R v Abu-Mahmoud

[2024] NSWCCA 21

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Abu-Mahmoud [2024] NSWCCA 21

Hearing dates:

19 February 2024

Date of orders:

28 February 2024

Decision date:

28 February 2024

Before:

Harrison CJ at CL at [1];
Dhanji J at [56];
Huggett J at [60]

Decision:

The appeal is dismissed.

Catchwords:

APPEALS – criminal procedure – temporary stay of proceedings – where the Crown sought to rely on putatively privileged communications by a third party – where delay occurred because the question of whether privilege had been waived was not resolved when the third party was to give evidence – temporary stay of proceedings granted pending the Crown’s payment of costs thrown away – whether decision of the Director of Public Prosecutions not to fund legal representation for the third party to resolve the privilege issue was an irrelevant consideration in granting the temporary stay – whether the Crown was at fault for the delay such that the principles of R v Mosely (1992) 28 NSWLR 735 applied – whether the accused suffered unfairness because of delays in resolving the privilege issue

Legislation Cited:

Crimes Act 1900 (NSW), s 319

Criminal Appeal Act 1912 (NSW), s 5F(2)

Evidence Act 1995 (NSW), s 133

Cases Cited:

House v The King [1936] HCA 40; (1936) 55 CLR 499

Petroulias v R [2007] NSWCCA 154

R v Abbas; R v Abu-Mahmoud (District Court (NSW) 22 November 2023, unrep)

R v Abu-Mahmoud (District Court (NSW), 28 November 2023, unrep)

R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41

R v Issakidis [2015] NSWSC 834

R v Mosely (1992) 28 NSWLR 735

Category:

Principal judgment

Parties:

Rex (Appellant)
Mohamed Abu-Mahmoud (Respondent)

Representation:

Counsel:
M England (Appellant)
M Kalyk (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (Appellant)
Bannisters Lawyers (Respondent)

File Number(s):

2018/324227

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 November 2023

Before:

Noman SC DCJ

File Number(s):

2018/333608
2018/324227

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 28 November 2023, Noman SC DCJ granted a temporary stay of the trial of Mohamed Abu-Mahmoud pending the Crown’s payment of costs incurred by him because of delay they caused by calling a third-party witness to determine the status of a privilege claim. Mr Abu-Mahmoud and his co-accused, Ali Abbas, are jointly charged with doing an act intending to pervert the course of justice, contrary to s 319 Crimes Act 1900 (NSW).

That alleged offending arose from circumstances in which Mr Abu-Mahmoud’s teenage son, Adam Abu-Mahmoud, was fatally stabbed by Joshua Dillon in July 2016. In April 2017, Joshua Dillon’s 15-year-old brother, Brayden Dillon, was shot and killed by [CC]. The Crown alleges that Mr Abu-Mahmoud, Ali Abbas and others, in a joint criminal enterprise, paid [CC], before he was arrested for the murder of Brayden Dillon, to provide an affidavit that purported to exonerate any member of Mr Abu-Mahmoud’s family for the murder of Brayden Dillon.

Central to the Crown’s allegations of perverting the course of justice was Witness C, [CC]’s solicitor in relation to the killing of Brayden Dillon. Witness C provided a witness statement that annexed several potentially privileged documents. The judge-alone trial commenced on 18 October 2023. The following day, counsel for Mr Abbas intimated that [CC] may have a client legal privilege claim over the documents annexed to Witness C’s statement. The Crown informed the Court on 23 October 2023 that Witness C was ready to commence giving evidence and that [CC] had ignored communications from the Director of Public Prosecutions asking whether he wished to claim privilege. On 24 October 2024, [CC] confirmed his desire to make a claim of privilege, but legal representation could not be secured. On 25 October 2023, the Crown prosecutor informed the primary judge that funding from the Office of the Director of Public Prosecution was unavailable to pay for [CC]’s legal representation. They also informed the Court that there was a document available indicating that [CC] waived privilege in as early as 2020.

A potential legal representative was identified on 26 October 2023, but several adjournments were necessary to accommodate counsel’s schedule. On 22 November, after hearing from [CC] on 10 November as to why privilege should attach to the communications, the primary judge ruled that [CC] did not have a claim of privilege. On 28 November 2023, the primary judge granted Mr Abu-Mahmoud’s application for a temporary stay pending payment of costs thrown away because of the privilege issues.

The issues arising on the Crown’s appeal of the temporary stay were:

(i)   Whether the primary judge erred in taking into account the decision of the Director of Public Prosecutions not to fund legal representation for [CC] as a consideration relevant to the grant of a temporary stay;

(ii)   Whether the primary judge erred in finding that the Crown was at fault, such that the principle in R v Mosely (1992) 28 NSWLR 735 applied; and

(iii)   Whether the primary judge erred in determining that the respondent had suffered unfairness due to delays in Witness C being called at trial, such that the principle in R v Mosely applied.

