Lazar v The Queen

[2021] NSWCCA 132

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lazar v R [2021] NSWCCA 132

Hearing dates:

17 June 2021

Date of orders:

24 June 2021

Decision date:

24 June 2021

Before:

Beech-Jones J

Decision:

(1)   Until further order, each of William Brewer, Barbara Coorey, Cassandra Simone and Bryan Wrench be excused from further compliance with the Witness Orders directed to each of them dated 8 June 2021;

(2)   Direct the legal representatives of Ian Lazar and the Crown confer in relation to the means by which the Crown can obtain further evidence in response to the affidavits filed on behalf of Mr Lazar;

(3) Direct the parties to advise the Court on or before 10 July 2021, by an email to the Associate to Beech-Jones J, whether they object to the publication of the whole or any part of this judgment on Caselaw and the basis for the making of any order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW);

(4)   List the matter for further directions at 9:00am on 22 July 2021 before the Registrar of the Court of Criminal Appeal.

Catchwords:

LEGAL PROFESSIONAL PRIVILEGE – appellant’s grounds of appeal contend he was unfit to be tried – whether appellant has waived legal professional privilege over communications with lawyer at his trial – implied or imputed waiver – waiver by disclosure of substance – Held – waiver established

Legislation Cited:

Criminal Appeal Act 1912 (NSW)

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Supreme Court (Criminal Appeal) Rules 2021

Cases Cited:

ASIC v ANZ Banking Group Ltd (No 2) [2020] FCA 1013

Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48

DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46

Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66

R v Lazar; R v Constantinidis [2020] NSWDC 3

R v Presser [1958] VR 45

R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283

Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083

State of NSW v Public Transport Ticketing Corporation [2011] NSWCA 60

Category:

Principal judgment

Parties:

Ian David Lazar (Applicant)
Regina (Crown)

Representation:

Counsel:
Mr C Parkin (Applicant)
Ms M Kumar (Crown)

Solicitors:
Murphy’s Lawyers Inc (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s):

2014/320266

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 3

Date of Decision:

24 January 2020

Before:

Traill DCJ

File Number(s):

2014/320266

Judgment

1. This judgment concerns an application by the Crown for access to documents produced by an appellant’s former lawyers to the Court in response to Witness Orders made under Rule 4.3 of the Supreme Court (Criminal Appeal) Rules 2021.

2. Section 12(1)(a) of the Criminal Appeal Act 1912 (NSW) confers on the “court” power to order the production of any document connected with the proceeding, that being a proceeding in the Court of Criminal Appeal. As I will explain, Mr Ian Lazar has commenced such a proceeding, namely an application for leave to appeal against his conviction. The power to order “production” extends to the power to control access to the documents so produced.

3. Section 22(1) of the Criminal Appeal Act provides that, inter alia, the power of the “court” to order production of such documents can be exercised by a “Judge of the Supreme Court designated by the Chief Justice in the same manner as they may be exercised by the court, and subject to the same provisions”. The Chief Justice has designated all judges of the Common Law Division with that power (and the other powers listed in s 22).

4. As explained below, the substantive issue that has arisen at this point in relation to access to documents and the conduct of the proceedings initiated in this Court by Mr Lazar, concerns whether he has waived legal professional privilege in respect of at least some of his confidential communications with the legal representatives who acted for him during his trial. The expedient of seeking access to documents from those legal representatives was adopted to allow the question of waiver to be determined by a single judge to facilitate the progress of Mr Lazar’s appeal. Mr Lazar has raised additional concerns about the width of the production sought.

Background

5. At some point, Mr Lazar and Mr Achilles Constantinidis were arraigned in the District Court on an indictment that charged them with an offence under s 319 of the Crimes Act 1900 (NSW). On 20 February 2018, Mr Lazar was found unfit to be tried. On 16 May 2018, the Mental Health Review Tribunal (the “MHRT”) found that he was fit and was to likely remain so in the ensuing 12 months (former Mental Health (Forensic Provisions) Act1990 (NSW), s 16(1)).

6. Between 22 July 2019 and 14 August 2019, Mr Lazar and Mr Constantinidis stood trial before her Honour Judge Traill sitting without a jury. At his trial, Mr Lazar was represented by Mr William Brewer of Counsel who was instructed by Ms Barbara Coorey, solicitor. Another solicitor, Ms Cassandra Simone, provided Mr Lazar with some assistance during the trial. On 24 January 2020, Judge Traill delivered a verdict of guilty and published reasons for her verdict (R v Lazar; R v Constantinidis [2020] NSWDC 3). Her Honour has not yet sentenced either Mr Lazar or Mr Constantinidis.

