     No appearance

Case(s) referred to in judgment(s):

Carter v Managing Partner Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 143

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Grant v Downes [1976] HCA 63; (1976) 135 CLR 674

Hanneef and Australian Federal Police [2010] AATA 514

Health Insurance Commission v Freeman (1998) 158 ALR 267

R v Bunting [2002] SASC 412; (2002) 84 SASR 378

R v Haydon (No 5) [2005] SASC 19

R v Petroulias (No 22) [2007] NSWSC 692; (2007) 213 FLR 293

R v Tracey (No 2) [2005] SASC 356

Schreuder v Murray (No 2) [2009] WASCA 145; (2009) 41 WAR 169

1. EM HEENAN J: The first and second respondents, Peter Mervyn Bartlett and Ronald George Sayers, two of the three accused named in the indictment, have issued numerous summonses to witnesses seeking the production to the court of certain specified documents and materials pursuant to s 163 of the Criminal Procedure Act 2004 (WA). Of the various witness summonses so issued by these respondents, it is only necessary to identify three which are the subject of the application now before court and then to deal in part only with one. The three witness summonses concerned are addressed to the Australian Crime Commission (ACC) and are respectively:

   1.a witness summons to produce a record or thing issued on 10 September 2012 at the request of the first and second‑named accused (respondents);

   2.the witness summons to produce a record or thing issued on 25 September 2012 at the request of the first and second‑named accused (respondents); and

   3.the witness summons to produce a record or thing issued at the request of the third‑named accused (third respondent).

2. By an application dated 31 October 2012 the ACC seeks to set aside either in part or entirely each of those three witness summonses and invokes the court's inherent jurisdiction and the powers conferred by s 166(1) of the Criminal Procedure Act.

3. The application by the ACC to set aside the summonses has been listed before this court at earlier hearings but, at the request of the parties, has been adjourned from time to time as negotiations between the counsel and solicitors for the ACC and the first and second respondents have been continuing in order to attempt to resolve or to narrow matters in controversy.  I am informed that there has been a substantial measure of progress in those negotiations which have resolved part of the contentious issues, narrowed the area of dispute on others and have identified specific issues for resolution on discrete parts of the witness summons dated 10 September 2012.  However, there remain areas of controversy in relation to all the summonses which have not yet been raised for final determination by this court and which have since come on for later determination.  All those matters can be put to one side to be dealt with later.

4. What has been raised for determination are issues between the ACC and Messrs Bartlett and Sayers over whether or not seven individual documents specifically identified as being within a scope of the witness summons issued on 10 September 2012 are the subject of legal professional privilege (LPP) in the hands of the ACC and, accordingly, are privileged from inspection or production.  These seven documents are only part of the materials sought by that witness summons and, as already noted, questions of whether or not other documents or materials sought by that summons need be produced or whether the summons in respect to some or all of them should be set aside, are yet to be determined.

5. The documents and materials sought from the ACC by the witness summons issued on 10 September 2012 are extensively described in the witness summons itself. Rather than set out the entire description here, it is enough to say that the summons seeks a variety of documents, correspondence and materials involving communications between the Commonwealth Director of Public Prosecutions (CDPP) and the ACC concerning their respective roles and actions in relation to examinations of Messrs Bartlett and Sayers conducted under s 28 the Australian Crime Commission Act 2002 (Cth) (ACC Act); similar correspondence, documents and other materials relating to statements provided to the ACC by Messrs Bartlett and Sayers, including a wide category of documents relating to statements provided by other named witnesses where names are listed and associated memoranda.  Among the documents sought by the summons are materials or records which may relate to the use made by the CDPP of materials or information obtained by the ACC relating to the accused Bartlett and Sayers arising or deriving from the compulsory examinations of them conducted by the ACC.

6. How the application by the ACC to set aside the first and second respondents' witness summons of 10 September 2012 became treated as the umbrella application under which these specific claims for privilege were presented for determination appears from the submissions of counsel made to me on 18 December 2012 at pages 598 to 603 of the transcript.

7. The application by the ACC to set aside part of the summons of 10 September 2012 or, as it has since been refined, to rule on claims for legal professional privilege advanced in respect of the seven identified documents, is supported by affidavit evidence filed by the ACC and by written submissions.  Written submissions on behalf of the first and second respondents have also been filed opposing the ACC application challenging the claims advanced for LPP for the specified documents.