The Court held (granting leave to appeal):

As to issue (i), per Harrison CJ at CL (Dhanji and Huggett JJ agreeing):

(1) The decision of the DPP not to fund legal representation was a relevant consideration to the grant of a temporary stay. The Crown had no obligation to provide legal assistance to or contribute funds to [CC] for his legal representation. The primary judge’s conclusion that the Crown might have assisted [CC] to obtain funds to address the privilege issues was in the context of her Honour’s conclusion that Mr Abu-Mahmoud had been the victim of unfairness in being required to put forth funds earmarked for trial as the result of an avoidable issue. Moreover, the form of the primary judge’s order was well-supported by authority. The Crown should have sought to resolve this issue prior to trial or been in a position immediately to satisfy the court of that privilege, especially in circumstances when they had evidence that [CC] had previously and irrevocably waived privilege: [31]-[33], [40]-[46].

R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41, R v Mosely (1992) 28 NSWLR 735, considered.

As to issue (ii), per Harrison CJ at CL (Dhanji and Huggett JJ agreeing):

(2) The primary judge did not err in finding that Crown was at fault for the delay. The Crown case effectively revolved around a third-party witness producing evidence of putatively privileged communications. The responsibility for any issues with the evidence of such a witness, which the Crown ought reasonably to have anticipated might be productive of delay, should be borne by the Crown: [47]-[49].

Petroulias v R [2007] NSWCCA 154, R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41, R v Issakidis [2015] NSWSC 834, R v Mosely (1992) 28 NSWLR 735, considered.

As to issue (iii), per Harrison CJ at CL (Dhanji and Huggett JJ agreeing):

(3) The primary judge did not err in finding that Mr Abu-Mahmoud suffered unfairness due to delays in Witness C being called at trial. There was unchallenged evidence at the trial by Mr Abu-Mahmoud that he was funding his trial by borrowing money and that the funds had been exhausted. Moreover, the futility of [CC]’s privilege claim suggests it could have been dealt with at an early pre-trial stage: [50]-[54].

JUDGMENT

1. HARRISON CJ at CL: On 28 November 2023, Noman SC DCJ granted a stay of the trial of Mohamed Abu-Mahmoud until the Crown pays costs incurred by him in the circumstances referred to below. Her Honour stayed the trial pursuant to the principles discussed in R v Mosely (1992) 28 NSWLR 735. Mr Abu-Mahmoud and his co-accused, Ali Abbas, are jointly charged with doing an act intending to pervert the course of justice, contrary to s 319 of the Crimes Act 1900.

Background

2. The alleged offending occurred in the following circumstances. In July 2016, Mr Abu-Mahmoud’s teenage son Adam Abu-Mahmoud was fatally stabbed by Joshua Dillon. Mr Dillon was charged in relation to that incident on 18 July 2016. In April 2017, Joshua Dillon’s 15-year old brother Brayden Dillon was shot and killed by [CC] while he slept in his bed, allegedly in revenge for the death of Adam Abu-Mahmoud. The Crown alleges that Mohamed Abu-Mahmoud, Ali Abbas and others, in a joint criminal enterprise, paid [CC], before he was arrested for the murder of Brayden Dillon, to provide an affidavit that in terms purported to exonerate any member of Mr Abu-Mahmoud’s family for the murder of Brayden Dillon.

3. “Witness C” was [CC]’s solicitor at the time. He is central to the Crown case. His statement was served on Mr Abu-Mahmoud in the prosecution brief of evidence. The statement annexed documents including conference notes and file notes in relation to instructions from [CC] and other matters.

4. The trial before her Honour sitting without a jury commenced on 18 October 2023. On 19 October 2023, counsel for Mr Abbas raised a potential issue concerning a possible legal professional privilege claim that [CC] might have concerning these communications with Witness C.

5. On 23 October 2023, the Crown informed the court that Witness C was then ready to commence giving evidence and that, despite having been asked about whether he wished to claim privilege, [CC] had not responded to any communication with the Director of Public Prosecutions and had not indicated that he wished to take any objection. The Crown then read an affidavit of Chris Allison deposing to [CC]’s incarcerated circumstances which attached the Crown’s correspondence with him about privilege. Mr Abbas’ counsel told her Honour that his instructing solicitor had spoken to [CC] over the weekend and that [CC] now wished to claim privilege.

6. [CC] appeared by audio-visual link from gaol the following day and confirmed that he wished to claim privilege. Inquiries were then made in an attempt to secure legal advice for him without success. The trial was stood over to 25 October 2023.

7. On that day, the Crown informed her Honour that funding from the Office of the Director of Public Prosecutions was not available for [CC] to pay for his legal representation. The Crown also informed the court that a document was available indicating that [CC] had expressly waived privilege.

8. On 26 October 2023, Ms Wong was identified as counsel who might possibly be available to provide pro bono assistance for [CC]. There were a number of further adjournments of the privilege issue to accommodate Ms Wong’s convenience.

