Legal Services Commission v JHW - [2012] SASCFC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
LEGAL SERVICES COMMISSION v W, JH
[2012] SASCFC 47
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Anderson)
1 May 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWER TO BRING APPEAL - FROM INTERLOCUTORY OR ANTECEDENT JUDGMENT OR ORDER
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHO MAY EXERCISE RIGHT - THIRD PARTY
Mr W and Mr T, both aged 14 years, were jointly charged on an Information with murdering Ms P Kemppainen – Mr T pleaded guilty and was sentenced – Mr W was committed for trial – the solicitor for Mr T, a solicitor employed by the Legal Services Commission (LSC), corresponded with the DPP for the purpose of outlining the factual basis upon which Mr T was prepared to plead guilty and to detail the evidence Mr T was likely to give against Mr W, were the DPP to call Mr T as a witness in the trial of Mr W – the solicitor for Mr W came into possession of a document outlining Mr T’s factual basis of his plea of guilty that had been edited by Mr T’s solicitor and provided to the DPP – the solicitor for Mr W subpoenaed all documents relating to the communications between the DPP and the solicitor for Mr T, and also called for production of the file of Mr T, held by Mr T’s solicitor – the LSC answered the subpoena and produced the documents and file – Mr W’s solicitors made application to inspect certain documents – the LSC opposed the application on the ground that the documents were protected by legal professional privilege – the Judge inspected the documents and held that legal professional privilege had been waived in relation to certain documents – the Judge allowed inspection of certain documents, which the Judge himself selected – the LSC appealed against that order.
The issue was whether the appeal was competent – whether, having regard to the Supreme Court Act 1935 (SA) (SCA) and the Criminal Law Consolidation Act 1935 (SA) (CLCA), the LSC had an avenue of appeal against the Judge’s order, relying on s 50 of the SCA.
Held: the appeal was competent – an appeal by a person who is not a party to proceedings, being a person against whom an order is made and whose rights are impeached, is available under s 50 of the SCA – neither s 63 of the SCA, nor provisions of the CLCA, preclude this avenue of appeal from the scope of s 50 of the SCA.

PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - LEGAL PROFESSIONAL PRIVILEGE - WAIVER OF PRIVILEGE
The issue was whether the Judge was correct to make the order allowing inspection – whether the Judge erred in inspecting the documents to determine the issue of waiver – whether the Judge was correct to impute a partial waiver of legal professional privilege – whether there was an inconsistency between the disclosure of material by solicitors for Mr T to the DPP and the insistence on legal professional privilege.
Held: the Judge erred in making the order allowing inspection – the Judge did not have power to inspect the privileged material for the purpose of deciding whether privilege had been waived – there was no inconsistency between the disclosure made by Mr T and his subsequent insistence on legal professional privilege – the relevant communication was nothing more than Mr T’s version of events and not a communication rendered incomplete by a recipient not knowing what had passed between Mr T and his solicitors – what passed between Mr T and his solicitors was not the relevant communication – no unfairness was identified to inform the concept of inconsistency, giving rise to an imputed waiver. Appeal allowed.
Supreme Court Criminal Rules 1992 (SA) r 1.01, r 9, r 11.01, r 11.02, r 11.03, r 11.03A, r 11.04, r 11.05, r 11.06, r 11.07, r 11.08, r 11.09, r 11.10, r 11.11, r 11.12, r 11.13; Supreme Court Act 1935 (SA) s 17, s 35, s 49, s 49(1), s 50, s 50(6), s 50(5)(e), s 63, s 63(1), s 72; Supreme Court Civil Rules 2006 (SA) r 171, r 172, r 173, r 173A, r 174, r 175, r 176, r 177, r 178, r 179, r 180, r 181, r 182; Criminal Law Consolidation Act 1935 (SA) Part 11, s 348(1), s 350, s 350(1), s 350(2), s 350(3), s 352; Supreme Court Act 1981 (UK) s 18(1)(a), referred to.
The Queen v Millhouse (1980) 24 SASR 555; R v Garrett (1988) 49 SASR 435; Bonalumi v Home Secretary [1985] QB 675; Southern Adelaide Health Service Inc v C & Ors [2007] SASC 181; (2007) 97 SASR 556; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475, discussed.
State of New South Wales v Jackson [2007] NSWCA 279; Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; Re Commissioner of Water Resources and Leighton Contractors Ltd (1990) 96 ALR 242; Waind v Hill [1978] 1 NSWLR 372; Alliance Petroleum Australia NL v The Australian Gas Light Company (1983) 34 SASR 215; State Bank of South Australia v Smoothdale No. 2 Limited (1995) 64 SASR 224; Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429; Gouch v Ewing [1986] QB 791; In Re O [1991] 2 QB 520; Cuoghi v Governor of Brixton Prison [1997] 1 WLR 1346; Customs and Excise Commissioners v City of London Magistrate’s Court [2000] 1 WLR 2020; The Queen v Crown Court of Manchester [2003] 1 AC 707; Carter v The Managing Partner, Northmore Hale Davy & Leake & Ors [1995] HCA 33; (1995) 183 CLR 121; Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"criminal cause", "criminal jurisdiction", "waiver", "legal professional privilege"

LEGAL SERVICES COMMISSION v W, JH
[2012] SASCFC 47
Full Court: Doyle CJ, Vanstone and Anderson JJ

THE COURT: The Court has before it a Notice of Appeal. The appellant, Legal Services Commission of South Australia (the LSC), appeals against an order directed to it and made by a Judge of the Court.
The Judge was hearing applications made pursuant to r 9 of the Supreme Court Criminal Rules 1992 (SA) (the Criminal Rules), these being preliminary applications for the purposes of that rule. Once those preliminary applications were dealt with, it would be expected that the Judge would empanel a jury and proceed with the trial of Mr W for the murder of Ms Kemppainen.
