R (Cth) v Petroulias (No. 23)

[2007] NSWSC 781

CITATION:	R (Cth) v Petroulias (No. 23) [2007] NSWSC 781
HEARING DATE(S):	6 July 2007
JUDGMENT DATE :	12 July 2007
JUDGMENT OF:	Johnson J at 1
DECISION:	The claim for client legal privilege with respect to the documents contained within MFI27 is upheld. The Accused's application to inspect the documents is refused.
CATCHWORDS:	CRIMINAL LAW - trial on indictment before Supreme Court -subpoena directed to Commonwealth Director of Public Prosecutions - seeks production of notes of conferences between prosecuting counsel and solicitors and Crown witnesses - claim of legal privilege upheld
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R (Cth) v Petroulias (No. 22) [2007] NSWSC 692 Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51 Libke v The Queen [2007] HCA 30
PARTIES:	Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)
FILE NUMBER(S):	SC 2002/93
COUNSEL:	Mr P Hastings QC; Mr C Hoy (Crown) Mr G Walsh (Accused)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JOHNSON J

12 July 2007

2002/93 Regina (Cth) v Nikytas Nicholas Petroulias
(No. 23)
JUDGMENT (On further claim of Client Legal Privilege arising from Subpoena directed to Commonwealth Director of Public Prosecutions - see T1067)

1 JOHNSON J: On 29 June 2007, I published my reasons for upholding a claim of client legal privilege arising from a subpoena directed to the Commonwealth Director of Public Prosecutions (“CDPP”): R (Cth) v Petroulias (No. 22) [2007] NSWSC 692. In that judgment, I considered a claim of privilege with respect to a group of documents, being notes taken during conferences in 2007 between counsel and/or CDPP solicitors and fourteen nominated Crown witnesses (MFI11).

2 As I observed in that judgment at [7] and [79], it remained necessary for the CDPP to produce all documents caught by the subpoena, in addition to the 2007 conference notes contained in MFI11. I have been provided with copies of conference notes pre-dating 2007 which are caught by the subpoena (MFI27). In support of the claim of client legal privilege, an affidavit of Karen Wildermoth sworn 5 July 2007 (MFI26) has been read. Ms Wildermoth was not required for cross-examination.

3 The conference notes contained in MFI27 relate to conferences with each of the fourteen nominated persons referred to in the subpoena. In her affidavit, Ms Wildermoth states that the conference notes record communications for the dominant purpose of a pending Australian proceeding within the meaning of s.119 Evidence Act 1995 and that a claim of client legal privilege is made in relation to the conference notes.

4 Ms Wildermoth states that she assumed carriage of the prosecution of the Accused in about mid-November 2006. Before then and since March 2001, the CDPP instructing solicitor was Ms Caroline Dobraszczyk. Ms Wildermoth states, on information and belief from Ms Dobraszczyk, that the conference notes sought in the subpoena were previously reviewed pursuant to the CDPP “Statement of Prosecution Disclosure” and found not to contain any material coming within that Statement. It was therefore decided that there was no requirement for disclosure of that material to the defence.

5 In R (Cth) v Petroulias (No. 22), I outlined the submissions made with respect to the privilege claim for the documents in MFI11. I expressed my conclusions with respect to the matters falling for determination.

6 After publishing my reasons on 29 June 2007, I observed that counsel for the Accused may consider whether any issue arises with respect to any further class of documents produced in answer to the subpoena, given that the process of production in answer to the subpoena had not been completed (T692). When the documents in MFI27 were produced to the Court, I inquired whether there was any further submission from the Accused on the question of waiver with respect to those documents. Mr Sutherland SC stated that no further submission was to be made, in view of my judgment in R (Cth) v Petroulias (No. 22) (T813).

7 Accordingly, counsel for the Accused were content to leave the resolution of the present claim, including any question of waiver, to the general submissions advanced on 21 and 22 June 2007.

8 I have adopted the same approach to that taken with respect to the documents in MFI11. I have inspected the documents in MFI27 for the purpose of determining whether they are conference notes falling within the subpoena. In addition to my own inspection of the documents, I have had regard to the affidavit of Ms Wildermoth with respect to their purpose.

9 I am satisfied that client legal privilege attaches to the documents contained within MFI27. I reach this conclusion by application of s.119 Evidence Act 1995, although the same result would flow from application of common law principles. It has not been demonstrated that privilege has been waived in accordance with s.122 Evidence Act 1995 or by application of relevant common law principles.

10 I propose to uphold the claim of client legal privilege with respect to the documents contained in MFI27.

11 In R (Cth) v Petroulias (No. 22) at [78], I noted that prosecuting counsel undertook to examine conference notes produced in answer to the subpoena for the purpose of determining expressly whether any material contained in those notes ought be disclosed to the Accused pursuant to the CDPP’s duty of disclosure. Prosecuting counsel has informed me that this task has been completed with respect to the documents contained in MFI11 and MFI27. Prosecuting counsel has stated that, having discharged that responsibility, there is no material contained in the notes which ought be disclosed in accordance with that duty (T1065). I have no doubt that counsel approached that task with an understanding of the duties and responsibilities of prosecuting counsel in a criminal trial: Subramaniam v The Queen (2004) 79 ALJR 116 at 127 - 128; [2004] HCA 51 at [54]; Libke v The Queen [2007] HCA 30 at [71].

12 With respect to the documents contained within MFI27, I uphold the claim for client legal privilege. I decline the Accused’s application to inspect the documents.

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