9. On 10 November 2023, [CC] swore an affidavit in which he claimed client legal privilege over 11 documents annexed to Witness C’s statement. He gave oral evidence as well in relation to which her Honour observed that “scrutiny is warranted”. Her Honour commented that [CC] was “belligerent”, and that he presented as a witness “tailoring his evidence to accommodate the content” and gave a number of answers that were “evidently not correct”. Neither Witness C’s statement nor its annexures were in evidence, although her Honour had regard to them for the purpose of determining the privilege claim pursuant to s 133 of the Evidence Act 1995.

10. Her Honour ruled on 22 November 2023 that no privilege attached to the material over which [CC] asserted a claim of privilege. Her Honour noted that there was no document or communication in that category that had “not [already] lost confidentiality”. Furthermore, her Honour concluded that the relevant documents either did not contain legal advice, were not prepared for the dominant purpose of proving legal advice where they did contain legal advice, or were the subject of express or implied waiver of privilege if the previous conclusions were wrong.

11. Mr Abu-Mahmoud filed a notice of motion the next day seeking a temporary stay of the trial until the Crown paid him the costs thrown away by the delay occasioned in calling Witness C in the trial as the result of the need to determine the status of [CC]’s claim. On 28 November 2023, her Honour published her reasons for granting a stay. That decision is the subject of these proceedings.

Grounds of Appeal

12. The Crown appeals pursuant to s 5F(2) of the Criminal Appeal Act 1912 and relies upon the following grounds of appeal:

Ground 1: That the primary judge erred in taking into account the decision of the Director of Public Prosecutions not to fund legal representation for [CC] as a consideration relevant to the grant of a temporary stay.

Ground 2: That the primary judge erred in finding that the Crown was at fault, such that the principle in R v Mosely (1992) 28 NSWLR 735 applied.

Ground 3: That the primary judge erred in determining that the respondent had suffered unfairness due to delays in Witness C being called at trial, such that the principle in R v Mosely applied.

Submissions in the court below

13. Mr Abu-Mahmoud submitted that fault as such was not necessary before the court could grant a temporary stay in accordance with R v Mosely principles: it was sufficient if there had been some gross unfairness for which the prosecution as a body must take responsibility, citing R v Fisher (2003) 56 NSWLR 625. Mr Abu-Mahmoud asserted that his situation was analogous to R v Fisher inasmuch as [CC]’s privilege claim led to significant costs being thrown away with the result that his capacity to continue to engage his legal representatives was put in jeopardy.

14. Mr Abu-Mahmoud’s central proposition was that the “major failing” of the Director was the lack of steps taken to resolve the privilege issue once it was raised in court on 19 October 2023, which included the relatively modest costs of funding a lawyer to advise and represent [CC]. Mr Abu-Mahmoud did not manage to quantify these costs or the actual extent of the prejudice occasioned by reference to a specified or estimated amount that had been lost.

15. The Crown asserted in response that Mr Abu-Mahmoud had not demonstrated that he could not continue in the trial due to his impecuniosity, even though he had asserted that his financial situation had jeopardised his ability to continue.

16. The Crown emphasised, somewhat audaciously having regard to the chronology of events to which later reference is made, that it was significant that [CC]’s claim of privilege was wholly without merit. The Director was in possession of an email chain and associated documents that clearly evidenced that [CC] had waived privilege in relation to the documents that the Crown intended to adduce. The Crown therefore submitted that there was no basis to criticise it for not raising as a pre-trial issue that [CC] may have had grounds for objecting.

17. The Crown also maintained that Mr Abu-Mahmoud had not established a basis for the asserted responsibility of the Director to fund the legal advice and representation of a third party in the circumstances and that there was no demonstrated link between any such asserted failure of responsibility and costs said to have been wasted. In any event, the transcript demonstrates that the Crown made extensive attempts to contact [CC].

18. It also appeared that a considerable part of the delay flowed from [CC]’s reliance upon an affidavit in which he claimed that he had not been advised about privilege, which gave rise to the need for police to investigate that claim with [CC]’s solicitor at the time.

19. In summary, the Crown submitted to her Honour that Mr Abu-Mahmoud had not established that there had been any misconduct on the part of the Crown and that it “could hardly be considered reasonable use of public funds to fund a totally unmeritorious application”.

Her Honour’s decisions

20. On 22 November 2023, her Honour published reasons for judgment dismissing [CC]’s claim of privilege asserted over his communications with Witness C and Omar Juweinat: R v Abbas; R v Abu-Mahmoud (District Court (NSW) 22 November 2023, unrep). The following paragraphs of her Honour’s judgment should be noted:

“[34] [CC] deposed the only advice he received about privilege was that provided by Witness C; that in the circumstances he did not understand he had waived privilege and did not understand his rights when subsequently speaking with others. I am satisfied based on the evidence and in particular that of Mr Juweinat, that [CC] understood he could claim privilege or he could consent to the release of material. Any understanding he may have had in early 2018 when Witness C acted for him was superseded by the inquiry raised with him as to his attuite to privilege.

