Director of Public Prosecutions v Jeffrey & Prestage (legal professional privilege ruling)
[2023] VSC 157
•3 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0359
S ECR 2021 0358
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| MS SHANNON JEFFREY MR BRENDON PRESTAGE | Accused |
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JUDICIAL REGISTRAR: | Freeman JR |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 6 and 8 March 2023 |
DATE OF RULING: | 3 April 2023 |
CASE MAY BE CITED AS: | DPP v Jeffrey & Prestage (legal professional privilege ruling) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 157 (First Revision 5 February 2024) |
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CRIMINAL LAW – Ruling – Legal professional privilege – Subpoena to produce addressed to Director of Public Prosecutions – Advice privilege – Litigation privilege - Sufficiency of evidence to support the claims for legal professional privilege – Whether Court should inspect documents – Derivative waiver of privilege - Evidence Act 2008 (Vic), ss 117, 118, 119, 122, 126, 133.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R Champion | Office of Public Prosecutions |
| For the Accused Jeffrey | Mr M Pena-Rees | Lewenberg & Lewenberg Solicitors |
| For the Accused Prestage | Ms S Gillahan | Stary Norton Halphen |
| For the Chief Commissioner of Police | Mr P Cadman | Victorian Government Solicitor’s Office |
FREEMAN JR:
IntroductionA.
Shannon Jeffrey and Brendon Prestage (the accused) are charged with the murder of Kobie Parfitt at Ballarat on 28 April 2020. A joint trial of each accused is listed to commence in this Court on 11 July 2023.
AB[1] and CD were former co-accused of Ms Jeffrey and Mr Prestage. All four individuals were originally charged by police with the murder of Ms Parfitt (the deceased) and they were all committed to stand trial for Ms Parfitt’s murder in December 2021 following a contested committal hearing before the Magistrates’ Court at Ballarat.
[1]There are suppression orders in place prohibiting the identification of AB and CD.
In October 2022, however, the prosecutions of AB and CD were discontinued by the Director of Public Prosecutions and it is now proposed that they will each be called as prosecution witnesses at the trial of the accused. A short time after the discontinuance of their prosecutions, witness statements made by AB and CD and other related materials were filed and served by the prosecution.[2]
[2]In addition to the statements of the witnesses, the prosecution has also filed and served recordings of police interviews with AB and CD, and transcripts of those interviews.
In advance of their trial, AB and CD (the witnesses) are to be the subject of preparatory cross-examination by counsel for the accused, pursuant to s 198B of the Criminal Procedure Act 2009. That hearing is presently listed before me on 5 April 2023. In preparation for that hearing, and indeed the trial of the accused, the legal representatives for Ms Jeffrey filed and served a subpoena to produce addressed to the Director of Public Prosecutions, requiring the production of documents and material relevant to the witnesses and in particular any assistance contemplated, offered and/or provided by the witnesses to the prosecution in connection with the prosecution of the accused for the murder of Ms Parfitt.
The Director has complied with the subpoena and produced documents to the Court, the majority of which have already been released to the parties without objection. The Director has, however, objected to the release of a number of the documents produced on the basis that legal professional privilege (LPP) applies to those documents. Ms Jeffrey opposes the LPP claim and presses for the release of the documents. Ms Jeffrey submits that the Director has failed to establish that the documents in issue are protected by LPP or, alternatively, if the Court finds that LPP applies to the documents, the Director has waived privilege in respect of those documents.[3]
[3]The Director’s claim of LPP was referred to a Judicial Registrar for hearing and determination, pursuant to rule 84.03(1) of the Supreme Court (General Civil Procedure) Rules 2015, by an order of Croucher J dated 20 February 2023.
Ultimately, by the conclusion of the contested hearing of the Director’s claim of LPP, there were only seven (7) documents produced by the Director which Ms Jeffrey pressed for release,[4] and for which the Court’s determination was required.
[4]It should be noted that Mr Prestage did not actively seek to be heard on the hearing and determination of the Director’s claim of LPP, but counsel for Mr Prestage appeared at the hearing to make any submissions if the need arose (none were ultimately made).
For the reasons that follow, the Director’s claim of legal professional privilege in respect of each of the seven (7) documents in question is upheld, and I reject the submission by Ms Jeffrey that the Director has waived privilege in respect of any of those documents.
B. Background
The case against the accused
It is sufficient for the purposes of this ruling to provide a brief overview of the prosecution case against the accused. In the prosecution’s amended summary of prosecution opening filed on 25 November 2022, the prosecution case against the accused is summarised in the following terms:
186.It is alleged that on 28 April 2020 Jeffrey and Prestage were at the deceased’s Hickman Street home after [CD] and [AB] had left the property. Jeffrey had a significant grievance with the deceased which she had previously acted upon by assaulting her.
187.On this day Jeffrey, assisted or encouraged by Prestage, assaulted the deceased in her own home by choking her with a dog lead as the deceased pleaded for her life. Once deceased, Jeffrey and Prestage strung Kobie Parfit up inside the house to make the death look like a suicide.
188.Later that evening, Jeffrey and Prestage, in Prestage’s vehicle, transported the deceased’s body to the Snake Valley area and dumped her down a deep mine shaft.
189.It is alleged that the murder was motivated by Jeffrey, enraged by her belief that the deceased had ‘lagged’ (reported) on her to police and stolen her property when she was in prison. However, to exact retribution she enlisted the help of Prestage.
Unquestionably, the witnesses are significant prosecution witnesses who have made detailed statements directly implicating the accused in the alleged murder of the deceased. Their evidence is relied on by the prosecution, particularly in relation to the allegations outlined in paragraph 187 of amended prosecution opening, as well as corroborating other aspects of the prosecution narrative of what is alleged to have occurred prior to, and after, the deceased was killed.
