R v Dempsey
[2000] VSC 529
•1 December 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1437 of 2000
| THE QUEEN |
| v. |
| BRENDAN ERIC DEMPSEY AND KATHLEEN LINDA DEMPSEY |
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JUDGE: | HARPER, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 1 DECEMBER 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 529 | |
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CATCHWORDS: Ruling – Criminal trial – Application by accused for access to written advice of Chief Crown Prosecutor – Legal professional privilege – Implied waiver – Whether reference to document during evidence given on voir dire sufficient to constitute waiver – Attorney-General for the Northern Territory v. Maurice (1986) 161 CLR 475 applied – Whether unfairness – Application refused.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms. M. Sexton with Mr. J. Dowsley | Peter Wood, Solicitor for Public Prosecutions |
| For Brendan Dempsey | Mr. M. Bourke with Ms. T. Hartnett | Victoria Legal Aid |
| For Kathleen Dempsey | Mr. A. Lewis | Anthony Isaacs |
HIS HONOUR:
On 14 November last, during the course of a voir dire directed to the issue whether a record of interview between Mr Brendan Dempsey and the police was voluntary, Sergeant Christopher Murphy stated that on 2 August 1999 the police received written advice from the Office of Public Prosecutions. It was to the effect that charges should be laid against Mr and Mrs Dempsey.
The following exchange then occurred between Mr Murphy and the prosecutor, Ms Sexton, whose witness he was. Transcript page 105 line 8. "Question: In brief, what was that advice insofar as the further course of the investigation was concerned?" answer: "the initial verbal advice on about 20th of June was to proceed by way of manslaughter on both the Dempseys on the basis of manslaughter by neglect, and that was to be on the basis on the assumption that the child Bo Dylan Dempsey would have survived had it received medical treatment." question: "further to that advice did you receive any advice about conducting further records of interview?" answer: "yes, during that discussion we were involved in, when we were to locate the persons, that they were to be re-interviewed and asked questions to clear up any ambiguities and to go through the matter further and to further proceed by way of the second phase of the undercover operatives."
In cross-examination Mr Murphy had the following exchange with Mr Bourke for Mr Dempsey. Transcript at page 110 line 12. Question: "when you were answering questions a little time ago, you were asked about an opinion of the DPP that, amongst other things, directed or advised you to re-interview?" answer: "yes, that's correct." question: "in answering that question you made reference to something that I have noted, hopefully correctly, as 'undercover operatives second phase'; have I got the term right?" answer: "yes, you have." question: "it seemed that you related the perceived need for a further interview to that impart that there was an undercover operative second phase?" answer: "there was always a plan to, should they be charged and placed into a cell, there was always a plan to have them placed in the cells with undercover operatives." question: "the opinion said what about that?" answer: "to continue on with that plan.".
It is on the basis of this evidence that Mr Lewis, counsel for Mrs Dempsey, submits that the prosecution has waived the legal professional privilege which undoubtedly otherwise attaches to the document containing the written advice.
Two preliminary points may be made. First, the voir dire concerned an application by Mr Dempsey, not his wife. It is, therefore, doubtful that any privilege could be said to have been waived against her. Secondly, Mr Murphy does no more in his evidence-in-chief than to identify the date of receipt of the written advice. Otherwise, the only evidence of which he there speaks is oral.
The importance of the doctrine of legal professional privilege in the administration of justice in the adversarial system has often been emphasised by the courts. I cite merely by way of example Grant v. Downs (1976) 135 C.L.R. 674; Baker v. Campbell (1983) 153 C.L.R. 52; Attorney-General for the Northern Territory v. Maurice (1986) 161 C.L.R. 475; Waterford v. The Commonwealth (1987) 163 C.L.R. 54; and Carter v. Managing Partner Northmore Hale Davy and Leake, (1995) 183 C.L.R. 121.
The privilege is, nevertheless, a privilege. It is not an absolute right. It can be waived, either expressly or by implication. No express waiver, however, has been established in this case. Mr Lewis relies upon implied waiver.
Here the issue is at bottom one of fairness, remembering that (in the words of Deane J in Maurice's case at 491) the privilege "should not be narrowly construed or artificially confined". In this context I turn to a passage from the joint judgment of Mason and Brendan JJ in the same case at 487-488.
"The limiting effect of legal professional privilege on the availability of evidence otherwise relevant is confined inter alia by the doctrine of waiver. A litigant can, of course, waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains 'when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed after disclosing as much as he pleases to withhold the remainder.'"
