Police Service, Commissioner of v Nirta
[2001] QSC 119
•24/04/2001
SUPREME COURT OF QUEENSLAND
CITATION: Commissioner of the Police Service v Nirta [2001] QSC 119
PARTIES: THE COMMISSIONER OF THE POLICE SERVICE
(applicant)
v
GUISEPPE NIRTA
(respondent)
FILE NO: S2637 of 2001
DIVISION: Trial Division
DELIVERED ON: 24 April 2001
DELIVERED AT: Brisbane
HEARING DATE: 17 April 2001
JUDGE: Mullins J
ORDER:1. The document described as the six page statement of the respondent and referred to in paragraph 6 of the affidavit of Detective Sergeant John O'Shea filed on 21
March 2001 ("six page statement") is subject to a valid claim of legal professional privilege made by the respondent.
2. The envelope containing the six page statement held on the court file must be delivered forthwith to the respondent.
3. All copies of the six page statement in the possession or under the control of the applicant must be delivered forthwith to the respondent.
CATCHWORDS: EVIDENCE – GENERAL – SEIZURE OF DOCUMENTS
– GROUNDS FOR RESISTING SEIZURE OF DOCUMENTS – LEGAL PROFESSIONAL PRIVILEGE – whether claim for legal professional privilege valid – time at which claim was made – whether imputed or implied waiver.
Police Powers and Responsibilities Act 2000, s69
Baker v Campbell (1983) 153 CLR 52
Director of Public Prosecutions v Kane (1997) 140 FLR 468
Saunders v Commissioner, Australian Federal Police (1998)
160 ALR 469
Waugh v British Railways Board [1980] AC 521
COUNSEL: AJ Kimmins for the applicant
PR Franco for the respondent
SOLICITORS: CJ Strofield for the applicant
Witheriff Nyst Lawyers for the respondent
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[1] MULLINS J: The applicant by the amended originating application filed by leave on the day of the hearing seeks an order that the documents described as:
(i) one C60 audio cassette marked "Upfront";
(ii) one single page document marked 1 sealed in an envelope and subject to a claim of legal professional privilege;
(iii) a six page statement of the respondent; and
(iv) a red folder containing documents;
are not subject to a valid claim of privilege. Documents (i), (ii) and (iv) were dealt with by orders made with the consent of the parties. The hearing on 17 April 2001 was therefore concerned with the document described as a six page statement of the respondent to which I shall refer as the "six page statement".
[2] The respondent filed a cross application by leave on the day of the hearing which seeks an order that the six page statement and any copies in the possession or under the control of the applicant be delivered to the respondent.
[3] A preliminary issue arose as to whether the six page statement was of the nature deposed to by the respondent and his solicitor. In paragraph 13 of his affidavit sworn on 4 April 2001, the respondent states:
"The six page document is a confidential statement compiled by me for the purpose of providing instructions to my solicitors in relation to contemplated litigation. I wish to maintain my privilege in respect of the document."
[4] The respondent's solicitor, Mr Murakami, in his affidavit sworn on 5 April 2001 deposes to being present at a conference on or about 15 August 2000 between the respondent and Mr Christopher Nyst, a partner in the firm which employs Mr Murakami, at which Mr Nyst requested that the respondent produce a confidential detailed statement outlining the background to his dispute with one Greg Lasrado. Mr Murakami also deposes to having received instructions on or about 10 August
2000 from the respondent to act on his behalf in relation to civil proceedings against Mr Lasrado. Mr Murakami also deposes to receiving a six page document from the respondent on 31 August 2000 the copy of which is now the subject of this application.
[5] Both counsel therefore requested that I read the six page statement which was contained in a sealed envelope on the court file to ascertain whether it fitted the description given to it by the respondent and his solicitor. For the purpose of making that ruling, I read the document and was satisfied that it fitted that description. Mr Kimmins of Counsel on behalf of the applicant then obtained instructions not to pursue cross-examination of the respondent and Mr Murakami on this issue and the application proceeded on the basis that the six page statement was a copy of a statement prepared by the respondent for the purpose of providing instructions to his solicitors in relation to contemplated litigation against Mr Lasrado and therefore able to be the subject of a claim of legal professional privilege.
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Facts
[6] On 7 September 2000 Detective Sergeant John O'Shea obtained a search warrant from a justice of the peace pursuant to section 69 of the Police Powers and Responsibilities Act 2000 in order to enter and exercise search warrant powers at Unit 27 "Ocean Sands" (sic), corner Tedder and Hughes Avenues, Main Beach, on the basis that there were reasonable grounds for suspecting evidence of the commission of an offence would be at that place. The offence was alleged to have been committed on 30 July 2000 by the respondent against Mr Lasrado.