Prior to the statements of the witnesses being available, the prosecution case was far more limited in attributing specific alleged conduct to the accused. The prosecution case was that sometime after the deceased was last seen by a neighbour on 28 April 2020, an assault in which all [then four] accused were complicit resulted in the deceased’s death,[5] however, the prosecution could not say exactly what part each accused played in such assault.[6]
[5]The Amended Prosecution opening for trial, filed on 4 August 2022 at [119].
[6]Ibid at [204].
Procedural history
For reasons which will become apparent, it is also appropriate to provide a summary of the procedural history of this proceeding involving the accused and the witnesses. Indeed, the Director relies upon, in part, the chronology of relevant events insofar as the temporal connection between the chronology and the dates of the communications which are the subject of the claim of LPP.
Following their committal to stand trial, a post-committal directions hearing for all (at that time) four accused proceeded before me on 17 December 2021, at which I made various case management orders, inclusive of the date by which an indictment and summary of prosecution opening for trial were to be filed by the prosecution.
On 1 March 2022 the Director filed indictment no C2114255 charging each of CD, Ms Jeffrey, Mr Prestage and AB with murder together with the summary of prosecution opening for trial (the first prosecution opening).
Issue was subsequently taken on behalf of all four accused as to the adequacy of the first prosecution opening in that it lacked material particulars, and failed to disclose a viable case of murder against each accused. Defence responses to the first prosecution opening were filed and a number of the accused foreshadowed making an application for a permanent stay of the prosecution.
Meanwhile, as is revealed in the Director’s chronology, the legal representatives for AB were in communication with the prosecution in February and March of 2022 indicating a preparedness on the part of AB to cooperate with the prosecution, including the provision of a ‘can say’ statement.
At a further directions hearing on 22 June 2022 I made orders fixing the foreshadowed applications for permanent stay for hearing on 30 September 2022 and a timetable for the filing and service of submissions in respect of that application.
On 4 August 2022, the prosecution filed and served an amended summary of prosecution opening for trial in respect of all four accused (the second prosecution opening). It appears the second prosecution opening was drafted to address some of the issues which had been raised in the submissions filed on behalf of the accused in support of the applications for a permanent stay.
The hearing of the applications for permanent stay on 30 September 2022 was subsequently vacated and refixed on a date in November 2022, for reasons which are not relevant for present purposes.
On 27 September 2022, an unsigned ‘can say’ statement of CD was forwarded by his legal representatives (via email) to the prosecution. It was indicated on behalf of CD that the signing of the statement was conditional on certain matters, including the discontinuance of his prosecution. Further communications between CD’s legal representatives and the prosecution continued in October 2022, resulting in CD signing his statement and participating in a recorded witness interview with police on 13 October 2022.
Similarly, in October 2022, the legal representatives for AB communicated with the prosecution in relation to AB’s proposed cooperation with the prosecution, inclusive of the provision of an unsigned ‘can say’ statement, and on 25 October 2022 she signed the statement and also participated in a recorded witness interview with police.
Following the prosecution’s receipt of the signed statements of CD and AB, the Director announced the discontinuance of their prosecutions. CD’s discontinuance was announced in Court on 27 October 2022, and AB’s discontinuance was announced in Court the following day, 28 October 2022. They were each released from custody at that time.
On 31 October 2022, the prosecution filed over a new indictment, charging only the accused with the murder of Ms Parfitt, and listing AB and CD as prosecution witnesses. Notices of Additional Evidence were also filed and served at that time, enclosing the signed statements of the witnesses and related materials.
On 25 November 2022, the prosecution filed a further amended summary of prosecution opening for trial (the third prosecution opening) which, as outlined above at paragraph 9, further articulated the case against the accused in light of the proposed evidence of the witnesses. Significantly, for the first time, the third prosecution opening attributed specific conduct to the accused in the murder of the deceased.
Consequent upon these developments, at a directions hearing on 11 November 2022, after hearing submissions from the parties, I vacated the hearing of the applications on behalf of the accused for a permanent stay of the prosecution,[7] and made further timetabling orders including fixing dates by which any subpoenas to produce were to be issued on behalf of the accused and any applications on behalf of the accused for orders to conduct preparatory cross-examination of the witnesses were to be filed.
[7]Whilst the hearing of the applications by the accused for a permanent stay of the prosecution was vacated with the agreement of the parties, the accused did not abandon those applications which were adjourned to a date to be fixed.
It is against this factual and procedural backdrop that the subpoena to produce addressed to the Director was filed on behalf of Ms Jeffrey, and the Director’s claim of LPP falls for determination. I did not understand there to be any dispute by the accused as to the chronology of events which I have set out above.
The subpoena to produce addressed to the Director of Public Prosecutions
On 21 November 2022, Ms Jeffrey’s solicitors issued a number of subpoenas to produce,[8] including a subpoena to produce addressed to the Director seeking the production of material relevant to the cooperation of the witnesses in the prosecution of the accused.
[8]In accordance with rule 1.12 of the Supreme Court (Criminal Procedure) Rules 2017.
Initially, the Director objected to the terms of the subpoena on the basis that it was too broad and did not disclose a legitimate forensic purpose in respect of some of the categories of material sought for production. Additionally, the Director foreshadowed claims of LPP and public interest immunity (PII) in respect of some of the material falling within the scope of the subpoena. The initial return of the subpoena was accordingly adjourned to allow the parties to engage in discussions to explore a resolution to these issues and to allow the Director further time to consider whether (and what) claims of privilege would be made.
By correspondence to the Court dated 19 January 2023, the Director informed the Court that the parties had reached agreement on the form of an amended schedule to the subpoena, to which no objection would be raised by the Director insofar as the breadth of the material sought for production, nor the legitimate forensic purpose of same (the amended subpoena schedule). The amended subpoena schedule[9] is in the following terms:
[9]At the outset of the hearing I formally granted the application on behalf of Ms Jeffrey to amend the subpoena schedule in the terms agreed between the parties. The documents produced to the Court by the Director prior to the hearing had been identified and produced in accordance with the exact terms and scope of the amended subpoena schedule.
