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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] SASCFC 47
Decision Date: 1 May 2012

CaseChat Overview and Summary

The Legal Services Commission (LSC) appealed an order made by a judge of the Supreme Court of South Australia, which allowed the inspection of certain documents previously held to be protected by legal professional privilege. The dispute arose when the solicitor for Mr T, a 14-year-old jointly charged with Mr W for murder, provided statements to the Director of Public Prosecutions (DPP) detailing Mr T's account of the events and implicating Mr W. Mr W's solicitor subsequently subpoenaed these documents and Mr T's file, and sought to inspect them. The LSC opposed this inspection on the grounds of legal professional privilege, but the judge found that privilege had been waived in relation to specific documents and ordered their inspection.

The appeal to the Full Court of the Supreme Court of South Australia raised two primary issues. Firstly, the competence of the LSC's appeal against the judge's order, particularly in light of its status as a third party to the original proceedings. Secondly, the correctness of the judge's order allowing inspection, including whether the judge erred in inspecting the privileged material to determine waiver, whether a partial waiver of privilege was correctly imputed, and whether there was an inconsistency between the disclosure of material and the subsequent assertion of privilege.

The Full Court held that the appeal was competent, reasoning that an appeal under section 50 of the Supreme Court Act 1935 (SA) is available to a person who is not a party to proceedings but against whom an order is made and whose rights are impeached. The Court further held that the judge erred in allowing inspection of the privileged material to determine the issue of waiver, stating that the judge did not possess the power to inspect such material for that purpose. The Court found no inconsistency between Mr T's disclosure to the DPP and his subsequent insistence on privilege, as the disclosed material was merely Mr T's version of events and not a communication rendered incomplete by a recipient's lack of knowledge. Consequently, the appeal was allowed, and the order for inspection was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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