7. On 28 January 2020, her Honour Judge Payne found Mr Lazar unfit to be tried in respect of other charges. On 19 June 2020, the MHRT found that he was unlikely to become fit within the next 12 months.

8. On or about 25 March 2021, Mr Lazar filed a Notice of Appeal in this Court challenging his conviction. The accompanying statement of the grounds of appeal listed three grounds, the first of which was that “[a] miscarriage of justice occurred by reason of the fact that Mr Lazar may not have been fit to stand trial.” The statement was accompanied by detailed written submissions and supporting affidavits.

9. On or about 30 March 2021, a solicitor employed within the Office of the Director of Public Prosecutions (“ODPP”) requested Mr Lazar’s current solicitors provide a waiver from Mr Lazar in order to obtain affidavit evidence from Mr Brewer, Ms Coorey and Ms Simone. On 6 April 2021, they responded advising that, as Mr Lazar is “unfit” they were “not in a position to obtain instructions to waive privilege from him and we could not waive privilege on his behalf.” They further denied that it was necessary for the Crown to obtain such a waiver in that without it the Crown could still adduce evidence as to the “manner in which Mr Lazar conducted himself at trial” and the reasons, if any, that no issue of fitness was raised by his legal representatives.

10. On 8 April 2021, the ODPP requested Mr Brewer, Ms Coorey and Ms Simone provide affidavits on the topic of Mr Lazar’s fitness. The only response they received was a short affidavit from Mr Brewer which stated that “Mr Lazar was able to provide instruction during the trial” and some brief observations on his mental state during the trial. Although it is not entirely clear, it appears that due to concerns over breaching legal professional privilege no further material was obtained

The Witness Orders

11. Various steps were sought to be taken to resolve the impasse. One avenue that was raised was the potential to issue examination orders to each of Mr Brewer, Ms Coorey and Ms Simone (Criminal Appeal Act (NSW), s 12(1)(b)). It was suggested that, during their questioning, the Court could rule on whether privilege exists and, if so, whether it had been waived in relation to the subject matter of the question. Given the time and inconvenience that might be occasioned by that process, it was determined that the better course was for the Crown to have issued Witness Orders seeking the production of documents that were addressed to the Presser criteria (ie, R v Presser [1958] VR 45 at 48; “Presser”) and for the Court to rule on any waiver of privilege in the course of determining access to the documents.

12. On or about 8 June 2021, the Crown procured Witness Orders under Rule 4.3 directed to each of Mr Brewer, Ms Coorey, Ms Simone and Mr Lazar’s current lawyers. They required the production of documents created in the period 16 May 2018 to 28 January 2020 concerning or recording advice given to, or instructions received from, Mr Lazar in relation to the subject matter of the proceedings. In addition, paragraphs 4 and 5 of the schedules to the Witness Orders sought the production of documents recording Mr Lazar’s “understanding or acknowledgement of the effect of the evidence” or advice received in respect of the charges against him. As framed, those paragraphs capture any documents created by or passing between any of Mr Brewer, Ms Coorey and Mr Lazar recording Mr Brewer’s or Mr Coorey’s assessment of Mr Lazar’s fitness to stand trial.

13. Counsel for Mr Lazar in this Court, Mr Parkin, raised a concern about the scope of the documents sought, especially the time period which was outside the period of the trial. Counsel for the Crown, Ms Kumar, stated that the time period was chosen because it was the period between the time when Mr Lazar was found fit to be tried, and was later found unfit to be tried. The scope of the production sought by each of the Witness Orders was wider than was necessary to allow any issue of waiver to be addressed. Further, by the time of the hearing of this application for access only two of the respondents to the Witness Orders, namely Mr Brewer and Ms Simone, had been able to produce documents and they had only been able to provide partial compliance. Mr Parkin informed the Court that the documents produced included documents created within the period of the trial as well as outside.

14. Having regard to the terms of the Witness Orders, and the fact that some of the documents concern the period of the trial, it follows that there is a proper basis for the privilege claimed by Mr Lazar and in turn a proper basis to determine the issue of waiver. Given the desirability of determining that issue as soon as possible, I advised the parties that I would excuse the recipients of the Witness Order from further compliance until further order. This will enable the parties to confer about the way forward in response to this judgment without them necessarily becoming embroiled in ongoing disputes about the scope of the production of documents and access to them.