8. Copies of the documents for which the claims for LPP are advanced have been produced to the court in a sealed container by the ACC for inspection by the court without disclosure to the respondents for the purposes of ruling on the claims for privilege if thought necessary.

9. The parties have submitted that I should determine these claims for privilege on the written materials and by recourse to inspection of the documents produced in confidence by the ACC without further evidence or hearing.  It is on that basis and with regard to those written materials that I have undertaken that determination.

10. The seven documents for which the claims made for LPP which I am required to determine are included in 'Table C - witness summons issued on 10 September 2012' as part of the written submissions of the ACC.  They are as follows:

    1.Case note ID 2564103 dated 29 August 2012 (whole).

    13.Case note ID 2542559 dated 3 April 2007 (redacted).

    18.Case note ID 2551858 dated 8 June 2009 (redacted).

    19.Case note ID 2553289 dated 26 November 2009 (redacted).

    22.Case note ID 2556 577 dated 10 December 2010 (redacted).

    23.Case note ID 2558060 dated 29 March 2011 (redacted).

    27.Case note ID 2559994 dated 17 August 2011 (redacted).

11. The evidence relied upon by the ACC to support the claims for privilege is contained in portions of the following affidavits which also deal with broader issues which need not be determined at this point.  Those affidavits are:

    (a)Affidavit of Glen Paul Pritchard sworn 26 October 2012

    (b)Affidavit of Teresa Chew Ping Ling sworn 30 October 2012.

    (c)Affidavit of Glen Paul Pritchard sworn 13 December 2012.

    (d)A affidavit of Teresa Chew Ping Ling sworn 14 December 2012.

12. It should be made clear that two 'confidential affidavits', one of Glen Paul Pritchard sworn 13 December 2012 and one of Robert Philp sworn 17 December 2012, also filed in connection with this application were not relied upon by the ACC and have not been 'read' or treated as evidence for this present determination.

13. The written submissions filed by the opposing parties in connection with this application, including submissions on broader issues which have not been yet raised for determination, comprise the following:

    (a)Submissions of the ACC dated 2 November 2012.

    (b)Submissions of Messrs Bartlett and Sayers of 12 November 2012.

    (c)Submissions of the ACC dated 5 November 2012.

    (d)Submissions of the ACC dated 27 November 2012 (relating to witness summons of 1 November 2012).

    (e)Submissions on behalf of Messrs Bartlett and Sayers in response dated 12 November 2012.

    (f)Supplementary submissions by the ACC dated 4 December 2012.

    (g)Submissions of the ACC dated 31 January 2013.

    (h)Submissions of the ACC dated 4 February 2013.

First and second respondents' witness summons of 10 September 2012

1. The application by the ACC of 31 October 2012 seeks only to set aside items 4 and 5 specified in the first and second respondents' witness summons of 10 September 2012.  The contents of the witness summons contained in those paragraphs is as follows:

   You must produce to the court the following

   1. … 

   2. … 

   3. … 

   4.All reasons for the issue of summonses prepared by an Examiner as described in section 28 of the Australian Crime Commission Act 2002 (Cth) in relation to witnesses summonsed to appear for examination during 'Operation Haycastle'.

   5.All search warrant affidavits, telephone interception warrant affidavits and stored communication of warrant affidavits relating to warrants executed during Operation Haycastle' in relation to Peter Bartlett, Ronald Sayers, Deborah Grace, Trevor Thomson or Gregory Dunn.

2. The application does not seek to set aside the witness summons in relation to further paragraphs but, nevertheless, paragraph 8 is material because it reads:

   8.All case note entries relating to 'Operation Haycastle' including but not limited to case note entry ID Nos. 2347167, 2372577, 2382692, 2388894, 2400824, 2410052, 2424329, 2539646, 2540935, 2541924, 2542559, 2546530, 2549917, 2551535, 2551858, 2553289, 2554821, 2555375, 2555406, 2556138, 2556577, 2666851, 2558060, 2559327. 2558759, 2558808, 2559994 save for that material already disclosed to defence in these proceedings.

