Director of Public Prosecutions (NSW) v Blackman

[2015] NSWLC 25

Local Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v Blackman [2015] NSWLC 25
Hearing dates:	6, 14, 16 July 2015, 11 September 2015
Date of orders:	02 October 2015
Decision date:	02 October 2015
Jurisdiction:	Criminal
Before:	Favretto LCM
Decision:	Determination in favour of the DPP. The part of the subpoena which seeks documents that contain legal advice and/or opinion on credibility should be rejected as this does not amount to a legitimate forensic purpose. Legal professional privilege as to the remaining documents not produced has not been waived
Catchwords:	COMMITTAL PROCEEDINGS – charges withdrawn – application for costs – subpoena seeking documents relating to police investigation and withdrawal of CANs – legitimate forensic purpose - claim of legal professional privilege
Legislation Cited:	Costs in Criminal Cases Act 1967, s 3 Crimes (Appeal and Review) Act 2001, s 70 Criminal Procedure Act 1986, s 214, 225 Evidence Act 1995, ss 118, 122 Police Service Act 1990, s 170 Supreme Court Act 1970, s 17, Third Schedule
Cases Cited:	Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 Beckett v State of New South Wales (No 3) [2013] NSWSC 791 Commissioner of Police v Hughes [2009] NSWCA 306 Cooper v Hobbs [2013] NSWCA 70 El-Zayet v The Queen [2014] NSWCCA 298 Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 Halpin v Department of Gaming and Racing [2007] NSWSC 815 Lam v R [2015] NSWCCA 143 Liristis v Gadelrabb [2009] NSWSC 441 Osland v Secretary to the Department of Justice [2008] HCA 37 Pi v State of New South Wales (No 4) [2015] NSWSC 1410 R v Manley [2000] NSWCCA 196 R v McFarlane (Supreme Court of NSW, Blanch AJ, 12 August 1994, unrep) R v Saleam [1999] NSWCCA 86 R v Seller; R v McCarthy [2015] NSWCCA 76
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Rodney Don Blackman
Representation:	Counsel: P Wass SC (for the defendant/applicant) M Kumar (for the DPP/respondent)
File Number(s):	2014/333977

Judgment

1. These are proceedings in which Rodney Don Blackman (the applicant) seeks a costs order against the Director of Public Prosecutions (the DPP) under s 214 of the Criminal Procedure Act 1986. The application follows on from the DPP on 14 July 2015 withdrawing all seven Court Attendance Notices (CANs) alleging that the accused had assaulted his former wife. The applicant is a police officer.

2. The applicant in support of his application for costs has issued two subpoenas seeking documents relating to the investigation by police and the withdrawal of the CANs by the DPP.

3. The subpoena issued to the Commissioner of Police has been resolved between the parties with part production. However, there remains a dispute between the DPP and the applicant as to part of the subpoena issued to the DPP. The DPP maintains that the subpoena lacks a legitimate forensic purpose (LFP) and maintains a claim for Legal Professional Privilege (LPP) other than for the documents where the DPP has expressly partially waived privilege. The DPP also objects to production of documents created by police for the purposes of an investigation of a complaint under Part 8A of the Police Service Act 1990.

4. The applicant submits that there is a legitimate forensic purpose and that the DPP has waived (by imputation) his privilege under s 122(2) of the Evidence Act 1995 to those documents not produced.

5. In order to understand the context of the DPP subpoena, brief regard to the following history of the proceedings assists:

1. The seven offences were alleged to have been committed between 1 July 2007 and 28 April 2012.

2. The complainant reported the domestic violence offences to police on 15 February 2014.

3. The matter then became the subject of a police investigation under s 170 of the Police Service Act. Detective Inspector Grassick was appointed by Detective Inspector Nash, Professional Standards Manager, Western Region to investigate the matter.

4. On 16 May 2014 Inspector Grassick forwarded his report and s 148 application to Detective Nash for review and subsequent determination by Assistant Commissioner McKechnie, Western Region Commander.

5. The matter was then referred to the DPP. Subsequently, John Pickering SC, Deputy Director of Public Prosecutions gave an “initial advice direction” (Exhibit APP 1/18).

