R (Cth) v Petroulias (No. 24)

[2007] NSWSC 783

CITATION:	R (Cth) v Petroulias (No. 24) [2007] NSWSC 783
HEARING DATE(S):	10 and 11 July 2007
JUDGMENT DATE :	12 July 2007
JUDGMENT OF:	Johnson J at 1
DECISION:	1. Client legal privilege with respect to Documents 2 to 11 in MFI33 has been lost by operation of s.122 Evidence Act 1995; 2. The Crown and the Accused are granted access to the documents contained in MFI33, including photocopy access.
CATCHWORDS:	CRIMINAL LAW - trial on indictment before Supreme Court - Crown witness retained solicitor for advice in 2000 - witness then considering whether to provide induced statement to investigating police - after legal advice, witness gives induced statement to police - witness gives evidence for Crown at committal proceedings and trials with benefit of an undertaking under s.9(6) Director of Public Prosecutions Act 1983 (Cth) - subpoena directed to former solicitor of witness seeking production of solicitor's file - claim of client legal privilege - whether client legal privilege existed under s.118 Evidence Act 1995 - whether client legal privilege lost by operation of s.122 Evidence Act 1995 - witness gives evidence in 2001, 2005 and 2007 and volunteers otherwise confidential communications - relevance of witness not being informed of his right to object under s.132 Evidence Act 1995 - held that client legal privilege lost
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R (Cth) v Petroulias (No. 1) [2006] NSWSC 788 R (Cth) v Petroulias (No. 9) [2007] NSWSC 84 R (Cth) v Petroulias (No. 22) [2007] NSWSC 692 Libke v The Queen [2007] HCA 30 Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] 213 CLR 543 Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297 Firns v Tzovaras [2006] NSWSC 925 Avanes v Marshall [2007] NSWSC 191 New Cap Reinsurance Corporation Limited (In Liq) v Renaissance Reinsurance Limited [2007] NSWSC 258 Fisher v Marin [2007] NSWSC 473 R v Ahmed [2001] NSWCCA 450 R v Parkes (2003) 147 A Crim R 450 Global Medical Imaging Management Limited (In Liq) v Australian Mezzanine Investments Pty Limited [2003] NSWSC 430 Australian Competition and Consumer Commission v George Weston Foods Limited (2003) 129 FCR 298
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) Mr T Mehigan by leave (Mr RL Morgan)
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. 24)

JUDGMENT (On claim of client legal privilege by Richard Llewellyn Morgan arising from subpoena directed to Christopher Swan, solicitor - see T1067)

1 JOHNSON J: On 10 July 2007, documents were produced to the Court in answer to a subpoena directed to Christopher Swan, solicitor of Adelaide. The documents produced (MFI29) relate to a period in March - April 2000 when Mr Swan was retained by Richard Llewellyn Morgan to advise him in circumstances where officers of the Australian Federal Police had executed a search warrant on Adelaide premises on 24 March 2000 and had spoken to Mr Morgan in that context. The AFP officers were investigating events which have culminated in the present trial of the Accused. Mr Morgan is an important Crown witness in the trial.

2 In short, the subpoena sought production of Mr Swan’s file concerning his retainer to provide advice to Mr Morgan in March - April 2000.

3 The relevant background to the proceedings generally, and Mr Morgan’s role in particular, may be found in several of my earlier judgments: R (Cth) v Petroulias (No. 1) [2006] NSWSC 788; R (Cth) v Petroulias (No. 9) [2007] NSWSC 84; R (Cth) v Petroulias (No. 22) [2007] NSWSC 692. For present purposes, it is not necessary to return to the matters contained in those judgments.

The Present Application

4 Mr Morgan was under cross-examination on 10 July 2007 when the documents in MFI29 were produced to the Court. Given those circumstances, a procedure was established where Mr Morgan could receive advice concerning privilege issues in connection with the documents. Mr Mehigan of counsel, who was present in Court observing the proceedings, offered to provide advice to Mr Morgan and to appear on any claim for privilege. I granted Mr Mehigan leave to appear as amicus curiae for this purpose. I express the Court’s gratitude to Mr Mehigan for his capable assistance, which has allowed this issue to be considered urgently in the context of an ongoing jury trial where Mr Morgan is under cross-examination.