The Judge ordered that the Director of Public Prosecutions (the DPP) as prosecutor, and counsel for Mr W, were permitted to inspect documents selected by the Judge from certain files that the LSC had produced in response to a subpoena issued at the request of the solicitor for Mr W. The files were LSC files containing documents produced or received by an employee of the LSC as solicitor for Mr T, who had already pleaded guilty to, and had been sentenced for, the murder of Ms Kemppainen. The LSC opposed the application by Mr W’s counsel for an order for inspection on the ground that the files, and the materials selected by the Judge from the files, contained material the subject of legal professional privilege, and accordingly that material should not be made available to the DPP or to Mr W’s legal representatives. The Judge rejected that submission. The Judge held that privilege had been impliedly waived.
A copy of the documents selected by the Judge was given to counsel for Mr W. Counsel for the DPP chose not to accept a copy of the documents.
The appeal raises two main issues. First, the competence of the appeal. Second, the correctness of the Judge’s order. What follows are the Court’s reasons for allowing the appeal and for directing the return of the documents to the Court. These orders were made on 30 March 2012, the Court having heard the appeal on 27 March 2012.
Facts
For these purposes the Court draws on the rather sketchy facts put before the Court on appeal, on the Judge’s reasons, and also on an affidavit filed by the Crown Solicitor on behalf of the Attorney-General, in connection with an application to the Court for an order that the Judge be required to refer a question of law to the Full Court, raising the second of the issues raised by the appeal.
On about 11 September 2010 Ms Kemppainen was killed. It was a brutal killing.
Mr T and Mr W were jointly charged with her murder on an Information filed in the Youth Court. Each of them was 14 years of age. The prosecution case was one of joint enterprise. On 24 June 2011 Mr T pleaded guilty to the charge in the Youth Court. He was committed for sentence to the Supreme Court. Mr W pleaded not guilty. He was committed for trial in the Supreme Court. An Information charging him with the murder has been filed in the Supreme Court. The case against him remains one of joint enterprise.
On 1 December 2011 the solicitor for Mr T (the solicitor was an employee of the LSC) sent to the DPP a statement signed by Mr T. The statement gave his version of the murder. It was incriminatory of Mr W. The sending of the statement was preceded by correspondence and communications between the solicitor and the DPP in which the solicitor indicated that Mr T would provide to the DPP details of the factual basis of his plea of guilty. The DPP indicated that he was likely to call Mr T as prosecution witness on the trial of Mr W. On 8 December 2011 and 16 December 2011 the DPP wrote to the solicitor for Mr T asking for further details about Mr W’s involvement in the murder.
On 5 January 2012 the solicitor provided a further statement. This also was incriminatory of Mr W. In the covering letter the solicitor said:
I confirm the preparation of a further addendum statement from [T], prepared by me as per your request of 8 December 2011.
Please find attached.
I confirm that the statement has been prepared using [T’s] words, however I have been sure to edit out the unnecessary details, and of course, correcting his grammar so that it makes a legible document.
Because of [T’s] poor literacy and numeracy skills, I have read each and every page to him, which he then signs. If there are alterations, then I endeavour to correct the errors, and again read that same page to him before he signs.
…
Mr T came before another Judge of this Court for sentence in January 2012. The two statements that he provided to the DPP were before the Judge. Counsel for Mr T told the Judge that Mr T was willing to assist the DPP by giving evidence that would implicate Mr W. Counsel said he understood that the DPP accepted Mr T’s account as “honest and trustworthy”. Counsel submitted that the Judge should reduce the non-parole period (the head sentence was life imprisonment) having regard to the assistance that Mr T was willing to provide. Counsel for the DPP does not appear to have opposed any of this. Counsel said that as things stood the DPP proposed to call Mr T as a witness, and Mr T should be given some credit for that. Mr T was sentenced on 15 February 2012. The Judge made a substantial reduction in the non-parole period, indicating that this was for the plea of guilty and for the promised assistance to the DPP. The Judge made a suppression order in respect of the Judge’s reasons for fixing the non‑parole period.
The Court does not have before it all of what passed between the DPP and the solicitor for Mr W. The Court understands that the solicitor for Mr W was informed of the arrangements reached between the DPP and the solicitor for Mr T, and was given a copy of the two statements. The details of when and how this occurred do not matter.
In connection with the preliminary applications to be considered by the Judge, the Court granted a subpoena directed to the DPP. We gather that the subpoena related to communications between the DPP and the solicitor for Mr T. The DPP produced a number of documents comprising communications between the DPP and Mr T’s solicitors relating to Mr T’s version of events. The DPP did not claim privilege in respect of the documents, and accepted that the DPP’s duty as prosecutor required disclosure of these documents.
In his reasons (page 19) the Judge said that the documents produced did not:
... directly reveal the contents of other memoranda held by the LSC recording other verbal statements made by [T] on the topics dealt with in the two typed statements … but they do confirm that such material exists and the circumstances and context in which the solicitors were taking statements from [T].
The Judge referred to the letter of 5 January 2012 from the solicitor in which the solicitor said, referring to the second statement:
I confirm that the statement has been prepared using [T’s] words, however I have been sure to edit out the unnecessary details, and of course, correcting his grammar so that it makes a legible document.
The solicitors for Mr W also were granted a subpoena directed to the LSC. The subpoena called for the production of all records and communications passing between the DPP and the LSC relating to the prosecution of Mr T, and separately called for the production of “The file of [T] held by Legal Services Commission”.
On the return of the subpoena before the Judge on Thursday 8 March 2012, Mr Mead SC appeared for the LSC. He was not acting as counsel for Mr T. Other counsel had been instructed by the LSC to appear for Mr T. The Court understands that the practice of the LSC is to treat a particular solicitor employed by the LSC as the solicitor for a person who has been granted legal assistance. The LSC itself is not treated as the solicitor.