6. On the advice of the DPP the CANs were laid on 12 November 14.

7. The matter was subsequently listed for a 10 day hearing on 6 July 2015.

8. On 2 June 2015 the accused made representations to the DPP that the CANs should be withdrawn because there were not reasonable prospects of a conviction.

9. On 12 June 2015, Carl Young, the ODPP solicitor with carriage of the matter, had a face to face conference with the complainant. The complainant indicated that she was willing to proceed with the prosecution and understood the requirements of giving evidence.

10. On 29 June 2015 Mr Young received a telephone call from the complainant stating that she did not want the hearing to proceed. The complainant’s reasons were that the anticipated hearing was causing her a “massive amount of stress and she is not coping well in regards to her mental health…the hearing is putting pressure on her relationship with family members and especially her daughter who are required to give evidence.” (Exhibit APP1/6; 19; 20).

11. On 30 June 2015 the complainant provided a written statement in similar terms but added “5. This is not to say that anything that I have previously stated is incorrect. I maintain that these things did take place, I simply can’t face the trauma of going to court.” (Exhibit APP1/6).

12. On 30 June 2015 Deputy Director John Pickering SC made a direction (Exhibit APP1/18) that all 7 charges be withdrawn. That direction has been the subject of an express waiver of legal professional privilege by the DPP. The direction in its entirety records:

I have read the comprehensive report of Mr Young, and Ms Viney’s second report. I am very familiar with this brief from doing the initial advice direction.

It is very disappointing that the complainant is unwilling to proceed in this matter. I have carefully considered the domestic violence protocol in our Guidelines, but can see very sound reasons (particularly related to the complainant’s mental health) to not compel her against her wishes.

The complainant’s wishes have been expressed in a conference with Mr Young (as detailed), but also in a statement of 30 June 2015 to Police Officer Gollan. I am satisfied that she has made an informed choice, and one not made out of pressure. This is an important consideration in a domestic violence case.

Whilst I am very tempted to compel the complainant against her wishes, I have decided that it is not in the interests of justice to do so. The age of the complaints, the absence of any on-going relationship between the accused and complainant, the lack of any previous convictions of the accused for domestic violence, and the mental health of the complainant are the main factors pointing towards me not compelling the victim and forcing the matter to proceed. If these factors were not so strongly in support of not proceeding in light of the complainant’s wishes, then I may have found differently.

There is little doubt that it is not a strong case, however there is still a reasonable prospect on all charges. The strength of the case was not an important factor in my decision.

The seriousness of the offences did not dictate that we must proceed, unlike some other domestic violence offences.

I wish to record in my direction that I completely disagree with all aspects of the accused’s no further proceedings application. It played no role in my decision, and as such I want this to be made clear to the accused.

Therefore I am going to slightly waive legal professional privilege in my formal directions.

My directions are as follows:

1. I direct that all 7 charges be withdrawn for purely discretionary reasons, related to the wishes of the complainant.

2. I direct that the accused be notified of this in writing in the following way:

“Thank you for your letter of 2 June 2015 requesting that all charges against Mr Blackman be withdrawn. Please note that the Director of Public Prosecutions has carefully considered your application. The Director of Public Prosecutions has determined that there is no merit to your application, and is of the view that there is a reasonable prospect of a conviction on all 7 counts, and as such the matter should proceed.

However, for reasons completely unrelated to your application for no further proceedings, and being for purely discretionary reasons, the Director had determined not to proceed further with this prosecution, and will withdraw all charges before the Downing Centre Local Court on 6 July 2015”.

Mr Young is to send the letter under his hand (he can make any stylistic changes he likes).

3. If there is a costs application, then I direct the statement of the complainant of 30 June 2015 be served.

4. If there is a cost application I waive legal professional privilege but only to this specific extent, that is that the Court is to be informed that the Director did not withdraw this matter because he believed that there was no reasonable prospect of conviction, but on the basis of discretionary factors, principally the undesirability of compelling the complainant against her wishes. This is only to be communicated to the Court if there is a costs application. The statement of 30 June 2015 should be tendered on any costs application.

John Pickering SC

Deputy Director

30 June 2015.

13. By letter dated 1 July 2015 directed to Penelope Wass SC (the accused’s counsel) Mr Young responded to the accused’s application of 2 June 2015 in the terms set out in Direction 2 above.

