R v Diallo (No 7)

[2024] NSWSC 978

Supreme Court

New South Wales

Medium Neutral Citation:

R v Diallo & Ors (No 7) [2024] NSWSC 978

Hearing dates:

8 and 30 July 2024

Date of orders:

8 August 2024

Decision date:

08 August 2024

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Noting that client legal privilege is not lost pursuant to s 122 of the Evidence Act 1995 (NSW), decline to order production of the documents called upon as if under subpoena.

(2) Note that this ruling does not prohibit cross-examination of KL on the disclosures made in his solicitor’s affidavit (see [60]).

Catchwords:

EVIDENCE – client legal privilege – whether privilege waived or lost – whether conduct inconsistent with maintenance of the privilege – multifarious complications – where witness faces unrelated murder charge – where expert reports provided to prosecution in those proceedings – where witness objects to production of reports on Prosecutor’s call in these proceedings – Prosecutor’s proper compliance with Harman undertaking – whether reports served under compulsion of law – broad or strict approach – consideration of authorities – brutal environment of the Commercial List

EVIDENCE – loss of client legal privilege – relevant considerations – whether witness’s contemptuous but courteous approach in witness box is a relevant consideration – considerations of fairness – where witness a child guided by lawyers – where Prosecutor denied more detailed understanding of witness’s observations – where witness declines to answer questions – “no comment” – disclosures in present proceedings – where witness objects to giving evidence – privilege against self-incrimination – contents of solicitor’s affidavit – disclosures striking “fine balance between candour and maintenance of privilege” – whether substance of evidence disclosed

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Criminal Procedure Act 1986 (NSW), s 151

Evidence Act 1995 (NSW), ss 38, 117, 118 119, 122, 122(2), 122(3)(a), 122(5)(a)(iii), 128, 131A

Cases Cited:

Akins v Abigroup Ltd (1998) 43 NSWLR 539

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46

GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266

Harman v Secretary of State for Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66

Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36

Osland v Secretary, Deptartment of Justice (2008) 234 CLR 275; [2008] HCA 37

Osland v The Queen (1998) 187 CLR 316; [1998] HCA 75

R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066

Category:

Procedural rulings

Parties:

Rex (Prosecution)
Ibrahima Diallo (Defendant)
AG (Defendant)
AD (Defendant)
Panashe Morgan Ryan Karise (Defendant)
KL (Interested party)

Representation:

Counsel:
E Balodis (Rex)
R Wilson SC (Diallo)
M Avenell SC (AG)
B Robinson (AD)
M Smith (Karise)
M Fernando (KL)

Solicitors:
Office of the Director of Public Prosecutions (Rex)
Crimcorp Defence Lawyers (Diallo)
Sydney Criminal Law Specialists (AG)
Wiltshire & Wroughton Legal (AD)
McGirr & Associates (Karise)
AA Criminal Lawyers (KL)

File Number(s):

2022/00052005; 2022/00051961; 2022/00052239; 2022/00091174

Publication restriction:

Statutory prohibition on the publication of the names of the juvenile accused and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).

JUDGMENT

1. On 1 September 2021 the witness, KL,[1] “witness[ed] the death of Oliver Coleman”. [2] The prosecution intends to call him in the trial of five young men who have been charged with Mr Coleman’s murder. KL gave evidence on a pre-trial Basha inquiry on 8 July 2024. When asked about the day Oliver Coleman died, he “[preferred] not to answer” and offered “no comment” to several questions. He was a reluctant and uncooperative witness with a studied swagger. When KL was directed to answer, he declined. He did so having received advice from counsel concerning the possibility that he would be charged with contempt. The Prosecutor asked KL about things he said to a psychologist and a psychiatrist regarding the death of Oliver Coleman. He prevaricated, and then said more than once, “no comment”.

   1. The witness’s identity is protected by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

   2. Ex VD H, affidavit of Benjamin Willcox affirmed 8 July 2024.

2. The Prosecutor pressed an earlier call for the reports of the psychologist and the psychiatrist. [3] KL asserts that the reports were (and remain) documents that are protected by client legal privilege and litigation privilege. [4] The Prosecutor concedes the documents were privileged but submits the privilege was waived or has been lost because KL’s conduct is inconsistent with him objecting to producing the document or being asked to give evidence about the communications. [5] KL refutes this contention.

   3. Tcpt (8/7/24) pp 160, 179 read with [14] and [16] of Ex VD H.

   4. Evidence Act 1995 (NSW), ss 117, 119.

   5. Evidence Act 1995 (NSW), ss 122, 131A.

3. During the pre-trial hearing, which has stumbled along over the last four weeks, the issue was argued on 30 July 2024. I received helpful and persuasive submissions by counsel for both the prosecution and KL. None of the accused men sought to be heard on the issue. I reserved judgment, a jury was empanelled on 31 July 2024, and the trial is now under way. It is expected that KL will be called to give evidence in a few weeks’ time.

4. I must make a ruling on the call, decide whether the privilege still attaches to the documents, and whether I should order KL to produce the documents either in their entirety or in some redacted form.

5. Despite KL’s contemptuous attitude in the witness box, the service of the reports in KL’s separate murder case, and the disclosure by his solicitor of the fact which comprises the first sentence of this judgment – that KL “meets the [diagnostic] criteria for post-traumatic stress disorder (PTSD) as a result, in part, of witnessing the death of Oliver Coleman” – I have concluded that neither litigation privilege nor client legal privilege has been lost or waived. These are my reasons for that conclusion.

Factual background and chronology necessary to expose the issue

6. Oliver Coleman died of stab wounds following an incident near his home in Blacktown on the evening of 1 September 2021. It is alleged that two rival groups (or gangs) of teenagers or young men came into conflict and a large melee broke out. The accused are members of one group (“MOB”) while Mr Coleman was a group of the other (“Murda”). [6] On the prosecution case, KL is a member of Murda or associated with members of that group.

   6. There are various associated groups, and cross-over in membership, but it suffices for this judgment simply to refer to the groups as “Murda” and “MOB” respectively.

7. On 11 April 2022, Uati Faletolu was stabbed at the Royal Easter Show and later died.

8. On 15 July 2022 KL was charged with Uati Faletolu’s murder. On 15 September 2023 KL entered a plea of guilty in the Children’s Court and was committed for sentence to this Court. He adhered to his plea and the matter was listed for sentence on 4 December 2023 (“the sentence proceedings”).

9. On 6 November 2023, his solicitor received a “confidential psychological assessment report” from an expert witness Dr Katie Seidler. I assume that the report was commissioned for the purpose of the sentence proceedings.