Mr Mead did not apply to have the subpoena set aside, despite its breadth. He produced Mr T’s file, apparently comprising several bundles of documents. He told the Judge that Mr T waived privilege over the documents in respect of which the DPP had disowned or waived any claim to privilege. Subject to that, he claimed legal professional privilege on behalf of Mr T in respect of the documents produced. That claim was made also in an affidavit filed by the solicitor employed by the LSC. In that affidavit she said:
3I am instructed by [T] that he wishes to claim legal professional privilege with respect to all communications between him and myself and other Legal Services Commission legal practitioners instructed by me on [T’s] behalf, in relation to the provision of legal advice and legal services to him, in connection with the charge of murder against him and all matters arising out of and related to those proceedings.
4In particular, [T] has instructed me that he wishes to claim legal professional privilege in respect of any and all communications, statements, notes and conversations between him and his legal representatives leading up to my provision to the DPP on 1^st December 2011 of his statement, and any and all communications, statements, notes and conversations between him and his legal representatives leading up to my provision to the DPP on 5^th January 2012 of an addendum statement.
The submissions before the Judge proceeded on the basis that the material in the files produced was the subject of legal professional privilege when first brought into existence, and on that basis would have been protected from production to the legal advisers for Mr W. The Judge identified the issue before him as whether privilege had been waived impliedly, or by imputation, by Mr T by the provision of the two statements to the DPP, coupled with a statement by Mr T of his willingness to give evidence on the trial of Mr W. It was not disputed before the Judge that Mr W had a “legitimate forensic purpose” in seeking to inspect this material.
The Judge referred to the material that had been produced without objection, and to the affidavit of the solicitor. The Judge said that the correspondence and the affidavit:
… made it plain, or at least likely, that there would be within the LSC file a continuum of records of various statements made by [T] on the same topic as dealt with in the two December 2011 statements and that not all of the detail contained in such records would appear in the two December 2011 statements.
The Judge considered that he could and should inspect the documents, the subject of the claim of privilege, to decide whether waiver of that privilege should be implied or imputed. The Judge referred to the decision of the Court of Appeal of New South Wales in State of New South Wales v Jackson [2007] NSWCA 279, which in turn drew on the decision of the High Court in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, in particular at 677 and 688-689. Those decisions, however, deal with the question of whether legal professional privilege attaches to documents, and not with the question waiver. As we will indicate in due course, we consider that the Judge erred in this respect and should not have inspected the documents.
The Judge said that there was no objection to him viewing the documents in order to decide upon waiver. We have read the transcript recording the submissions made by Mr Mead to the Judge. The issue of waiver was canvassed in those submissions. At one stage (T34) the Judge said that he needed to “… see whether there are any other statements made or referred to in the file on the same topic obviously, several topics, as the first two statements …”. In answer to that Mr Mead said that that material was privileged. A little later (T38), the Judge said that if the file contained a statement by Mr T which had not been handed over, then there would have been partial disclosure only. Again, Mr Mead said:
… the privilege attaches to that material and no-one is supposed to know about it.
While Mr Mead did not object in terms to the Judge inspecting the file for the purpose of deciding the issue being argued before him, we do not infer from the transcript that he put submissions on a basis that suggested that there was no objection.
The Judge dealt with other matters on the Friday. The Monday was a public holiday. On Tuesday 13 March the Judge delivered his ruling. The Judge then provided to counsel for Mr W copies of the documents that, after inspecting the LSC files, he considered should be made available to the defence. They were given to counsel subject to an undertaking not to copy them, and not to disclose them to other persons. Counsel for the DPP chose not to receive a copy of the documents.
The Judge provided reasons a few days later.
He found that T was, in “a very real sense” engaged in a dispute with W as to the respective parts played by each of them in relation to the death of the deceased. He found that T was using privileged material to gain an advantage in relation to W. He had secured a reduction in his non-parole period on the basis of his statements. The Judge said that the material that T gave to the DPP was highly prejudicial to W. The Judge emphasised the importance of fairness in the conduct of a criminal trial and said that there was a high potential for unfairness to W, and a low potential for unfairness to T. He commented on the material in the files that he had inspected and had released to the legal representatives of W. He commented in very general terms (understandably) on some differences between the two statements disclosed, and some matters recorded in the LSC file.
He said that W and T were in an adversarial position as between themselves, and that it was unfair that T should be able to advance his own position against that of W by releasing some only of the statements he had made to his solicitors.
These are the events that, in due course, led to the appeal now before the Court.
The competence of the appeal

Mr Whitington QC, counsel on appeal for the LSC, supported the competence of the appeal by reference to s 50 of the Supreme Court Act 1935 (SA) (the SCA). That section relevantly provides:
50—Appeals
(1)     Subject to this section—
(a)     an appeal lies to the Full Court against a judgment of the court constituted of a single judge; and
(b)     an appeal lies against a judgment of the court constituted of a master.
…
(4)     An appeal lies only with the permission of the court—
(a)     from a judgment of any of the following classes:
(i)      a judgment given by consent of the parties;
(ii) a judgment given by a single judge on appeal from a judgment of the Magistrates Court; or
(b) if the rules provide that the appeal lies by permission of the court.
(5)The rules cannot, however, require the court's permission for an appeal if the judgment under appeal—
(a)     denies, or imposes conditions on, a right to defend an action; or
(b)     deals with the liberty of the subject or the custody of an infant; or
(c)     grants or refuses relief in the nature of an injunction or the appointment of a receiver; or
(d)     is a declaration of liability or a final assessment of damages under section 30B; or
(e)     makes a final determination of a substantive right.
Exception— If a judgment is given by a single judge on appeal from some other court or tribunal, the rules may require the court's permission for a further appeal to the Full Court even though the judgment makes a final determination of a substantive right.
By s 50(6) “judgment” is defined to include “an order or direction” and “a decision not to make an order or direction”. Mr Whitington argued that permission to appeal was not required, having regard to s 50(5)(e), because the Judge’s order finally determined Mr T’s right to refuse to produce the documents in question to the solicitors for Mr W.
The power to issue a subpoena is conferred by s 35 of the SCA. Section 35 replaces the ancient writ or summons of subpoena with a statutory power to issue a subpoena requiring a person to appear before the Court to give evidence or to produce “evidentiary material” or both: see Re Commissioner Of Water Resources And Leighton Contractors Ltd (1990) 96 ALR 242 at 245-247. The section has been treated as the source of power for such a direction in all aspects of the Supreme Court jurisdiction. The power in s 35 is not linked or limited to any particular jurisdiction.