3. As already indicated, by the consent of the parties through their counsel, the present matter for determination has been treated as claims for legal professional privilege raised in relation to seven specified items for those case notes.

4. Close scrutiny reveals that par 8 of the witness summons specifies only six of the seven case notes for which privilege is still claimed by the ACC.  The one not mentioned is the first case note ID 2564103 dated 29 August 2012.  Possibly, the explanation for this is that that particular case note was only brought into existence shortly before the witness summons was filed and, for that reason, may not have been known to the first and second respondents' solicitors.  Whatever may be the reason nothing turns on this and there has been no suggestion that that particular case note is not covered by the witness summons or that there is not any issue between the parties as to whether or not it may be privileged from production.

The affidavit evidence

1. In his first affidavit of 27 October 2012 Mr Pritchard deposes that, as the head of the targeting criminal welfare determination section of the ACC and a member of the ACC within the meaning of s 4 of its Act, he has the oversight of the investigation within the ACC conducted in conjunction with the Australia Taxation Office (ATO), and the Australian Federal Police (AFP) under determinations of the ACC board which, among other things, has led to this prosecution.  He describes the role of the ACC as set out in s 7A of the Act and how, by duly authorised determination, it may conduct investigation into a federally relevant criminal activity as a 'special investigation'.  He explains how on 15 May 2003 the ACC board issued an instrument known as the 'ACC Special Investigation Authorisation and Determination (Money Laundering and Tax Fraud) 2003' authorising the ACC to conduct a special investigation in relation to suspected money laundering, tax fraud and related criminal activities.  That instrument was extended on a number of occasions and remained in force until 30 June 2008.  A further instrument was made on 13 September 2008, known as the 'ACC Special Investigation Authorisation and Determination (Wickenby Matters) 2006', authorising the ACC to conduct a special investigation in respect of the same suspected criminal activities as described in the 15 May 2003 determination until 30 September 2007.  The second instrument was extended on a number of occasions and remained in force until 30 September 2010. 

2. Under those determinations the ACC has conducted investigations and prosecutions of various promoters and participants who facilitated and profited from alleged illegal tax haven arrangements.  As authorised, these operations and investigations were conducted by the ACC in close collaboration with the ATO, AFP, Australian Securities and Investments Commission (ASIC) and the CDPP.

3. As part of this special investigation the ACC also conducted a related special investigation code named 'Operation Haycastle' in relation to alleged tax evasion schemes devised by Gregory John Dunn. Included within the scope of Operation Haycastle was an investigation into suspected criminal activities, including a suspected conspiracy to defraud within the meaning of s 135.4 of Criminal Code Act 1995 through the evasion of, or making false claims in relation to tax.

4. These investigations revealed that between 1988 and 1996 Mr Dunn worked as a consultant on tax matters with a Perth law firm, Irdi Legal, and in 1996 he commenced his own practice to provide taxation advice to a small group of high-wealth clients, which included the first and second accused.  Mr Dunn had come to the attention of the ACC after it discovered a link between him and Strachans SA (Strachans) an accounting services firm located in Geneva, Switzerland.  The investigations conducted by the ACC revealed that Mr Dunn acted as intermediary between Strachans and a group of Australian resident clients, including the accused Bartlett and Sayers.

5. The ACC investigations revealed that in the period between 2000 and 2005 Mr Dunn had provided taxation advice to the accused Bartlett and Sayers, and in 2001 introduced them to Strachans. It is alleged that the accused ultimately utilised the services of Strachans with Mr Dunn as an intermediary. It was as a result of these investigations that on 16 July 2012 the accused Bartlett and Sayers were charged jointly on an indictment with conspiring with each other and with Mr Dunn and Mr Trevor Thomson with the intention of dishonestly causing a loss to a Commonwealth entity contrary to s 135.4(3) of the Criminal Code (Cth).

6. Mr Pritchard then makes reference to the service upon the ACC of the witness summons to produce documents issued by the accused Bartlett and Sayers on 10 September 2012.  Having done so, he then refers to a series of correspondence and negotiations between the ACC and the solicitors for those two accused setting out how certain documents were disclosed, copies of others (some in redacted form) were supplied to the solicitors for the two accused and how other issues arising from the summons were negotiated, dealt with or withdrawn as a result of that correspondence and conferences between counsel for the parties.  He then sets out the reasons why the ACC have claimed privilege in the form of public interest immunity from disclosure or production of certain documents and for legal professional privilege in respect of some others.  The details of the claims for LPP will be set out later when dealing with the individual documents where the issue of privilege remains in controversy.