10. On 13 November 2023 the Supreme Court ordered that a youth justice report be prepared. KL’s solicitor received the report on 30 November 2023. The author of the report “referred to KL having witnessed the Coleman murder”. KL’s solicitor says:

“At about that time it became apparent to the defence team that the possibility of the partial defence of substantial impairment required investigation and that there may be an issue with the integrity of KL’s plea of guilty.” [7]

7. Ex VD H [10]-[11].

11. KL’s solicitor provided a copy of the youth justice report to Dr Seidler who agreed to provide a supplementary report.

12. On 1 December 2023, the senior Public Defender (as Rigg J then was) and her junior, Ms Talbert, advised KL’s solicitors to apply to vacate the sentence hearing. The application was not opposed by the prosecution, was granted by Garling J, and the case was adjourned until 1 March 2024.

13. On 29 February 2024 KL’s solicitor received a confidential psychiatric report from Dr Andrew Ellis, a forensic psychiatrist. Dr Ellis expressed the opinion that KL “meets the criteria for post-traumatic stress disorder as a result, in part, of witnessing the death of Oliver Coleman.”

14. On 4 March 2024, Dr Seidler provided her supplementary report in which it was said that KL’s PTSD was attributable “to a number of events including witnessing the death of Oliver Coleman”.

15. Because of its significance to the Prosecutor’s argument, it should be noted that the passages in inverted commas in paragraphs [1], [10], [13] and [14] above are direct quotes from the affidavit of KL’s solicitor (Ex VD H). This affidavit was read, and became an exhibit on the voir dire, in the context of KL making an objection to giving evidence because of the possibility that such evidence may tend to incriminate him. This occurred during the Basha inquiry.

16. Returning to the chronological narrative, on 10 May 2024 Garling J granted a further (unopposed) adjournment application. KL’s criminal proceedings are now listed on 6 September 2024 for directions and on 15 November 2024 “for sentence or plea traversal”.

17. While Mr Willcox’s affidavit does not provide the precise date of service of the reports, the final paragraph is in the following terms:

“Both reports have been served on the ODPP solely for the purpose of use in KL’s own criminal proceedings. I understand the ODPP is obtaining their own expert report to assist with informing the Crown’s position in response to a plea traversal application and such report is not expected to be served until August 2024.”

18. KL’s lawyers became aware that the Prosecutor intended to call him in the present trial on 29 November 2023. The fact that he was represented and would object to giving evidence was discussed early in the pre-trial hearing. [8] Some security issues, arising from threats KL allegedly made, were also discussed. Because of the multifarious complications surrounding his evidence, arrangements were made for him to give evidence when his barrister, Ms Fernando, and his solicitor, Mr Willcox, were both available. He was called on the Basha inquiry on Monday 8 July 2024. That is when the present issue first arose. I was told counsel were attempting to reach some agreement or compromise position but, as with most issues in this case, nothing came of that. The matter was listed for argument on 30 July 2024.

    8. Tcpt (1/7/24) p 31, tcpt (2/7/24) pp 65-67 and tcpt (8/7/24) p 159.

The test for loss of privilege: “inconsistency”

19. Section 122 of the Evidence Act 1995 (NSW) provides for the loss of “client legal privilege” (ss 117-119). On their face, the provisions (all of which fall within Division 1 of Part 3.10) relate only to a prohibition of adducing evidence of protected communications and documents. [9] However, the introduction of s 131A in 2007 extended the operation of Division 1 to preliminary proceedings. The parties agreed the present application is to be determined by reference to the provisions of the Evidence Act. They also submitted there was no relevant difference between the common law and the statute. While that was perhaps a questionable proposition,[10] s 122 was amended since the decision in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 and largely reflects the substance of that decision. [11] In the circumstances of the present case, the focus of the inquiry remains the same and cases like Mann v Carnell and GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 (“GR Capital”) are of considerable assistance in determining the issue.

    9. Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [19]-[20].

    10. See Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [23] where it was said “the provisions of s 122 as to the circumstances in which privilege may be lost are not identical to the corresponding common law principles”.

    11. See the discussion by Stephen Odgers in Uniform Evidence Law (19th ed, 2024, Thomson Reuters) at pp 1114-1115.

20. Section 122 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 the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if—

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because—

(a) the substance of the evidence has been disclosed—

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

(ii) as a result of duress or deception, or

(iii) under compulsion of law, or

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

(b) of 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

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the 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).

Mann v Carnell

21. In Mann v Carnell, a case decided under the common law, the High Court considered whether privilege was waived in circumstances where the Chief Minister of the Australian Capital Territory disclosed legal advice to a member of the Legislative Assembly when the member was fielding a complaint from a litigant (Dr Mann) whose defamation case was settled by the Territory Government without admission of liability. Dr Mann had complained to the member and the member sought information from the Chief Minister. The legal advice was privileged and disclosed for the purpose of enabling the member to understand why the case was settled and to field Dr Mann’s complaint. It was provided on the basis that it would be returned and it was, although a covering letter was retained by the member. The High Court held that privilege was not lost (“waived”) in those circumstances. Gleeson CJ, Gaudron, Gummow and Callinan JJ said it is the client “who is entitled to the benefit of [the] confidentiality” and the client who “may relinquish that entitlement”. Their Honours explained that:

“[i]t is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received.”[12]

12. Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [28].

22. As to the relevance of “fairness” and the client’s “subjective intention” their Honours explained at [29]:

“What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”

23. It was the inconsistency of the client’s conduct, rather than their subjective intention or questions of “fairness at large” which was determinative. [13] Had the legal report and advice been provided to the member “on the basis that he was at liberty to show them to [Dr Mann]” privilege would have been waived. However, the advice was shown to the member “confidentially” and so the conduct was not inconsistent with the maintenance of the privilege. [14]

    13. See also Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [34].

    14. Ibid at [33].

Osland

24. A somewhat similar factual scenario, with a similar outcome, arose in Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37. Mrs Osland was convicted of murder in a joint trial with her son. The jury was unable to agree on a verdict in the son’s case. Mrs Osland appealed all the way to the High Court but her appeals were unsuccessful. [15] She then petitioned the Governor of Victoria for an executive pardon. The pardon was refused and the Attorney General issued a press release saying he had received a joint advice from three Senior Counsel, who were named, and it was on the basis of that advice that he had recommended that the petition be denied. The full text of the press release is set out at [15] in the judgment of Gleeson CJ, Gummow, Heydon and Kiefel JJ. Mrs Osland sought access to the advice by way of a freedom of information request and when the Government refused to release the documents (or almost all of them) she appealed. She again found her way to the High Court. The joint reasons (with which both Kirby and Hayne JJ agreed on this aspect of the appeal) referred to the waiver as “implied waiver” or waiver “imputed by operation of law”. [16] Their Honours confirmed the approach stated in Mann v Carnell and said a finding that privilege is waived:

“reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances.”[17]

15. Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75.

16. Osland v Secretary, Dept of Justice (2008) 234 CLR 275; [2008] HCA 37 at [45].

17. Ibid.

25. The Court concluded that the “evident purpose” of the press release was to “satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations.”[18] It did not involve any relevant inconsistency with the maintenance of the privilege.