AMENDED SUBPOENA SCHEDULE
1.Any and all communication between the legal representatives of CD and AB (on the one hand) and the Public Prosecutions Service as defined by the Public Prosecutions Act 1994 (Vic) (PPS) (on the other hand) relating to any assistance contemplated, offered and/or provided by CD and AB to the prosecution and/or any law enforcement agency in connection with the charge against Shannon Lee Jeffrey and/or Brendan Prestage (the accused) alleging any involvement in the murder of Kobie Parfitt.
2.Any and all communication* between any law enforcement agency (on the one hand) and the PPS (on the other hand) relating to any assistance contemplated, offered and/or provided by CD and AB to the prosecution and/or any law enforcement agency in connection with the charge against the accused alleging any involvement in the murder of Kobie Parfitt.
3.Any and all communication* between CD and AB (on the one hand) and the PPS (on the other hand) relating to any assistance contemplated, offered and/or provided by CD and AB to the prosecution and/or any law enforcement agency in connection with the charge against the accused alleging any involvement in the murder of Kobie Parfitt.
4.Any and all file notes recording details of any telephone communications between the legal representatives of CD and AB (on the one hand) and the PPS (on the other hand) relating to any assistance contemplated, offered and/or provided by CD and AB to the prosecution and/or any law enforcement agency in connection with the charge against the accused alleging any involvement in the murder of Kobie Parfitt.
5.Any and all file notes recording details of any telephone communications between any law enforcement agency (on the one hand) and the PPS (on the other hand) relating to any assistance contemplated, offered and/or provided by CD and AB to the prosecution and/or any law enforcement agency in connection with the charge against the accused alleging any involvement in the murder of Kobie Parfitt.
6.Any and all material in the possession of the PPS relevant to the credibility and/or reliability of CD and AB.
* ‘communication’ includes but is not limited to:
• emails;
• letters;
• file notes;
• text messages;
• facsimiles;
• faxes;
• reports;
• memoranda;
• posted notes;
• handwritten notes
• typed notes;
• telegrams;
• minutes;
• forms;
• manuals;
• questionnaires.
The Director produced documents to the Court falling within the scope of the six (6) paragraphs of the amended schedule in both a redacted and unredacted form, and confirmed that claims of privilege would be made in respect of various documents produced.
The documents produced by the Director were accompanied by an ‘Appendix’ which indexed the documents produced (including a description of each document) and categorised them as follows:
·Category A: Materials already disclosed (12 documents);
·Category B: No privilege claimed (9 documents);
·Category C: Privilege claimed but waived (21 documents);
·Category D: Privilege claimed and not waived (10 documents); and
·Category E: Confidential case conference documents (1 document).
The Director did not object to the release of the documents falling within categories A, B, and C of the Appendix. Additionally, it was determined that the single document falling within Category E had in fact already been disclosed to the parties. Accordingly, on 21 December 2022, I made orders releasing to the parties copies of the documents comprising categories A, B and C and the further return of the subpoena was adjourned for the filing and service of submissions and the hearing of the Director’s claim of LPP in respect of the documents comprising category D.
Category D – the documents the subject of the claim of LPP
Prior to the hearing, a document entitled ‘Further Revised Appendix’ dated 5 March 2023 was filed and served. The Further Revised Appendix set out further details of the documents comprising Category D over which LPP was claimed, inclusive of an additional document which had been identified by the Director since the initial production of the documents to the Court (hereafter referred to collectively as ‘the category D documents’). The Further Revised Appendix also identified that parts of two of the category D were also the subject of a claim of PII by the Chief Commissioner of Victoria Police. At the hearing Ms Jeffrey did not seek to challenge Chief Commissioner’s claim of PII and it was not ultimately necessary for the Court to hear any argument in that regard.
By the end of the hearing of the Director’s claim, there were only seven (7) documents for which the Director’s claim of privilege was disputed. All of the documents in issue are communications or records of communications. It is convenient to summarise those documents as follows (with reference to the numbering in the Further Revised Appendix):
(a)Documents 1 and 3 - Emails from the informant[10] to an employee solicitor of the Office of Public Prosecutions (OPP) with the conduct of the prosecution on behalf of the Director (the OPP solicitor) on 28 September 2022 and 14 October 2022 respectively (2 documents);
(b)Documents 4 and 6 – Emails from a Crown prosecutor with the conduct of the prosecution on behalf of the Director (the Crown prosecutor) and the informant on 20 October 2022 and 25 October 2022 respectively (2 documents);
(c)Document 2 – SMS messages passing between the Crown prosecutor and counsel for CD in the period 10 October 2022 and 25 October inclusive (1 document, comprising screen-shots of 25 SMS messages);
(d)Document 9(b) – File note made by the OPP solicitor of a conversation conducted with the solicitor acting for AB on 26 May 2022 (1 document); and
(e)Document 9(m) – File note made by the OPP solicitor of a meeting attended with the Crown prosecutor and the legal representatives of AB on 17 October 2022 (1 document).
[10]The term ‘informant’ is defined in s 3 of the Criminal Procedure Act 2009 (CPA) and in this context is a member of Victoria Police who commenced the criminal proceeding against the accused in the Magistrates’ Court and has a range of responsibilities under the CPA. The informant is ordinarily the principal police investigator who prepares the brief of evidence and signs the charge-sheets against the accused.
C. Relevant legislative provisions and legal principles
The parties were generally in agreement as to the relevant legislative provisions and legal principles to be applied to a claim of LPP. These concepts are well-understood and have been codified by the uniform evidence law enacted in this State.