[35] [CC] voluntarily participated in a police interview on 14 January 2019. He requested to be interviewed. He admitted his involvement in the shooting and that he was solicited to do so by Abdulrahman Abu-Mahmoud. He discussed his involvement with Witness C in preparing the affidavits in exchange for money and the circumstances in which the affidavits were signed. He signed a witness statement. The Crown addressed [CC] disclosing the content of otherwise confidential documents to secure a letter of assistance and a benefit on sentence.

[36] I am satisfied by the terms of the emails confirming instructions, that [CC] expressly waived privilege. There is a clear indication that the emails were forwarded after communication by his lawyers with him, and that there was limited waiver and then broader waiver. To the extent [CC] advances that he did not knowingly and voluntarily disclose the material and/or the material was not disclosed with his consent, I reject this evidence. The evidence of Mr Juweinat is accepted and establishes the contrary. [CC] knowingly and voluntarily waived privilege. Once consented to, and the evidence released, there is no basis to rescind the consent.

[37] In addition to the express waiver, his conduct in disclosing the communications during the ERISP reflects an implied waiver.

[38] I am satisfied that any privilege has been lost through inconsistent conduct and express waiver.”

21. Her Honour concluded that the communications did not fall under client legal privilege but that in any event also determined that there had been a previous consent given by [CC] to the release of the material.

22. Her Honour then concluded her judgment, somewhat presciently, with the following final paragraph:

“[44] A final observation should be made. As the matter progressed, and documents were provided, it became evident that the Crown did not raise this as a preliminary matter for determination based on correspondence from 2020 indicating consent by [CC] to the proposed use. This correspondence was not provided initially to the court and was only provided when the Director waived privilege over the correspondence. Days of court time had by that stage been utilised discussing the issue of privilege and securing the attendance of [CC]. The court did not sit for many days to allow inquiries to progress. The trial could not proceed until this matter was resolved given the only significant witness was Witness C. Significantly more effort was expended by all three endeavouring to secure legal representation for [CC] to advise on privilege and to appear if necessary. Approaches were made to legal aid, the prisoner’s legal service, ALS, solicitor and barrister pro bono and duty schemes, the bar association, public defenders’ chambers, emails to barristers’ chambers and personal approaches to lawyers by both lead defence counsel. There was brief success with the barrister’s pro bono scheme before a conflict arose. The Director of Public Prosecutions, who sought to lead the evidence and who had control over information, declined on two separate occasions to provide funding that would have been minimal compared to the cost of this delay. The matter was more challenging as [CC], a sentenced prisoner in Supermax, with no funds and limited access to communicating by telephone, was required to attempt to contact lawyers, with no prior notice. Just as the efforts of those with legal experience and contacts, and freedom of contact, were frustrated for days, [CC] was unable to progress obtaining representation. No organisation would fund representation thereby requiring any person who appeared to do so without funding. Against these odds, Ms Wong of counsel stepped up to the challenge and prepared the matter around pre-existing commitments. In so doing, she manifested the finest traditions of the bar. She is to be commended.” (Emphasis added)

23. One week later, on 28 November 2023, her Honour published her reasons for judgment in Mr Abu-Mahmoud’s application for a temporary stay of the criminal trial, pending payment of costs thrown away by reason of the way in which, and the period over which, the privilege claim had unfolded before her: R v Abu-Mahmoud (District Court (NSW), 28 November 2023, unrep). It is particularly instructive to include in this Court’s reasons a reference to several paragraphs of her Honour’s decision.

24. Her Honour posed the question for herself at [3]:

“This court may make an order of a temporary stay if legal costs have been wasted consequent to ‘special or unusual circumstances’: R v Mosely (1992) 28 NSWLR 735. The court is required to determine that the prosecution has been at fault for the delay and that there is an unfairness occasioned to the applicant in permitting the trial to proceed: R v Issakidis [2015] NSWSC 834.”

25. Her Honour thereafter proceeded to summarise the days between the arraignment of Mr Abu-Mahmoud on 18 October 2023 and her judgment on 24 November 2023 that were arguably lost or wasted by reason of the unresolved privilege claim. These days are referrable to Mr Abu-Mahmoud’s contention that he has suffered prejudice of the kind that warranted the grant of a temporary stay.

26. Her Honour then dealt with the issue of fault:

“[18] The Crown always proposed calling Witness C and leading evidence through him of [CC]’s communications. The issue of privilege, and any waiver, was of importance.

[19] The Crown did not inform the court of the status of privilege when foreshadowing calling Witness C. Nor was there any indication of being in contact with [CC]. Once the issue was ventilated, and waiver was disputed, it was incumbent on the court to allow [CC] to make a claim of privilege if he sought to. This is why once it was known he did wish to make a claim of privilege it was appropriate to ensure he had representation if he requested it. Court time was wasted, during the course of the trial, to progress his application. It was only on the fifth day [fourth sitting day] that the Crown informed the court that [CC]’s solicitor in 2020 had informed the DPP that he had instructions from [CC] to waive privilege. It is hard to appreciate the reasons these emails were not proffered immediately when the issue was first raised.

[20] Although counsel for the accused could have raised this matter earlier, with the Crown or the court, they were not required to do so. I have no evidence as to what anyone knew of what preparatory acts had been undertaken by the Crown. One could safely infer that the issue was not likely to be overlooked.