    18. Ibid at [48]

26. Their Honours went on to confirm at [49] that “questions of waiver are matters of fact and degree” but stressed in the same passage that the decision was made under the common law and not under s 122 of the Evidence Act.

Nash v Glennies Creek CoalManagement

27. Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36 (“Glennies Creek”) had some limited factual similarities but it was quite a different case and was decided pursuant to s 122. The Court (Walton J, President, Staff and Blackman JJ) noted at [76] that, while the common law and statutory tests were “expressed slightly differently” the High Court had clarified that the common law principles articulated in Mann v Carnell “apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act.”[19] In Glennies Creek, a Prosecutor for a government department with a very long name had issued a letter expressing their reason(s) for the exercise of particular aspects of the prosecutorial discretion. The correspondence included “expressions of the prosecutor’s views, beliefs and understandings based on advice she had received” (at [97]). This was done in the context of an attack by the other party on the Prosecutor’s conduct and assertions as to her state of mind. Overturning the decision of the primary Judge that the letter was not consistent with the maintenance of the privilege and was lost, the Court held at [97] that the content of the letter “does not and cannot amount to conduct inconsistent with the maintenance of privilege”. The disclosure that the views expressed, and opinions formed, by the Prosecutor were based on legal advice did not amount to a disclosure of the substance of the legal advice. The case includes a helpful, if rather dense, survey of a number of relevant authorities.

    19. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 at [32].

GR Capital

28. The Court of Appeal considered the issue and a number of the authorities in GR Capital. Macfarlan JA at [57] drew the following propositions from his review of the cases:

“(1) The test is one of inconsistency between the privilege holder’s conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings.

(2) Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore ‘laid open the communications to scrutiny’, assists in ensuring that the court’s focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.

(3) On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency – something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party.

(4) The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness.

(5) Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder’s conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.”

29. The facts of GR Capital were that the parties to civil litigation reached an agreement and consent orders were entered by the Court. The applicants (referred to as the “judgment debtors”) sought to have the consent orders set aside. The respondent issued a subpoena seeking production of documents containing the legal advice provided leading up to the settlement. The judgment debtors sought to have the subpoena set aside, arguing that the documents were protected by legal professional privilege. The respondent argued that privilege was waived by representations made in the judgment debtors’ notice of motion. Those representations included that the settlement was illegal because it involved transfers of money to China which contravened Chinese foreign exchange and that one of the directors of the judgment debtor corporation was not aware of an available defence of “illegality” when they agreed to the settlement. It is unnecessary to consider the rulings made by the primary Judge, which were vacated. The Court of Appeal at [66] ordered that production was required but limited to “[communications] or recorded legal advice as to the legality or illegality of the underlying transaction or agreement”. Macfarlan JA, with whom McCallum JA (as her Honour then was) and Simpson AJA agreed, found at [59] there was an inconsistency between the assertion that the judgment debtors were ignorant of the possibility of an illegality defence and the maintenance of the privilege regarding advice concerning the existence of such a defence. However, the privilege was not lost in respect of the balance of the advice. Those matters were relevant to the notice of motion but did not “rise beyond relevance to an issue”. The notice of motion and statements made surrounding it did not “implicitly [lay] open the advice they received for scrutiny”.

Rogerson and McNamara (No 11)

30. Bellew J took a similar approach in R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066. That is, his Honour examined closely the disclosures of the legal advice that had been made, and ruled that privilege was lost only in relation to those where there had been a clear disclosure of the substance of the advice. It is not necessary to repeat the details of that case which was a decision of another single judge of this Court.

Legal advice v other protected confidences

31. The cases to which I have referred all concern the disclosure or partial disclosure of the existence or substance of legal advice. By contrast, the present case concerns protected confidences in the form of things said by KL to the authors of reports prepared for his own legal proceedings. There is no dispute that these are protected by the privilege provisions in ss 118 and/or 119. I take the same general approach to the protected communications in the present case as was taken in those authorities relating to the loss of privilege that protects the details of legal advice.

32. The questions that arise here include whether the disclosures made by KL in his own criminal proceedings were made “under compulsion of law” (s 122(5)(a)(iii)) and whether those disclosures or others made in the present trial constitute conduct that is inconsistent with KL maintaining the privilege that attaches to the protected confidences contained in the expert reports prepared in his criminal case.

33. Another question concerns the reasons for KL’s disclosures in the present case (namely, his desire to protect his right against self-incrimination), his disgraceful conduct as a witness at the pre-trial hearing, and whether those matters impact on the questions raised by s 122 and a determination of whether his conduct is inconsistent with the maintenance of the privilege.

KL’s evidence on the Basha inquiry

34. Despite its length, it is worth setting out KL’s evidence on the Basha inquiry in full. [20] I will also set out the relevant parts of the discussion although I will redact aspects that have no present relevance. I include the discussion because it feeds into the Prosecutor’s submission that KL’s reason for disclosing things to this Court (via his solicitor’s affidavit) is relevant to the question I must decide.

    20. Tcpt (8/7/24) pp 159-179, produced as transcribed (noting the reference to Dr Sidler is to Katie Seidler, forensic psychologist).

“FERNANDO: Thank you, your Honour. Formally I seek leave to appear for KL, a young person who has been compelled.

HIS HONOUR: You have that leave.

FERNANDO: Thank your Honour. He’s in the cells. He will be making an objection, under s 128, to giving evidence, and to further the information of the Court I have an affidavit that I read from Benjamin Willcox, dated 8 July 2024. It provides some background with respect to KL’s own criminal proceedings on a charge of murder and one of the more unusual aspects to the s 128 objection. I’m content to raise this objection in the absence of the young person but if the Court would prefer that he was present in court he is certainly downstairs.

HIS HONOUR: That raises its own issues that I will need to discuss. I really leave that in your hands. I mean, ultimately I can consider the objection but I think he might need to take it. I might be wrong; maybe you are in a position to take that objection on his behalf. I will receive the affidavit at this stage if that is convenient. Has everybody seen it?

BALODIS: I have seen it. I have no objection. I note paragraph - when your Honour gets it - I will have some things to say.

HIS HONOUR: The affidavit of Mr Benjamin Willcox, have we got two copies of that?

FERNANDO: I’m sorry.

HIS HONOUR: We can get another one. Don’t worry.

EXHIBIT #VD H AFFIDAVIT OF BENJAMIN WILLCOX TENDERED, ADMITTED WITHOUT OBJECTION ON VOIR DIRE

HIS HONOUR: I’ll just read it quickly. I’ve read that. Thank you.