7. In the affidavit of Ms T C P Ling of 30 October 2012 she deposes that she is a lawyer employed by the Australian Government Solicitor in Perth, who has the care and conduct of this prosecution on behalf of the ACC.  Her affidavit addresses all the various categories of documents sought by the accused's summons for 10 September 2012 but it is only necessary to deal with those areas remaining in contention.  This affidavit then goes on to deal with objections based on the grounds of public interest immunity and oppression in relation to some aspects of the summons for 10 September 2012 and addresses the two other summonses issued by these accused.  It is not necessary to refer to those parts of her affidavit on this present occasion.

8. In the second affidavit of Mr G P Pritchard, sworn 13 December 2012, there is detailed reference to claims of privilege made in relation to eight documents, inspection of which was then being pursued by the first and second accused.  These include the seven documents remaining in contention among which are documents where privilege is claimed only in respect of redacted portions.

9. Mr Pritchard sets out in this affidavit the role and functions of the ACC in relation to this particular investigation and the role and functions of the CDPP. He then describes the working relationship between the ACC and the CDPP which includes the CDPP providing legal advice from time to time to the ACC which is relevant to any potential prosecution or which is given in respect of any request for urgent legal advice by the CDPP to the ACC. So far as concerns Operation Wickenby and Operation Haycastle, Mr Pritchard deposes that in June 2005 the ACC executed many search warrants around Australia in connection with, among other things, alleged tax schemes in which the three accused had been involved during the years from 1999 to 2004. In addition, he states that various persons, including the three accused, were examined by the ACC pursuant to its compulsory examination powers under s 28 of the ACC Act.

10. Mr Pritchard explains how the CDPP was involved in the early stages of the nationwide Operation Wickenby taskforce from about January 2005.  So far as concerns the separate arm of this broader investigation in Western Australia, known as Operation Haycastle, the CDPP involvement began from about March 2006 onwards, when it was asked to provide advice to the ACC on brief preparation, and then in November 2006 when the ACC provided the CDPP with a Case Summary concerning Mr Dunn and the ACC's investigations into the various tax schemes then already under way.

11. Mr Pritchard describes how, on 12 December 2006, one of the alleged co‑conspirators, Mr Trevor Thomson, provided a witness statement to the ACC, admitting to his involvement in the tax schemes in which the three accused are alleged to have participated.  The ACC provided a copy of Mr Thomson's statement to the CDPP on 23 January 2007, and on 3 April 2007, Mr Thomson participated in a record of interview with the ACC at which time he also made an admission of his involvement in the tax schemes.  It was from this date that the ACC formed a view and intention to institute criminal proceedings against Mr Thomson.

1. On 18 March 2008 the ACC delivered a 'brief to advise' to the CDPP seeking its advice on the investigation and possible charges to be brought against Messrs Bartlett and Sayers and Mr Thomson.  Advice was given by the CDPP to the ACC on 22 May 2008.

2. In the period from 30 July to 1 August 2008, Mr Thomson participated in a further record of interview and, subsequent to this, the ACC received advice from the CDPP to proceed to compile a brief against him.  On 3 March 2009 Mr Thomson was charged with an indictable offence.

3. On 11 May 2009 the ACC sought advice from the CDPP on possible charges to be brought against Ms Grace.

4. On 26 February 2010 the ACC delivered 41 volumes of a brief of evidence to the CDPP.  On 20 April 2011 the CDPP made recommendations to bring charges against Messrs Bartlett and Sayers and Ms Grace.

5. On 17 August 2011 the ACC delivered 15 volumes of a committal brief to the CDPP.  On 25 August 2011 the CDPP consented to the commencement of conspiracy proceedings against the three accused.

6. On 14 December 2011, Mr David Suiter of the ACC issued Prosecution Notices against the three accused which charged them with a conspiracy to defraud offence under s 135.4 of the Criminal Code but it is the CDPP who is the prosecutor of that charge.  These prosecution notices were served on each of the three accused on 19 December 2011.  The indictment followed later.