[21] The applicant is not responsible for the course the proceedings have taken. The applicant did not cause any aspect of the delay whilst the privilege claim was resolved.

[22] The Crown should have sought to resolve this issue prior to trial or to be in a position to immediately satisfy the court that privilege, if it applied, had been waived. It did not do so. To the extent it held reliable evidence, it was presented only after such time that [CC] had placed on the record he had not voluntarily or knowingly waived privilege.”

27. Her Honour’s reference to 2020 in [19] of her judgment derives in part from the Crown’s somewhat veiled statement to her Honour on 25 October 2023 that “[t]his is the email chain, effectively, in June 2020 that relates to information that indicates that [CC], through his representatives at that time, waived privilege over various things”.

28. It seems to be a reasonable assumption that her Honour’s decision on [CC]’s claim for privilege would, if she had been asked to determine it as either a pre-trial issue or on the first day of the trial as a preliminary matter, as referred to at [44] of her Honour’s earlier judgment, have been the same. In other words, it is perfectly clear that none of the arguments in fact advanced by or on behalf of [CC], when fairly given the opportunity to be heard to which her Honour made reference, would have produced any different outcome if her Honour had received and considered them at a pre-trial stage or as a preliminary matter on the first day of the trial.

29. Her Honour then proceeded, under the subheading ‘Assuming responsibility’, to determine Mr Abu-Mahmoud’s application for a temporary stay:

“[23] The pathway of inaction is sheeted home to the DPP. Although I questioned whether defence counsel bore any responsibility to raise the issue, a matter submitted by the [Crown] to require consideration, I do not determine that there was any express or implied obligation to do so. They were entitled to proceed on an assumption of regularity- that the [Crown] would have ensured privilege did not operate.

[24] Had this matter been raised well ahead of trial steps could have been taken to provide [CC] with an opportunity to obtain legal representation if he chose. He was not given the benefit of time or notice. It was the element of surprise that compromised his options. As stated in the privilege argument, the resources available were limited. If there was a lengthier notice period other lawyers may have been available to act pro bono.

[25] It was apparent there were considerable difficulties securing representation. Once it was apparent, and given the issue was caused by the Crown and the resolution of the privilege matter was to the benefit of the Crown, some financial investment by the DPP should have been given serious consideration. If there was funding made available, then counsel, with availability, could have been retained. I do not accept the [Crown’s] submission that the DPP was no more responsible than other agencies. As this issue dragged on, and significant court time was being wasted, the court implored the ODPP on two occasions to intervene and provide discretionary funding. The response conveyed to the court was that there would be no funding. It was never indicated that funding could not be provided.

[26] The [Crown] submitted the DPP should not have been required to use public funds to fund a totally unmeritorious application. Although ultimately found to be without merit, he was entitled to mount the claim and to do so with fairness. It would not have been fair to require him to advance his claim unassisted by legal advice and legal assistance.

[27] [Mr Abu-Mahmoud] could not have foreseen the loss of court time attending to legal issues at the expense of evidence in the trial. Any ‘budgeting’ for trial costs would not have factored in this loss and waste. [Mr Abu-Mahmoud] now encounters a diminishment to the trial finances.

[28] In the unusual circumstances, the actions of the Crown have caused an unfairness to [Mr Abu-Mahmoud]: R v Fisher [2003] NSWCCA 41.”

Comment

30. It is important before proceeding to pause and reflect upon the terms of the order made by her Honour. It was as follows:

“[38] I order that the trial of the applicant Abu-Mahmoud be stayed until such time as the Crown pays these costs.”

31. The costs referred to in that order were unspecified amounts for legal attendances that her Honour was satisfied were occasioned or thrown away by reason of the time taken to dispose of [CC]’s privilege argument. It is uncontroversial that her Honour had no power to order the Crown to pay Mr Abu-Mahmoud’s costs: see R v Mosely at 739-40. However, her Honour did not do so. Moreover, the form of the order her Honour made is well supported by authority, not limited to Mosely. For example, Simpson J said this in R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41 at 631:

“[30] It seems to me that this Court should proceed on the basis that the position is as stated by Gleeson CJ in R v Mosely. It is observed that, although in R v Mosely this Court concluded that the order of the second judge staying the proceedings was based upon an incorrect premise, it did not conclude that that judge had no power to make an order staying proceedings until costs be paid. The error attributed to the second judge in that case was that he proceeded upon an incorrect premise, that being the validity of the order of the first judge. The order made by this Court was expressed, not to be a fresh order of its own, under s 5F(5) of the Criminal Appeal Act, but a variation or modification of the order made by the second judge. I do not read R v Mosely as concluding that a District Court judge does not have power to make an order of the kind this Court ultimately made in R v Mosely.”