BALODIS: If your Honour goes to para 16. There’s a reference to a report of Dr Sidler. You see the circumstances. I’ve asked for a copy of that report and I haven’t received it. I called for it from my friend and I understand the Crown prosecutor in the other matter has a copy and I’d like a copy as well.

HIS HONOUR: Ms Fernando?

FERNANDO: I don’t have instructions to provide that report to any party in these proceedings. The report has been served on the Crown in the murder trial to which it relates and the waiver of privilege in respect to that report is confined to those proceedings.

HIS HONOUR: Which privilege is that?

FERNANDO: 123. I beg your pardon. 122. Subs (5) sets out matters that are not taken to be as inconsistent with maintenance of privilege.

HIS HONOUR: Which subsection?

FERNANDO: Subsection (c).

HIS HONOUR: ‘Common interest’? Can you explain how that applies? I’m not saying it doesn’t, I just would like--

FERNANDO: The submission is that while the Crown in those proceedings is not an obvious common interest party it has been served on the Crown in those proceedings in furtherance of the raising of a very specific defence of substantial impairment and to that extent there is a common purpose in evaluating that issue either for resolution of the matter with a plea of guilty to manslaughter charge or for that matter to proceed with that being the issue at trial. In that respect it is not a blanket waiver of privilege and the serving of the document on the Crown is not inconsistent with maintenance of privilege.

HIS HONOUR: Subsection (5) really doesn’t cover the field in any event. Why do you need it Mr Prosecutor?

BALODIS: I need it because it refers to including the witness in the death of Oliver Coleman and while my friend has addressed your Honour about common interests can I point your Honour to subs (2) and (3a) and (b). The affidavit itself discloses within its terms that KL apparently has witnessed the death of Oliver Coleman. That information is concerned in the report of Dr Sidler. To that extent that report or the privilege attached to that report has been waived by the very affidavit now before your Honour.

HIS HONOUR: I will think about all that. I think I can move forward though without forcing disclosure by shooting from the hip. I’d like to think about that so at the moment I will just simply go on with maybe interrogating Ms Fernando as to what her client will object to if she can identify that with precision. This was raised obviously in your absence last week and I floated some ideas. Clearly any objection he took to answering questions relating to the Easter show murder as it has been termed - I’ve just been asked whether the court should be closed. My view is it should be closed once he is in attendance but if anyone thinks it should be closed now because we’re talking about someone who is 16 I can do that. Do you have a view? There’s not to be any publication of what transpires here until after the trial and he cannot be identified.

FERNANDO: I’m content with that.

HIS HONOUR: What I told the Court officer in corrective services is that we will close the court if and when he comes to court.

FERNANDO: I am ready to set out the areas over which there is objection but perhaps I ought to do that in his presence.

HIS HONOUR: We’ll do it that way.

…

I’ll adjourn to allow that to happen. I’ll indicate that the court can be closed from this point because there will be a child giving evidence shortly. I’m going to have him brought to the witness box. Is that convenient?

FERNANDO: It is. Thank your Honour.

HIS HONOUR: Maybe he can take an oath and affirmation then we can have the arguments. Is that convenient?

FERNANDO: It is.

...

SHORT ADJOURNMENT

HIS HONOUR: Thank you. Mr Prosecutor:

CLOSED COURT

HIS HONOUR: I’ll just confirm the court’s closed?

SPEAKER: The court’s closed, your Honour.

HIS HONOUR: Thank you. So anybody sitting in the back of the court is either attached to a party or perhaps corrective services, or something like that? All right. Thank you. Did you want to flesh out the areas now, or did you want to see where we go?

FERNANDO: I’m content to set out essentially three areas where the witness does make an objection to giving evidence. The first one is perhaps the most straightforward, and that is that he may be asked questions about the events of the night on 1 September 2021 that could elicit some answers that disclose criminal conduct. The second area is that, particularly other parties, may ask questions about other related, or possibly even unrelated, criminal conduct on other occasions, including 11 April 2022, which is the date of the incident where this witness is the accused in a murder charge. Then the third area--

HIS HONOUR: That is put as one area, but it could be considered to be two, at least in the sense that if I come to apply s 128, there may be different outcomes at the end of that process.

FERNANDO: Yes. That’s quite right.

HIS HONOUR: I understand, yes. And the third?

FERNANDO: The third is specific to having witnessed the event that this trial relates to. Because it is relevant to this witness’ state of mind, some seven months later, when the event of 11 April 2022 occurred. So the objection is specifically to answering questions about what was witnessed, and while it, on its own, is not disclosing evidence of criminal conduct, it is relevant because the witness has a diagnosis of PTSD. One of the key events that is foundational to that diagnosis is having witnessed this event, and that is what’s relevant to his state of mind with respect to the raising of substantial impairment, and it remains unresolved with the Crown, and those criminal proceedings are ongoing. So that, essentially, are the three areas.

HIS HONOUR: All right. In relation to the disclosure of criminal conduct on or about 31 August to 1 September, are you able to identify, without giving too much away, or perhaps the prosecutor could identify, the types of criminal conduct that might be disclosed? Is it affray? Is it--

BALODIS: May I assist?

HIS HONOUR: Please.

BALODIS: It will be the same as before. It will be affray, assault, wounding and agreements to do the same.

HIS HONOUR: I suppose also, possibly, public justice offences, if he knew something and didn’t disclose it, maybe?

BALODIS: Yes. It’d be, at the very least, a conceal - although no, wait a minute your Honour, he was under 18, so conceal wouldn’t apply.

HIS HONOUR: I see. Okay. Well, in relation to those matters, the approach I’ve taken, more generally with other witnesses, has been to deal with it in advance and to uphold the objection, but to require answers based on the protection of a certificate.

FERNANDO: Yes.

HIS HONOUR: But it really ties in with your third aspect, which I think creates a greater complexity. In relation to the conduct on 11 April, plainly that objection would be upheld, and my inclination would be that it would not be in the interests of justice to require him to answer those questions, and therefore his objection would simply be upheld and he would not be required to answer the questions. I haven’t heard from any other barristers about this. In every other case, I’ve come to the contrary view, but this is obviously a very specific situation.

FERNANDO: Yes.

HIS HONOUR: But in the course of articulating item 2, you referred to other criminal conduct generally. That surely must turn on whether or not it’s been charged and dealt with, or whether it’s potential other criminal conduct, in which case it would probably fall into a category where the objection would be upheld but a certificate would protect him, and I’d require him to answer the questions, if counsel asking those questions were to satisfy me that they were relevant to anything.

FERNANDO: Yes.

HIS HONOUR: Which brings us to the last item, which has the capacity to thwart the whole purpose of him being here, which is fine, and your job, but I cannot imagine, in view of the contents of Mr Willcox’s affidavit, how it is that it’s a secret that he was at least aware of the events surrounding Mr Coleman’s death. It’s been disclosed in this affidavit; I daresay it’s been disclosed in the service of the report by Dr Seidler to the prosecutor in that case, and I’ve put aside the call. That may militate against a certificate. It may be that it gets so detailed and goes into his state of mind, which may be relevant to the 11 April incident, and the prosecution of your client for it, but at the moment I’m struggling a little bit with seeing how I would not require him to answer those questions.