The Evidence Act 2008
Divisions 1 and 4 of Part 3.10 of the Evidence Act 2008 (Vic) (the Act) set out the provisions relevant to the Director’s claim of LPP. The privilege is referred to in the Act as ‘client legal privilege’.[11]
[11]For convenience I have referred to the privilege throughout this ruling as ‘legal professional privilege’ or ‘LPP’, rather than client legal privilege, however nothing turns on this distinction.
LPP has two limbs: the ‘advice’ limb (s 118) and the ‘litigation’ limb (s 119). LPP will attach to ‘confidential communications’[12] by a ‘lawyer’[13] for the ‘dominant purpose’ of providing legal advice to a client (the advice limb), or professional legal services to clients relating to legal proceedings to which the client is, or might be, a party (the litigation limb).
[12]This is a defined term: see s 117(1).
[13]Ibid.
The advice limb of LPP applies to confidential communications:
(a)passing between the client and a lawyer; or
(b)passing between two or more lawyers acting for the one client; or
(c)the contents of a confidential document prepared by the lawyer/s, the client, or a third person.
The litigation limb of LPP applies to confidential communications:
(a)passing between the client or the client’s lawyer and another person; or
(b)the contents of a confidential document.
In the present case, the Director has claimed LPP in the forms of both the ‘advice’ limb and ‘litigation’ limb of LPP.
Whilst ss 118 and 119 in their terms refer to the adducing of evidence, they also apply to a requirement to produce documents (such as compliance with a subpoena to produce) as a consequence of s 131A of the Act.
A communication or document is confidential when it is made in circumstances where either the person who made it, or the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. It is not necessary for the party claiming LPP that both the maker and the recipient of the communication or document were under the obligation of confidentiality.[14] Importantly, whether the obligation of confidentiality arises is to be assessed at the time the communication or document was made.
[14]S 117 of the Act; see also Timbercorp Finance Pty Ltd v Tomes [2019] VSC 445 at [39]-[40].
The question of whether a communication or document is protected from disclosure by LPP is a question of fact to be determined objectively, and on the balance of probabilities.[15]
[15]See s 142 of the Act.
Section 133 empowers the Court to inspect and examine documents which are the subject of the claim of privilege in order to determine whether, on their face, the nature and content of the documents support or verify the claim.[16]
[16]AWB Ltd, at [44(12)].
As the provisions of the Act concerning LPP are founded in the uniform evidence law, which largely codified the common law, their application has been the subject of extensive judicial consideration. In IOOF Holdings Ltd v Maurice Blackburn Pty Ltd,[17] Elliott J helpfully summarised the legal principles derived from the authorities as they apply to a claim of LPP, which I respectfully adopt as the starting point for the determination of the Director’s claim (omitting citations):
[17][2016] VSC 311.
(1)The party claiming the privilege bears the onus. That onus will only be discharged if the party establishes facts from which the court may determine that the privilege is being properly claimed.
(2)“Purpose” in “dominant purpose” means the purpose which led to the creation of the document or the making of the communication.
(3)The “dominant purpose” is the purpose which was the ruling, prevailing or most influential purpose at the time the document was brought into existence.
(4)There can be only 1 dominant purpose. If there are 2 purposes of equal weight, neither fits the description of a “dominant purpose”.
(5)If a dominant purpose existed, that dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions. That said, evidence of the subjective purpose of the person making the communication or creating the document is relevant.
(6)Ordinarily, the relevant purpose is that of the person who brings into existence the document which includes the privileged communication, but this will not always be the case.
(7)As the test is directed towards the purpose of bringing the document into existence, a copy of a non-privileged document may be privileged.
(8)The material relied upon by the person claiming privilege must be focused and specific. Formulaic and bare conclusory assertions are not sufficient.
(9)With respect to advice privilege, in considering whether a communication is for the purposes of legal advice, the purposes must be construed broadly. Although it does not extend to pure commercial advice, legal advice, in this context, includes any advice as to what should prudently and sensibly be done in the particular legal circumstances in which the client finds itself.
(10)Further to subparagraph (9), a document created by a lawyer that records her or his legal work carried out for the benefit of the client, such as a research memorandum, a summary of documents or a chronology, will be protected by privilege whether or not the document is provided to the client. Similarly, notes and other material created by the client that relate to the legal advice sought (whether or not actually communicated to the lawyer), or that relate to communications with the lawyer, may be privileged where such documents meet the relevant “dominant purpose” test.
(11)With respect to litigation privilege, for a proceeding to be “anticipated or pending” for the purposes of, there must be more than a mere possibility of litigation. As a general rule, there must be a real prospect of litigation, but it does not have to be more likely than not.
(12)Many claims for privilege may be determined by the court without the need to inspect the documents. Further, ordinarily, the court will not examine the documents if the party claiming privilege has not established a basis for the claim in an affidavit in support. However, in an appropriate case, the court may examine the documents to make a decision about privilege, particularly where the parties agree to this course.
(13)A law firm or a company may be a “client” if it engages or employs its own employee lawyer, but privilege will only attach to the relevant communication or document if the employee is consulted confidentially in her or his professional capacity, with the requisite degree of independence, in relation to a professional matter.
There are various circumstances in which LPP may be lost or waived, which are set out in ss 121-126 of the Act. It is not necessary for present purposes to exhaustively list or consider the issue of waiver, save in one respect which is relied upon by Ms Jeffrey, and to which I will return later in this ruling.
The ‘client’ and the ‘lawyer’
The parties were in agreement as to the relevant lawyer-client relationship that exists in the context of the claim of LPP by the Director, which can be briefly summarised as follows:
(a)the Director is ‘the client’;[18]
(b)the Director receives legal advice from Crown prosecutors and solicitors in the employ of the OPP, who act for the Director; and
(c)Crown prosecutors and OPP solicitors provide the Director with professional legal services in legal proceedings to which the Director is a party.
[18]For a further analysis of the lawyer-client relationship between the Director of Public Prosecutions, Crown prosecutors, and solicitors employed by the OPP in the context of a claim of LPP, see DPP (NSW) v Stanizzo (2019) 367 ALR 256 at [22]-[25]; Aouad v R [2013] NSWSC 760.