14. Ms Wass SC by email dated 1 July 2015 to Mr Young asked “Can you please provide reasons for the withdrawal so I might advise my client appropriately.”

15. Mr Young replied on 1 July “The reasons for the direction to withdraw the charges (additional to what is already identified in my letter) are currently protected by Legal Professional Privilege. As such I am unable to provide further information at this time.”

16. Ms Wass SC by email on 3 July 2015 informed Mr Young that the accused intended to make a costs application and foreshadowed the issue of a subpoena for the reasons why the matter was not proceeding.

17. Mr Young replied on 3 July 2015 that any costs application is likely to be opposed and sought on what basis cost would be sought.

18. Ms Wass SC replied on 3 July 2015 that without knowing why the prosecution was being discontinued that the accused would not at that stage limit himself to the grounds under s 214. Ms Wass SC also said:

We simply want to know whether or not you intend on putting on any evidence in response to an application for costs or whether you are simply going to keep the reason for withdrawal undisclosed from the defendant, other than to say that the material is the subject of legal professional privilege. That would of itself would appear at first instance to leave open to the defendant to argue at least subsections (c) and (d).

19. Mr Young replied by email attaching an Affidavit dated 3 July 2015 with supporting materials (APP1/6) and saying “I note that in regards to the costs application there has been a limited waiver of Legal Professional Privilege sought and approved.”

6. On 6 July 2015 leave was granted by the Court to serve the DPP with a subpoena. There has been a response by the DPP either producing certain documents or responding there is nothing to produce. The DPP objects to the following documents sought by the accused:

1. Any document relevant to the credibility of [the complainant] including but not limited to:

(i) All emails or filenote or other document recording conversations relied upon to discontinue proceedings against the accused as advised to the accused’s legal representatives on 1 July 2015;

…

4.   Any material provided between the DPP and police in regard to any decision to proceed or withdraw (but not including any legal advice given ); and including but not limited to any document regarding discretionary matters referred to in paragraph 11 of Carl Young’s affidavit dated 3 July 2015 (attached).

5. Documents prepared by Inspector Grassick pursuant to s.148 Police Act (but not including legal advice).

In his Affidavit of 3 July 2015 Mr Young says at 11:

The Director did not withdraw this matter because [he] believed that there was no reasonable prospect of conviction, but on the basis of discretionary factors, principally the undesirability of compelling the complainant to give evidence against her wishes.

The statutory privilege under s 170, Police Act 1990

7. Objection having been taken by the DPP and Commissioner of Police, the applicant does not press Item 5 of the subpoena on the basis there is no consent to their production. The Court is relevantly satisfied that there is no consent.

8. Shortly, not only are those documents inadmissible (s 170(1), Police Act 1990) but by a circuitous route their production cannot be compelled as they are subject to a statutory privilege: see the combined operation of s 225(b) of the Criminal Procedure Act 1986 which gives the same right to object as in the Supreme Court; s 17/Third Schedule, Supreme Court Act 1970 and Part 75 Rule 3 of the Supreme Court Rules 1970, which pick up Part 1.9 of the Uniform Civil Procedure Rules; Commissioner of Police v Hughes [2009] NSWCA 306 at [43]-[48]; Beckett v State of New South Wales (No 3) [2013] NSWSC 791 at [34]-[36].

The power to award costs under s 214 Criminal Procedure Act 1986

9. In considering the LFP and LPP objections by the DPP it is material to reflect upon those objections in the context of what this Court is required to determine on the application for costs. Section 214 relevantly provides:

214   Limit on award of professional costs to accused person against prosecutor acting in public capacity

(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. the application for costs.

10. In the present context it is important to bear in mind that the test to be applied by the Court under s 214 is an objective test: Halpin v Department of Gaming and Racing [2007] NSWSC 815 at [58]. While Hall J was there dealing with s 70(1)(b) of the Crimes (Appeal and Review) Act 2001, it is in identical terms to s 214(1)(b). Given the interchanging and synonymous words “unreasonable” (s 214(1)(a)), “reasonable” (s 214(1)(b)), “unreasonably” (s 214(1)(c)) and “reasonable” (s 214(1)(d)) there is a clear statutory intention that the test to be applied by the Court is an objective one. Ordinarily, the use of the word “reasonable” in a statutory context has been held to be an objective one: compare for instance the “reasonable to institute proceedings” test in s 3(1)(a) Costs Criminal Cases Act 1967, where in R v Manley [2000] NSWCCA 196 Wood CJ at CL held at [14] that it was an objective test based upon all the relevant evidence.