FERNANDO: Your Honour, the--

HIS HONOUR: Given he can be protected, and that it’s been previously disclosed.

FERNANDO: The certificate would not have the effect of protecting him because it is such an indirect way that the evidence that he’d be asked about is relevant to his own proceedings of murder, by going to state of mind.

HIS HONOUR: By going what?

FERNANDO: To his state of mind, some months later. So first the diagnosis, but also his state of mind.

HIS HONOUR: Why would the certificate not protect him? The evidence you give will not be used in criminal prosecution. There may be another issue, but at the moment I’m just interested in how it is that, if he gets a certificate, anybody could use the evidence against him on state of mind or anything else.

FERNANDO: The difficulty I see is that if he is not disclosing conduct of - he is asked a question about what he has seen. That evidence can’t be used to further a criminal prosecution about what it is that he is said to have done but it might be used to contradict things that he has said to experts or challenge the legitimacy of the diagnosis or defence in that other murder matter. My concern is that the certificate would not be able to prevent that, it would not be able to protect him in that way.

HIS HONOUR: I’m just reading the section. I’m still not understanding. Let us say questions are asked and he takes the objection. I have to form a view whether there are reasonable grounds for that objection. Let us say I took the view that his knowledge of what happened to Mr Coleman, his relationship with Mr Coleman and all of that may have a capacity broadly to tend to incriminate him in the subsequent possibly revenge murder. I come to the view that therefore the objection must be upheld and I uphold it. I then make a consideration of the interests of justice. I, let’s say, concluded that it was in the interest of justice that he give evidence of what he saw or heard or perceived, my question is how could that evidence then be used in any way given the breadth of subs (7) of 128? They can’t cross examine experts on it, they can’t provide it to experts. Can they? Particularly if I made additional orders for non-publication beyond the parties of any evidence he gives.

FERNANDO: If the terms of the certificate were broad enough to capture those more indirect ways that the evidence could be used then that may add to the protection that I’m seeking.

HIS HONOUR: I think it’s a valid point and I’m not concluded in my view but certainly the objective of the certificate if I uphold an objection along those lines is to protect him altogether. Not for the prosecutor in another court case to parse what has happened here and a certificate will reflect that. At the moment we’re sort of jumping at shadows because he may have been to the gym and slept for the ensuing 36 hours as one of the witnesses we heard from last week had. So let’s see shall we? Does anybody want to make any submissions or comments at this stage? I take it the parties in this trial are still of the view that Mr KL should be called on the Basha enquiry?

BALODIS: Yes.

HIS HONOUR: Then I think we will proceed.

Q. Sorry to just leave you there while we talk about you but Ms Fernando and I have just been discussing how your evidence is going to play out. I understand you’ve had her advice. What is going to happen now is the prosecutor is going to slowly and carefully ask you some questions and I say that because that will give you the opportunity to object and in the circumstances I’ll allow Ms Fernando to take that objection on your behalf.

HIS HONOUR: Is that a convenient way to proceed?

FERNANDO: Yes. If I can just clarify that your Honour will then deal with the objections--

HIS HONOUR: I haven’t heard from counsel in the trial. I’m just simply floating some ideas for you to think about. By the way, can I come back to the disclosure of the Seidler report. At the moment I’m not inclined to make that order although I’m not firm in that view. I’m thinking you don’t really need it for today’s purposes and it may be something that can be discussed. I’m just not sure about whether in circumstances where you are seeking to traverse your plea by reference to substantial impairment there isn’t some obligation to make a disclosure. We can come back to it if you are okay to proceed on the Basha.

BALODIS: I’m certainly okay to proceed and I note that there are actually two reports at paras 14 and 16. Formally I’ve called for each. I understand your Honour’s point and legal professional privilege is a complex matter. Your Honour can take it from me that I don’t have these reports. They may exist somewhere in the ODPP but I don’t have them.

HIS HONOUR: I gathered that from the fact that you made those submissions and called on them that you didn’t have them and if you did have them someone has breached a Harman undertaking. Haven’t they?

BALODIS: That’s exactly why I don’t have them.

HIS HONOUR: Thanks.

BALODIS

Q. I’ve used your name but can you for the sake of the record tell us your full name please?

A. KL.

Q. You might need to sit a little bit closer. Somebody is going to type up your evidence and they just need to hear it.

A. KL.

Q. How old are you now?

A. 16.

Q. I want to ask you about Oliver Coleman. Did you know him?

A. Yeah.

Q. How did you come to meet him?

A. Say it again?

Q. Do you remember the first time you met him?

A. Yeah.

Q. Can you tell us about the first time you remember meeting him?

A. What’s the question again?

Q. I just want to know how did you meet him.

A. How?

Q. Yes, how. Were you at school together?

A. Nah.

Q. What happened?

A. Mates.

Q. Mates?

A. Yeah.

Q. Did you have an interest in something? A common interest?

A. Yeah. I would say.

Q. What was that?

A. Sport.

Q. What sort of sport?

A. Soccer, football.

Q. I don’t want to know your address at the time but were you living far away from him or close to him or somewhere in between?

A. How do you consider far?

Q. Could you walk there?

A. If you’re desperate, yeah.

HIS HONOUR: You could walk to Bourke if you turned your mind to it. Well, I could.

BALODIS

Q. Do you know EO?

A. I object.

BALODIS: Perhaps we’ll hear the objection. Ms Fernando might know it.

FERNANDO: I expect that this objection relates to the fact that this is just getting closer to the heart of the objection.

HIS HONOUR: Which is the events of 11 April and possible association with certain people who may have been involved in certain things that the police might call crime gangs.

FERNANDO: I think also specifically 1 September 2021.

HIS HONOUR: Does anybody question that there are reasonable grounds to object to that question and similar ones? Thank you. I’m satisfied that there are reasonable grounds for KL to object to answering that question and any similar question which indirectly or directly may establish associations with people who may have been involved in what I’ll call gangs that may have been involved in the events of 11 April 2022 or the events that give rise to the present prosecution and so I uphold his objection. The next question is whether or not I require him to give evidence but protect him by a certificate. Mr Prosecutor?

BALODIS: I make that submission because if your Honour sees generally within the Crown case statement he was present at the time when some fairly dramatic events occurred. It would be in all parties’ interests to understand what he saw of them and how he behaved during that period of time.

HIS HONOUR: Yes. Mr Robinson?

ROBINSON: I don’t object to it. In terms of what the Crown is putting forward as a possibility.

HIS HONOUR: Mr Wilson?

WILSON: I don’t wish to be heard.