The evidence to support the claim of privilege and the power of the Court to inspect the documents
In support of the claim of LPP, the Director filed and relied upon the following materials:
(a)‘Outline of Prosecution Submissions on return of subpoena’, dated 23 February 2023;
(b)‘List of Further Submissions on Director’s Claim of Privilege’, dated 6 March 2023 (in response to the submissions filed on behalf of Ms Jeffrey);
(c)‘Further Revised Appendix’, dated 5 March 2023,[19] which provided further details of the documents in Category D which were the subject of the claim of LPP, including the particulars of the privilege claimed; and
(d)‘Chronology of Events’.
[19]Earlier versions of this document were filed and served by the Director, namely ‘Appendix – Documents Produced Under Subpoena’, dated 19 January 2023, and ‘Revised Appendix’, dated 23 February 2023.
Additionally, the Director sought to rely on the documents produced to the Court which were the subject of the claim of LPP, and submitted that the Court should exercise the power under s 133 of the Act to inspect the documents in question, which would further illuminate and support the claim of LPP, including for the purpose of assessing the dominant purpose for which the documents were made.
Finally, the Director specifically relied upon relevant provisions of the Public Prosecutions Act 1994 (Vic), the purpose for which was twofold. Firstly, to support the construction of the lawyer-client relationship between the Director, Crown prosecutors and OPP solicitors, to which I have already referred and, secondly, to evidence the functions and power of the Director, which are primarily concerned with the initiation of criminal prosecutions on indictment, and the functions and powers of each person who was party to the relevant communications and documents; in the present case the Crown prosecutor and OPP solicitor.[20]
[20]See Public Prosecutions Act 1994, ss 22, 36, 39, 41.
At the hearing Ms Jeffrey relied on a “Defence Outline of Submissions Opposing Privilege Claims”, filed 1 March 2023. In those submissions, and at the hearing, Ms Jeffrey sought to raise as a preliminary issue the sufficiency of the evidence relied upon by the Director in support of the claim of LPP. Counsel for Ms Jeffrey submitted that the Director had failed to provide sufficient, if any, evidence in support of the claim of LPP, and that accordingly the claim ‘falls at the first post’. It was further submitted that in those circumstances I should not exercise the power under s 133 of the Act to inspect the documents, as to do so would be to substitute the documents in issue for evidence in support of the claim of LPP.
Counsel for Ms Jeffrey submitted that nothing short of the Director putting on evidence by way of affidavit to support the claim of LPP would discharge the evidential burden placed on the Director. In particular, it was submitted that the absence of an affidavit from an appropriate deponent deprived the Court of subjective evidence as to the purpose for which the communications in issue were made, and consequently did not permit a determination as to the dominant purpose for such communications.
The alleged deficiency of the evidence relied upon by the Director was perhaps the gravamen of the attack by Ms Jeffrey on the claim of LPP.
During the course of submissions on this issue I gave counsel for the Director an opportunity to seek instructions as to whether an affidavit from an appropriate deponent (such as the OPP solicitor) could be furnished which may have significantly resolved this area of contention between the parties. The Director declined to put on evidence by way of affidavit and maintained that the material that had been filed and was relied upon, together with the further submissions to be made during the hearing and documents the subject of the claim of LPP (if inspected by the Court), were collectively sufficient to discharge the evidential burden on the Director.
In particular, counsel for the Director sought to distinguish the present case from a number of the authorities cited by Ms Jeffrey on the question of the evidence required to support a claim of LPP, in that many of those cases concerned a claim for privilege over documents and/or communications in the context of very large and complex commercial transactions which may be both legal and transactional in nature, and for which there may be multiple purposes for which those communications or documents were made. It was submitted that in those cases a far greater level of scrutiny and subjective evidence was required for the Court to discern the dominant purpose of those communications and documents, and whether an obligation of confidentiality arose.
The parties took me to a number of authorities which considered the issue of the sufficiency of the evidence required to discharge the onus placed on a party claiming LPP, and in what circumstances the Court should exercise the power to review the documents to assist in determining the claim of privilege. Whilst I do not propose to identify all of the authorities cited by the parties, it is convenient to identify several of them which ultimately have assisted me in the determination of the present case.
In Esso Australia Resources Ltd v Commissioner of Taxation, the High Court (per Gleeson CJ, Gaudron and Gummow JJ) held:
A claim of privilege is not conclusively established by the use of a verbal formula. The court has power to examine documents in cases where there is a disputed claim, and it should not be hesitant to exercise such a power.
In Grant v Downs, the High Court held (per Stephen, Mason and Murphy JJ):
It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinise with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. [It] may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence. [emphasis added]
In AWB Ltd v Cole & Anor (No 5),[21] Young J stated:
The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions…[emphasis added][22]
[21](2006) 155 FCR 30.
[22]Ibid. at [44(1)]
After citing a number of these authorities which considered the issue of the Court exercising the power to inspect the documents the subject of the claim of privilege, Steffensen AsJ in Aquasure Pty Ltd v Thiess Pty Ltd & Ors (No 2)[23] held:
The Court should not be hesitant in exercising the power [to inspect pursuant to s 133], and may exercise it even where no evidence has been adduced in support of a privilege claim.
[23][2022] VSC 389, at [28].
As was noted by Daly AsJ in Setka v Dalton (No 2):[24]
…the authorities reveal a wide range of approaches to the level of detail and specificity required to support claims for legal professional privilege. What the authorities also reveal is that the nature and level of detail required to support claims for privilege is very situation specific, and varies according to, among other things, the nature of the proceeding, the number of documents over which privilege is claimed, the number of and roles of the authors and recipients of the documents concerned, and whether the privilege claimed is advice privilege or litigation privilege.
[24][2021] VSC 604 at [73].