Mr Lazar’s Appeal

15. Ground 1 of Mr Lazar’s appeal is set out above. The grounds of appeal were accompanied by comprehensive written submissions and supporting affidavits. Those submissions embrace the following well known passage from Presser as embodying the test for whether an accused person is unfit to stand trial:

“It is whether the accused because of mental defect fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs ... to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formality. He needs to be able to understand ... the substantial effect of any evidence that may be given against him; he needs to be able to make his defence or answer to the charge. Where he has Counsel he needs to be able to do this through his Counsel by giving any necessary instructions and by letting his Counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence but he must... have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his Counsel, if any.” (emphasis added)

16. The written submissions identify the principle governing the ground of appeal as the following passage from R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 at [31] (“RTI”): [1]

“If there is material before this Court which raises a question about the propriety of the conviction because an appellant may have been unfit to stand trial, the court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial which led to the conviction the court acting reasonably must have found that the accused was fit to stand trial. It is only if the court can come to that finding that there will be no possibility of a miscarriage of justice. ... (emphasis added)

1. Applicant’s written submissions at [112].

17. Consistent with this passage, the written submissions in support of the grounds of appeal contend that there was a “real possibility that Mr Lazar was not fit to stand trial” [2] and refer, inter alia, to “observations of his treating medical practitioners throughout” his trial. The submissions further contend that “[t]o the extent that it might be suggested that Mr Lazar was fit based upon the manner in which the trial was conducted by his counsel below (either by comments made by counsel, or through the manner in which cross-examination was undertaken)” then “Mr Lazar intends to meet such a suggestion with evidence on the appeal”. [3]

    2. Applicant’s written submissions at [21].

    3. Appellant’s written submissions at [22].

18. The evidence which the submissions place reliance on includes a report from a forensic psychiatrist, Dr Henderson, who saw Mr Lazar and his partner Ms Aamariah on 3 October 2019. The written submissions set out an extract from Dr Henderson’s report in which he referred to Ms Aamariah telling him that “Mr Lazar regularly misunderstood what was going on in court and regularly required his counsel to repeat explanations”. [4] Later, the submissions extract part of a further report from Dr Henderson dated 1 June 2020 as follows: [5]

“I was informed that Mr Lazar's mental state deteriorated significantly during the course of the proceedings and he was not able to follow the proceedings and instruct his legal team on account of his mental disorganisation. I understand that Mr Lazar's partner, Ms Aamariah, instructed his legal representative on his behalf.”

4. Appellant’s written submissions at [75].

5. Appellant’s written submissions at [100].

19. The submissions also note that in that report Dr Henderson recounted both Mr Lazar and Ms Aamariah telling him that the “lawyer and Barrister” refused to take instructions from Mr Lazar. [6]

    6. Appellant’s written submissions at [102].

20. Amongst the material filed with the grounds of appeal and submissions, is an affidavit of Ms Aamariah sworn 9 March 2021. Ms Aamariah states that she frequently attended court with Mr Lazar during the trial. She describes his behaviour during the trial. She says that the relationship between Mr Lazar, on the one hand, and Mr Brewer and Ms Coorey, on the other, broke down. The affidavit includes the following:

“Ian’s ability to give instructions

20   I was usually present when he was giving instructions during the trial. When Ian attempted to communicate his instructions to [Ms Coorey], he made no sense. He appeared unable to convey what he wanted to say. When he tried to explain things, he would end up on a tangent and would not get to the point. His instructions were often long-winded, confusing, and off topic.

21   Eventually, I started translating what Ian was trying to say to [Ms Coorey] and [Mr Brewer]. One or other of them called me most mornings before the trial to ask me questions and to take instructions. [Ms Coorey] and [Mr Brewer] discussed cross-examination questions and strategy with me, including whether or not to call certain witnesses. They also asked me to clarify factual issues and matters arising from the committal hearing in this matter. Ian was not party to or included in these conversations.

22   There came a point that, when Ian tried to answer William [Brewer’s] questions, William frequently told him to be quiet and would defer to myself or Cassandra [Simone] for an answer. Even then, Ian struggled to explain to me what he wanted to put to the witnesses in cross-examination and why he wanted to ask these questions. When he was able to explain to me his reasoning, it was usually very distorted and nonsensical.