5 Of the documents contained in MFI29, Mr Mehigan acknowledged that a number were not subject to client legal privilege. Those documents were separated and became MFI32. I granted the parties access to the documents contained in MFI32.

6 Argument has proceeded with respect to the remaining eleven pages originally contained in MFI29, which were separated and became MFI33. A claim of client legal privilege has been maintained with respect to each of the eleven documents contained in MFI33.

Applicable Legal Principles

7 It is common ground that the present claim of client legal privilege falls to be determined by application of the provisions contained in Pt 3.10 of the Evidence Act 1995 (ss.117-126): R (Cth) v Petroulias (No. 22) at [39] - [53].

8 The onus of establishing a claim of client legal privilege lies upon Mr Morgan: R (Cth) v Petroulias (No. 22) at [36] - [37]: s.142 Evidence Act 1995. The Court has the power to inspect documents itself to determine a claim for privilege: R (Cth) v Petroulias (No. 22) at [38]: s.133 Evidence Act 1995.

9 The onus of proof is on the Accused to persuade the Court that any client legal privilege has been lost by application of s.122 Evidence Act 1995: Odgers, “Uniform Evidence Law”, 7th Edition, 2006, [1.3.10960]; s.142 Evidence Act 1995.

Relevant Provisions in Evidence Act 1995

10 Section 118 Evidence Act 1995 is in the following terms:

“118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer, or
(b) a confidential communication made between 2 or more lawyers acting for the client, or
(c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”

11 Section 122 of the Act provides:

”122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:

(a) in the course of making a confidential communication or preparing a confidential document;
or


(b) as a result of duress or deception; or

(c) under compulsion of law; or

(d) if the client or party is a body established by, or a person holding office under, an Australian law—to the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.


(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure.

(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than:
(a) a lawyer acting for the client or party; or

(b) if the client or party is a body established by, or a person holding an office under, an Australian law—the Minister, or the Minister of the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

(5) Subsections (2) and (4) do not apply to:


(a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or

(b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (attempts to revive memory in court) or 33 (evidence given by police officers).”

12 Section 132 of the Act provides:

“132 Court to inform of rights to make applications and objections
If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.”

Evidence on the Application

13 Mr Walsh, junior counsel for the Accused, and Mr Mehigan reached agreement concerning a number of matters which avoided the need for affidavit or oral evidence on the application. A schedule of evidentiary references was provided by Mr Walsh identifying evidence given by Mr Morgan on earlier occasions which is relied upon by the Accused in support of an argument that any client legal privilege which existed has been lost by operation of s.122 Evidence Act 1995 (MFI34).

14 It is apparent from Mr Morgan’s evidence on these earlier occasions, to which further reference will be made, that he retained Mr Swan to provide legal advice in March - April 2000.

15 It was agreed between Mr Walsh and Mr Mehigan that Mr Walsh will not contend that Mr Morgan was ever informed by a Court under s.132 Evidence Act 1995 of his right to object on the ground of client legal privilege on any of the occasions on which he gave evidence under oath which are relied upon by the Accused on this application. It was further agreed that Mr Walsh does not contend that Mr Morgan otherwise had knowledge of his right to object (T984).

16 Counsel agreed that I should hear submissions on the application and inspect the documents under s.133 of the Act for the purpose of determining whether client legal privilege had been established and, if it had, whether it had been lost by operation of s.122 of the Act.

Evidence of Mr Morgan Relied Upon by Accused on s.122 Issue

17 It is appropriate to set out extracts from the evidence of Mr Morgan given on various occasions since 2001 upon which the Accused relies in his argument that any privilege has been lost by operation of s.122 of the Act.

18 By way of background, Mr Walsh refers to part of an induced statement dated 17 April 2000 made by Mr Morgan to officers of the Australian Federal Police. In paragraphs 114 - 119 of that statement, Mr Morgan outlines his initial contact with Australian Federal Police on 24 March 2000 when a search warrant was executed at the home of Mr Morgan’s parents in Norwood, South Australia.

19 The statement refers to conversations with Federal Agent Dametto on 16 April 2000 in relation to a number of issues concerning the Accused.

20 On 7 November 2001, whilst under cross-examination by Mr Clelland SC at committal proceedings, Mr Morgan was asked (T22.7):

“Q. So you were happy to be a defendant and be charged with a criminal offence were you?