Daly AsJ went on to observe:[25]
Some of the statements in the authorities regarding the nature and quality of the evidence required to support claims for privilege can be difficult to reconcile. That said, while I do not propose to compare and contrast the underlying facts and circumstances underlying the decisions relied upon by the parties in their submissions, it seems to me that each case turns on its own facts.
[25]Ibid. at [81].
I respectfully agree with her Honour’s observations. I do not accept the submissions on behalf of Ms Jeffrey that the Director’s failure to adduce evidence on affidavit is fatal to the claim of LPP, and I accept that a claim of LPP by the Director in the context of a criminal proceeding to which the Director is a party can be readily distinguished from many of the cases relied upon by Ms Jeffrey which arose in very different legal and transactional settings.
In the course of the submissions on this issue I indicated to the parties I did not propose to consider the issue of the sufficiency of the evidence as a preliminary or threshold point. Rather, I would determine the issue of the sufficiency of the evidence relied upon by the Director as part of the overall determination of the claim of LPP.
In my view there is sufficient material before me in support of the Director’s claim of LPP that goes beyond ‘formulaic or bare conclusory assertions’ of the privilege. The material relied upon by the Director identifies with a degree of precision the nature of the documents (including who the communication was between), the date of when the communication occurred or document was prepared in the context of the chronology of the procedural history which I have set out in some detail above, and the basis on which the privilege was claimed (i.e. the advice limb or litigation limb). Additionally, having regard to the circumstances in which it appeared each communication was made and/or document was prepared, I indicated to the parties at the hearing that I proposed to exercise the power under s 133 of the Act to inspect and examine the documents.
D. Analysis
Are the documents privileged?
I turn now to the analysis of whether the seven (7) documents in question are privileged. At the hearing, counsel for the Director took the Court to each document and specifically addressed the nature of the communications/documents and the limb of LPP claimed.
Documents 1 and 3
These documents are email communications between the informant and the OPP solicitor. The Director claims both the advice limb and litigation limb of LPP in relation to these emails.
Document 1 is an email sent by the informant to the OPP solicitor on 28 September 2022, a day after the provision of the unsigned ‘can say’ statement of CD to the prosecution.[26] Document 3 is an email sent by the informant to the OPP solicitor on 14 October 2022, two days after CD signed his statements and participated in a witness interview with the informant.[27] As much is identified in the written submissions filed on behalf of Ms Jeffrey.
[26]See paragraph 20 of this ruling.
[27]Ibid.
In respect of the advice limb, the claim is made on the basis that the emails are confidential documents prepared by another person (the informant) for the dominant purpose of the OPP solicitor providing legal advice to the Director in connection with the prosecution of the accused (including at that time, AB and CD), in circumstances where the person for whom the documents were prepared (the OPP solicitor) was under either an express of implied obligation not to disclose the contents of the documents.[28]
[28]As to the circumstances in which an obligation of confidentiality arises in respect of communications between members of police and solicitors working for the Director of Public Prosecutions, see Hamilton v State of NSW [2015] NSWSC 1430 at [37]; Hamilton v State of NSW [2016] NSWSC 1213 at [32], [37]-[40].
In respect of the litigation limb, the claim is made on the basis that the emails were a confidential communication made between the OPP solicitor and another person (the informant), and/or the contents of a confidential document that was prepared, for the dominant purpose of the Director being provided with professional legal services in relation to the criminal proceedings against the four accused to which the Director was (and remains) a party.
Ms Jeffrey challenges the claim of LPP over these emails on the basis that they were email communications originating from the informant, and not the OPP solicitor, and accordingly there is insufficient evidence of the dominant purpose for which the communications were made. In my view, however, this submission fails to acknowledge the role of the informant in respect of the this proceeding to which the Director was, and remains, a party.
The Director submits that when regard is had to the roles and functions of the Director, the OPP solicitor, the role of the informant, and the relevant events in the chronology proximate in time to the emails, there is only one purpose – and therefore the ‘dominant purpose’ – for those emails, being the provision of legal advice and professional legal services to the Director in relation to this criminal prosecution, and that at the time each email was sent, the OPP solicitor was under an obligation not to disclose their contents.
Having reviewed each of these emails, I accept the Director’s submissions and find that LPP attaches to documents 1 and 3.
Documents 4 and 6
These documents are email communications between the Crown prosecutor and the informant on 20 October 2022 and 25 October 2022 respectively. When regard is had to the chronology of relevant events, these communications are proximate in time to the signing of the statement by AB and her witness interview by police.
The Director’s claim in respect of these communications is essentially identical to documents 1 and 3. In this instance the Crown prosecutor is the lawyer who is providing legal advice to the Director, and providing professional legal services in relation to the criminal proceeding against the accused to which the Director is a party. In this instance, each email was sent by the Crown prosecutor to the informant.
I have reviewed each of these emails. For the same reasons in respect to documents 1 and 3, I also find that LPP attaches to documents 4 and 6.
Document 2
This document contains screenshots of a total of 25 text messages that passed between the Crown prosecutor and counsel for CD between 10 October 2022 and 25 October 2022. The Director claims the litigation limb of LPP in respect of this document.
In this instance, the claim is made on the basis that the emails were a confidential communication made between the OPP solicitor and another person (counsel for CD), and/or the contents of a confidential document that was prepared, for the dominant purpose of the Director being provided with professional legal services in relation to the criminal proceedings against the four accused to which the Director was a party.
Again, the SMS messages were exchanged at a time proximate to the events in the chronology commencing with the provision of an unsigned ‘can say’ statement by CD to the prosecution, the signing of same, and the discontinuance of his prosecution.[29]
[29]See paragraphs 20 and 22 of this ruling.