HIS HONOUR: Ms Avenell?

AVENELL: I’m of the same position. I have nothing further to add to what the prosecutor has said.

HIS HONOUR: Anybody else?

TERRACINI: No.

SMITH: No.

HIS HONOUR: All right. Thank you. Ms Fernando.

FERNANDO: In terms of making the assessment about where the interests of justice lie in determining whether the witness should be required I point out his age. He was 13 at the time this event took place and the matters that I have already referred to in submissions specifically that he has a diagnosis of PTSD specifically referable to that event amongst other events and the significance of it in his own criminal proceedings. I have nothing further to add.

HIS HONOUR: I’m satisfied in relation to that specific question and similar questions concerning other members of what might be some sort of group or gang given the nature of the present proceedings that it is in the interests of justice that he be required to answer despite his objection. I accept that bearing upon that determination is the witness’ age, the diagnosis of which I have some if scant evidence and the proximity of the events to events on 11 April 2022 which are the events which give rise to him facing a murder charge in the circumstances set out in the affidavit of Mr Willcox. Having taken those things into account I am satisfied it’s in the interests of justice he be required to answer and I do require him to answer. He will of course pursuant to s 128 have a certificate which will be drafted in the broadest terms to ensure that the evidence cannot be used in any way against him and I’ll make non publication orders if called upon to do so or requested thereby those answers will not be published beyond the parties in this court. Specifically to the prosecutors and experts in the other matter.

FERNANDO: May it please the Court.

BALODIS: I hear your Honour on that point.

HIS HONOUR

Q. Do you remember the question? You were asked if you knew - is it EO?

BALODIS: EO.

HIS HONOUR: EO.

WITNESS: Yeah.

BALODIS

Q. Now it’s a very general question, but do you remember how you came to meet EO?

A. Yeah.

Q. How? Where did you meet him?

A. Just at school.

Q. School, all right. How old were you when you met him?

A. Young.

Q. Okay.

A. Or younger.

Q. All right. So how would you describe yourself and EO? I mean did you just know each other, were you good friends, were you just people who said hello to each other once a week?

A. Probably close. I’d say close.

Q. Did you have anything in common with him?

A. Yeah.

Q. Like what?

A. Sport.

Q. Did you do other things together?

A. Shopping. Just the usual.

Q. I mean did he live far away from you?

A. Depends.

Q. Depends again?

A. Yeah.

Q. Could you walk it if you had to?

A. Yeah.

Q. All right. Or would you prefer to catch a bus?

A. No.

Q. Or get your mum to drive, or get someone else to drive you?

A. Depends on the day.

Q. Depends on the day, all right. Were you part of any group of people back when you were 13?

A. Can you say it again?

Q. Well, were you part of a group of people back when you were 13?

A. Yeah.

Q. What was that group?

A. I’ll object.

HIS HONOUR: Yes, I think that and the last question I would uphold an objection. I note the question was cast in very broad terms, but it was clearly directed at something more specific, and I’m inclined to uphold that objection on the same basis and again find that it’s in the interests of justice that he answer. So that his evidence can’t be used against him, he’ll be protected by a certificate.

BALODIS: May it please, your Honour.

FERNANDO: Thank you, your Honour.

HIS HONOUR: Thank you.

Q. So I’m requiring you to answer that question.

A. Okay.

Q. Which the prosecutor will repeat if you don’t remember it.

BALODIS

Q. Were you and EO members of a group?

A. Yeah.

Q. What was the name of the group?

A. RFA.

Q. RFA. Does that stand for anything?

A. Yeah.

Q. What?

A. I don’t know. I’m guessing you would know.

Q. I might, but I just thought, you know, you might help me?

A. I don’t know.

Q. Okay.

A. What was the question?

HIS HONOUR

Q. What does RFA stand for?

A. Ready for anything.

BALODIS

Q. Ready for anything. How many people were in that group?

A. Now?

Q. Then.

A. Then?

Q. When you were 13?

A. Five.

Q. How many?

A. Five.

Q. Five? All right, so two of you were you and EO?

A. Mm-hmm.

Q. Do you know whether Oliver Coleman was in any group?

A. Yeah.

Q. What group was he in?

A. Can I object to that one?

HIS HONOUR

Q. You’re being asked about someone else’s involvement in a group. I mean I don’t see any basis for that objection.

HIS HONOUR: Ms Fernando? But if he wants to - I’m happy to take a global and realistic path through this, and I can include such answers as being protected, but I’m struggling to see how - I mean if I asked you whether Farhad Qaumi was a member of a group and you answered it, I don’t think that exposes you to criminal prosecution.

FERNANDO: That’s right, your Honour. I can’t make an argument--

HIS HONOUR: All right, thank you.

FERNANDEO: --on that basis.

HIS HONOUR

Q. I’m requiring you to answer that. We might revisit whether or not you get the certificate for that one, but at the moment I can’t see how that’s going to expose you.

BALODIS

Q. Can you tell me?

A. What was it?

Q. What group was he in?

A. QSB.

Q. QSB?

A. Mm.

Q. Does that stand for something?

A. I’m pretty sure.

Q. Do you know?

A. Nup. Wait, yeah.

Q. What?

A. Queen, it’s after a road, road Boys. Some--

Q. Okay.

A. Some road. Some street.

Q. Did they have another name?

A. I’m not sure.

Q. When you were 13, did you sometimes go to Oliver Coleman’s house?

A. Yeah.

Q. How often would you go?

A. Probably like, I don’t know, a few.

Q. Was he older, the same age, or younger than you?

A. What?

Q. All right, so Oliver Coleman, was he older or younger than you? What about your ages, was he 13?

A. No.

Q. Was he older or younger?

A. Older.

Q. Did he have a brother?

A. Yeah.

Q. Do you remember his brother’s name?

A. Yeah.

Q. What was his brother?

A. [EC].

Q. Okay. Was [EC] older or younger than you?

A. Older.

Q. Still older, all right. Did you know [EC] well?

A. Yeah.

Q. Do you remember the day that Oliver Coleman died?

A. I object.

HIS HONOUR: I think that’s probably in the territory where there’s reasonable grounds. Does anyone want to be heard against that?

FERNANDO: No.

SPEAKERS: No, your Honour.

HIS HONOUR: All right. I also think it’s in the territory where I’m inclined, subject to anything you have to say, to require an answer.

FERNANDO: Your Honour, it is exactly in that area that I’ve already addressed your Honour on. I don’t wish to say anything further.

HIS HONOUR: All right. I’m satisfied that the objection is based on reasonable grounds but that it’s in the interests of justice given the circumstances that he be required to answer. I direct him to do so and he will be--

Q. You will be protected by a certificate if you answer that question, which again will be cast in the broadest terms.

HIS HONOUR: Thank you.