[7] Detective O'Shea accompanied by Detectives Helton and Brown executed the warrant on 8 September 2000 at 7.10 am at Unit 27 "Ocean Scenes", Main Beach which was then the residence of the respondent. The respondent deposes to being shown a document which he was told was a search warrant and states:
"3.I told the police that I would like to contact my lawyers Witheriff Nyst. One of the police said that I could not contact Witheriff Nyst as it would be a 'conflict of interest.' I asked why it would be a conflict of interest to which the police officer replied words to the effect of 'We'll tell you later.' I asked if I could call another solicitor. I was asked who that solicitor was and I replied 'Tom Pickett.' The police then allowed me to make a telephone call and I rang a solicitor by the name of Tom Pickett who lived in my neighbourhood.
4.I knew Tom Pickett socially but Mr Pickett had never acted for me.
5.When I telephoned Mr Pickett I told him that the police were at my residence and I wanted a solicitor present. I said that the police would not let me call my own solicitor because of a conflict of interest. Mr Pickett said that he would come directly to the residence. Mr Pickett arrived at my residence a short time later."
The respondent's evidence as to what he was told by the police in relation to contacting his solicitors Witheriff Nyst was not disputed by the applicant. There was no justifiable reason for the respondent to be told by the police that he could not contact Witheriff Nyst. There was no “conflict of interest” which prevented Witheriff Nyst from acting for the respondent during the execution of the search warrant.
[8] When Mr Pickett arrived, he was shown the search warrant by the police and read it. Mr Pickett was not asked by the respondent to advise him in relation to issues of legal professional privilege attaching to any of the documents which it was apparent to Mr Pickett had been located by the police at the residence. Mr Pickett did not provide the respondent with any advice in relation to legal professional privilege.
[9] The respondent deposes to not being able to recall that the police showed the six page statement to him or to Mr Pickett. There is no suggestion in the affidavits filed on behalf of the applicant that the six page statement was shown to the respondent. Detective O’Shea has listened to the audio recording made at the time the search warrant was executed and deposes to the audio recording not revealing any evidence of the six page statement being brought to the attention of Mr Pickett.
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The respondent deposes to being told by Mr Pickett that the police were empowered by the warrant to search the premises and seize any documents that they considered relevant to their investigation. The respondent states that no police officer told him that he had any right to claim legal professional privilege and neither did Mr Pickett. The respondent therefore deposes that he did not realise that he had any right to restrict the access of the police to any documents on the basis of legal professional privilege or otherwise and that, if he had been aware of his right to claim legal professional privilege, he would have asserted it in respect of the six page statement.
[10] Detective O'Shea read the six page statement while at the respondent's residence. Later that morning Detective O'Shea took the six page statement with him to the Surfers Paradise police station. Detective O'Shea provided the six page statement to Detective Sergeant Hibberd who read that statement, photocopied it and distributed it to other members of the investigation team dealing with the complaint made by Mr Lasrado.
[11] The respondent also attended the Surfers Paradise police station in the morning of 8
September 2000 where he met with Mr Murakami and a video recorded interview with Detective O’Shea commenced about 11.00 am. When Mr Murakami had an opportunity to confer with the respondent at the Surfers Paradise police station, he advised the respondent of his right to claim legal professional privilege. The respondent immediately instructed Mr Murakami to claim the privilege on his behalf in respect of the six page statement. That was done, but the action taken by Detective Hibberd in respect of the six page statement had already occurred.
[12] By agreement between Detective O'Shea and Mr Murakami the six page statement was placed in an envelope which was sealed and signed and dated by Detective O'Shea and Mr Murakami. Although the six page statement was copied, it is not suggested by the applicant that, once the claim for legal professional privilege was made, any further use was made by the police of the copies of that six page statement, pending determination of whether the claim for privilege could be sustained.
Issue
[13] The issue on the hearing of this application was whether the right to claim legal professional privilege in respect of the six page statement could be validly made when Mr Murakami sought to do so on behalf of the respondent at the Surfers Paradise police station. The contention on behalf of the applicant is that the conduct of the respondent and/or his solicitor Mr Pickett in failing to assert the claim of legal professional privilege in respect of the six page statement contemporaneously with or very shortly after its seizure meant there was an implied waiver in respect of the privilege.
[14] The respondent submits that the legal professional privilege attaching to the six page statement could be lost only by express or implied waiver by or on behalf of the respondent; the fact that privilege was not claimed at the time of the search did not amount to waiver; the fact that copies of the six page statement had been distributed to police officers did not amount to waiver; and that in all the circumstances the six page statement continues to be privileged.