7. Mr Pritchard deposes that he has been informed by Mr Robert Philp of the ACC Perth office that in the period from about March 2006, being when the CDPP first became involved in Operation Haycastle in Western Australia, until the date when the charges were brought against the three accused on 14 December 2011, there has been frequent liaison and communication between the ACC investigators and the officers of the CDPP regarding the progress and status of Operation Haycastle, and that there had been regular exchange of information, including provision of legal advice by the CDPP to the ACC.

8. Annexed to the second affidavit of Mr Pritchard is a copy of a publication 'Guidelines and Directions Manual ‑ Advisory Role of the CDPP' last updated on 10 September 2012.  This describes the roles and functions of the office of the CDPP, including a description of its prosecution policy and of its role in providing legal advice to Commonwealth investigators.  In this publication there is an extensive description of the role and activities of the CDPP in Project Wickenby, including the involvement of a number of other Commonwealth agencies, including the ATO, ACC, ASIC, AFP and Austrack, which includes the passages:

   The CDDP has a significant and important role to play in the prosecution of offences which arise out of the investigations.

   The CDPP has continued its participation in regular meetings of the Project Wickenby chief executive officers and the Project Wickenby cross‑agency advisory committee, committees which were established to oversee the project.  The CDPP plays a valuable advisory role in providing information about prosecutions arising out of Project Wickenby.  The CDPP also participates in many of the other cross-agency governance processes which have been established around Project Wickenby.

9. The Guidelines and Directions Manual also contains a section dealing with the role of the CDPP in providing legal advice to Commonwealth investigators during the course of an investigation.

10. The last of the affidavits is a second affidavit of Ms T C P Ling sworn 14 December 2012.  This deals largely with other items being sought by the first and second accused under the summons of 10 September 2012 and other summonses.  It is not necessary to mention this further in relation to the remaining claims of privilege which are now to be determined.

Submissions of the parties

Legal professional privilege

1. The legal principles relating to the determination of a claim for legal professional privilege from the production or inspection of any particular document or documents are well established.  The onus is upon the person claiming the privilege to prove that the information or documents in question are so privileged:  Grant v Downes [1976] HCA 63; (1976) 135 CLR 674, 689. Grant v Downes was itself subsequently overruled but not on this point but, rather, by the rejection of the 'sole purpose' test which the majority in that case had regarded as being a requisite for the establishment of the privilege.  In Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 the High Court rejected the 'sole purpose' test and, by a majority, determined that the test at common law for legal professional privilege in relation to documents was whether a communication was made or a document prepared for the dominant purpose of a lawyer providing legal advice or legal services and that test should be applied to the discovery and the inspection of confidential written communications between lawyer and client. That continues to be the law and was applied in Schreuder v Murray(No 2) [2009] WASCA 145; (2009) 41 WAR 169 ‑ see also Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 143.

2. In Schreuder Buss JA said at [59]:

   Legal professional privilege comprises two categories, namely, legal advice privilege and litigation privilege.  Legal advice privilege can be claimed in respect of information or documents which contain or reveal confidential communications between a client and his or her lawyer made for the dominant purpose of giving or receiving legal advice, whether or not litigation is subsisting or within the reasonable contemplation of the client.  Litigation privilege can be claimed where litigation is subsisting or within the reasonable contemplation of a client, and applies to confidential communications passing between the lawyer and his or her client or between the lawyer and third parties, and confidential information or documents brought into existence, for the dominant purpose of preparing for the litigation.

3. Such legal professional privilege can, in appropriate cases, apply in relation to communications passing between the CDPP and the ACC.

4. In Health Insurance Commission v Freeman (1998) 158 ALR 267 the Full Court of the Federal Court of Australia held, among other things, that the CDPP is empowered under its incidental powers to give legal advice sought by Commonwealth authorities or agencies engaged in the investigation of offences against Commonwealth laws for which the CDPP would, or might, in due course bear responsibility for prosecuting provided that the function to which the legal advice is incidental or conducive is identified.

5. Accordingly, it was within the proper scope of the role of the CDPP to give advice to the ACC in connection within all phases of the Wickenby investigation and Operation Haycastle and the obtaining of evidence by the ACC or other Commonwealth agencies for the purposes of considering, and if thought necessary, pursuing a resulting prosecution. 