During the course of argument I raised with counsel for the Director whether CD might also arguably hold privilege in the relevant communications between his counsel and the Crown prosecutor. It was the Director’s position that in the particular example of document 2 (and indeed document 9(b) which I will address) it was possible for more than one party to the communication to claim LPP. Additionally, at the hearing, it was the Director’s understanding that CD did not seek to claim LPP in respect of the SMS messages,[30] but irrespective of CD’s position, the Director maintained the claim of privilege.
[30]This was confirmed in subsequent correspondence from the OPP to the Court on 29 March 2023.
In the written submissions filed, Ms Jeffrey challenges the claim of LPP over document 2 on the basis that:
52.This [document] requires careful consideration. Each text message published by each person [the Crown prosecutor and counsel for CD] must be analysed with respect to the test under s 119. Even if some messages meet the test, otherwise may not and ought necessarily be disclosed.
53.It is inconceivable that the ‘dominant purpose’ of communications between [the Crown prosecutor] and [counsel for CD] was to enable [the Crown prosecutor] (as the lawyer) to provide professional legal services to the Director (as the client) and that such purpose existed at the time the communication came into existence. The catalyst for the conversation will be relevant. The purpose for which the discussions between [the Crown prosecutor]and [counsel for CD] commenced and continued will be relevant. It can be inferred from the material that [counsel for CD] commenced discussions with [the Crown prosecutor] in an effort to advance a proposal that should CD give evidence in the proceeding then the prosecution against him ought to be discontinued.
54.Even if that can be read to have the purpose of assisting [the Crown prosecutor] in providing the Director with legal advice, it is submitted that could not have been the ‘dominant’ purpose of those communications.
55.If the purposes are of equal weight, then the purpose of enabling [the Crown prosecutor] to assist the Director is therefore not dominant and the privileged claim will not be upheld. If the decision for those communications having been brought into existence would have been made irrespective of any intention to obtain legal advice, then the privilege cannot be upheld.
The submissions of Ms Jeffrey in relation to document 2 must be rejected for the following reasons.
First, the nature of the SMS messages comprising document are such that they are a continuing communication over a period of approximately 15 days, between the two participants, concerning the same subject matter. As such, an assessment of the messages for the purpose of determining a claim of LPP can only sensibly be undertaken reading the exchange as a whole.
Secondly, as the Director submits, an assessment of the dominant purpose for which the messages were sent, by an examination of the possible differing purposes of the communications on the part of each party to the communication, would be to misapply the ‘dominant purpose’ test. Under the litigation limb of LPP, an assessment of the dominant purpose of a communication between a lawyer acting for a client and another person is concerned with an assessment of the purpose for which the lawyer acting for the client engaged in the communication, not the purpose of another person.
In the present case, the Crown prosecutor, acting for the Director, engaged in communications with counsel for CD for the dominant purpose of the Director being provided with professional legal services relating to the criminal prosecution against the four accused, including (at that time) CD. The fact that counsel for CD may have had another purpose for engaging in the communications with the Crown prosecutor is irrelevant to as assessment of the purpose for which the latter engaged in same. In any event, it is in my view arguable that if counsel for CD was engaging in communications with the Crown prosecutor for the purpose of advancing a proposal that CD give evidence against the accused on the basis that his prosecution would be discontinued (as is suggested in the submissions of Ms Jeffrey), then that would be entirely consistent with the Crown prosecutor engaging in the communication with counsel for CD for the dominant purpose of providing the Director with professional legal services in connection with the criminal prosecution.
Finally, the nature of the communications between the Crown prosecutor and counsel for CD were, having regard to the chronology of events, sensitive in nature and at the time of the communications there was clearly an obligation on the part of the Crown prosecutor (who sent and received the SMS messages) to not disclose the contents of those communications.
My inspection of document 2 supports the above conclusions and accordingly I find that LPP attaches to document 2.
Documents 9(b) and 9(m)
Each of these documents are file notes made by the OPP solicitor of communications with legal representatives of AB and CD respectively.
Document 9(b) is a file note of a communication between the OPP solicitor and the solicitor acting for AB on 26 May 2022. The Director claims the litigation limb of the privilege in respect of this document.
The communication is made at a time relatively proximate to initial discussions between the prosecution and AB’ legal representatives as to the possibility of her cooperation with the prosecution.
In the case of this document 9(b), the basis of the Director’s claim of LPP is very similar to that in respect of document 2. In this instance, it is a confidential communication between the OPP solicitor and another person, for the dominant purpose of providing the Director with professional legal services in connection with the criminal prosecution of the accused, including (at that time) AB.
Ms Jeffrey challenges the claim of LPP in respect of this document on the same basis as the challenge to document 2 by asserting that there may be competing purposes for which the communication was made by the respective participants. For the same reasons I have already given in rejecting what I consider to be an erroneous construction of the dominant purpose test, it must also be rejected in respect of document 9(b). Having reviewed document, it is clear that it was confidential in nature, and at the time of the communication there was an obligation on the part of the OPP solicitor to not disclose the contents of the communication. Accordingly, I find that LPP attaches to this document.
Document 9(m) is a file note of a meeting attended by the OPP solicitor, the Crown prosecutor, the informant, and counsel (two barristers) for AB on 17 October 2022, approximately eight days prior to her signing her statement and participating in a witness interview.
Although this meeting was attended to by a number of people, the file note recording the conversation gives rise to same analysis as the preceding documents, and results in the same conclusion. It is a document recording a communication between two lawyers acting for the Director (the OPP solicitor and Crown prosecutor), the informant, and counsel for AB, for the dominant purpose of the Director being provided with professional legal services in relation to this criminal prosecution. Having regard to the surrounding circumstances in which the communication occurred, particularly in the context of the chronology, it was a confidential in nature because at the time it was made, the Crown prosecutor and OPP solicitor were under an obligation not to disclose the contents of it.
I have reviewed document 9(m) and the contents of the file note support this analysis. I find that LPP attaches to the document.
Has the Director waived privilege?