Legitimate Forensic Purpose

11. Once objection is taken it is for the applicant to show that the subpoena does have a LFP and must articulate how the documents will materially assist his case. The crux of the applicant’s contention is that that any document (legal advice or otherwise) which records consideration of the complainant’s credibility must go to the question of “unreasonable” (s 214(1)(a)), “reasonable” (s 214(1)(b)), “unreasonably” (s 214(1)(c)) and “reasonable” (s 214(1)(d)). Those documents would go to the strength of the prosecution’s case for the purposes of the s 214 and would include the decision to prosecute and the maintenance of the prosecution as well as the decision to withdraw the CANs. The applicant further submits that those documents could also reveal whether the investigation was conducted in an unreasonable or improper manner or failed to properly and any relevant conduct by the prosecutor. The Court is satisfied that in part the applicant has discharged his onus by articulating a legitimate forensic purpose.

12. The principles relating to LFP are well settled. There are the oft repeated statements as to whether the documents sought amount to “a fishing expedition” or whether it is “on the cards” that the documents assist. However, it is how those principles are applied in the individual circumstances of each matter that makes the result more imprecise. In the seminal decision of Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 Beazley JA, with whom Barr and Kirby JJ agreed, considered the history of the development of the law in NSW regarding the classic LFP “on the cards” test. After discussing the principle that a party must show more than the mere relevance of documents sought pursuant to a subpoena but also that such documents may be of assistance to the party’s case in the proceeding, Beazley JA went on to say of the “on the cards” test at [64]-[70]:

The correct test

64 The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms:

“The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.”

…

65 The genesis of the expression “on the cards” is to be found in the judgment of Gibbs CJ in Alister v R [1983] HCA 45; (1984) 154 CLR 404 at 414. In Alister, the High Court was concerned with a subpoena issued to the Australian Security Intelligence Organisation (ASIO) in the course of a criminal trial for conspiracy to murder and attempt to murder. The police (acting upon information provided by an informant) had been able to foil the conspiracy, which involved an intention to murder by exploding a bomb near the intended victim’s home. The case was notorious – the accused members of Ananda Marga had been suspected of placing a bomb outside the Hilton Hotel in Sydney, in an attempt to kill the Prime Minister of India. The subpoena had required ASIO to produce all files and documents relating to the informant in respect of ASIO’s investigation of Ananda Marga. The Attorney General for the Commonwealth objected to the production on security-based public interest grounds.

66 Gibbs CJ, at 414, noted that the applicants who had sought the production of the documents were not able to state whether or not the documents existed, or if they did, whether they were likely to assist the applicant’s case. His Honour observed, however, that it was not unreasonable to believe that documents were in existence and that “one would guess that any reports … would be adverse to the applicants”. His Honour referred to the conflicting position in England as to the circumstances in which a court would inspect documents in a case where public interest immunity was claimed. It is necessary to set out that passage in full, in order to understand the context in which his Honour introduced the terms “on the cards”. He said:

“Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence.” (Emphasis added) (Citations omitted)

67 It is both important and instructive to understand the manner in which Gibbs CJ saw this test operating at a practical level. He said, as a continuation of the passage just quoted:

“If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.”

68 The approach of Gibbs CJ in Alister has been consistently adopted and applied in this State. An early, useful example is Principal Registrar of the Supreme Court v Tastan. Barr AJ (as his Honour then was) said, at 499, that there will be no legitimate forensic purpose if, “all the party is doing is trying to get hold of the documents to see whether they may assist him in his case”: see The Commissioner for Railways v Small. His Honour noted that there was nothing in the case before him that made it appear to be “on the cards” that anything contained in the subpoenaed documents was likely to materially assist the accused in his defence. His Honour considered, at 506, that the defendant wanted access to the documents “to see whether he had a [defence]”.