The power to issue a subpoena carries with it, by necessary implication, the power for a Judge to decide on objections and challenges to the subpoena, and to the production of evidentiary material pursuant to the subpoena.
The Court has made rules regulating the practice and procedure in relation to subpoenas. They are rules 171-182 of the Supreme Court Civil Rules 2006 (SA) and rules 11.01-11.13 of the Criminal Rules. Each set of rules is in substantially the same form. Rule 1.01 of the Criminal Rules provides that the Criminal Rules “apply to the exercise by the Court of its criminal jurisdiction”.
Each set of rules is made by the Judges of the Court in exercise of the power to make rules conferred by s 72 of the SCA.
The issue of a subpoena and its service upon a person is, in most cases, an exercise of the court’s power against a person or entity not a party to proceedings in the court: Waind v Hill [1978] 1 NSWLR 372 at 381 Moffitt P. The rights of a party to the proceedings, not being the party obtaining the issue of the subpoena, are usually not involved or affected by the issue and service of a subpoena. If issues arise as a result of the issue and service of a subpoena, they usually arise as between the party to the proceedings who has obtained the issue of the subpoena, and the person or entity to whom the subpoena is directed. It is common for the person responding to a subpoena to be permitted to be represented by counsel if that person objects to the subpoena, or applies to have it set aside, or if that person objects to the parties to the proceedings being given permission to inspect any documents produced. On a number of occasions the court has heard appeals or questions reserved raising the correctness of a ruling made by a judge on the return to a subpoena, the person or entity to whom the subpoena was directed being treated as a party to the appeal or other process: see Alliance Petroleum Australia NL v The Australian Gas Light Company (1983) 34 SASR 215 (a case stated for the opinion of the Full Court) and State Bank of South Australia v Smoothdale No. 2 Limited (1995) 64 SASR 224 (appeal – but between plaintiff and defendant): Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 at [61]-[82] Heydon JA.
As this case illustrates, an order for production and inspection can deprive the person to whom the subpoena is directed of significant rights.
The issue that arises on the objection to the competence of the appeal is whether, having regard to other provisions of the SCA, the LSC can appeal against the Judge’s order, relying on s 50 of the SCA. The submission by Mr Abbott QC, counsel for Mr W on appeal, is that other provisions of the SCA and provisions of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) have the effect of excluding from s 50 the decision or ruling by the Judge, because s 50 does not apply to a judgment (defined to include an order or decision) given in the course of, or in connection with proceedings in criminal causes, or in the exercise of the Court’s criminal jurisdiction.
We begin by referring to the provisions referred to in submissions.
Part 11 of the CLCA regulates “Appellate proceedings”. Section 352 is the section, substantially similar to sections in other States providing for appeals in criminal cases, that is usually pointed to as the source of the Court’s jurisdiction to hear appeals in criminal cases. It confers a right of appeal on a convicted person, on the DPP (in certain situations), and on the DPP and the defendant in relation to a decision on an issue antecedent to trial.
There is no provision in this section that could support the appeal by the LSC. If the Judge had refused to order production of the documents in question, and were Mr W to be convicted of murder, he could appeal against his conviction on the ground that the Judge had erred giving rise to a miscarriage of justice. That would involve a routine exercise of the Court’s power to hear and decide an appeal by a convicted person against conviction.
Section 350 (found in Part 11 of the CLCA) provides for a court by which a person has been or is being or is to be tried or sentenced for an indictable offence to reserve for consideration and determination by the Full Court a relevant question. That is defined by s 350(1) to mean a question of law, and a question about how a judicial discretion should be exercised or whether it had been properly exercised. Section 350(2) provides:
350—Reservation of relevant questions
…
(2)     A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue—
(a)      antecedent to trial; or
(b)     relevant to the trial or sentencing of the defendant,
and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.
An “issue antecedent to trial” is defined by s 348(1) as follows:
issue antecedent to trial means a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court;
Under this provision, it was open to the Judge to reserve a question of law that arose out of the issue of the subpoenas. It may be that the question whether the relevant documents continued to be protected by legal professional privilege raised a question of law. It is not necessary to decide that. Quite rightly, the Judge declined to do so, because s 350(3) provides that unless required by the Full Court, the Court should not reserve a question if the reservation of the question would unduly delay the trial of the defendant.
Next we return to the SCA. Section 63 provides:
63—Criminal procedure
(1)The practice and procedure in all criminal causes and matters, including the practice and procedure upon appeal, except as expressly altered by this Act, shall be the same as the practice and procedure in similar causes and matters before the passing of this Act.
(2)Proceedings in quo warranto shall be deemed to be civil proceedings whether for the purposes of appeal or otherwise.
Jurisdiction in criminal causes or matters is conferred, in the familiar way, by s 17 of the SCA. That section confers on the Court the jurisdiction vested in or capable of being exercised by specified courts in England, including courts that exercised criminal jurisdiction. That is, “a general original criminal jurisdiction”: R v Garrett (1988) 49 SASR 435 at 438. That section does not confer jurisdiction in relation to appeals against decisions in the criminal jurisdiction. Such appeals have been and are regulated entirely by statute.
In answer to Mr Whitington’s reliance on s 50 of the SCA, Mr Abbott QC, counsel for Mr W, submits that s 350 and s 353 of the CLCA state exhaustively the circumstances in which there can be an appeal against a decision (meaning a verdict or ruling) given in the course of the exercise of the Court’s criminal jurisdiction. Unless the present appeal can be supported by one of those provisions, he submits that the appeal is not competent. It being common ground that neither of those sections can support the present appeal, the only available support is s 50 of the SCA. As to that Mr Abbott submits that history and the terms of s 63 of the SCA indicate that s 50 of the SCA does not extend to give a right of appeal against a decision made in the course of the Court exercising its criminal jurisdiction, and he submits further that this is such a decision.
