DPP v Warren
[2015] ACTSC 111
•20 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Warren |
Citation: | [2015] ACTSC 111 |
Hearing Date: | 19 February 2015 |
DecisionDate: | 20 February 2015 |
Before: | Mossop M |
Decision: | See [34] |
Category: | Interlocutory application |
Catchwords: | PRACTICE AND PROCEDURE – Subpoenas – Application to set aside a subpoena in part – whether documents sought to be produced are relevant – principles to be applied ‑ whether documents sought to be produced are subject to legal professional privilege |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT) Court Procedure Rules 2006 (ACT) |
Cases Cited: | Attorney-General (NT) v Maurice (1986) 161 CLR 475 GSA Industries (Aust) Pty Ltd v Constable [2002] 1 Qd R 1146 |
Texts Cited: | Cross on Evidence, Australian Edition (Looseleaf) at [25225] |
Parties: | ACT Director of Public Prosecutions (Plaintiff) Scott William Warren (Defendant) Westpac Banking Corporation (Interested Party) |
Representation: | Counsel: Ms E Beljic (Plaintiff) Mr M Kukulies-Smith (Defendant) |
| Solicitors: ACT Director of Public Prosecutions (Plaintiff) Kamy Saeedi Law (Defendant) | |
File Number: | SC 249 of 2012 |
Introduction
This is an application brought by the Director of Public Prosecutions (Director) to set aside particular paragraphs of a subpoena issued to the Director dated 9 February 2015. Although not identified as such, I take it has an application under r 6604 of the Court Procedure Rules 2006 (ACT) (Rules). That rule permits an application to the Court to “set aside a subpoena completely or partly or grant other relief in relation to it.”
The grounds on which it was sought to set the subpoena aside were that:
1.The items 3-5 in the Schedule of the subpoena are not relevant to the Application in proceeding dated 27 August 2014;
2.In the alternative, that items 3-5 in the Schedule are subject to legal professional privilege.
Outline of the proceedings
In order to understand the application is necessary to describe the proceedings.
The proceedings were commenced on 8 August 2012 by an originating application seeking the restraint of certain property pursuant to s 26 of the Confiscation of Criminal Assets Act 2003 (ACT) (COCA Act). That property was real property identified as having an estimated value of $629,000, as well is in various other small items of property related to the hydroponic cultivation of cannabis.
On 15 August 2012 Penfold J made orders restraining the property.
By application in proceedings dated 27 August 2014 and filed 28 August 2014 the Director applied for orders under s 54 of the COCA Act that the property be forfeited to the Australian Capital Territory.
By application in proceedings filed 4 September 2014 the defendant applied for orders under s 76(2) of the COCA Act excluding the defendant’s interest in the property from forfeiture as well as orders under s 40C of the Human Rights Act 2004 (ACT) (HRA). The relief sought under the HRA was, in summary:
(a)declarations that the bringing of the proceedings by the Director was unlawful because it was incompatible with the defendant’s rights under ss 12 and 24 of the HRA;
(b)declarations that the bringing of the proceedings was unlawful because the Director acted unlawfully in making his decision to bring proceedings without giving proper consideration to the defendant’s rights under ss 12 and 24 of the HRA; and
(c)orders that the proceedings be struck out or permanently stayed.
In addition to the relief sought under the HRA, further orders setting aside the restraining order and striking out the application as an abuse of process of the Court are also sought.
The grounds of the defendant’s application articulate that the making of an application under the COCA Act in order to forfeit the defendant’s property amounts to punishing him again for an offence for which he has already been finally convicted and is incompatible with the defendant’s right under s 24 of the HRA. Further, it is alleged that the making of the application to forfeit the defendant’s property amounts to arbitrary interference with the defendant’s home and is incompatible with the defendant’s right under s 12 of the HRA. Therefore, it is alleged that the Director has acted unlawfully in commencing and continuing the proceedings and that the proceedings should be struck out because they are unlawful under s 40B of the HRA and an abuse of process of the Court.
The subpoena
The subpoena was returnable on 16 February 2015. The schedule contains 5 items. A document has been produced in response to item 2 in the subpoena and there are no documents to produce in relation to item 1 in the subpoena.
The challenged items in the Schedule of the subpoena are as follows:
3.Any document recording or relating to the decision to make the application for a restraining order which resulted in the Director of Public Prosecutions bringing proceedings SC 249 of 2012.
4.Any document recording or relating to the decision of the DPP to make the application for a forfeiture order in respect of proceedings SC 249 of 2012.
5.Any document recording or relating to consideration by the Director of Public Prosecutions of the human rights of Scott William Warren that might be affected by the forfeiture of the property the subject of proceedings SC 249 of 2012.
Evidence relied upon
The Director read two affidavits in support of its application. The first was an affidavit of James Ronald Walker, a legal practitioner in the Director’s office, which simply annexed the relevant subpoena.
The second was an affidavit of Keegan Vernon Lee of 19 February 2015, which was intended to provide a basis for the claim for legal professional privilege. Mr Lee gave some additional oral evidence and was cross-examined on his affidavit.