A. Well that’s what I was talking to the lawyer regarding, and he basically said, yes you’ll probably have a case to answer for, but it’s pretty minor, and I’ve just said, well I just want to tell everything, just make a clean breast of it and he said, well that’s probably better if you seek indemnity, if there was anything that was untoward obviously that they’re thinking that there is, whether they can prove it or not maybe a completely different matter, but your option is either to see what happens and be a defendant or give them the information that they want, and I thought it’s better for me to give them the information that they want.”

21 Again on 7 November 2001, Mr Morgan was asked by Mr Clelland SC (T56.35):

“Q. After you saw Mr Swan on 27 March were there discussions which you were a party to with the Federal Police about your position, whether you were going to be a witness or whether you were going to be charged?

A. Yes the second appointment with Christopher Swan was, this is your situation, either you don’t talk to them and either they arrest you and then you go from there and when the court case comes, then you find an attorney to defend you etcetera etcetera etcetera or you tell them, or you get the indemnity or you tell them what you want to tell them . ”

22 During a pre-trial hearing before Sully J on 21 March 2005, Mr Morgan was examined in chief by the Crown Prosecutor concerning steps taken by him following the visit by Australian Federal Police on 24 March 2000 (T993.28 - 994.13):

“Q. So, there was no statement made or interview with you on the first day 24 March 2000?
A. No, unless that constitutes an interview, no.

Q. Did you seek legal advice on the days that followed?
A. Yes.

Q. What did you do about getting legal advice?
A. I looked up on the yellow pages while they were there and sought a lawyer who was actually, I can't remember his name now, but he was an ex St Ignatius which was the school I went to in South Australia. I called him and arranged to meet with him which I then had a meeting with him and discussed the situation which I was in. I basically then said that there may be a case for me to answer, they may arrest me, they may ask me to come to court and basically if they did, what I had been involved in and what I had done, it didn't seem to be too serious as far as on my stand point but he said then you would have to go to court and have to pay for the flights et cetera yourself and I said basically I am looking to just cooperate here. He said, well, the possibility would be that if I did discuss with them, the possibility of cooperating with them, the Federal investigation, and in conversation, they would actually go for an indemnity but he said: It is up to you either way. Then the Federal police came back into the lawyers office with the lawyer there and that's when it was discussed to cooperate.

Q. This is Mitchell Lawyers?
A. Yes, they came to the lawyers offices.

Q. Did you ultimately make a decision about what you wanted to do?
A. Yes.

Q. What was that?
A. I just basically wanted to cooperate and tell them everything.

Q. Why did you decide to do that?
A. Basically because it had been something that I had been waiting for when all these things started to go awry and I just wanted to cooperate and get on with my life.”

23 Under cross-examination by Mr Clelland SC on 21 March 2005, Mr Morgan was asked (T1010.17 - 33):

“Q. You were, can I suggest, sufficiently understanding of the situation to form the belief that if you were able to provide these police officers with some assistance in a case against Mr Petroulias, it was unlikely that you were going to be charged?
A. No, not at that time.

Q. When did you form that opinion?
A. When I actually spoke to my lawyer. He said that it was the two choices I could make; either to allow them to arrest you and go from there and/or assist them and seek indemnity, but he had to talk to them whether that was on the books or not.

Q. And an indemnity is a, sort of, guarantee that you would not be prosecuted, in your mind?
A. Yes, in terms of assisting them.”

24 Shortly after, Mr Clelland SC asked Mr Morgan (T1012.11 - 1013.20):

“CLELLAND: Q. Now Mr Morgan,do you have the transcript of the committal in front of you?
A. Yes, I do.

Q. Could you open it at page 56 of the 7th November please? If you would go please to line 35. I asked you, I suggest, this question:

“Q. After you saw Mr Swan on 27 March, were there discussions which you were a party to with the Federal police about your position whether you were going to be a witness or whether you were going to be charged?”

And your answer is recorded as: "Yes. The second appointment with Christopher Swan was: This is your situation. Either you don't talk to them and either they arrest you and then you go from there and when the Court case comes then you find an Attorney to defend you et cetera et cetera et cetera or you tell them or you get the indemnity or you tell them what you want to tell them." Do you recall being asked that question and giving that answer?
A. Yes.