6. In a situation directly comparable with that which has arisen in the present case, Martin J in the Supreme Court of South Australia held in R v Bunting [2002] SASC 412; (2002) 84 SASR 378 that legal professional privilege is capable of applying to communications between the Director of Public Prosecutions (SA) and the Commissioner of Police relating to communications with the director or legal practitioners in his office. Martin J held that the DPP (SA) stands in the shoes of the Crown when exercising prosecutorial powers and that advice by a DPP practitioner to the Director as a client on the Director's behalf to a third party may be privileged. This privilege prevails over any duty of disclosure by a prosecutor to an accused unless the privilege is waived by the client, Carter v Managing Partner Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121, although the privilege may be 'waived' by imputation in circumstances where the duty of disclosure and the privilege become inconsistent, and it would be unfair for the Director to maintain the privilege. No such issue has arisen in the present instance.

7. That documents recording communications between prosecution lawyers and witnesses for the dominant purpose of pending criminal proceedings against an accused are subject to legal professional privilege was further established in R v Petroulias (No 22) [2007] NSWSC 692; (2007) 213 FLR 293 ‑ see also Hanneef and Australian Federal Police [2010] AATA 514; R v Tracey (No 2) [2005] SASC 356 and R v Haydon (No 5) [2005] SASC 19.

8. In South Australia the legislation concerning the role of the State DPP is closely comparable with the provisions of the Commonwealth DPP Act (Director of Public Prosecutions Act 1983 (Cth)). R v Bunting considered the role and function of the DPP of South Australia and whether or not claims for legal professional privilege can be made in respect of communications made to or from a State Director.  From that decision the following propositions can be identified.  Firstly, it may be the government agency and not the DPP which holds the right to claim legal professional privilege and, of course, vice versa.  When the privilege is claimed it will be necessary to examine the role and function being performed by the DPP at the time when the communications were recorded in the documents in order to assess whether the necessary legal practitioner/client relationship existed.  Thirdly, the DPP has a statutory power (in a case of the Commonwealth by virtue of s 6(1)(n) of the DPP Act (Cth)) to provide legal advice to the police or to a similar law enforcement agency concerning matters arising during the investigation or prosecution if charges are laid.  Fourth, the fact that the DPP will have the responsibility for the prosecution provides a sufficient nexus between the investigation and the statutory function of the Director for the giving or obtaining of such advice and also because the Director is empowered to negotiate with an accused and to interview witnesses when criminal proceedings are anticipated or have been commenced. 

9. In Bunting it was held that the privilege is capable of applying to various categories of material for which it had been invoked.  These included communications between the DPP and the Police Commissioner concerning a witness; notes of communications between the DPP, the witness and his legal advisors concerning pleas of guilty and provision of information by the witness to the DPP or the police; communications between the DPP and investigating police officers in connection with the investigation; and notes made by the DPP of communications with prosecution witnesses during proofing sessions.

10. For these reasons, the ACC submitted that a relationship of solicitor and client existed between the ACC and the CDPP at the time and in respect of the matters which are the subject of this prosecution and which are accorded in the documents for which privilege has been claimed and that, consequently, each is privileged from inspection or production.

Opposing submissions by the accused

1. There are two sets of written submissions on behalf of the first and second accused dealing with all three summonses.  These are both dated 1 November 2012.  It is only necessary to deal with so much of these as address the various case notes itemised in item 8 of the witness summons of 10 September 2012 and then only in respect of the seven documents which remain in contention.  The first set of submissions identified 21 items or case notes under item 8 of the witness summons for which the accused then still pressed their claim for the production of the documents.  That has, since, been reduced to the seven listed.  The second set of submissions deals with other items listed in the witness summons of 10 September 2012 and claims made with respect to the documents addressed by the summons of 25 September 2012.  it is not necessary to deal with them on this occasion.

The individual documents

1. The following listing of the seven documents in contention and the reference to the affidavit evidence filed on behalf of the ACC to support the privilege are taken from table C to the supplementary written submissions for the ACC dated 14 September.  My observations upon each document are made in the light of my inspection, with the consent of the parties, of the individual documents which have been provided to the court in confidence.