Having determined that each of the seven (7) documents are subject to LPP, I turn briefly to the issue of waiver. Counsel for Ms Jeffrey did not make any submissions at the hearing on the issue of waiver, and simply sought to rely on the written submissions filed prior to the hearing. Counsel for the Director submitted that there had been no waiver of privilege and in the course of submissions addressed in some detail the argument outlined in the written submissions relied upon by Ms Jeffrey.
There are various circumstances in which LPP may be waived. Sections 121-126 of the Act set out the various circumstances in which LPP may be lost. Relevant for present purposes are the following provisions of the Act:
122 Loss of client legal privilege—consent and related matters
(1)This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(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.
(4)The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5)A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because—
(a) the substance of the evidence has been disclosed—
(i)in the course of making a confidential communication or preparing a confidential document; or
(ii) as a result of duress or deception; or
(iii) under compulsion of law; or
(iv)if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or
(b)of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
(c)of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6)This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).
…
126Loss of client legal privilege—related communications and documents
If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.
In the present case Ms Jeffrey submits that in the event that I the Court determined that LPP applies to the seven (7) documents in issue, the privilege has nonetheless been waived in respect of four of those documents by operation of s 126 of the Act. This is often referred to as ‘derivative waiver’.
Ms Jeffrey submitted there had been derivative waiver of LPP in respect of documents 3, 4, 6, and 9(m). In support of the argument, Ms Jeffrey identifies at paragraphs 41 to 48 of her written submissions a number of email communications contained within the Category C documents which have been released to the accused without objection. Ms Jeffrey argues that the Director has, by consent, waived privilege that attaches to those emails in Category C, and that it would appear from the content of those disclosed emails there are references to additional or ‘derivative’ communications which have not been disclosed. Ms Jeffrey submits that to the extent the derivative communications are to be found within the four specified documents which I have found are subject to LPP, there has been derivative waiver of privilege in respect of those documents and they ought be released to the accused.
The parties agreed with the applicable principles concerning derivative waiver, as identified in the written submissions on behalf of Ms Jeffrey. In Mullet v Nixon & Ors (subpoena application),[31] J. Forrest J considered the principles of derivative privilege under s 126 of the Act as follows:[32]
[31][2016] VSC 129.
[32]Ibid. at [87]-[89].
I adopt the following statement of principle of Derham AsJ in Matthews v SPI Electricity Pty Ltd:[33]
[33][2013] VSC 33, at [42].
In Towney v Minister for Land & Water Conservation (NSW),[34] Sackville J made a number of pertinent observations about this section. First, that the test set out is an objective test; secondly, that its operation must be assessed according to its terms and not on the basis that it in some way reflects the pre-existing common law; and thirdly that it was clear in his view that a mere reference in a subject document to another communication or document, of itself, does not necessarily result in a loss of privilege attaching to the subject document. The application of s 126 ultimately depends on the degree and manner in which the subject document assists in a proper understanding of the other communication or document. In relation to the meaning of ‘proper understanding’, Sackville J said:
[34](1997) 147 ALR 402, at 414.
The dictionary definition of ‘proper’ includes ‘complete or thorough’; the definition of ‘understand’ includes ‘to apprehend clearly the character or nature of’ and ‘to grasp the significance, implications or importance of’: Macquarie Dictionary.
In ML Ubase Holdings Co Ltd v Trigem Computer Inc,[35] it was said that in the application of s 126:
[35](2007) 69 NSWLR 577, 593 [46].
… one starts by looking at the substantive document (made admissible under s 122 or another of the applicable sections) and asking whether, in order to understand it thoroughly, it is necessary to know what is in the associated material.
Finally, notwithstanding the restrictive nature of statutory provision (as opposed to the previous common law position), it is clear that it is not necessary that the derivative document be referred to in the primary document. What is necessary is whether the derivative document assists in reaching a proper understanding of the primary document. The converse also holds good. As Derham AsJ held, a reference to a potentially derivative document in a primary document does not in and of itself mean that the derivative document is required to be produced unless it goes to ensuring an understanding of the primary document.
The argument of derivative waiver can be dealt with fairly succinctly. In respect of each of the four documents which Ms Jeffrey claims is subject to derivative waiver by the Director, none of those documents are reasonably necessary to properly understand, or further understand, any of the documents in Category C (the ‘primary documents’) which have already been disclosed. In a number of respects it appears that it is only a temporal connection which is relied upon to assert there has been derivative waiver, particularly in instances where the purported derivative document is in fact a communication between different parties. In each instance, the documents which I have found are subject to LPP ‘stand on their own’ and are not reasonably required to understand the material in Category C which has already been disclosed to the accused. Accordingly, there has been no derivative waiver of privilege by the Director.
E. Conclusion
I acknowledge that the very nature of a claim of LPP means that a party who seeks to challenge the claim, such as Ms Jeffrey, is at a distinct disadvantage. Self-evidently, Ms Jeffrey is unable to address the Court in any detail on the substance of the documents in question, and her counsel is confined to identifying the applicable legal principles that the Court should apply, and making submissions which rely on inferences drawn from the surrounding circumstances and chronology, which at times requires a degree of speculation. Nonetheless, I am grateful for the comprehensive submissions made by the parties, including those on behalf of Ms Jeffrey, which have assisted me to determine the Director’s claims of LPP.
For similar reasons, the Court is somewhat constrained when giving reasons for determining a claim of LPP. Whist this does not detract from the obligation to provide reasons which reveal the proper application of the relevant legal principles to the arguments advanced by the parties, so as to enable an understanding of how the decision has been reached, the Court must be circumspect in its analysis of the specific documents in issue so that the very privilege that a party is seeking the Court to protect is not inadvertently defeated by that process.
The Director has discharged the onus of establishing that each of the seven (7) documents in question are subject to LPP and Ms Jeffrey has failed to establish that there has been any derivative waiver of those document. I will hear further from the parties as to any orders required to be made as a consequence of this ruling.
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