Mr Lee is also a legal practitioner employed in the office of the Director. Mr Lee’s evidence was based on an inspection of the Director’s file in these proceedings. He had been, but was not currently responsible for the conduct of COCA matters for the Director. His evidence was that in determining whether to apply for a restraining order or for a forfeiture order under the COCA Act a number of factors are considered by the Director or solicitors working under his direction. Those factors are set out in a document titled, “Checklist for COCA matters”. A copy of that checklist had been produced by the Director in response to item 2 of the subpoena and no privilege was claimed over it.
According to Mr Lee’s evidence, the practice was that the solicitor handling a particular restraining order or forfeiture order application answered a number of questions set out in the checklist. In response to each question the solicitor would type a response, including any relevant information and advice. Mr Lee said that the process was undertaken in order to provide advice to the Director in deciding whether to apply to the Court for an order or to document considerations taken into account in determining whether to apply to the Court for a restraining or forfeiture order. Having examined both documents he said that they were documents prepared for that purpose. From his examination of the documents he could not identify who had prepared them.
Mr Lee’s oral evidence was that the checklist would provide the basis for a discussion with the Director as to whether an application for a restraining order or forfeiture order would be made. He said that such a discussion usually, but not always, occurred. There was no document that he observed on the file which provided evidence that such a discussion had in fact occurred in this case in relation to either of the orders applied for. He said that no person in the Director’s office, other than a solicitor, prepared the checklist document. He had not searched the electronic records of the Director to see if he could discover who in fact had prepared each of the documents.
The document which was produced in response to item 2 in the subpoena, titled “Director’s Instruction No. 10: Guidelines for proceedings under the Confiscation of Criminal Assets Act 2003” (Director’s Instruction). Annexure A to that document corresponded to the checklist document described by Mr Lee in his evidence. The purpose of that Annexure is described in [35]-[37] of the Director’s Instruction as follows:
Obtaining approval for the institution of proceedings under the COCA
35.All requests for the institution of proceedings under the COCA and for the obtaining of restraining orders must be sent to the Director, or in his or her absence, to the Deputy or Assistant Director for his or her approval. All such requests must address the relevant parts of these guidelines.
36.In all but the most urgent of circumstances (such as the imminent disposal of property), such requests will be in writing. In the rare event of an urgent request not in writing being granted, the basis of the request must be fully documented as soon as possible.
37.A checklist has been devised as a guide to matters to be covered in the approval process. That checklist is annexed to this Instruction.
The annexed checklist makes no reference in terms to human rights or the provisions of the HRA.
Examination of documents
For the purposes of assessing the claim to privilege the documents were provided to the Court by the Director and, without any objection from the defendant, I examined them. Their contents were consistent with the evidence given by Mr Lee.
Submissions and consideration
Ms Belgic, who appeared for the Director, submitted in relation to relevance of documents responsive to items 3 and 4 as follows.
In relation to item 3, she submitted it was not relevant to the current claim because the current proceedings on foot were proceedings for forfeiture, not for restraint and hence it was not relevant. In relation to item 4, she submitted that the documents did not in fact contain consideration of the rights under the HRA and hence were not relevant to the claims made by the defendant.
The test for relevance of a subpoena is that production of the relevant documents would be reasonably likely to add to the relevant evidence in the case and that the material has "apparent" relevance in the sense that it could "possibly throw light on the issues in the main case" or that it was on the cards that it would do so: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 926-927; Portal Software v Bodsworth [2005] NSWSC 1115 at [23]ff; In the matter of North Coast Transit Pty Limited [2013] NSWSC 1912 at [7]- [9].
That test is for a subpoena to a non-party, and is overly favourable in the present circumstances to the Director: see Bodsworth at [26]. However, it is unnecessary to analyse the extent of any difference in approach between subpoenas to parties and subpoenas to non-parties in the present case.
In my view, the documents referred to in item 3 are clearly relevant. They are documents which go to the factors considered by the Director at the time of commencement of the restraint proceedings. Those are the proceedings which are presently on foot even though now, by application in proceedings, the Director seeks forfeiture orders. Although the conduct of the restraint proceedings is not an essential precondition to the bringing of applications for forfeiture, unlawful conduct by the Director in the commencement and prosecution of those proceedings would clearly be relevant to a claim for relief in relation to the forfeiture application presently on foot in those proceedings. In any event, relief is sought directly in relation to the order restraining the defendant’s property and any unlawful conduct by the Director is clearly relevant to that.
In relation to the documents referred to in item 4, those documents are clearly relevant, both for the purpose of demonstrating what was taken into account and also for the negative proposition that they are evidence as to matters that were not taken into account. In my view, they are clearly relevant in the sense required for a subpoena.