Q. Mr Swan was the solicitor?
A. Yes.

Q. You had seen Mr Swan on 27 March which was some three days after the execution of the warrant?
A. Yes, right.

Q. Is that right?
A. Yes.

Q. Mr Swan was advising you on the basis presumably of what he understood about the case at that stage which was that you had two options, that you were going to be arrested and charged or you tell them, give them information and get an indemnity?
A. Yes.

Q. Can I suggest you were then asked this question by me:

“Q. Did you understand that what they were interested in was any information you could provide about Mr Petroulias? A. Yes.”

Were you asked that question and did you give that answer?
A. Yes.

Q. I suggest you were also asked this question. This is picking up the point your Honour.

“Q. And you would, I suggest, have believed that if that information which you provided was incriminating of Mr Petroulias then that's what they wanted from you?
A. Yes, probably, yes.

Q. And if they believed you were being truthful, then you were likely to be an indemnity witness?
A. That is correct, yes".

Were you asked those questions and did you give that answer?
A. Yes.”

25 On 25 May 2005, whilst under cross-examination by Mr Clelland SC at the trial before Sully J and a jury, Mr Morgan was asked (T1223.1 - 32):

“Q. You were asked about an indemnity. That indemnity, or undertaking, I should say rather than indemnity, that was something that your lawyer negotiated for you, was it?
A. Yes, I guess you could say that, yes. I don't know whether he actually negotiated it because I wasn't party with his discussions with the AFP. I wasn't present at some of them.

Q. Wasn't he acting on your instructions?
A. Yes.

Q. So he must have discussed with you at some stage the fact that he was going to ask for or suggest an indemnity?
A. It wasn't put in that fashion, no.

Q. Did he tell you at any time that he was going to negotiate with the police on your behalf so that you could not be prosecuted?
A. No.

Q. And you never asked him to do that?
A. No, I didn't ask him specifically to do that, no.

Q. Did he negotiate on your behalf so that any answers that you might give could not be used against you?
A. Not specifically, no.

Q. And you didn't ask him to do that?
A. No.”

26 Shortly after on 25 May 2005, Mr Clelland SC asked Mr Morgan (T1232.29 - 49):

“Q. The indemnity I am speaking of, or the application for the indemnity, you say that's something that you just have no knowledge of at this time?

A. No, I did not say that.

Q. Early on when I asked you about an indemnity from prosecution, so were you aware that there was an application being made on your behalf for an indemnity from prosecution?
A. After we, after my lawyers talked to them, then yes, that was discussed, but I didn't - before you were asking me a question: did I direct my lawyer to do that, and I said no, I didn't.

Q. So you knew--
A. I did not direct my lawyer to seek indemnity. I directed my lawyer to find out what my situation was.

Q. I see. So at no time did you direct your lawyer to seek an indemnity.
A. No.”

27 Soon after, Mr Morgan was asked (T1233.21 - 29):

“ Q. Right, so when did you first discover that part of this process was involving you applying for an indemnity from prosecution?

A. After I had instructed the lawyer to go out and find out what my position was and he'd come back and said, "Your two choices are either to allow them to arrest you at some stage, or then you can give evidence and seek indemnity", and that's when I said, "Well, I want to give evidence", and that's when I went for the indemnity .”

28 At a pre-trial hearing before me on 6 February 2007, Mr Morgan was cross-examined by Mr Sutherland SC as follows (T790.56 - 791.31):

“Q. In order to give you some counsel or assistance did you ask your solicitor, Mr Swan, to make some inquiries as to what the police were alleging against you?
A. I presumed so because he, after I spoke to him first then he spoke to the Federal Police and then we spoke again so I would imagine that he did.

Q. Is it a fair summary of the position that you understood yourself to be in in respect of which Mr Swan gave you advice that you really had a choice between being charged and dealt with within the processes or co-operating with the police?
A. Yes.

Q. That was the stark choice that you perceived you had to make in deciding whether to co-operate with the police?
A. Yes.

Q. Did anybody directly from the police or perhaps through the medium of your solicitor, Mr Swan, raise the topic of what the charge was?
A. No. I think there was - when they first came to Ainsley there was the warrant that stipulated something about what the charges were. Specifically against myself I'm not sure whether it was a general thing or not.

Q. Was anything communicated to you directly or indirectly about the possible maximum penalty or the possible outcome if you didn't co-operate?
A. I think Christopher Swan said he didn't seem - he didn't seem to think that that was - that I had done anything too badly wrong and might be in the wrong time at the right place but he didn't allude to any sort of penalties or anything like that that I could expect.”