69 Hunt J (Carruthers and Grove JJ agreeing) applied the “on the cards” test in an earlier Saleam case: R v Saleam (1989) 16 NSWLR 14, and permitted access to documents in circumstances that were redolent of the example given by Gibbs J in Alister. The subpoena in this case had been issued during the appeal process. It was argued that there was material in the subpoenaed material that would indicate that there had been a miscarriage of justice at trial. The accused had been told by a police officer seconded to the Ombudsman’s office that “that there were discrepancies in the police case” at the trial. It was not disputed that such a statement had been made. The accused claimed that the subpoenaed material would be relevant to impugn the credit of the principal Crown witness at trial. The Court allowed access to the documents on the basis that it was “at least ‘on the cards’ that the documents in question would assist the appellant in his appeal and that there was therefore a legitimate forensic purpose for the production of the documents”.

70 The Attorney General indicated that Simpson J’s formulation in R v Saleam [1999] represented the commencement of a line of authority in which the test for the production of, or access to, documents, was specifically stated as comprising two steps: a legitimate forensic purpose and that it was “on the cards” that the documents would materially assist the case. However, in stating the test in this specific ‘two step’ way, her Honour did not state any new principle. As I have already stated at [64], in the authorities that preceded R v Saleam [1999], including Alister, the courts, in determining whether access would be granted to documents sought on subpoena, have always applied a test that involves determining whether each of the factors identified by Simpson J had been established.

13. Insofar as the DPP subpoena seeks documents (but is not limited to) relating to the credibility of the complainant it is instructive to record what Brereton J said in Liristis v Gadelrabb [2009] NSWSC 441 at [5] regarding a subpoena for criminal records:

I do not understand it ever to have been a proper objection to a subpoena that it seeks documents relating only to credit. Indeed, one of the fundamental distinctions between the processes of subpoenas for production and discovery is that subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purpose of assisting cross-examination as to credit. It is true that in Fried v National Australia Bank (2000) 175 ALR 194, Weinberg J in the Federal Court of Australia said that it was inappropriate to permit a subpoena to stand which does little more than to trawl for documents that may be used to impugn the credit of a particular witness. I do not disagree with that observation, but that is not to say that it is inappropriate to permit a subpoena to stand that seeks documents that may be used to impugn the credit of a particular witness, as distinct from merely trawling for such documents. The concept of "trawling" in this context is the same as that of "fishing". It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is "on the cards" that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena.

14. Addressing the first step, the Affidavit of Johanna Pheils of 13 July 2015 (now part of APP1/23), the Deputy Solicitor (Legal), Office of the Director of Public Prosecutions contains a list of documents which have not been served on the accused and in respect of which a claim for LPP is maintained. To the extent that those documents (and any other) record the evidence and reasons for the advice to institute and maintain the proceedings, rejection of the applicant’s representations and subsequent withdrawal of the CANs they plainly must have a legitimate forensic connection to the costs issue, namely the reasonableness of the prosecution and the decision to withdraw. Those are the foundation documents going to the decision to advise and to prosecute, the maintenance of the prosecution, the rejection of the applicant’s representations and the decision to withdraw. The Direction of 30 June 2015 (APP1/18) by the Deputy Director of itself establishes the provenance of those documents by referring to the advices of Mr Young, Ms Viney and his initial advice direction. It would also include any document that touches upon the concession by the Deputy Director that “There is also little doubt that it is not a strong case.”

15. On the second step, namely whether it is on the cards that those documents will materially assist the applicant, the court draws a distinction between those documents that record evidence (including hearsay representations) and those that record opinion (including legal opinion and advice on credibility). The reason for doing so is that this Court’s determination is based upon an objective test and any evidence going to the decision to advise and to prosecute, the maintenance of the prosecution, the rejection of the applicant’s representations and the decision to withdraw must be material to that determination: compare for instance Pi v State of New South Wales (No 4) [2015] NSWSC 1410 at [7] where it was held that it was “on the cards” that Medicare documents relating to a claim for significant psychiatric injury requiring medication would or could materially assist the defendant’s case.