This leaves the issue of legal professional privilege. The approach to be taken in an application such as this is usefully summarised by Johnson J in R (Cth) v Petroulias (No 22) (2007) 213 FLR 293 at [36]-[39]. At that point, his Honour said:
36The onus of establishing a claim of client legal privilege falls on the party asserting or claiming the privilege: Grant v Downs (1976) 135 CLR 674 at 689. The onus is on the party claiming privilege even though it is the other party that has applied for relief by way of an order for production of the documents for inspection: Mitsubishi Electric Australia Pty Limited v Victorian WorkCover Authority (2002) 4 VR 332 at 337 [11]; Australian Securities and Investment Commission v Rich [2004] NSWSC 1089 at [2].
37What is required is exposure of facts from which an informed decision can be made as to whether the claim for privilege is supportable: National Crime Authority v S (1991) 29 FCR 203 at 211-212; AWB Limited v Cole (No. 5) (2006) 155 FCR 30 at 44-45 [44]. A party claiming privilege may succeed by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. The character of the documents the subject of the claim may illuminate the purpose for which they were brought into existence: Grant v Downs at 689.
38The Court has the power to inspect documents itself to determine a claim for privilege and should not hesitate to exercise that power: Re Southland Coal Pty Limited [2006] NSWSC 899 at [14](k).
...
39The provisions of the Evidence Act 1995 apply only to the adducing of evidence and have no derivative application, at common law, to interlocutory processes including the production of documents on subpoena: Esso Australia Resources Limited v Commissioner of Taxation [1999] 201 CLR 49 at 59-64; Mann v Carnell at 9-12. Accordingly, the Evidence Act 1995 has no application to the present situation unless the provisions of that Act concerning client legal privilege are applicable by operation of other statutory provisions.
Neither party directed me to any statutory provision which would require the application of the Evidence Act and I proceed on the basis that the common law is applicable. Under the common law a claim of legal professional privilege would be available to the Director, which would preclude from disclosure confidential communications between a lawyer and client that were brought into existence for the dominant purpose of the client being provided with legal advice or assistance. It would also protect confidential documents bought into existence for the dominant purpose of preparing for existing or contemplated legal proceedings: Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490; Cross on Evidence, Australian Edition (Looseleaf) at [25225]; GSA Industries (Aust) Pty Ltd v Constable [2002] 1 Qd R 1146 at [10].
In the present case, the evidence given in support of the claim for privilege was somewhat unsatisfactory. Instead of being able to identify with any precision the person who prepared the documents and the circumstances in which they were prepared only general evidence was given of the practice within the Director’s office. However, I accept Mr Lee’s evidence as to the usual practice within the office, namely, to discuss with the Director whether or not proceedings should be commenced based on the matters identified in the checklist. That is reinforced by the terms of the Director’s Instruction which I have referred to above.
I cannot be satisfied on the balance of probabilities that the process was in fact followed in the present case. However, I can be satisfied that as at the point at which the documents were brought into existence, that was the dominant purpose for them being brought into existence. Even if the documents were not brought into existence for that purpose, they are documents which clearly record various considerations relevant to the solicitor considering, either on his or her own or in conjunction with a more senior solicitor, the merits of proceedings against the defendant. Therefore, even if not prepared for the dominant purpose of providing advice to the Director, the documents were clearly prepared for the purpose of the conduct of anticipated proceedings.
I am satisfied on the basis of Mr Lee’s evidence that the documents were confidential documents, that is, documents intended not to be circulated beyond those persons within the Director’s office responsible for the conduct of the litigation.
Therefore, I am satisfied, subject to any question of waiver, that the documents are privileged. The common law test for waiver involves an assessment of the fairness of the maintenance of the privilege: Osland v Secretary to the Department of Justice (2008) 234 CLR 275 at [45]; Mann v Carnell (1999) 201 CLR 1 at [28]-[30]. The defendant submitted that the commencement of proceedings by the Director was sufficient in the light of the obligations under the him under the HRA to constitute a waiver of his privilege. I found this aspect of the argument put by the defendant a little hard to follow but I am satisfied that the mere commencement of proceedings was not sufficient to make it unfair for the Director to maintain the privilege over the documents. It may be that the Director will be taken to have waived his privilege in the documents if he chooses, in response to the defendant’s application, to put on evidence to the effect that he did take into account the two human rights relied upon by the defendant. In that situation there would be a real argument that it was unfair or, alternatively, inconsistent with the maintenance of the privilege to, on the one hand, give evidence of consideration of human rights, while at the same time denying access to the defendant to those documents recording what was considered when the proceedings were commenced.
I am therefore satisfied that the two documents over which privilege is claimed are the subject of legal professional privilege and that the privilege has not, at this stage of the proceedings, been waived.
In the light of these conclusions and in the light of the advice that there are no documents other than the privileged documents the subject of this application that fall within the terms of items 3-5 of the subpoena returnable on 16 February 2015, it is appropriate to set aside the subpoena in part. The alternative course that I could adopt would be to not set aside the subpoena but simply refuse to grant the defendant access to those documents. There does not appear to me to be any utility in that alternative course.
The order that I make is therefore that paragraphs 3-5 of the subpoena returnable 16 February 2015 are set aside.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 8 May 2015 |
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