In The Queen v Millhouse (1980) 24 SASR 555 the Full Court considered whether s 49 of the SCA empowered a Judge to reserve for the consideration of the Full Court points arising in a criminal trial, the trial not having concluded. At the time, s 49(1) of the SCA read:
Any judge of the court sitting in the exercise of any jurisdiction may reserve any case or any point in a case for the consideration of the Full Court, or may direct any case or point in a case to be argued before the Full Court, and the Full Court may hear and determine any such case or point so reserved or so directed to be argued.
At the time s 63(1) of the SCA was in the same terms as it now is. At that time s 350 of the CLCA enabled a court to reserve a question of law for the consideration of the Full Court but only after the accused had been convicted: see Millhouse at 557. That power was not available in Millhouse because the trial had not proceeded to a conviction.
In her reasons Mitchell J at 559 said:
I am satisfied that s 49 cannot be applied to a point arising in a criminal trial. In my view s 63 limits what would otherwise be the general applicability of the words “in the exercise of any jurisdiction” appearing in s 49.
Zelling J took the same approach: at 566. King CJ agreed with the reasons of Mitchell J and Zelling J (at 556).
In our opinion the provision made by s 350 of the CLCA, enabling a court to reserve a question of law, was significant in the reasoning of that Court. Section 63 of the SCA must have been intended to limit the scope of s 49 so that that provision would not be read as conferring a separate and wider power to reserve a question of law in criminal proceedings. To give that effect to s 49 would be, contrary to s 63(1) of the SCA, a departure from the existing practice and procedure. We make this point merely to emphasise that on its face s 63(1) of the SCA required and requires a consideration of existing practice and procedure before the passing of the SCA.
In our opinion the present case is not decided by the reasoning in Millhouse. A decision that it is open to the LSC, not a party to any proceedings in a criminal court or matter, to appeal relying on s 50 of the SCA, does not run contrary to the approach of the Court in Millhouse.
In Garrett the Full Court considered whether s 50 of the SCA conferred jurisdiction on the Full Court to hear and decide an appeal against a decision by a Judge. Mr Garrett had pleaded not guilty to certain charges before the Judge, and before a jury was empanelled had applied to the Judge for an order staying proceedings on the Information on which he was charged, on the grounds that the proceedings were an abuse of process. At that time, as we noted above, s 350 of the CLCA empowered a Judge to reserve points for consideration of the Full Court, but only if the trial in question had proceeded to a conviction. Accordingly, there was no scope for the Judge’s decision to be reviewed in this way. Section 352 of the CLCA as it then stood did not provide for an appeal against a decision or ruling in the course of a trial unless and until the trial had proceeded to a conviction. Accordingly, Mr Garrett was not able to challenge the Judge’s decision by way of appeal under that section. It was in those circumstances that the appellant relied upon s 50 of the SCA to support the appeal against the Judge’s refusal to stay the proceedings.
The other members of the Court agreed with the reasons of Cox J: King CJ at 435, Jacobs J at 451. Cox J held that s 50 of the SCA did not confer a right of appeal in the circumstances. He said at 439:
Nevertheless I am satisfied that s 50 has no application to an order that is made or refused in the original criminal jurisdiction of this Court (by which I mean the criminal jurisdiction inherited from the old Queen’s Bench and assize courts under s 17), and that for much the same reasons as determined the Full Court's decision in R v Millhouse (supra).
Cox J went on to outline the history of the Court’s original and appellate criminal jurisdiction at 439-445. After considering in some detail the relevant statutory provisions he said at 445:
However, I have sought to show that the corresponding provisions of the 1878 Act did not apply to the court’s original criminal jurisdiction, and the same must be said, in my judgment, of s 50. There are a number of reasons for so holding.
He referred to s 63 of the SCA, describing it as “important”. He then said at 445:
It cannot be said that s 50 has no application at all to criminal causes and matters. … No doubt there are other criminal causes or matters, with respect to which an appeal lies to the Supreme Court, that may be reviewed in the same way. Whether that means that s 50 is wider in its scope, with respect to appeals to the Supreme Court from other courts and tribunals, than s 16 of the 1878 Act, it is not necessary to decide. … The question before us relates to an order which was sought with respect to a trial on information in this Court, and in my judgment that class of criminal cause or matter is excluded from s 50. When s 50 was enacted the appeal provisions of the Criminal Law Consolidation Act had been in force for a decade or so. One might reasonably interpret Pt XI of that Act as a complete code with respect to the review of verdicts and orders made on the criminal side. An appeal under Pt XI could only be brought by a convicted person. If there was to be any relaxation or extension of the rights of appeal conferred by Pt XI, one would expect them to have been enacted by way of amendment to Pt XI and not by words of ambiguous generality in another Act altogether. It is to be noticed that, as in the case of s 16 of the 1878 Act, if s 50 gives an accused person the right to appeal against ancillary orders or directions of a trial judge, or against his refusal to make an order, it presumably gives the same right of appeal to the Crown. One can conceive of cases in which it would be in everyone’s interests to have the correctness of a pre-trial order tested at once, but in many instances the power to appeal against the trial judge’s ancillary orders could be expected to have mischievous and inconvenient results. All of those considerations combine to deny a right of appeal under the Supreme Court Act with respect to a criminal trial.
In our opinion it is significant that in treating Part XI of the CLCA as a “complete code with respect to the review of verdicts and orders made on the criminal side”, we have no doubt that he must have had in mind a “review” by one of the parties to the proceedings.