29 Soon after, Mr Sutherland SC asked Mr Morgan (T792.8 - 25):

“Q. Were you present on the 5 April, that is the day before the actually taped conversation with Dametto and Wills, on an occasion when those police officers attended upon the officer of your solicitor?
A. Yes.

Q. What can you recall about any conversation that took place on the 5 April in those circumstances?
A. What I recall is I was speaking to Mr Swan regarding what my position was and he allayed to me, well it seems it wasn't too serious but there might be something there. Your choices are to be arrested and then deal with it in the normal court proceedings and answer your personal charges or to assist the police with their enquiries and seek indemnity for your part. That was said to me by Mr Swan and I said I just wanted to co-operate and he said well then I seek indemnity and so he went out and talked to the Federal police and then they came back.”

Submissions on the Application

30 Counsel provided helpful written submissions on the application and have made oral submissions which are recorded in the transcript (T984 - 1003). It is not necessary to repeat the detailed submissions of counsel in this judgment.

Submissions of Mr Morgan

31 In summary, Mr Mehigan submits as follows:

(a) legal advice privilege under s.118 Evidence Act 1995 applies to the documents contained in MFI33 with the possible exception of document 1, to which I will return;

(b) the Accused has not discharged the onus of establishing that client legal privilege has been lost by operation of s.122 of the Act;

(c) in particular, it has not been established that Mr Morgan knowingly and voluntarily disclosed to another person the substance of the privileged material - Mr Morgan had no knowledge of his right to object and no judicial officer informed him of his right to object under s.132 of the Act;

(d) further, Mr Morgan’s disclosure was made “under compulsion of law” so as to fall within an exception in s.122(2)(b) - on each occasion, Mr Morgan was called as a witness by the Crown under subpoena and he was obliged to answer questions put to him;

(e) the fact that the Crown Prosecutor did not object to the questions asked upon the ground that issues of client legal privilege were raised ought not be taken into account against Mr Morgan on the s.122 issue - the Crown Prosecutor was not acting for Mr Morgan and was discharging the duties and responsibilities of prosecuting counsel in a criminal case as a “minister of justice” ( Libke v The Queen [2007] HCA 30 at [71]) - there was no appropriate analogy with civil cases where counsel for a party failed to object and this failure was taken into account in determining that privilege had been lost under s.122;

(f) although the nature of the answers given by Mr Morgan under cross-examination touched upon the substance of legal advice, the disclosure had not been demonstrated to be knowing and voluntary for the purpose of s.122(2);

(g) nothing turns on Mr Morgan’s own failure to object to answering the questions upon the grounds of client legal privilege, seeing that he was ignorant of his right to object to answering questions upon this basis;

(h) the Accused has not established that privilege has been lost by operation of s.122(4) of the Act;

(i) it was acknowledged that answers given by Mr Morgan which revealed communications with his solicitor were non-responsive and that, to the extent that the substance of legal advice was touched upon in the answers, it was not directly necessitated by the nature of the questions asked (T998 - 999) - nevertheless, this did not demonstrate that Mr Morgan had knowingly and voluntarily disclosed the substance of the privileged material for the purpose of s.122(2) of the Act;

(j) the fact that this issue has emerged for the first time in 2007, despite the fact that reliance is placed upon disclosures made in 2001 and 2005, supports the view that the parties have accepted that Mr Morgan’s disclosures in evidence did not result in privilege being lost;

(k) the Court should rule that client legal privilege had been established with respect to the documents (subject to the question of document 1) and should not be satisfied that the privilege has been lost by operation of s.122 of the Act.

Submissions of the Accused

32 In summary, Mr Walsh submits:

(a) any privilege has been lost given that Mr Morgan has knowingly and voluntarily disclosed the substance of his communications to and from his solicitor on several occasions in evidence since 2001 - s.122(2) was satisfied;

(b) the fact that there was no objection by Mr Morgan or by the Crown upon the ground of client legal privilege fortified this conclusion;

(c) the unresponsiveness of Mr Morgan’s answers disclosing communications between himself and his solicitor demonstrated the voluntariness of the disclosure - it was not a situation where either the Crown Prosecutor in chief, or defence counsel in cross-examination, asked Mr Morgan directly to reveal communications between himself and his solicitor - rather, in the course of long and largely non-responsive answers, Mr Morgan volunteered such information;