Ian’s understanding of advice given to him

23   Throughout the trial, Ian constantly asked questions of myself, Barbara [Coorey] and Cassandra because he did not understand what was happening. On the days I sat in Court with him, he asked me these questions every few minutes. He struggled to understand what was going on and frequently asked me why counsel wasn’t asking witnesses certain questions. I often had to repeat myself over and over again in different ways to try and help him understand.

24   …

25   Ian became particularly agitated during the cross-examination of the Crown witnesses. He wanted certain questions put to the witnesses, and it appeared to me that he could not understand why they were not being asked. William would try to explain to Ian the legal reasons that certain questions could not be put to the witnesses, and that those questions would be asked, but in a different form. Despite this, Ian constantly pressed for his own proposed cross-examination questions to be asked.

26   Ian also did not seem to understand that when a witness was excused, it was not possible to ask them further questions. At the end of cross-examination, I saw William repeatedly turn to Ian to check if that was all that needed to be asked. Ian would say yes and nod his head. However, he would later ask why certain questions were not put to the witnesses and wanted to ask them more questions.

27   For example, Ian had a meltdown at Court after Counsel excused Witness B. During an adjournment Ian, Barbara, William and myself went out into an office, and Ian began to scream and swear about Witness B being excused. I specifically recall him jumping up and down and shouting ‘Why have you done this?’ He was inconsolable, and appeared convinced the case was lost because Witness B had been let go.” (emphasis added)

21. Paragraphs 20, 22, 23 and 25 above provide a general description of the communications, or attempted communications, between Mr Lazar, on the one hand, and Ms Coorey and Mr Brewer, on the other. Ms Aamariah expresses conclusions about the effect of those conversations. Paragraphs 26 and 27 describe the content of particular conversations between them.

Waiver of Legal Professional Privilege

22. The onus of proof in relation to waiver rests upon the Crown. It pitched its argument on waiver on the basis of both implied or imputed waiver and the disclosure of the substance of communications between Mr Lazar and his legal representatives.

23. Section 131A of the Evidence Act 1995 (NSW) operates to extend the operation of Division 1 of Part 3.10, which concerns client legal privilege, to various pre-trial disclosure requirements including to Witness Orders (s 131A(2)). However, s 131A only applies where the person producing the documents is also the person that objects to access (Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 at [27]; State of NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 at [32] per Allsop P). As Mr Lazar is the person making an objection to access to documents produced by others, it follows that this application is governed by common law principles of waiver. That said, at least so far as imputed or implied waiver is concerned, there is no relevant difference between the common law and s 122(2) of the Evidence Act (Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 at [32]; “Expense Reduction”).

22. At common law, the courts will impute an intention to a party to waive privilege where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect (Expense Reduction at [30]). Such a consequence will follow “even though that consequence was not intended by the party losing the privilege” ([id]). To the extent that implied or imputed waiver involves notions of “fairness”, those notions are only an aspect of considering whether there is an inconsistency between the conduct of the privilege holder and the maintenance of the privilege. Hence, in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66, Gleeson CJ, Gaudron, Gummow and Callinan JJ stated (at 13):

“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 the maintenance of the confidentiality; not some overriding principle of fairness operating at large.” (emphasis added)

25. In Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48 at [154], this Court observed:

“One commonly cited statement concerning the circumstances that will bring about an imputed waiver is that of Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 (“DSE”), to the effect that where a “party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication” waiver of the privilege will be imputed (at [58]). Hence, a client who gives evidence about the instructions they gave to their lawyer’s waives privilege over that communication (Benecke v National Australia Bank (1993) 35 NSWLR 110; ….). However, such a waiver does not arise from a party simply denying in a pleading an assertion about their state of mind, including that it was influenced by legal advice (DSE at [115] to [122]). A party cannot be forced to waive privilege by simply denying, or not admitting, accusations made against them [id].” (emphasis added)

26. In this case, the Crown contends that, by bringing an appeal that raised ground 1 and thus putting his fitness at his trial in issue, an inconsistency arises between Mr Lazar’s conduct and the maintenance of the confidentiality over his communications between himself and his legal representatives. [7] The Crown submitted that his appeal raises “an issue as to the contents of the applicant’s instructions given to his lawyers and his understanding and acknowledgement of legal advice”. [8]

    7. Crown submissions at [13] and [14].

    8. Crown submissions at [16].

27. Mr Parkin submitted that no aspect of the first ground of appeal makes any express or implied assertion about the content of any privileged communication between Mr Lazar and his lawyers and none of the material filed on his behalf “purports to give evidence about the content of privileged communications” or involves any express or implied assertion as to the content of those communications. [9]

    9. Lazar submissions 15 June 2021 at [13] and [15].

28. During oral argument, Mr Parkin conceded that there had been an implied or imputed waiver over any communications or documents recording Mr Brewer’s or Mr Coorey’s assessment of Mr Lazar’s fitness to stand trial. Subject to any dispute over the relevant time period in which there was any waiver on that topic, neither Mr Brewer, Ms Coorey or Ms Simone is precluded by legal professional privilege (or client legal privilege) from conferring with the ODPP on that topic (or producing documents directed to that topic).