16. On the other hand (save for one exception) the legal opinion of any person (including the assessment of the credibility of the complainant) cannot be said that such opinion will “on the cards …will materially assist” (R v Saleam at [11]) the applicant. Even if it favours the accused, it is no more than opinion: compare Lam v R [2015] NSWCCA 143 at [58] where the Court of Criminal Appeal accepted that a sentencing judge was entitled to reject the opinion of a psychologist because the sentencing judge had rejected the history upon which that opinion was based.

17. Further, to the extent that it could be said there is some similarity between the test of the reasonableness of instituting proceedings in the Costs in Criminal Cases Act 1967 and s 214, it is important to bear in mind that “a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is a reasonable prospect of conviction”: see R v McFarlane (Supreme Court of NSW, Blanch AJ, 12 August 1994, unrep) followed in R v Manley at [10]-[13]. Given the partial symmetry between the Costs in Criminal Cases Act 1967 similar observations can be made as to the reasonableness tests s 214 given it is also an objective test.

18. It is not the function or obligation of this court to weigh up any conflicting legal opinion and validate or invalidate one legal opinion over the other. To do so is likely to dissuade the Court from the objective analysis it is required to undertake of the evidence and lead the Court into error by taking into account an extraneous consideration. The Deputy Director’s Direction of 30 June 2015 makes it abundantly clear that the decision to withdraw the CANs was “for purely discretionary reasons”. That decision is a state of mind only (opinion). The DPP has disclosed the evidentiary basis for that discretionary decision of the complainant’s wishes by producing the telephone note of 29 June 2015 and the complainant’s statement of 30 June. The underpinning legal advices cannot take this issue any further and cannot have a LFP let alone it being “on the cards” that the opinions will materially assist the applicant.

19. The one exception the Court alluded to is whether any legal opinion advised that this prosecution be initiated and maintained for an improper purpose: see for example the observations by Wood CJ at CL in R v Manley (at [17]-[18]) rejecting the notion advanced by the DPP in that case that a consideration of whether it was or was not it was reasonable to institute proceedings included:

… it was proper to take into account matters of public policy such as the necessity to ensure that justice is seen to be done in serious cases of criminality, and the necessity to secure public confidence in the justice system and in the Courts, and also to have regard to the prevalence of the offence being prosecuted and the degree of public concern in relation to it. In my view such considerations are irrelevant to the evaluation, by the hypothetical prosecutor of the evidence, the knowledge of which is imputed to the prosecution.

Again, bearing in mind the objective test this Court is required to consider those sentiments must, a fortiori, also apply. However, there is nothing to suggest that that is the case here and in fact it would be a fishing expedition to go looking for the bare possibility that such a legal opinion exists. The Deputy Director’s Direction of 30 June 2015 makes it abundantly clear that the decision to withdraw the CANs was “for purely discretionary reasons” and the reasons are recorded (see especially paragraph 4). Nothing in the Direction even comes clear to a suggestion that the proceedings were instituted and maintained for the purpose of clearing the air (so as to speak) by criminal proceedings in a court.

20. It follows that that part of the subpoena which seeks documents that contain legal advice and/or opinion on credibility (rather than the evidentiary basis for) should be rejected as it does not amount to a LFP. The applicant has failed to discharge his onus on this part of the subpoena.

Waiver of Legal Professional Privilege

21. While the Court has determined that any legal advice and/or opinion on credibility does not satisfy the LFP test it still leaves (the court assumes) other documents of an evidentiary nature that do have a LFP. On the basis that these documents are the subject of a claim of LPP (the parties have proceeded on this basis) then the issue of imputed waiver needs to be determined. For abundant caution the Court also proposes to deal with whether privilege has been waived for those documents that contain legal advice (which would include credibility assessment) where the Court has determined there is no LFP.

22. There is no issue between the parties that the documents sought are not of the nature that fall within a claim of LPP under s 118, Evidence Act. What is in dispute is whether the DPP by the partial waiver has acted in a way inconsistent within the meaning of s 122(2) and (3), which provides:

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if:

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

23. The principles governing the application of a waiver of privilege under s 122(2) and (3) were set out in Cooper v Hobbs [2013] NSWCA 70 where the court said at [68]-[72]:

68 In Mann v Carnell the plurality (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said (footnotes omitted):

“[28] At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that 'waiver' is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication...