32. The practical effect of her Honour’s order, therefore, can only be that the trial is stayed until such time as the unfairness to Mr Abu-Mahmoud arising from the depletion of his trial funds as a consequence of the privilege argument is ameliorated. Accordingly, the issues in this appeal are really first, whether the putative unfairness to Mr Abu-Mahmoud sounds in a tangible way, in the sense that it imperils his ability to pay for legal representation for the balance of the trial and secondly, whether the Crown is at fault in the sense that the unfairness was caused by it.

33. So much is apparent from the judgment of Gleeson CJ in Mosely at 741:

“This Court should signify its disapproval of the Crown’s delays, and also its unwillingness to leave the respondent to bear the burden of the original unfairness that was regarded as being visited upon him. We were informed that Johnston DCJ intimated that he would have been prepared, if asked to do so, to assess a fair amount to represent the costs thrown away by the original adjournment. There being no valid order for costs, there is no procedure for enforcing the order, or taxing the costs. However, there is no reason why this Court cannot, in the exercise of its own discretion, modify the order made by Herron DCJ in such a way as to give practical effect to a view that, in the special and unusual circumstances of this case, and in the light of the events that have occurred, the trial of the respondent should not proceed until the Crown compensates him for the costs thrown away by the original adjournment.

I would propose that the order made by Herron DCJ should be varied to provide that the stay of proceedings therein referred to be until the costs thrown away as a result of the adjournment granted by Johnston DCJ on 20 May 1991 be paid to the respondent; such costs to be agreed or, failing agreement, to be in such amount as is assessed by a judge of the District Court. Save to that extent, the appeal against the order of Herron DCJ should be dismissed.”

Ground 1

34. Ground 1 asserts that her Honour erred in holding that the decision of the Director of Public Prosecutions not to fund legal representation for [CC] on his privilege claim was a consideration relevant to the grant of a temporary stay. Put another way, the Crown contends that, to the extent that her decision to grant a temporary stay took account of the fact that the Director chose not to fund [CC], she took account of an irrelevant consideration: House v The King [1936] HCA 40; (1936) 55 CLR 499.

35. The Crown emphasised that even though her Honour acknowledged that any funding provided by the Director for [CC]’s legal representation would be “discretionary funding”, her Honour in fact considered the Director to be responsible for doing so. That is said to be clear from her Honour’s rejection of the submission that the Director of Public Prosecutions was no more responsible than other agencies: at [25].

36. This argument was developed further as follows. There is no authority that supports the extension of the Mosely principle to require the Crown to pay an accused’s costs incurred as the result of the actions of a third party, in this case [CC], who was neither a witness nor a party, over whom the Crown had no control and to whom the Crown owes no responsibility. R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41 is said to be “inapposite”. In that case, the third party was directly funding the accused.

37. The Crown emphasised that only in exceptional circumstances does the District Court have power to protect an accused from unfairness or injustice by temporarily staying proceedings or refusing an adjournment until the Crown has agreed to compensate an accused for costs “thrown away” through the fault of the Crown: Mosely; Fisher; Petroulias v R [2007] NSWCCA 154; R v Issakidis [2015] NSWSC 834. The “touchstone in every case is fairness” to the accused, whether occasioned by the Crown or by the investigating body, and the “power is to be exercised only in the most exceptional circumstances”: Petroulias at [17]. All of the circumstances are relevant to the consideration of unfairness, including the availability of legal aid: Fisher at [47]; Issakidis at [78]. In the present case, the evidence was silent as to whether legal aid was available. The Crown also criticised Mr Abu-Mahmoud’s evidence about whether in any event he could continue to fund private representation.

38. The Crown submitted that where unfairness to an accused has been established because of fault on the part of the Crown, even the undesirable consequence of fragmenting the ordinary course of criminal proceedings may be warranted in exceptional circumstances as a matter of fairness. However, in the case of delay caused by a third party application at trial, it is not warranted.

39. Finally, the Crown submitted that “ideally, [CC]’s waiver of privilege would have come to light earlier”. That submission proceeded upon the basis that the late revelation that [CC] had waived his privilege claim some years earlier could not have been known or anticipated by the Crown in this case, so that no fault can be attributed to the Crown in the circumstances.

Consideration – Ground 1

40. I do not accept that in arriving at her decision, her Honour took account of an irrelevant consideration or that as a consequence the exercise of her discretion to order a temporary stay miscarried. It must be accepted, as her Honour clearly did, that the Crown had no obligation, strictly understood, to provide legal assistance to [CC] or to contribute funds for him to retain lawyers, and also that her Honour had no power to require the Crown to do so. Her Honour’s consideration of the prospect that the Crown might possibly assist [CC] with funds to retain lawyers to help with his privilege claim arose in the context of her conclusion that Mr Abu-Mahmoud had been the victim of unfairness in being required to call upon funds earmarked for his trial as the result of an avoidable issue. It was her Honour’s conclusion that the Crown was at fault. I do not read anything said by her Honour as suggesting that fault included a refusal to pay [CC]’s costs. The reference to the Director having more responsibility for funding “than other agencies” was no more than an allusion to the fact that, as her Honour had found, the Crown caused the situation where [CC]’s legal costs even arose. As her Honour said, the Crown should have sought to resolve this issue prior to trial or should have been in a position immediately to satisfy the court that privilege, if it applied, had been waived.