In Millhouse and Garrett the Court was concerned with a ruling or decision made in the exercise of the Court’s jurisdiction to try a charge on an Information, the challenge being directed to a ruling or direction arising out of the issues joined between the Crown and the accused. In the present case the issue that arose is an issue as between the accused and the LSC and Mr T, a potential witness for the prosecution. Neither the LSC nor Mr T are parties to the proceedings in the criminal jurisdiction. The issue has arisen in the course of the exercise of the Court’s original criminal jurisdiction. But the Judge’s power to make the decision in question can be traced back to s 35 of the SCA, rather than to the conferral on the Court of jurisdiction in criminal causes or matters and jurisdiction in criminal appeals. The decision binds a person who is not a party to the criminal proceedings. To the extent that Part 11 of the CLCA is to be treated as a “complete code”, our opinion is that there is no reason to interpret it as a code with respect to the kind of appeal now under consideration. We consider it clear that Cox J had in mind (bearing in mind the provisions of the legislation as they then were) appeals by a convicted person, and appeals on decisions on issues as between the prosecutor and the convicted person.
We accept the reasoning of the Court in Garrett, but consider that it does not have direct application to the present case. Indeed, there are reasons to conclude otherwise.
We return to the decision in Garrett. At 446 Cox J said:
There may sometimes be a question, with respect to an order or direction given by a judge of the Court, whether it has been given in exercise of the court’s original criminal jurisdiction or whether its connection with that jurisdiction is so remote that the judge’s order or direction may be considered appealable under s 50. … The orders of a judge that are excluded from the general provisions of s 50 are those that are made in the original criminal jurisdiction of the Court, and that extends to interlocutory or ancillary orders that are made by the Court prior to a proposed trial as well as those made during the trial itself. … The words have been given a liberal interpretation, so that they cover not only the hearing of a criminal charge but also ancillary matters, procedural and otherwise, that arise prior to the hearing and may be in every practical sense quite detached from it.
Cox J then referred to a number of reported cases which support the approach that he took. In relation to somewhat similar legislation, the relevant court had concluded that a provision in similar terms to s 50 of the SCA did not confer power to entertain an appeal against a decision made in criminal proceedings. But the decision in question was made on or in relation to an issue arising as between the prosecution and the defence. The issue was one raised by a party to the criminal proceedings. With one exception, none of these decisions involved an appeal by a person not a party to the criminal proceedings against an order made against that person.
The decision closest to the present case, referred to by Cox J, is Bonalumi v Home Secretary [1985] QB 675. In that case it was held that an order by a Judge requiring the disclosure of bank records, the order being made under English law in aid of criminal proceedings proposed or pending in Sweden, was not appealable because it was an order made in “a criminal cause or matter”. But the appellant in that case was the accused in the criminal proceedings, not the bank the subject of the order. Were he to be convicted, he could (subject to Swedish law) appeal in the ordinary way against his conviction, raising any available challenge to the order relating to disclosure of bank records.

In that case the Court was considering s 18(1)(a) of the Supreme Court Act 1981 (UK), which explicitly provided that no appeal should lie to the Court of Appeal “… from any judgment of the High Court in any criminal cause or matter”. The Court was concerned with the terms of an express exclusion of limitation of jurisdiction. In the present case, the Court is concerned with the question of whether s 50 of the SCA should be read as subject to an implicit restriction or exception. It is doing no injustice to the reasoning of the members of the Court of Appeal in Bonalumi to say that, in effect, their decision was that the judgment appeared to be one in a criminal cause or matter because the order was made for the purpose of a criminal case taking place in Sweden. Subsequent decisions referring to the decision in Bonalumi, while taking the same general approach, illustrate that in each case it is necessary to give close attention to the particular statutory regime from which the order in question arose: Gouch v Ewing [1986] QB 791; In Re O [1991] 2 QB 520; Cuoghi v Governor of Brixton Prison [1997] 1 WLR 1346; Customs and Excise Commissioners v City of London Magistrates’ Court [2000] 1 WLR 2020; The Queen v Crown Court of Manchester [2003] 1 AC 707.
In our opinion neither Millhouse nor Garrett determines the outcome in the present case. There are distinctions between the present case, and cases of the kind which we consider the Court had in mind in those decisions, which provide a basis for a different approach in the present case. Like any grant of jurisdiction, s 50 of the SCA should not be read in a limited sense. It has been treated as conferring jurisdiction to entertain an appeal against an order for production of documents on subpoena, in civil cases. In principle, it is available to support an appeal in the present case, unless s 50 is to be read as subject to an implicit exception in relation to orders made ancillary to the exercise of criminal jurisdiction and directed to a party to proceedings in that jurisdiction. We accept, in the light of history and the decisions in Millhouse and Garrett, that neither the accused in criminal proceedings nor the prosecutor in those proceedings could appeal against an adverse decision made in those proceedings in relation to the production of documents on subpoena. The CLCA is a code in relation to appeals by the parties to criminal proceedings against orders made in the course of those proceedings. But we consider that an appeal by an person who is not a party to the proceedings, being a person against whom an order is made and whose rights are impeached, is available under s 50 of the SCA. Neither s 63 of the SCA, nor the provisions of the CLCA, are apt to exclude this appeal from the scope of s 50 of the SCA. We accept the importance of maintaining the distinction drawn by the Court in Millhouse and in Garrett. But we do not consider that a decision that the appeal is competent in this case erodes that distinction.
In particular, s 63 of the SCA must be read in the light of the provisions found in the CLCA. Section 63 is, in a sense, question begging. It preserves the “practice and procedure” as it was. That requires the court to identify what the position was. If the appeal in this case was competent in the past, to hold it to be competent is not to infringe s 63. The absence of any provisions for an appeal in a case like the present must affect one’s approach to s 63. One should not assume that there was, and is, no available right of appeal.
We note that in Southern Adelaide Health Service Inc v C & Ors [2007] SASC 181; (2007) 97 SASR 556 the issue now under consideration came before the Full Court. In the end, it was not necessary to make a decision on the point. Nevertheless, in his reasons Debelle J commented on the issues which we have canvassed: at [20]-[27]. Debelle J took much the same approach as this Court has taken. White J preferred not to express a view about the competence of the appeal: at [94]-[100]. Anderson J also found it unnecessary to decide the competence of the appeal: at [79].