[29] ... Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.” (Emphasis added)

69 Although the plurality said in Mann v Carnell (at [23]) that s 122 of the Evidence Act has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law, neither party contended that there was any relevant distinction between the common law test of inconsistency the plurality formulated in that case and the inconsistency test in s 122(2).

70 Questions of waiver are matters of fact and degree so that, whether, at common law (or, I would add, pursuant to s 122(2)), “in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case”: Osland v Secretary, Dept of Justice [2008] HCA 37; (2008) 234 CLR 275 (at [49]) per Gleeson CJ, Gummow, Heydon and Kiefel JJ.

71 In Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 (at [68]), Gyles J (Tamberlin J agreeing) held that it was “... well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege”. Maxwell P (Bongiorno AJA agreeing) cited Gyles J's proposition in Secretary, Department of Justice v Osland [2007] VSCA 96; (2007) 26 VAR 425 (at [20]) and applied it (at [67]) in rejecting the challenge to the Attorney-General's claim of legal professional privilege in relation to advice he had received on the basis of which he had rejected the respondent's petition for mercy. The plurality in the High Court approved Maxwell P's reasoning: Osland v Secretary, Dept of Justice (at [50]).

72 In Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 (at [46] - [48]) Hodgson JA (with whom Campbell JA agreed) re-visited the statements he made in Standard Chartered Bank of Australia Ltd v Antico (at 93 - 95) concerning waiver (see [62] - [63] above) in the light of the decision in Mann v Carnell. His Honour concluded (at [48]) that that his "exposition [was] consistent with both Maurice and Mann, subject to the need to look for inconsistency". He added (at [48]):

"It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client's state of mind, in circumstances where there were confidential communications likely to have affected that state of mind." (Emphasis added)

24. More recently in R v Seller; R v McCarthy [2015] NSWCCA 76 the court said:

An imputed waiver of the nature raised in the present case will arise when conduct is inconsistent with the maintenance of the confidentiality the privilege is intended to protect. What brings about the waiver is the inconsistency which the Courts, informed by considerations of fairness, perceive between the conduct of the client and maintenance of the confidentiality, not some overriding principle of fairness operating at large: Mann v Carnell [1999] HCA 66; 201 CLR 1 at [29]; Osland v Secretary Department of Justice [2008] HCA 37; 234 CLR 275 at [45]. As the plurality observed in the latter case (at [49]), this is a question of fact and degree.

25. Both parties have proceeded to argue this matter on the basis of imputed waiver. The parties have made extensive submissions and reference to authority on the waiver issue for which the court is indebted. However, as Cooper v Hobbs and R v Seller; R v McCarthy make it clear, the question to be determined is one of “fact and degree” in the circumstances of each matter: see also Osland v Secretary to the Department of Justice [2008] HCA 37 at [45]. Caution needs to be exercised in considering decisions applying the Mann v Carnell test as it is not identical to s 122(2) and (3); see Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353, where White J said at [10]:

The amendments made to s 122 of the Evidence Act in 2007 (commencing in 2009) by the introduction of subs (2) more closely aligned s 122 to the common law principles of waiver enunciated in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1. But the Australian Law Reform Commission did not seek to make the principles identical. In its report leading to the amendment (Australian Law Reform Commission, Uniform Evidence Law, Report 102 (2006)) it reaffirmed that client legal privilege should be lost wherever there is voluntary production (see paras [14.146] and [14.147]). Section 122(3) is not merely a guideline for the application of s 122(2), but a prescription that subs (2) is taken to be satisfied if the requirements of subs (3) are met.

26. In Fenwick White J went onto make a useful analysis of a number of decisions which disclose contrasting results: see at [13]-[17] but then at [18]-[23].

27. In the circumstances of this matter, this Court must determine whether the partial waiver by the DPP satisfies the s 122(3) proscription “(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party”. The crux of the applicant’s contention is that the purpose for which the DPP made the disclosure is highly relevant: compare Osland at [48]. The applicant relies upon the temporal connection between his representations on 2 June 2015 that there be no further proceedings and to the Direction to withdraw made on 30 June 2015; and, the foreshadowing in the Direction of the release of the reasons for withdrawal (and the complainant’s statement of 30 June 2015) if there was a costs application. The applicant submits that partial waiver was done for a forensic advantage on the costs application and not for the purpose of informing the accused (as he had sought) the reasons for withdrawal. By the DPP electing “that he will disclose what is said to be one of more than one reason why the matter is withdrawn, but will not disclose the other.” (Written Submission of 1/9/15 at [10]), the DPP has acted in a manner that is inconsistent with the maintenance of his privilege over the other documents which formed part of his determination. The result is, the applicant argues, that “It is a clear case of a party to litigation ‘deploying’ a partial disclosure for forensic advantage, while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication.”