Item 1 Case note ID 2564103 dated 29 August 2012 (whole) Referred to in par 63 of the affidavit of Mr G P Pritchard of 26 October 2012

1. The claim for LPP over this document is made on the basis that its contents constitute confidential communications between the ACC and the CDPP for the purpose of providing legal advice from the latter in relation to the prosecution proceedings.

2. I have examined this document.  It is a memorandum referring to ACC and ATO personnel who attended the compulsory examinations for the accused or who had access to the transcripts of those examinations or witness statements.  It also confirms that the witness statements of Messrs Bartlett and Sayers signed on 24 October 2007 were provided during the course of ACC examinations and that the witness statements signed by Ms Grace on 25 October and 27 October were also provided during the course of ACC examinations.  It concludes with an observation that the author was awaiting legal advice as to whether it was permitted to disclose the statements to counsel for the defence. 

3. In my view, the case note entry is not a request for or provision of legal advice nor a consideration or evaluation of advice received.  Nor does it record or contain evidence or information assembled for the purposes of the prosecution.  It deals only with evidence obtained in the course of ACC examinations and the identity of personnel involved in those examinations or the receipt of statements.  I do not consider that the document is privileged and therefore, it follows that it should be disclosed to the first and second respondent under this witness summons.

Item 13 Case note ID 2542559 dated 3 April 2007 (redacted) See par 65.8 of the affidavit of Mr G P Pritchard of 26 October 2012

1. The ACC makes a claim of LPP over the redacted material in this case note on the grounds that it concerns material to be provided to the CDPP for the purposes of seeking their advice.

2. The greater part of this case note has been provided, or will be provided, by the ACC to the first and second accused and the claim for privilege relates only to a redacted portion comprising three lines in the fifth paragraph of the one and a half page document.  The document itself comprises a record of the fact that on 3 April 2007 one of the alleged co‑conspirators, Mr T N Thomson participated in a formal video record of interview in relation to his involvement in the alleged offence and then goes on to summarise the essential features of the alleged fraud.  The redacted portion records that the CDPP has already been provided with a preliminary brief in relation to the matter by the ACC and that transcripts of the Thompson video record of interview will be prepared and provided to the CDPP to enable them to advise on the framing of appropriate charges against Thomson. 

3. I do not consider this to be a request for or the provision of legal advice nor any consideration or evaluation of legal advice given or to be given.  It does record a step in assembling evidence for use by the CDPP in relation to a proposed prosecution against Thomson but the substance of the evidence provided by Thomson has been disclosed without objection by the ACC, both by the release of the unredacted portions of this case note and through the provision of the Thomson statements in the earlier course of these proceedings.

4. Accordingly, I do not allow the claim for LPP in respect of the redacted portions of this document and it follows that the whole of the document should be disclosed to the first and second accused under the summons.

Item 18	Case note ID 2551858 dated 8 June 2009 (redacted)	See par 65.11 of the affidavit of Mr G P Pritchard of 26 October 2012
Item 19	Case note ID 25532289 dated 26 November 2009 (redacted)	See par 65.11 of the affidavit of Mr G P Pritchard of 26 October 2012

1. These two documents can be dealt with together.  The ACC makes a claim of LPP over the redacted materials in the emails to the CDPP on the basis that they constitute confidential information between the ACC and the CDPP for the purpose of seeking and providing legal advice.  Further, the LPP claim is made on the basis that material was prepared, and dispatched by the ACC to the CDPP in contemplation of possible prosecution proceedings against the accused.

2. I have read both case notes. 

   (a)Case note 255185.  This is an email from the ACC to the CDPP pointing out concerns expressed by Thomson and his legal counsel about the position taken by the ACC as to the date when the alleged conspiracy commenced and advising that the issue should be left to Thomson's counsel to resolve directly with the CDPP.  I do not consider that the document contains any request for, or provision of, legal advice notwithstanding that it does outline differences in positions adopted by the ACC and by Mr Thomson's lawyer about the date for the commencement of the conspiracy.  It does identify an issue upon which legal advice or opinion may need to be formed in the future by the CDPP but it does not contain the basis of any such advice itself.  It clearly records a step taken in the preparation for the prosecution but it does not contain any evidence obtained for that purpose nor information which is confidential.  I do not consider that it does anything more than raise a query for future consideration.  For this reason I do not consider that the claim for legal professional privilege in respect of this document can be allowed and that accordingly it should be provided in unredacted form to the first and second accused under this summons.