For those reasons we conclude that the appeal is competent, being supported by s 50 of the SCA. In our opinion neither the provisions of the CLCA, nor s 63 of the SCA, leads to a conclusion that a person not a party to criminal proceedings, against whom an order is made in relation to documents produced on subpoena in those proceedings, cannot appeal against that decision or order.
Waiver
The material in respect of which the Judge decided that privilege had been waived appears to have comprised documents made or generated by Mr T’s solicitors. Those documents appear to have comprised notes, perhaps draft statements and other documents. The documents related to the matters recorded in the statements released by the LSC to the DPP and to Mr W. The Judge described the documents as “… part of a continuum of taking of instructions by [Mr T’s] solicitors on the same topics dealt with in the two December 2011 statements…” (reasons at p 30 and at p 41).
It is common ground that, subject to the question of waiver, the material inspected by the Judge and the material that the Judge ordered be disclosed was protected by legal professional privilege.
The Judge inspected the files produced by the LSC to decide whether or not privilege had been waived. It is well established that a court may examine communications or documents to determine the purpose for which they were created or brought into existence, and accordingly to decide whether or not they are the subject of legal professional privilege: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689. When the issue is whether or not legal professional privilege is available, the need to determine the purpose for which the communications or documents came into existence is likely to give rise to a need to examine the documents to determine that purpose. The claim that privilege has been waived does not give rise to an inquiry about the purpose for which the relevant documents were created. We will return to this point later, but we make the point now that in our opinion the Judge did not have the power to inspect the privileged material for the purpose of deciding upon the claim that privilege had been waived. That decision was to be made by reference to what Mr T had done by releasing the statements, and by offering to give evidence of what they contained. Alternatively, if the Judge had that power, there was nothing in the circumstances of the case to call for its exercise.
In deciding whether privilege had been waived in the material in respect of which the Judge ordered disclosure, the Judge referred to a number of factors.
He said that Mr W and Mr T were “… in an adversarial position as between themselves…”: reasons at p 37 and at p 43. With respect, this is in a sense true. But it is only true in the sense that each of them is accused of the same crime, and each might have an interest in minimising his participation and expanding or increasing the participation of the other. This will be true in many cases in which there are more than one accused.
The Judge said that it was unfair that Mr T should be able to “advance his own position” by the selective release of statements he had made about the crime, and in using privileged material to gain an advantage in relation to Mr W: reasons at p 37 and at p43. We respectfully disagree. Mr T had pleaded guilty to the charge of murder. For the purpose of sentencing, which had already taken place, it was essential for him to identify the basis of his plea. He did that. It was a basis that attributed substantial involvement in the murder to Mr W. What he said might or might not be true, and might or might not have been accepted by the sentencing Judge. But we find no unfairness in this, nor do we consider the outcome to be linked to the selective use of statements that Mr T made. All that Mr T had done was to identify to the DPP, and then to the sentencing Judge, the basis upon which he would plead guilty, and the evidence that he would give if called as a witness for the prosecution. This need not have been done by providing copy statements. It could have been done orally, it could have been done by providing a summary of what Mr T would do.
The Judge said that the two statements that were released, if taken alone, “… would be misleading…”. For that reason it was “… inconsistent and unfair…” for Mr T to refuse to disclose the other material: reasons at p 30 and p 31. It is one thing to say that material in relation to which Mr T continued to assert legal professional privilege might be used to undermine or to discredit the statements that he had made. But in our respectful opinion it is another, and quite different thing, to say that it was misleading for Mr T to assert what he did assert in the statements that he released, unless all other communications relevant to that statement were also released. It was open to Mr W to challenge the statements made by Mr T. If, in the circumstances, it was unfair for Mr T to maintain his claim of privilege, it seems to us that a similar argument could be advanced whenever one accused gave evidence against a co-accused. A subpoena could be directed to the solicitors of the first named co-accused requiring him to produce their records of statements made by their client, and the Judge could then be invited to inspect those records and to decide whether or not material in them might assist in undermining the reliability of the events given. This point is highlighted by the comment that the Judge made (reasons p 41) to the effect that the material that he directed be disclosed was capable of “derogating from” or demonstrating “inconsistencies” as between the disclosed material and the undisclosed material.
In our respectful opinion the Judge has erred in not focussing on the question of whether there was an inconsistency between releasing the statements, in the circumstances of the release, and the maintenance of a claim of privilege over documents created in the course of preparing the statements, bearing in mind any considerations of fairness that might arise. The Judge has, rather, directed his attention to the question of whether Mr W might be able to attack Mr T’s statements, using the material in respect of which Mr T continued to claim privilege. Moreover, the Judge identified unfairness in Mr T being sentenced on the basis of his statements, and in Mr T preventing the use of privileged material to attack his statements. That is neither unfair, nor relevant to waiver, in our opinion. That is quite a different question.
We turn now from those comments on the facts and on the Judge’s approach, to the relevant legal principles.
In Carter v The Managing Partner, Northmore Hale Davy & Leake & Ors [1995] HCA 33; (1995) 183 CLR 121 the High Court held that a person who has in his possession or power documents the subject of legal professional privilege cannot, assuming that privilege has not been waived, be required to produce them on subpoena issued at the request of an accused person in criminal proceedings, even though those documents might materially assist the defence of the person seeking the production, or even establish the innocence of that person. That is the relevant starting point.
We add by way of comment that in light of that, particular care must be taken not to impute a waiver of legal professional privilege on the basis that the material in respect of which privilege is claimed would assist the defence of the person who seeks access to the material. To do so is to deny the principle for which Carter stands. Care must also be taken not to impute waiver on the basis that there is relevant unfairness if that person is not given access to documents that would assist his defence, provided that the claim for privilege is made by a co-accused whose statements or evidence implicate the person who seeks access to the documents. More than this must be found to support a waiver of privilege. But, in our respectful opinion, the Judge’s approach contains these elements.
The High Court has considered whether the conduct of a person entitled to claim legal professional privilege amounts to a partial or complete waiver of that claim to privilege. In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 Gleeson CJ, Gaudron, Gummow and Callinan JJ summarised the position as follows:
[28]At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received.