I note in particular the reference in that passage to conduct which has touched a certain point of disclosure, the effect of which is to require in fairness that the privilege shall cease. I continue with the quotation from Maurice's case and the joint judgment of Mason and Brendan JJ:
"In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness usually requires that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter.
Hence, the implied waiver enquiry is at bottom focused on the fairness of imputing such a waiver. On this principle, an American court refused to imply a waiver when the person entitled to the privilege, who had been subjected by court order to an exceptional accelerated discovery process, accidentally disclosed some protected communications. Likewise, a waiver was not implied beyond actually disclosed material when the person entitled to the privilege in a spirit of co-operation disclosed some confidential communications to opposing counsel, not to the court, and the partial disclosure did not prejudice the opposing litigant. As the court in Champion International Corporation v. International Paper Company (1980) 486 Federal Supplement 1328 at 1333 asked rhetorically, 'can the disclosure of a very slight amount of privilege material produced in a spirit of openness and discovery be the basis for a waiver of a large amount of other privilege material?'"
There is no suggestion here that Mrs Dempsey or her legal advisers have been misled by revelation of part of the document in question while the balance of the document has been withheld from them. There is no evidence at all to suggest, let alone to take the matter further than that, that Mr Murphy's expression of the conclusion reached by the advice was inaccurately stated by him. Even if his statement of those conclusions was inaccurate, the inaccuracy would only go at most to his credit. The parties here have been told what the general conclusions were: that is, that Mr and Mrs Dempsey were to be charged with manslaughter by neglect, that each was to be re-interviewed, and that undercover operatives were to be used.
This is not, therefore, a case in which a part of a document has been disclosed in circumstances which indicate that that part presents a false picture of the whole. Unfairness in this sense, therefore, does not arise.
Mr Lewis submits that forensic advantage has been taken by the Crown in its use of the document. Fairness, therefore, dictates, he submits, that the entire document should be placed in his client's hands so that she may receive such forensic advantage from it as she can.
The answer is in part that the prosecution cannot be said to be making forensic advantage of the document simply by answering the questions put in cross-examination to Mr Murphy by Mr Bourke. As for the forensic advantage gained in examining-in-chief, that, in my opinion, forms no basis for a claim that the entire document should be provided to Mrs Dempsey. There is simply no proportionality between the one advantage and the other, even if one were to accept Mr Lewis' proposition that the Crown has taken forensic advantage of the advice as opposed to merely stating its conclusions.
Mr Lewis maintained that in the circumstances he (or his client) had a right to know the basis upon which the Chief Crown Prosecutor (who prepared the advice) thought it appropriate that a particular course should be taken by the prosecution in relation to his client. That information is irrelevant to any issue between the parties to this trial. The Crown case stands or falls on the evidence put before the jury. Mr Lewis also relied upon a passage from a judgment of Mustill J in Nea Karteria Maritime Co Ltd v. Atlantic and Great Lakes Steamship Corporation (No. 2) (1981) Commercial Law Reports 138 at 139. His Lordship there says:
"Where a party chooses to deploy evidence which would otherwise be privileged, the court and the opposition must in relation to the issue in question be given the opportunity to satisfy themselves that they have the whole of the material and not merely a fragment."
There is, in my opinion, no basis for the suggestion in the circumstances of this case that the Crown has chosen to deploy evidence otherwise privileged which being merely a fragment would disadvantage the accused were the whole of the document not disclosed to them. In this context it is appropriate, in my opinion, to refer to the facts in Maurice's case, a case particularly in point since it was in his judgment in this case that Dawson J at 498 quoted the passage from the judgment of Mustill J to which I have just referred. In Maurice's case, the claimants to traditional Aboriginal land near Tennant Creek prepared a claim book pursuant to the then operative directions relating to the conduct of a native title claim. That claim book was admittedly based upon materials provided to the claimants by a number of persons including expert anthropologists and linguists. Doubtless, the book expressed the conclusions which the claimants drew from the documents in question. The fact that it did was not thought by the High Court (including Dawson J) as a basis for waiver of any privilege which the claimants otherwise held in the original documents. By analogy, expression of the conclusions to be found in the advice furnished to the Director is, in my opinion, likewise not a basis for a claim of waiver of privilege. I quote from the judgment of Dawson J at 499 in his judgment in Maurice's case:
"What is important is that the 1982 claim book, while its source may be information imparted upon a privileged occasion, does not disclose the content of any privilege communication and so does not abandon the element of confidentiality which the privilege protects. There was, therefore, no waiver of privilege."
In my opinion, by analogous reasoning there was no waiver of privilege in this case. The application for production of the advice to the DPP is, therefore, refused.
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