BALODIS

Q. Do you remember the day Oliver Coleman died?

A. I prefer not to answer.

Q. All right. But I’d like to ask you about that though?

A. No comment.

Q. All right. Do you remember being taken to hospital?

A. No comment.

Q. Do you remember being injured on 1 September 2021? Do you remember being injured?

A. I don’t know.

Q. All right. Well we’ll play you something now.

VIDEO TAPE PLAYED TO COURT

Q. I’m showing you a video. Can you just watch it for a while?

VIDEO TAPE PLAYED TO COURT

BALODIS: Pause it.

Q. Now do you recognise that person on 2 September 2021 on that recording at 56.27?

A. Hmm?

Q. Do you recognise that person?

A. No comment.

Q. I’ll just play a little bit more for you.

VIDEO TAPE PLAYED TO COURT

BALODIS: Just pause it there.

Q. All right, we’ve paused it at 57 and two seconds. I’ll just ask you again, do you recognise that person?

A. No comment.

Q. Well if I suggest to you that that’s you?

A. Hmm?

Q. That’s you?

A. No comment.

TERRACINI: I hesitate to interrupt, your Honour, but we have difficulty hearing the witness’s answers down here.

HIS HONOUR: Yes.

Q. Mr KL, can I - and I know you’ve got your swivel going - but would you mind speaking closer into the microphone so everybody in the court can hear you?

A. Yeah. And I said no comment.

BALODIS

Q. All right. I mean do you remember this incident?

A. No comment.

BALODIS: Well, can I ask your Honour to direct the witness?

HIS HONOUR: Yes.

Q. Mr KL, I’m not sure the extent to which you’ve receive legal advice from Ms Fernando. I know you’ve received enough to understand your right to object. I might take an adjournment to allow her to explain to you the law of contempt.

A. Right.

Q. I am requiring you to answer the question, and I am giving you a certificate to protect you from any use that that may have against you in criminal proceedings, but the situation is that I am telling you to answer the question, and a failure to do so can lead to prosecution for contempt. I’m not saying it will or won’t, but I’m just saying it can.

A. Mm.

Q. And I’d like you - I’d like to know that you’re fully advised by someone independent and representing your interests before I proceed further.

HIS HONOUR: Ms Fernando, I don’t know if you need time? I mean it’s half past 11.

FERNANDO: Your Honour, I have, the witness is advised of his rights and the consequences of--

HIS HONOUR: All right. Let’s continue then and we’ll see how we go.

Q. So you’ve given the answer ‘no comment’ to a number of the questions, like who the person in that video is and whether it’s you and whether you remember the incident. You’ve said ‘no comment’. That is not an answer. I’m requiring you to give an answer. Can you please do so?

A. No, I respectfully pass.

Q. Fair enough.

BALODIS

Q. I’ll ask you again, that person there on the screen, 2 November 2021 at 57.02, who is that?

A. No comment, once again.

HIS HONOUR: Well I don’t have a magic wan[d].

BALODIS: No, nor do I. And I can concede--

HIS HONOUR: Do you want to finish your examination and then we’ll see what happens next?

BALODIS: I don’t see - I’m somewhat troubled by, you know, taking up the Court’s time for no real gain.

HIS HONOUR: It’s a matter for you, what questions you ask, but I’m, at the moment I can only advise the witness of the risk that he’s taking.

BALODIS: Certainly. Could I make the application then under s 38, given the answers that I’ve got?

HIS HONOUR: Yes, well, yes, if you need - insofar as you haven’t already started cross examining, I’m inclined to give you leave under s 38, at least for the purpose of the Basha. Does anybody want to be heard against that?

FERNANDO: No.

SPEAKERS: No, your Honour.

BALODIS: The affidavit is before the Court.

Q. Sir, you’ve gone to see a psychiatrist by the name of Dr Ellis, haven’t you?

A. I don’t recall. Is that the guy? Is he in Court?

Q. The psychiatrist. You’ve seen a psychiatrist by the name of Dr Ellis?

A. Yeah.

Q. Yes. And you’ve spoken to him about Oliver Coleman, haven’t you?

A. I object.

HIS HONOUR: Again, I think that - the objection, I take it, is based on self incrimination rather than on something else.

FERNANDO: I take it to be that, yes, your Honour.

HIS HONOUR: Well again I’m satisfied that’s a reasonable--

Q. You have reasonable grounds to object, but I require you to answer the question and you’ll have a certificate.

HIS HONOUR: Yes, Mr Prosecutor.

Q. The question is whether you spoke to Mr Ellis, Dr Ellis, about this?

A. Mm.

BALODIS

Q. Did you?

A. Yeah.

Q. Yes. And did you talk to him about seeing Oliver Coleman on the night that he died?

A. No comment.

Q. Do you remember speaking to another doctor, another psychiatrist, Dr Seidler?

A. I don’t get where you’re coming at.

HIS HONOUR

Q. I’m sorry, I didn’t hear you. Sorry, what did you say?

A. I don’t get what he’s trying to do.

Q. He’s just asking you questions about the material that’s been presented on your behalf this morning, which suggests that you spoke to the two psychiatrists [about] this incident.

BALODIS

Q. Well, did you speak to another psychiatrist called Dr Seidler?

A. Yeah.

Q. Did you speak to him about Oliver Coleman?

FERNANDO: To her, your Honour.

BALODIS: Sorry, I beg your pardon.

FERNANDO: And it’s a psychologist.

BALODIS: It is. Let me start again.

Q. Did you speak to a Dr Seidler, a psychologist?

A. Yeah.

Q. Did you speak to Dr Seidler, the psychologist, about what had happened to Oliver Coleman?

A. No comment.

HIS HONOUR

Q. I’ll just pause there. I direct you to answer the question. Do you understand?

A. Yes.

Q. And you say? Your response to that direction?

A. Huh?

Q. What do you say? When I say to you - he’s asked you a legitimate question, I’m telling you to answer it. What’s your response to that?

A. No comment.

BALODIS

Q. If I ask you any questions about what you spoke to the psychologist about, will you tell me?

A. No.

Q. If I ask you any questions about how Oliver Coleman came to die, will you answer me?

A. No.

BALODIS: I don’t see there’s a point at the moment.

HIS HONOUR: Matter for you. Mr Robinson?

ROBINSON: I’ve got no questions. Thank you.

HIS HONOUR: Mr Wilson?

WILSON: No.

HIS HONOUR: Ms Avenell?

AVENELL: No.

HIS HONOUR: Mr Terracini?

TERRACINI: No.

HIS HONOUR: Mr Smith?

SMITH: No.

HIS HONOUR: Subject to anything that might happen involving the Crown solicitor’s office, do I need this witness anymore?

BALODIS: Well, you may need him for the trial, and you may need him if I continue to press the call on what is set out in paras 14 and 16 of the affidavit.

HIS HONOUR: Yes. I understand that.