[29]Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
(Footnotes omitted)
We make two comments on this passage. First, that the Court is not concerned with “some overriding principle of fairness operating at large”. The Court is concerned with the question of whether there is an inconsistency between disclosure of some related material and insistence upon legal professional privilege in respect of other material, the question of inconsistency being considered on the basis that it is “… informed by considerations of fairness”. The two examples which the Court gave in the passage set out above are readily understandable. There is an evident inconsistency in a client giving evidence of communications with the client’s legal advisor, and asserting privilege so as to deny the ability of the legal advisor to give his or her version of the communication. The relevant subject matter in that setting is the content of the communication between the client and legal advisor. In the present case the relevant subject matter is not the instructions given by Mr T to his lawyers, over a period of time. The subject matter is the version of events upon which he planned to plead guilty.
In the more recent decision of Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 Gleeson CJ, Gummow, Heydon and Keifel JJ summarised the relevant principle in similar terms: at [44].
In Attorney‑General for the Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475 the Court was concerned with an application on behalf of certain Aboriginals claiming to be traditional owners of a number of areas of land. In the course of the proceedings in which those claims were made the claimant traditional owners filed with an Aboriginal Land Commissioner, who was considering the claims, a claim book in which certain material in support of the claim was set out. Without going into detail, there was some analogy between the claim book and a pleading in a civil action. The question that arose was whether this use of the claim book amounted to a waiver of legal professional privilege in relation to the source materials used to prepare the claim book, but not forming part of it and not mentioned in it. The Court held that there had been no waiver of privilege in the source material.
Gibbs CJ identified the issue as whether “… the use in legal proceedings of one document impliedly waives privilege in associated material”: at 482. He went on to say at 483:
… the question is whether the disclosure or use of material that has been made renders it unfair to uphold the privilege in the associated material, and although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive.
Mason and Brennan JJ put the matter as follows (at 488):
In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter: see Great Atlantic Insurance Co. v. Home Insurance Co [1981] 1 W.L.R. 529; [1981] 2 All E.R. 485.
We note that the focus of all members of the Court was on the question of whether, as Mason and Brennan JJ put it, maintenance of the claim of privilege would give rise to “an inaccurate perception” of the communication disclosed. In Maurice the Court did not consider whether or not access to the source material might assist the appellant, or might throw light on what was in the claim book. Once again, in Maurice one finds the Court paying careful attention to the nature of the communication relied upon as giving rise to an implied waiver.
There is no shortage of cases in which the question of waiver of legal professional privilege has arisen. What these cases demonstrate is the fact sensitive nature of the inquiry, and no better example of that can be found than the decision in Maurice. The principles stated in Mann v Carnell and in Osland are clear enough, although expressed in general terms. In our opinion this case is to be decided by reference to those principles.
We were not referred to any case in which, on the question of waiver, the Court had examined the material the subject of a claim of privilege to determine whether or not waiver should imputed. As we have already indicated, we consider that the Judge did not have power to do so, or at least, if he had the power, that there was no reason in the circumstances to do so.
The communication said to give rise to an implied or imputed waiver of privilege is the communication by Mr T of a version of events involving the murder of Ms Kemppainen. As we have already said, that version of events was provided so that the DPP would know the basis upon which Mr T was prepared to plead guilty to the murder of Ms Kemppainen, and would know the evidence that Mr T was willing to give if called as a witness in the trial of Mr W.
We cannot identify any inconsistency between Mr T doing that, and maintaining that the instructions that he gave to his solicitors in relation to those statements, and documents recording the manner in which they were brought into being, should be protected by legal professional privilege. The relevant communication was nothing more than Mr T’s version of the relevant events. It was not a communication rendered incomplete by a recipient not knowing what had passed between Mr T and his solicitors.

Mr T has not waived privilege over one part of a protected communication, maintaining privilege over the balance. What passed between Mr T and his solicitors is not the communication in question.
Nor can we identify any unfairness which would inform or give content to the concept of inconsistency, giving rise to an imputed waiver in the present case.
In our opinion it was not unfair for Mr T to plead guilty and put forward his version of events as the basis upon which he should be sentenced. Nor was this circumstance rendered unfair because Mr T’s version of events was one that implicated Mr W. This kind of circumstance is a relatively common event in the criminal courts. Whatever one might say, we would not call it unfair. The version that Mr T put forward for purposes of sentencing might or might not be the truth, or the whole truth. But that is another thing. Nor was it unfair, in our opinion, for Mr T to decline to disclose his instructions to his solicitors. It can only be said that that was unfair, as the Judge reasoned, by deciding or postulating that those instructions contained material that might help undermine Mr T’s statement, and then by adding in the circumstance that Mr T had benefitted by being sentenced on the basis of that version of events. We cannot find any relevant unfairness, in the sense of unfairness informing a finding of inconsistency, in that conduct. The argument that it was unfair for Mr T to withhold privileged material that might assist Mr W to undermine Mr T’s version of events reflects reasoning which, in the end, is contrary to the principle established in Carter. It really amounts to saying that it is unfair to deny Mr W the opportunity to challenge Mr T’s version of events, by reference to the entirety of what passed between him and his solicitors, because of the circumstances to which we have referred.
We commented earlier that we had not been referred to any decision in which, on a question of waiver, the Judge had inspected the material in which in respect of which privilege was asserted. We doubt whether the Judge had power to do so. But even if the Judge did, we do not agree that relevant unfairness could be identified by the Judge finding material within the privileged material that might assist an attack on the statement in question. The question of waiver, in our opinion, depends upon identifying a material inconsistency in what Mr T had done, drawing on relevant notions of fairness. The decision of a question surely cannot depend upon the Judge deciding that there is in fact, or that there appears to be, material useful to Mr W in the privileged material.
Accordingly, even if the Judge had power to inspect the privileged material, in this particular case it was not appropriate to do so. The question of waiver should have been decided without doing so.
Conclusion
It is for those reasons that we allowed the appeal, indicating that we would publish reasons at a later date. These are our reasons.