41. Indeed, this topic was not merely referred to in her judgment. It received attention in the early stages of the trial as the following extracts from the transcript reveal:

“HER HONOUR: Do you accept, though, that I do need that information and in an appropriate form for it to be put before me so I can consider the issue of privilege?

CROWN PROSECUTOR: I think that’s in the interests of justice, yes. Whether it need be—

HER HONOUR: So, pulling it back, why hasn’t this been done earlier? I would have thought the issue of privilege, given the number of solicitors that are involved and the various roles they’ve performed, must have always been a consideration by the Crown, that it would have some necessity for consideration by the Court.

CROWN PROSECUTOR: Yes, and there’s no readily available answer to your Honour’s question. But in relation to the smooth running of the proceedings, all that can be done will be done to ensure the smooth running of at least the parts of Witness C’s evidence that can proceed, and a consideration will be given to the issues raised by my learned friend Mr Lange as to whether indeed there is likely to be a concern in any event. So, I’ll be giving that some further consideration, your Honour.

LANGE: Perhaps in answer to your Honour’s question, s 132 of the Evidence Act provides, ‘If it appears … of that provision.’ So, it’s a requirement that’s placed upon them.

HER HONOUR: Which brings me back to an earlier comment I made as to why this wasn’t dealt with as a pre-trial matter, given there were various pre-trial applications?

…

HER HONOUR: Do you want me to read it?

CROWN PROSECUTOR: Well, the tenor of it is as I’m saying, there might be some further information that obviates the need to scrutinise it, if I can put it that way. But the position as far as the communication with the Crown, the Crown has not received any communication from [CC] that he wishes to take any objection. But as I say, perhaps there’s some further information on the issue.

…

HER HONOUR: ... I just feel very uncomfortable about proceeding to elicit evidence that may well be breaching privilege that may well have some aspects upheld. I can’t contemplate that because, as you have stated, I don’t have enough material. This is all just speculative on limited material and I can’t ask that we consider all of the material because, really, [CC] should be here to advance whether or not that material is by consent and to advance submissions. I’m just very uncomfortable with it, Mr Crown. It’s not a matter that seems to have arisen without the Crown having turned its mind to it earlier and if not turned its mind, why not? This shouldn’t be a last-minute issue.

The endeavours you made through Mr Ellison last week are the endeavours that should have been made some time ago.”

42. Nor am I attracted to the argument that the Crown cannot be expected to be responsible for the legal fees of a non-party over whom it has no control. That the Crown is not responsible may be accepted without question. However, framing the issue in terms of responsibility clouds the real issue of whether payment of [CC]’s legal costs might have been a reasonable course for the Crown to take, even if not obliged to do so. As the Crown uncontroversially assured her Honour on 23 October 2023,

“I hope there’s nothing I’ve said…that indicates that the Crown is other than willing to facilitate whatever needs to be done to assist the Court in relation to the smooth running of this trial and ensuring that [CC] is duly represented [sic!]”

43. The issue is not whether the Crown was responsible to fund [CC] but whether, as the party at fault for the wasted costs, the Crown might have been expected to take reasonable steps to salvage a situation for which it was responsible. Time taken to find lawyers for [CC] was a significant contributor to the delays that occurred.

44. As her Honour found, the Crown was in possession of reliable evidence that [CC] had previously and irrevocably waived his lawyer client privilege. [CC]’s assertion that he had not voluntarily done so was a needless distraction that could have been entirely avoided if correspondence that made it clear that he had waived the privilege had been presented to the court in a timely way.

45. It must be borne in mind that the Crown case against Mr Abu-Mahmoud effectively revolved around Witness C giving evidence of his dealings with [CC], including correspondence with him, which the Crown contends supports the allegation that Mr Abu-Mahmoud had taken steps in the creation of affidavit evidence that falsely purported to exculpate members of his family in the murder of Brayden Dillon. The apparent simplicity of the Crown case is effectively matched by the importance of Witness C’s evidence and, in the same vein, by the need to ensure that it was not potentially imperilled by [CC]’s claim.

46. Her Honour did not take account of an irrelevant consideration at all. The fact that the unfair consequences for Mr Abu-Mahmoud could, not to say should, have been avoided by securing legal advice for him was a legitimate consideration informing her Honour’s decision to grant him a temporary stay.

Ground 2

47. This ground asserts that her Honour erred in finding that the Crown was at fault so that the principle in R v Mosely applies. The Crown submitted that there were two aspects of the fault found by her Honour as a precondition to the grant of a stay. First, that the Director should have funded legal advice for [CC], dealt with under Ground 1. Secondly, that the privilege issue was not raised well ahead of trial so that “steps could have been taken to provide [CC] with an opportunity to obtain legal representation if he chose”: at [24].

