R v Connelly
[2000] WASC 117
•9 MAY 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: R -v- CONNELLY [2000] WASC 117
CORAM: OWEN J
HEARD: 19 APRIL 2000
DELIVERED : 9 MAY 2000
FILE NO/S: IND 35 of 1999
BETWEEN: THE QUEEN
AND
CHARLES PAUL ANTHONY CONNELLY
Catchwords:
Criminal law practice and procedure - Legal professional privilege - Whether documents seized under search warrant privileged
Legislation:
Nil
Result:
Application successful
Seized documents to be returned to accused
Representation:
Counsel:
The Crown: Mr R J Nash
The Accused : Mr B J Singleton QC
Solicitors:
The Crown: State Director of Public Prosecutions
The Accused : Mr B J Singleton QC
Case(s) referred to in judgment(s):
Baker v Campbell (1983) 153 CLR 52
Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67
Grant v Downs (1976) 135 CLR 674
Case(s) also cited:
Nil
OWEN J: This is an application by the accused to retrieve documents over which he claims legal professional privilege and which were seized under a search warrant executed at his premises.
Background
The accused is charged with being one of five men who stole south sea pearls and pearl shell, the property of Broome Pearls Pty Ltd, in March 1998. The charge was laid in December 1998. The pleas of the five men were taken before the District Court in August 1999. The accused pleaded not guilty; the other four men pleaded guilty and have since been sentenced.
A search warrant was executed on the accused’s premises in November 1999, and the documents the subject of this application were seized. At the time of their seizure, the accused repeatedly asserted to the police that those documents were materials which he had prepared for the purpose of instructing his lawyer as to his proposed defence to the charge. The accused met with his lawyer later that day. They attended Broome police station, where the documents had been taken. After discussions with the officer in charge, the documents were placed in a sealed envelope and lodged with the Clerk of Courts at Broome Courthouse.
An application was made by the accused to the court to retrieve those documents, claiming legal professional privilege. That application first came before Wisbey DCJ in February 2000, who ordered the accused and the Director of Public Prosecutions ("the DPP") to file written submissions by 26 March 2000. Counsel for the accused lodged submissions in support of the application on 6 April 2000. The DPP, however, had neither provided written submissions nor instructed his counsel as to his position by the time the matter came before me on 19 April 2000. I proceeded to hear the application, which included the taking of evidence from the accused. I examined the documents and returned them to the sealed envelope. I then ordered that, before I made a ruling, a transcript of the proceedings be prepared and given to the DPP and counsel for the accused, three working days after the receipt of which the DPP was to file written submissions, if he so wished. Upon receiving the transcript, the DPP indicated that he did not wish to file any submissions. I now make my ruling.
Are the documents privileged?
The accused gave evidence that following his plea of not guilty in August 1999 he was instructed by his counsel to prepare, for counsel, a statement of his proposed evidence in relation to the stealing charge. He says he was also directed by his counsel to write down the names of any possible defence witnesses and prepare statements as to what evidence they might give. The accused then proceeded to make a draft copy of that material. He says he did not prepare the documents comprising that material for any purpose other than for it to be used by his counsel in his defence of the charge.
On further legal advice, the accused had the draft material typed out at the offices of the Legal Aid Commission in Broome. He says that, having had the material typed, he took it back to his home with the intention of giving it to his counsel. However, before he could deliver the documents to his counsel they were seized by the police officers executing the search warrant at his premises. The accused says he told the police at that time that the documents comprised his evidence in relation to the stealing charge, which he had prepared on instruction from his counsel, and which he was intending to give to his counsel. Nevertheless, the police officers proceeded to remove the documents from the premises.
Having examined the documents in question, I am satisfied that they fit exactly the description given by the accused. Indeed, the documents take a form which lawyers would commonly regard as witness proofs.
Legal professional privilege can be claimed for those documents which are brought into existence for the dominant purpose of submission to legal advisers for advice or for use in legal proceedings: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67. The logical basis underlying the privilege is explained by Stephen, Mason and Murphy JJ in Grant v Downs (1976) 135 CLR 674 at 685:
"The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice and encouraging the client to make a full and frank disclosure of the relevant circumstances, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available."
The privilege, although described as "legal professional privilege", is that of the client. There is no requirement that the material over which the privilege is asserted be in the possession of a lawyer. Furthermore, the privilege is not confined to judicial and quasi-judicial proceedings but may be claimed in respect of documents which are the subject of a search warrant: Baker v Campbell (1983) 153 CLR 52. As Murphy J explained in Baker v Campbell at 89:
"The individual should be able to seek and obtain legal advice and legal assistance for innocent purposes, without the fear that what has been prepared solely for that advice or assistance may be searched or seized under warrant. Denying the privilege against a search warrant would have a minimal effect in securing convictions but a major damaging effect on the relationship between the legal profession and its clients. It would engender an atmosphere in which citizens feel that their private papers are insecure and that relationships they previously though confidential are no longer safe from police intrusion."
The documents the subject of the accused’s application clearly fall within the scope of the type of documents in respect of which legal professional privilege can be claimed. They were brought into existence for the dominant purpose of submission to his counsel for the preparation of his defence to the stealing charge. It follows that the police acted without legal authority in seizing the documents whilst executing the search warrant at the accused’s premises in November 1999.
Conclusion
I would allow the application and order the immediate return of the seized documents, presently contained in a sealed envelope in the custody of the clerk of courts at Broome, to the accused. These reasons for decision will constitute a direction to the Clerk of Courts at Broome to release the sealed envelope and its contents to the accused on receiving a request from the accused to do so.
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