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[15] Alternatively, the respondent submits that the execution of the warrant was beyond power in relation to the six page statement, as the respondent was not afforded an adequate opportunity to claim legal professional privilege in respect of that statement. The respondent also advances an alternative submission that, even if legal professional privilege had been lost in respect of the six page statement, equity can intervene to require the delivery up of the six page statement and the copies made of it, because of a breach by the applicant of the equitable obligation of confidence in relation to the six page statement.
[16] It was not in issue that if the six page statement was subject to the claim of legal professional privilege, it was not covered by the search warrant: Baker v Campbell
(1983) 153 CLR 52, 118. Likewise it was not in issue that if the claim of legal professional privilege in respect of the six page statement had been lost, that document was covered by the search warrant.
Time for asserting claim to legal professional privilege
[17] The applicant's case is based on implied or imputed waiver. On the facts there was no express waiver of legal professional privilege by the respondent. It is critical to the applicant's submissions (and underlies the respondent's alternative submission that the search warrant was beyond power in relation to the seizure of the six page statement) that the time for asserting the claim for legal professional privilege was at or very soon after the seizure of the six page statement.
[18] The applicant's written submission on this aspect states:
"It is submitted that in the circumstances the conduct of the Respondent and/or his solicitor in failing to assert a claim of legal professional privilege as regards a six page document prior to contemporaneously with or very shortly after its seizure by O'Shea represented 'conduct on privilege holders part' rendering it unfair for the Respondent 'to maintain the privilege' amounting to an implied waiver. The Respondent and/or his solicitor delayed for too long the claim of legal professional privilege and that delay constituted an implied waiver."
[19] The applicant relies on dicta in Baker v Campbell (1983) 153 CLR 52 of Mason J at 80 and Dawson J at 129. There are also other dicta which suggest that the privilege may be lost, if the document is disclosed, such as when police have access to the content of the document by seizing it on executing a search warrant. Some of these dicta are referred to in Saunders v Commissioner, Australian Federal Police
(1998) 160 ALR 469 at 472-473. French J in that decision then stated at 473:
"With respect, these observations of the majority in Baker v Campbell fall a long way short of the suggestion that the seizure under warrant of a document the subject of legal professional privilege which has not been waived causes that privilege to be lost. The fact that the seizure may have occurred in circumstances in which the officer executing the warrant was unaware of the subsistence of legal professional privilege in the relevant document does not, in my opinion, lead to the conclusion that the privilege is
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lost. This is quite apart from questions of the lawfulness of the seizure in such a case.
As Mason J noted in Baker v Campbell the rules that the claim for privilege is lost once the document passes into the possession of another have been criticised and the decisions upon which they are based may require qualification particularly in relation to documents obtained by illegal means or by deception.
In my opinion there are both policy and significant practical considerations, evident in the present case which militate against a principle that seizure of documents in respect of which legal professional privilege subsists and has not been waived but in respect of which the claim for legal professional privilege has not been made at the time causes the privilege to be lost. As in the present case circumstances can arise in which the question whether legal professional privilege exists is not able to be answered by simple inspection of the documents or within a timeframe consistent with the exigencies of the investigative process. In the circumstances, I do not accept the proposition, somewhat tentatively advanced by the Commissioner, that legal professional privilege attaches only to documents in respect of which a claim for privilege is maintained at the time of execution of the warrant."
[20] What Mason J stated in Baker v Campbell at 80 was:
"According to authority, it seems that the availability of the claim for privilege is lost once the document passes into the possession of another who may then tender it in evidence (Waugh v British Railways Board [1980] AC 521 at p536). The same holds true for a copy (see generally Bell v David Jones Ltd (1948) 49 SR (NSW) 223 at pp227-228); Kuruma v The Queen [1955] AC 197 at pp203-204; Calcraft v Guest [1898] 1 QB 759. These rules have been criticized and the decisions on which they are based may perhaps require some qualification, particularly in relation to documents obtained by illegal means or by deception (see I.T.C. Film Distributors Ltd v Video Exchange Ltd [1982] Ch 431 at pp440-441; G.L. Peiris, 'Legal Professional Privilege in Commonwealth Law', The International and Comparative Law Quarterly, vol 31 (1982), 609, esp at pp630-
633; Polyvios G. Polyviou, Search & Seizure (1982), pp325 et seq.). And in a very recent decision the New Zealand Court of Appeal has held that a third party who overheard a communication made between a solicitor and an accused person for the purpose of giving or obtaining legal advice or assistance in confidence should not be allowed to give evidence of it unless the client waived the privilege
(Reg v Uljee [1982] 1 NZLR 561. In arriving at its decision the New Zealand Court of Appeal, acknowledging that Calcraft v Guest seemed to point in a contrary direction, held that no valid distinction could be drawn between oral and documentary evidence in this context. However, it is not necessary for us to resolve all these difficulties in the present case." (footnotes inserted)
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[21] As pointed out in Saunders, Mason J therefore acknowledged that there was criticism of the suggested rule that seizure under warrant of a document the subject of legal professional privilege which had not been waived could cause that privilege to be lost. The conflict in authorities on this aspect is also referred to in a detailed analysis of waiver of privilege undertaken by Hunt CJ in Director of Public Prosecutions v Kane (1997) 140 FLR 468, 479.