(d) the fact that Mr Morgan was unaware that he could object on the ground of client legal privilege and the fact that presiding judicial officers did not inform him of his right to object under s.132 of the Act does not assist Mr Morgan - Mr Morgan was not asked a question or questions seeking disclosure of communications between Mr Morgan and his solicitor to which objection might be taken - rather, Mr Morgan volunteered this information in the course of non-responsive narrative answers given by him;

(e) the fact that Mr Morgan gave evidence under subpoena and was required as a witness to answer questions did not mean that the relevant disclosures were made “under compulsion of law” for the purpose of s.122(2)(c) of the Act - more than this is required for this statutory exception to be engaged - Mr Morgan was not compelled to make the disclosures of communications between himself and his solicitor - he volunteered them during the course of non-responsive answers;

(f) the relevant substance of otherwise privileged communications had been disclosed by Mr Morgan and the element of confidentiality had been repeatedly abandoned and waived by him in his evidence on occasions in 2001, 2005 and 2007;

(g) the Court should hold that client legal privilege had been lost under s.122 of the Act and that, subject to the question of legitimate forensic purpose, the Accused ought be granted access to the documents contained in MFI33.

Resolution of Competing Submissions

33 With the exception of document 1, I am satisfied that each of the documents contained within MFI33 were subject to client legal privilege. Mr Morgan retained Mr Swan for the purpose of legal advice on a single issue for a short period between late March and early April 2000.

34 Having examined document 1, I infer that it is a third party document which was provided to Mr Swan by the Australian Federal Police. No privilege attaches to this document.

35 The real issue on the present application is whether client legal privilege has been lost under s.122 of the Act arising from Mr Morgan’s evidence set out above on various occasions in 2001, 2005 and 2007.

36 The onus lies upon the Accused to demonstrate that privilege has been lost. I take, as a starting point, the proposition that client legal privilege is a rule of substantive law. In Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] 213 CLR 543, Gleeson CJ, Gaudron, Gummow and Hayne JJ observed at 553 [11] that legal professional privilege is an important common law right, more accurately characterised as an important common law immunity. The statutory form of the privilege contained in s.118 Evidence Act 1995 must be characterised as an important statutory right or immunity which may only be lost in circumstances specified by the Act, including s.122. In these circumstances, it is understandable that the onus lies upon the party contending that the privilege has been lost to demonstrate that fact.

37 Consent under s.122(1) includes consent which will be imputed to a person on the same principle where, at common law, a person will be taken to have waived privilege, even though he or she did not subjectively intend to do so: Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297 at [29] - [33]; Firns v Tzovaras [2006] NSWSC 925 at [40] - [42]; Avanes v Marshall [2007] NSWSC 191 at [31] - [32]; New Cap Reinsurance Corporation Limited (In Liq) v Renaissance Reinsurance Limited [2007] NSWSC 258 at [44]; Fisher v Marin [2007] NSWSC 473 at [1]. In my view, this principle is relevant as well to other provisions in s.122 of the Act.

38 I accept that Mr Morgan did not know that he had a right to object to answering questions upon the grounds of client legal privilege. I accept that no objection was taken by the Crown to any questions asked of Mr Morgan is cross-examination. Nor did the Crown seek to confine Mr Morgan in his answers to questions asked in chief by the Crown at the pre-trial hearing in March 2005, where disclosures were made by him of communications with his solicitor. On no occasion did the presiding judicial officer, including myself in February 2007, inform Mr Morgan of his right to object for the purposes of s.132 of the Act.

39 Section 132 requires the Court to satisfy itself that a witness is aware of his or her right to object to giving evidence where it appears that the witness may have grounds for making an objection. The provision extends to the variety of privileges contained in Part 3.10 of the Act and is not confined to client legal privilege. Section 132 imposes an obligation on a trial judge to inform a witness that he or she may have grounds for making an objection to giving evidence. The provision operates to ensure fairness to the witness who has a basis for making an objection: R v Ahmed [2001] NSWCCA 450 at [35], [37]. Section 132 requires the Court to inform a witness of his rights in the absence of the jury, if evidence is being given in a jury trial: R v Parkes (2003) 147 A Crim R 450 at 466.