29. To address the balance of the dispute it is necessary to identify what “assertion[s] (express or implied)” or “case” Mr Lazar brings on appeal (DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 at [58]; see [25]). There are no pleadings in the Court of Criminal Appeal save for the formulation of the grounds of appeal. Mr Lazar’s “assertions (express or implied)” or “case” are to be ascertained, at least at this stage, from the grounds of appeal, the written submissions and evidence in support.

30. The combination of ground 1 of the Notice of Appeal, and the invocation of the principles from RTI in the written submissions, involves an assertion by Mr Lazar that: firstly, there was material which “raises a question about” his fitness and secondly, that, had that question been raised at his trial, then the trial court would not necessarily “have found that the accused was fit to stand trial” (RTI supra).

31. Given the variety of the Presser criteria, such an assertion may not necessarily raise any issue about an accused’s communications with his legal representatives and, even if it did, it would not necessarily concern every such communication. However, in this case, it is apparent from the written submissions and evidence in support that Mr Lazar submits he failed most, if not all, of the Presser criteria notwithstanding that he was represented by counsel and solicitors. In particular, in substance he contends that he was not able to and did not give “any necessary instructions [to] his Counsel [as to] what his version of the facts” was. He also contends that he was not able to and did not understand any advice given by his legal representatives as to “what it is that he [was] charged with”, the “course of the proceedings”, “the substantial effect of any evidence that may be given against him” and “what defence he [would] rely upon” (Presser supra).

32. At the very least, those “assertions” or that case “necessarily lays open the confidential communications to scrutiny” (DSE supra) such that an inconsistency arises between his making them and the maintenance of the confidence of the contents of his communications between himself and his legal representatives on those topics. This is illustrated by paragraphs [20] to [25] of Ms Aamariah’s affidavit set out above. Mr Parkin emphasised that those paragraphs do not disclose the content of any communications between Mr Lazar and his legal representatives and the Crown could respond to them by obtaining affidavits from Mr Brewer, Ms Coorey and Ms Simone expressed in similarly general terms. In part, this submission elides the difference between imputed waiver and waiver by disclosure of the substance of confidential communications. Further, the statement by Ms Aamariah that when Mr Lazar “attempted to communicate his instructions to [Ms Coorey], he made no sense” necessarily conveys that there were particular occasions when Mr Lazar purported to provide Ms Coorey with instructions and those particular instructions made no sense. Considered in the context of Mr Lazar’s appeal, that impliedly waives privilege over those communications. They are laid open for scrutiny as to whether he did attempt to provide instructions and whether his instructions were nonsensical. If it were otherwise, how else could her generalised assertion be evaluated or properly responded to? The same reasoning applies to Ms Aamariah’s observations that “when Ian tried to answer [Mr Brewer’s] questions, [Mr Brewer] frequently told him to be quiet and would defer to myself or Cassandra for an answer” and that Mr Lazar “constantly asked questions of … Barbara and Cassandra because he did not understand what was happening”.

33. It follows that, subject to the points made below, I am satisfied that there has been an implied or imputed waiver over the particular communications between Mr Lazar on the one hand and any of Mr Brewer, Ms Coorey or Ms Simone on the other which are the basis for the findings upon which Mr Lazar seeks to have the Court conclude that there is a question raised by the material about his fitness to stand trial and that, if it had been raised, then the trial court would not necessarily have found he was fit. In particular, this waiver concerns communications in which he purported to give instructions to his legal representatives as to what his version of the facts was and communications in which advice was sought or given as to what he was charged with, the course of the proceedings or the substantial effect of the prosecution evidence.