[22] The applicant also relies on the dictum of Lord Simon of Glaisdale in Waugh v
British Railways Board [1980] AC 521, 536:
"For example, if a document protected by legal professional privilege (or secondary evidence of it) has been obtained by the opposite party independently-even through the default of the legal adviser-even by dishonesty-either will probably be admissible: Phipson on Evidence, 12th ed. (1976) p241 para 584; Sixteenth Report of the Law Reform Committee, para 31."
It is apparent by the use of the word "probably" that this dictum was not intended to be a definitive statement of the law and certainly cannot be accepted as such, in the light of the conflicting authorities.
[23] Consistent with the conclusion of French J in Saunders, it ignores the practical reality of what may be required to claim legal professional privilege, if the rule is simply expressed that the legal professional privilege must be claimed at the time of execution of the warrant.
[24] In this matter it is a relevant consideration, as to the timing of when the claim of legal professional privilege could be made, that a police officer at the time of execution of the warrant wrongly informed the respondent that he could not contact the solicitors who were acting for him and whom he sought to contact. Although Mr Kimmins of Counsel on behalf of the applicant submits that such conduct of the police at the execution of the warrant was not dishonest, he did concede that the advice of the police officer was misleading or deceptive.
[25] It is also a relevant consideration that at the first opportunity when the respondent's solicitor from Witheriff Nyst attended at the Surfers Paradise police station and was able to confer with the respondent the claim for legal professional privilege in respect of the six page statement was made.
[26] The applicant's submission that the respondent was able to take advice from Mr Pickett (who did not advise him about legal professional privilege) and that the respondent should be bound by Mr Pickett's failure to give that advice is a harsh position for the applicant to advance, when it was the misleading advice of the police officer's executing the warrant which resulted in the respondent's contacting Mr Pickett and not the solicitors who were acting for him and whom he wished to contact.
[27] There was minimal disclosure of the six page statement prior to the claim for legal professional privilege being made on behalf of the respondent at the police station. Disclosure of that nature and in the circumstances that it was made before the first real opportunity for the respondent to claim legal professional privilege should not preclude the continuance of legal professional privilege attaching to the six page
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statement. Disclosure in circumstances where there is no intention on the part of the party in whom the privilege resides to waive privilege does not preclude the continuance of the privilege: DPP v Kane at 485.
[28] I therefore conclude that the respondent validly claimed legal professional privilege in respect of the six page statement, when the claim was made on his behalf by Mr Murakami at the Surfers Paradise police station. There has been no implied or imputed waiver on behalf of the respondent. I therefore refuse to make the order sought in paragraph 1 of the amended originating application in respect of the six page statement. In view of my conclusion, it is appropriate that I make an order in terms that legal professional privilege exists in respect of the six page statement. It follows that the applicant cannot justify retaining the copies of the six page statement. During the hearing of this application, the applicant did not suggest that the respondent was not entitled to the orders sought on his cross-application, if he were successful in establishing his claim for legal professional privilege in respect of the six page statement. The orders which I will make are therefore:
1.The document described as the six page statement of the respondent and referred to in paragraph 6 of the affidavit of Detective Sergeant John O'Shea filed on 21 March 2001 ("six page statement") is subject to a valid claim of legal professional privilege made by the respondent.
2.The envelope containing the six page statement held on the court file must be delivered forthwith to the respondent.
3.All copies of the six page statement in the possession or under the control of the applicant must be delivered forthwith to the respondent.
Other matters
[29] It is therefore unnecessary for me to deal with the alternative submissions advanced on behalf of the respondent.
[30] In relation to costs, as the respondent has been successful in opposing the applicant's application and obtaining orders on the cross-application, it follows that the respondent should receive its costs of both the application and cross-application. I will, however, give the parties an opportunity to make submissions in respect of costs.
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