40 In practice, the circumstances in which s.132 is engaged sometimes involve the assistance of counsel appearing in the trial. Counsel will have a better understanding of the issues in the trial than the presiding magistrate or judge. A magistrate or judge operates essentially in a reactive way when a s.132 issue appears to have arisen. Even if counsel provide no assistance to the Court on the question, however, s.132 places the responsibility for informing a witness of his right to object upon the presiding judicial officer. At times, compliance with s.132 may have a sudden and dislocating effect on the adducing of evidence, especially in a criminal trial before a jury where the section requires a witness to be informed of his right to object in the absence of the jury.

41 These observations are made by way of background to the present question. It seems to me, on a fair reading of the transcript excerpts set out earlier in this judgment, that questions were not asked by counsel that would ordinarily trigger a possible objection and therefore the requirement for a s.132 explanation to the witness. In hindsight, it is clear that steps may, and perhaps ought to have been taken in the various proceedings, including those before me in February 2007, to ensure that Mr Morgan understood his rights. That said, however, the fundamental point here is that Mr Morgan volunteered in narrative non-responsive answers the substance of confidential communications between himself and his solicitor. He was not asked to reveal these matters by the questions asked of him. Rather, his answers volunteered this material.

42 Subject to the question of whether his disclosures were “under compulsion of law” for the purpose of s.122(2)(c) of the Act, it seems to me that the Accused has demonstrated that Mr Morgan’s disclosures were made, for the purpose of s.122(1) with his consent, whether imputed or implied, or, for the purpose of s.122(2) were made knowingly and voluntarily. In this respect, I have in mind the principles and authorities referred to at [37] above.

43 Although the question of disclosure of otherwise privileged material in a non-responsive answer, and its relationship to s.122, were examined in the context of a civil case in Global Medical Imaging Management Limited (In Liq) v Australian Mezzanine Investments Pty Limited [2003] NSWSC 430, I regard the decision of Einstein J in that case as providing support for the Accused’s submissions on the present application. The fact that otherwise privileged material is volunteered by a witness in a non-responsive answer fortifies a conclusion that the disclosure is a consensual one and has been given knowingly and voluntarily.

44 I do not consider that Mr Morgan’s disclosures were made “under compulsion of law” for the purpose of s.122(2)(c) of the Act. The fact that he was called as a witness under subpoena and was required to answer questions which were put to him as a witness does not, of itself, render all disclosures made by him in answers disclosures made “under compulsion of law”. This is not a case where a direct question was put and Mr Morgan was required to answer it, thereby disclosing otherwise privileged material. In my view, this case is distinguishable from circumstances considered in Australian Competition and Consumer Commission v George Weston Foods Limited (2003) 129 FCR 298, a decision relied upon by Mr Mehigan. Here, as I have already observed, Mr Morgan volunteered this information in the form of narrative non-responsive statements made by him in evidence. I am satisfied that the disclosures made by him were not made under compulsion of law.

45 I accept Mr Mehigan’s submission that Mr Morgan was not represented by the Crown Prosecutor in the various proceedings in which he has given evidence. I accept, of course, that the particular duties and responsibilities of a Crown Prosecutor mean that he does not act for a witness in criminal proceedings. I do not consider, however, that these circumstances affect the outcome on the present application.

46 I agree with Mr Mehigan’s submission that it is surprising that this issue has emerged for the first time in June and July 2007, given that the Accused seeks to rely upon disclosures made by Mr Morgan in evidence as long ago as 2001 and 2005 in support of the submission that privilege has been lost. I have already mentioned that the timing of this subpoena, and subsequent argument, has disrupted the trial and caused the loss of time for the adducing of evidence before the jury. That said, it is my responsibility to deal with the issues raised on the present application on their merits, although the timing of the application has added an element of urgency to the question and my need to resolve it for the purposes of the trial.

47 In summary, I am satisfied that client legal privilege existed with respect to documents 2 to 11 in MFI33. However, I am satisfied that that privilege has been lost by operation of s.122 Evidence Act 1995.

48 I propose to grant the parties access to each of the documents contained in MFI33. Although there is a borderline question as to whether documents 3, 4, 6, 8 & 11 (which are internal accounting records of Mr Swan) relate to a legitimate forensic purpose identified by the Accused, I am satisfied, on balance, that such a purpose has been demonstrated, and access to those documents will be granted as well.

49 I grant the Crown and the Accused access to the documents contained in MFI33, including photocopy access.

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