34. Four further matters should be noted.

35. First, in light of the above findings, the Crown’s reliance on waiver by the substance of the communications does not strictly arise. The approach at least at common law was summarised by Allsop CJ in ASIC v ANZ Banking Group Ltd (No 2) [2020] FCA 1013 at [27] to [30] and the cases his Honour cites. In this case the only disclosure of the “substance or gist” of the communications is that set out in paragraphs [25] to [27] of Ms Aamariah’s affidavit set out above which concerned advice about the formulation of questions as well as communications about why Mr Brewer allowed witnesses to be excused including the particular instances noted in paragraph [27]. One matter of potential difference between the common law and s 122(3) of the Evidence Act on this issue is whether the disclosures by Ms Aamariah were made “with the express or implied consent of the client or party” being Mr Lazar (s 122(3)(b)). (Ms Aamariah is not the “client or party” herself: see s 122(3)(a)). The legal representatives for Mr Lazar contend that he is presently unfit and cannot give Mr Brewer, Ms Coorey or Ms Simone a waiver. On that reasoning there could not have been any express or implied consent from Mr Lazar to the disclosures in [25] to [27] of Ms Aamariah’s affidavit. However, if Mr Lazar cannot give that consent, then it only begs the question as to how Mr Lazar’s legal representatives acquired authority to file an appeal on his behalf in the first place.

36. Second, Mr Parkin raised a concern about the width of the time period specified in the Witness Orders. Ms Kumar for the Crown indicated that one matter that the Crown sought to scrutinise was the consistency between any instructions given by Mr Lazer during the trial, and before the trial, as part of the assessment of his fitness. In considering these issues it is important to bear in mind that the test for implied or imputed waiver is not relevance but inconsistency. Just because some other document may bear upon an assessment of a document or communication over which privilege has been waived does not mean that the waiver of the latter extends to the former. From my perusal of the materials filed with the grounds of appeal, the extent of the “assertions” made by Mr Lazar about his unfitness to stand trial concerns the period from just before the trial commenced before Traill DCJ until just after her Honour reserved judgment.

37. Third, one obvious concern that arises from a finding of waiver over communications in which Mr Lazar attempted to communicate his version of the facts to his counsel and solicitor is their potential use by the Crown at any possible retrial that might result from the appeal. All that can be noted at this point is the possible reliance on ss 90 and 135 of the Evidence Act to preclude such evidence that is obtained for one purpose from being deployed for another.

38. Fourth, one matter raised by Mr Parkin in resisting the application was a conclusion that, if a waiver arises in these circumstances, then a similar waiver may be found to arise at a fitness hearing conducted at first instance. I do not agree. As noted, on this appeal it is Mr Lazar who positively contends that there was a miscarriage of justice by reason of his unfitness. He carries the onus of proof and persuasion in relation to that contention. At first instance, the Court is obliged to conduct an inquiry into the accused’s fitness to be tried if a question about fitness is “raised” by either party. Neither party carries any onus of proof on that issue (Mental Health and Cognitive Impairment Forensic Provisions Act 2020, s 39, s 44(4)). In terms of DSE, in raising a question about fitness, neither party makes an “assertion (express or implied)” or brings a “case”. Hence in the ordinary course, questions about waiver at fitness hearings, including about any waiver that might arise from adducing evidence like that sought to be adduced from Ms Aamariah, is to be addressed by reference to s 122(3) of the Evidence Act or its common law equivalent.

Orders

39. The form of the orders to be made and the progress from this point is explained above. As Mr Lazar has matters before other courts I will request the parties to advise if there is any reason why all or any part of this judgment should not be published on Caselaw. Further, at the hearing of this application, I made an interim order under s 10 of the Court Suppression and Non-publication Orders Act 2010 over certain medical reports concerning Mr Lazar. If that is sought to be extended beyond 22 July 2021, then his legal representative will need to file short submissions addressing that topic.

40. Accordingly:

1. Until further order, each of William Brewer, Barbara Coorey, Cassandra Simone and Bryan Wrench be excused from further compliance with the Witness Orders directed to each of them dated 8 June 2021;

2. Direct the legal representatives of Ian Lazar and the Crown confer in relation to the means by which the Crown can obtain further evidence in response to the affidavits filed on behalf of Mr Lazar;

3. Direct the parties to advise the Court on or before 10 July 2021, by an email to the Associate to Beech-Jones J, whether they object to the publication of the whole or any part of this judgment on Caselaw and the basis for the making of any order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW);

4. List the matter for further directions at 9:00am on 22 July 2021 before the Registrar of the Court of Criminal Appeal.

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Endnotes

Decision last updated: 09 July 2021