28. It is the contents of the letter of Mr Young of 1 July 2015 (the reference to “purely discretionary reasons”), the disclosure of the documents in APP1 and the evidence of Inspector Grassick which the applicant maintains is inconsistent with the maintenance of confidence by the Director.

29. The DPP responds that what has been disclosed does not refer to the content of any legal advice nor is there anything stated that anyone has acted on legal advice in any of the documents in APP1. Particularly, the Direction of 30 June 2015 does not reveal the content of any legal advice nor does the Direction (or any other APP1 document) assert the Director accepted or followed any legal advice: see for instance Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12.

30. As the axiom goes, “context is everything”, and so much is clear from the numerous authorities. It must be borne in mind that any disclosure is the client’s to make, here the Director (albeit the Deputy Director). Here, whatever was disclosed by Mr Young (and to a lesser extent by Inspector Grassick) cannot rise above the express authority given in the Direction: see El-Zayet v The Queen [2014] NSWCCA 298 at [117]-[120] which the Director has at all times maintained. A close scrutiny of the Direction and its surrounding context clearly shows that the Direction and the other APP1 documents were created for the sole purpose of the Deputy Director determining whether the proceedings should continue given the complainant’s express wishes she did not wish to give evidence. There is no other context to the coming into existence of those documents. The exercise of the Deputy Director’s discretion as is recorded was based upon a number of “purely discretionary factors” consequent upon the complainant’s expressed wishes. While the Direction includes the references, “I have read the comprehensive report of Mr Young, and Ms Viney’s second report. I am very familiar with this brief from doing the initial advice direction” and “There is little doubt that it is not a strong case, however there is still a reasonable prospect on all charges. The strength of the case was not an important factor in my decision”, it does so in passing reference only. The Court is not satisfied that the disclosure of the relevant documents “disclosed not only what is said to be the conclusions of the legal advice received by the defendant, but the reasoning”, to use the words of White J in Fenwick at [24]. There is no reference by the Deputy Director (at least in the sense of unfairly re-enforcing) to that prior legal advice let alone its reasoning for the forensic purpose of the costs application. The Direction records reasons and conclusions on discretionary factors by the Deputy Director only and not any legal advice underpinning the Direction. There has not been a disclosure of the “substance” of the evidence (the legal advice).

31. Similarly with Osland, what has been released are the reasons for a discretionary decision in the context of a matter of clear public importance, namely why criminal proceedings against an Inspector of Police were withdrawn. In fact in Osland the conclusions of the legal advice were disclosed which could not be said to be the case here, only discretionary reasons.

32. Sight should also not be lost that the initial purpose for the waiver disclosure of the Direction was for a “specific extent” to inform the Court on a costs application that the matter CANs were withdrawn for the discretionary reasons set out. Subsequently and at the request of the applicant for reasons why the CANs were withdrawn, the DPP disclosed the telephone note between Mr Young and the complainant of 29 June 2015 and then the complainant’s statement of 30 June 2015, which are consistent with the Direction and no more. The DPP’s disclosure cannot have a forensic advantage let alone an unfair forensic advantage on any costs application such that it is inconsistent with the maintenance of the privilege under s 122(3). By way of contrast if the Director had remained mute and said nothing until the hearing and then informed the Court accordingly for the reasons of withdrawal, that could not be said to be a waiver of privilege. That would be a submission and no more which the DPP would be entitled to make without waiving privilege. The disclosure of the Direction and other APP1 documents cannot then legitimately and in the sense of unfairness and inconsistency amount to an imputed waiver under s 122(3)(b).

33. For the foregoing reasons the Court determines that legal professional privilege as to the remaining documents not produced has not been waived.

Magistrate J Favretto

Downing Centre Local Court

2 October 2015

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Decision last updated: 28 January 2016