Director of Public Prosecutions v Esso Australia Pty Ltd

[2001] VSC 518

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

V

ESSO AUSTRALIA PTY LTD

REASONS FOR RULING No.13

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF REASONS:	19 December 2001
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 518

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Criminal law – evidence – legal professional privilege – accused’s solicitors' instructions to expert witness – calling of witness - privilege lost.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	R. Richter QC with N. Clelland	Office of Public Prosecutions
For the Accused	M. Titshall QC with M. Hennessy	Middletons Moore & Bevins

REASONS FOR RULING No. 13

HIS HONOUR:

1. At the time I made Ruling No. 13 (T. 4527), the jury was waiting and I did not then pronounce my reasons.  Upon giving judgment in numerous compensation applications in this matter I publish herewith my reasons for that Ruling.

1. Esso Australia Pty Ltd has been charged with 11 counts of breaches of sections 21 and 22 Occupational Health and Safety Act1985. These are indictable offences : s. 47(3) of that Act. The charges arise from the rupture, explosions and fires at Esso's Longford gas plant on 25 September 1998 and from earlier safety procedure failures alleged by the prosecution. The prosecution case has concluded. Esso in its defence has called two witnesses, namely Mr L R Dorsett, of Southlake, Texas, a consultant engineer (whose evidence at the time of Ruling No. 13 had concluded) and Dr Paul Baybutt, of Columbus, Ohio. Dr Baybutt holds a Ph. D. in chemical reactions from University of Manchester, U.K., and is President and Chief Executive of Primatech Inc. of Columbus, Ohio, which corporation specialises in hazard analysis. Dr Baybutt at the time of the making of Ruling no.13 was giving evidence.

1. In evidence–in–chief, Dr Baybutt's evidence primarily had related to Counts 1 and 2 on the presentment, namely that Esso at Longford between January 1993 and September 1998 had failed to provide and maintain, so far as was practicable, for employees a safe working environment at Gas Plant One – in that it failed to conduct any adequate hazard identification (Count 1) and had failed to conduct any adequate risk assessment (Count 2), each contrary to the requirements of s. 21(2) (b) Occupational Health and Safety Act1985. Dr Baybutt's evidence– in–chief occupied most of the day of 24 May 2001. Late in that afternoon, cross-examination, by Mr Richter QC for the prosecution, commenced.

1. At the outset of cross-examination an issue arose as to the elicitation in cross-examination of certain letters of instruction from Esso's solicitors to Primatech, of which Dr Baybutt is President and Chief Executive Officer. The letters – primarily that of 30 May 2000, and also its antecedent, of 16 May 2000 – had been produced by the defence three days earlier amongst seven lever arch files of material. That material was produced consequent upon a written request from the prosecution pursuant to s. 9 Crimes (Criminal Trials) Act1999 for the material upon which the two witnesses' opinions were formed. The letter of 30 May 2000, and also its antecedent of 16 May 2000, are relevant, each purportedly setting out Esso's then position on material matters in particular the cause of the rupture at Gas Plant One on 25 September 1998. Mr Titshall QC for Esso has objected to the elicitation of the letters in cross-examination by Mr. Richter, Mr Titshall submitting that the letters are privileged.

1. In my view it is clear that each letter, although once privileged, no longer is privileged.  They are letters of instruction from Esso's solicitors to a witness whom Esso now has called to give evidence.  The initial privilege (protecting the capacity of Esso confidentially to obtain expert advice as to matters in litigation) was lost once Esso called the witness to give evidence.  Else the ability of the opposing party to test – and the ability of the tribunal of fact to assess – the basis of the witness' evidence, including the basis of his retainer, would be impeded if not defeated.  The circumstance that the letters and each of them may also constitute admissions by Esso of relevant matter – the cause of the rupture – is consequential. 

1. The letters were not produced by mistake.  Had they been produced by mistake (for example , through inadvertence amongst voluminous produced material) I would have been inclined legally and in the exercise of fairness not to permit their elicitation before the jury:  see Meltend Pty Ltd & Ors. v Restoration Clinics of Australia Pty Ltd & Ors[1].  But they were produced neither by mistake nor by inadvertence. 

Further and importantly, it is conceded by the defence that the letters (written by

Esso's solicitors) were written on Esso's instructions and with its full prior knowledge.  This is not a case of a client being fixed with error or imprudence of a lawyer.  

[1](1997) 145 A.L.R. 391.

1. The letters when written were confidential.  They were written in order to obtain expert advice which may or may not have remained confidential.  They may have lost their character of confidentiality extrinsic to these proceedings, by reason of antecedent civil litigation (now ceased) in the Federal Court of Australia in which Esso was a party.  However it is unnecessary to have recourse to that extrinsic circumstance.  In these very proceedings, once Esso called the witness, Esso left the safe shore of confidentiality and privilege and crossed the Rubicon to the other side.  And that is as it should be, in order that testing by the opposing party – and assessing by the tribunal of fact – of the expert evidence called by Esso is not to be deflected or defeated.  That is an embedded value of the criminal process.  Relevant principle governing client's professional privilege and its waiver by conduct is to be found in Attorney General for the Northern Territory v Maurice & Ors[2], elaborated in Commissioner for Australian Federal Police v Propend Finance Pty Ltd[3]:  see also Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd.(no 1)[4], Telstra Corporation Ltd & anor[5] and helpfully summarised (as the law then was) by Lockhart J in Trade Practices Commission v Sterling[6].  I referred to these various authorities during counsel's submissions (T 4503-4504).  Although the cases cited in footnote 336 in McNicol Law of Privilege (1992) at page 98 and relied upon by Mr Richter (T 4524) do not unequivocally support Mr Richter's then submission, the basal principal is clear: the privilege attaching to confidential communication between client and expert witness is lost once the client calls the witness in evidence. 

   [2](1986) 161 CLR 475 per Mason and Brennan JJ at 487 – 488.

   [3](1997) 71 ALJR 327 per Brennan CJ at 332.

   [4](1999) 1 Qd R. 141.

   [5](1998) 156 ALR 634 per Branson and Lehane JJ at 646-647.

   [6](1978) 36 FLR 244 at 245-246.

1. For those reasons I ruled as I did in Ruling no. 13.

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