   (b)Item 19 case note ID 2553289 - here the claim for LPP is in relation to a redacted portion only of this document.  I have read the document and it is nothing more than a record of agreement by the ACC to terms which had been proposed to allow the same counsel for Messrs Barlett and Sayers to represent both of those examinees at their separate examinations before the ACC.  This is not a document containing or seeking legal advice nor relating to the obtaining of evidence or the conduct of future legal proceedings.  Consequently, I do not consider that the redacted portion of the document is privileged and it follows that the whole document should be provided to the first and second accused under this summons.

Item 22 Case note ID 2556577 dated 10 December 2010 (redacted) See par 65.14 of the affidavit of Mr G P Pritchard of 26 October 2012

1. For this document the ACC makes a claim for LPP over the redacted material on the basis that it relates to confidential communications in the nature of legal advice from the CDPP to the ACC.  The redacted portion of this case note by ACC personnel records observations made to the ACC by an officer of the CDPP concerning the question of whether or not further statements should be sought from the accused Bartlett and Sayers and canvassing the reasons and factors involved culminating in a recommendation by the CDPP to the ACC in that respect and an agreement on the course of procedure then to be followed.  I consider that this does record confidential legal advice given by the CDPP to the ACC concerning the conduct to be followed in relation to a prosecution which was then in anticipation.  It follows that I would uphold the claim for privilege in respect of the redacted portion of this case note.

Item 23 Case note ID 2558060 dated 29 March 2011 (redacted) See par 65.14 of the affidavit of Mr G P Pritchard of 26 October 2012

1. Again the claim of privilege in respect of this redacted material is made on the basis that it relates to confidential communications in the nature of legal advice from the CDPP to the ACC.  As the unredacted portions of the case note show, the case note refers to a meeting between senior counsel engaged by the CDPP to run Operation Haycastle prosecutions and a meeting with the alleged co‑conspirator, Thomson, then a sentenced prisoner in the presence of a CDPP tax specialist officer.  The proofing session with Thomson lasted 60 minutes and was recorded.  The redacted portion of the case note deals with particular matters which were the focus of the proofing session in the light of issues which had been raised by counsel for the accused Bartlett and Sayers.  It records the observations and conclusions of the CDPP and ACC personnel made as a result of that interview.  I consider that the redacted portion of this memorandum contains confidential conclusions formed by the legal advisors to the CDPP and conveyed to the ACC dealing with the strength or otherwise of the evidence of a proposed witness for the prosecution.  I regard that as confidential information and opinion expressed for the purposes of the preparation for the prosecution and hence rightly subject to the claim for privilege.  It follows that the ACC should not be obliged to provide the redacted portions of this case note under the present summons.

Item 27 Case note ID 2559994 dated 17 August 2011 (redacted) See par 65.17 of the affidavit of Mr G P Pritchard of 26 October 2012

1. For this document the ACC makes a claim of LPP over the redacted materials on the basis that it relates to confidential communications in the nature of legal advice from the CDPP to the ACC.

2. A portion of this case note 2559994 of 17 August 2011 has been provided by the ACC to the first and second accused under this witness summons.  The controversy which remains concerns about six lines of the document which have been redacted and which in fact form the principal content of this short memorandum.  The redacted material records information provided by a CDPP case officer to the ACC about further steps about to be taken within the CDPP to advance these prosecutions and a related matter.  I consider that the redacted material contains confidential information about the steps intended to be taken by the CDPP in relation to the prosecution and hence subject to privilege.  It follows that I uphold the claim for privilege made in respect of the redacted portions of this case note and it follows that those portions need not be disclosed to the first and second accused under this witness summons.

Conclusion

1. That deals with each of the seven items which have been submitted to the court for rulings in respect of the claims advanced for LPP by the ACC.  In summary I have disallowed the claims for privilege advanced in respect of four of the seven items but allowed the claims for privilege made in respect of the remaining three items.  These rulings should, therefore, allow the witness summons to be answered in respect of those particular items which have been ruled upon.  However, if any controversies or practical difficulties arise in implementing these decisions the parties will have liberty to apply.