48. The Crown submitted that this second finding was infected with error: her Honour acted upon a wrong principle and took into account an irrelevant matter. This is said in the Crown’s submission to be because “the Crown had no responsibility in principle to raise a privilege issue with a third party, who had comprehensively abrogated the requisite confidentiality in previously-privileged communications”. [Emphasis added]

Consideration – Ground 2

49. This submission in my view misapprehends the issue. The Crown was obliged, and might have been expected, to prove its case by the timely and ordered adducing of evidence. As already noted, that included principally, but not exclusively, the evidence of Witness C. It can hardly be controversial that the responsibility for any issues with the evidence of a witness, such as Witness C, which issues the Crown ought reasonably to have anticipated might be productive of delay, should be sheeted home to the Crown. The issue has nothing to do with whether the Crown should have provided [CC] with legal representation but whether the Crown should have avoided the issue entirely by scotching the very possibility of his belated and obviously doomed claim for privilege at an early stage when it was in possession of the means to do so.

Ground 3

50. Ground 3 asserts that her Honour erred in determining that Mr Abu-Mahmoud had suffered unfairness due to delays in Witness C being called at trial, so as to attract the principles in Mosely. Two bases for this submission are noted.

51. First, given the requirement for actual or practical unfairness, and the high threshold for exceptional circumstances, the Crown submitted that the evidence does not demonstrate that Mr Abu-Mahmoud could not continue to fund his legal representatives in the trial. I take that submission to accept, although I would otherwise conclude, that an inability to do so, if established, would amount to relevant unfairness.

52. That proposition can be easily dealt with. The evidence at trial was that Mr Abu-Mahmoud was funding his trial largely through borrowing money and that the funds for the trial had been exhausted. This emerges from the affidavit of Ms Abigail Bannister dated 23 November 2023:

“[15] The applicant has funded the matter privately since before the date of arrest and charging on 23 October 2018. Very considerable funds have been expended in the proceedings thus far, before the trial commenced, especially given the listing of the matter for trial in 2022 and the various pre-trial applications both in 2022 and 2023. There has been an enormous wastage of funds due [to, sic] the sheer number of pre-trial listings where the matter was not advanced.

[16] The accused provided funds to cover preparation, and 3 weeks trial for senior counsel, junior counsel and solicitor. I am instructed that much of this funding was borrowed, the accused having exhausted his own funds in the matter in the considerable listing before October 2023.

[17] Whilst not all bills have been rendered and finalised, the funds provided for trial have been exhausted. There is considerable work now undertaken that there are no funds for. Much of the trial funds provided by the applicant were borrowed given that the applicant’s funds had been exhausted.”

53. Ms Bannister was not required for cross-examination and the evidence was received without challenge. If the Crown’s position in this Court is that her Honour made findings without evidence, I am unable to accept it.

54. Secondly, the Crown asserts that [CC]’s privilege claim was wholly without merit and was comprehensively dismissed by her Honour. It seems to me that the indisputable hopelessness of [CC]’s revivified privilege claim is an argument that is inimical to the Crown’s position, rather than the opposite: it could and should have been dealt with decisively at an early pre-trial stage or soon before the trial proper commenced utilising the information in the Crown’s possession that privilege had been waived. The unmeritorious nature of the claim which the Crown now seeks to advance in its favour only supports the fact that without [CC]’s unnecessary and avoidable intervention, it would have taken very little court time to resolve. The weakness of [CC]’s claim does not support Ground 3.

Orders

55. It follows in my opinion that as none of the grounds of appeal has merit, the appeal should be dismissed.

56. DHANJI J: I agree with the orders proposed by Harrison CJ at CL and with his Honour’s reasons.

57. As his Honour makes clear, the Crown, at all times, intended to call as a witness in its case a solicitor who was to give evidence of his communications with his erstwhile client. An issue of client legal privilege necessarily arose. Part 3.10 of the Evidence Act 1995 (NSW) is titled “Privileges”. It contains provisions dealing with client legal privilege, other privileges and circumstances where a privilege which might ordinarily exist does not, or is lost. Section 132 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.

58. It was inevitably going to “appear” to the Court that [CC] “may have grounds for making an application or objection” under a provision within Part 3.10 of the Act. It was therefore inevitable that the primary judge would need to be satisfied that [CC] was aware of his entitlement to make a claim for privilege, and if he did so, to resolve that claim. As Harrison CJ at CL points out, the fact that the claim was ultimately found to be meritless did not impact this fact.

59. The Crown, on the appeal before this Court eschewed any reliance on a complaint the decision at first instance was unreasonable or plainly unjust, that is, the last category of error referred to in House v The King [1936] HCA; (1936) 55 CLR 499. Despite this, the Crown’s submissions, both in writing and orally delved into the merits, without any clear demarcation of matters going to the specific errors complained of in the grounds. Perhaps this was merely a reflection of the difficulty in seeking to establish the grounds. Be that as it may, as the history set out by Harrison CJ at CL demonstrates, arguing the merits did not help. The Crown’s complaints in this Court must fail for the reasons given by Harrison CJ at CL.

60. HUGGETT J: I agree with the orders proposed by Harrison CJ at CL and Dhanji J’s further observations.

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Decision last updated: 28 February 2024