BALODIS: But not today.

HIS HONOUR: Can we have that argument in his absence?

BALODIS: Certainly.

HIS HONOUR: I mean I’ll probably call on written submissions. As you said, it’s a complex area, and I’m not going to force disclosure lightly, but clearly there’s potentially relevant material available and you can’t, at the moment, have it, so I’ll hear your arguments about that.

BALODIS: I’m sorry, your Honour. I thought you had the idea that perhaps he could just be excused.

HIS HONOUR: No, I see.

Q. KL, thank you for your evidence today. I’m now going to adjourn to allow the officers to take you back to the juvenile justice place you’re at. You may be called back here to give evidence when we start the trial in front of the jury, or at some other time, so you’re not formally excused at this stage. There may also be some arguments about whether your psych report should be disclosed to the prosecutor. I’ll let Ms Fernando explain that to you. There may also be questions raised about whether or not some contempt charge should be preferred, but nothing will happen on that score until Ms Fernando has an opportunity to consider the position and make submissions.

A. Yep.

Q. So thank you. I am going to adjourn to allow things to happen. You just stay there for the moment.

THE WITNESS WITHDREW.”

35. That lengthy passage shows that KL answered some questions and objected to answering others on the basis of the privilege against self-incrimination. When he was directed to answer with the protection of a broadly cast certificate under s 128(5) of the Evidence Act, he declined to give further evidence. He persisted in his refusal even after it was confirmed that he understood he may be in contempt of the Court.

The solicitor’s affidavits

36. The reference to KL’s solicitor’s affidavit at the beginning of the above extract (Ex VD H) is a reference to the document upon which the Prosecutor relies to submit that KL “knowingly and voluntarily disclosed the substance of the evidence” over which privilege is maintained (s 122(3)(a)). It is also the source of much of the chronology which is set out above at [6]-[18].

37. KL also relied on a second affidavit of Mr Willcox. This was affirmed on 29 July 2024, formally read on the hearing of oral arguments, and marked Ex VD N. The second affidavit established the orders made by Wilson J on 6 October 2023 when the matter was listed for sentence. Her Honour directed:

1. Any psychological report to be relied on is to be served on the Crown by 6 November 2023.

2. Any material to be relied on by the Crown is to be filed and served by 13 November 2023.

3. Any defence material or submissions are to be filed and served by 27 November 2023.

Consideration and determination

38. I turn briefly to consider the arguments and to provide my reasons for the conclusion that privilege has not been lost. First, I will deal individually with those parts of KL’s conduct said to be inconsistent with KL objecting to the production of the documents and then consider the accumulation of those matters “where necessary informed by considerations of fairness”.

Disclosures to the Court and Prosecutor in the Easter Show murder proceedings

39. In written submissions, the Prosecutor referred to the fact that the reports have “been made available to those acting for the Director of Public Prosecutions who are currently prosecuting KL” for the Easter Show murder. [21]

    21. Prosecutor’s written submissions at [5].

40. The Prosecutor acknowledged that he was not provided with the reports by his colleagues at the DPP and Crown Prosecutors’ Chambers in compliance with the principles discussed in Harman v Secretary of State for Home Department [1983] 1 AC 280. [22] In that case, Lord Diplock (at 294) described what has come to be known in lawyers’ shorthand as an implied undertaking or Harman undertaking in the following way:

“[it] is designed to make the process of discovery, which is a compulsory invasion of privacy, as palatable as possible by minimising the permissible use of the disclosed documents to that strictly necessary to the disposal of the action”

22. Tcpt (8/7/24) p 166.

41. The High Court had confirmed that these principles constitute a substantive obligation under Australian law: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [106]. The DPP and the individual Prosecutors have conducted themselves in conformity with those principles. The Prosecutors conducting the present trial now seek the documents based on the call made in Court which, Ms Fernando accepts, has the same compulsory nature as a subpoena to produce the documents.

42. The service of the documents on the DPP, and the reliance on them in KL’s own murder case, may not technically or strictly amount to a disclosure made under compulsion of law for the purpose of s 122(5)(a)(iii). However, KL’s lawyers had ethical obligations. The requirements of disclosure and service that arose in KL’s proceedings were such that serving those reports is not conduct inconsistent with KL attempting, now, to maintain the privilege attaching to the documents.

43. In Akins v Abigroup Ltd (1998) 43 NSWLR 539, the Court of Appeal adopted a “broader meaning” of the phrase “under compulsion of law” in s 122(5)(a)(iii). [23] That case was decided in the context of the exchange of evidentiary statements in the brutal environment of the Commercial List. Mason P referred (at 551E) to the “nearly invariable sanction” for a breach of directions as “deprivation of testimonial use of the witness concerned”. His Honour also referred (at 551F) to the obligations of advance disclosure as “the promotion of early settlement”. While KL’s murder trial is criminal litigation, similar considerations apply. The disclosure of the material to the Prosecutors in that case resulted in the adjournment application being unopposed and also put the prosecution on notice that it may need to retain its own expert to consider the issue of substantial impairment. Priestley JA said (at 553C):

“That admittedly gives the words a broader meaning than a strictly technical approach might produce, but I think the broader meaning is fully justified by the context.”

23. See Priestly JA at 553C.

44. It should also be recalled that s 122(5) set out matters the “[mere]” existence of which is “not to be taken” as establishing that a client or party acted in a manner inconsistent with their taking objection to adducing the evidence or, here, producing the documents.

45. Dr Seidler’s first report was prepared for the sentence proceedings and may have fallen within the ambit of the orders for service made by Wilson J on 4 November 2023. It is true, as Ms Fernando acknowledged, that the issue was “not quite as simple” as she had put it in her written submission. [24] That is because an issue arose as to the integrity of KL’s guilty plea and KL was contemplating – or being advised about – a possible substantial impairment defence and whether to seek to traverse the plea of guilty.

    24. Tcpt (30/7/24) p 583.

46. While the service of the reports was (perhaps) not strictly necessary to comply with the orders made by Wilson J, there was an obligation – possibly falling short of a legal “compulsion” – to notify the Court and the prosecution of the reasons that KL was applying to vacate the date upon which the sentence proceedings were listed for hearing and the foreshadowed motion to traverse his plea of guilty.

47. Further, s 151 of the Criminal Procedure Act 1986 (NSW) provides for notice to be given if an accused is to rely on substantial impairment as a defence to a charge of murder. The preparation of the case may not have reached that stage, but KL’s lawyers were under an ethical obligation to the Court to disclose the reasons for the adjournment application, the fact that an application to traverse the plea may be made, and the evidentiary bases of those applications. Mr Willcox’s affidavit (Ex VD H) asserts that the documents were served on the Prosecutor “solely for the purpose of use in KL’s own criminal proceedings”.

48. For those reasons, KL’s conduct – clearly based on decisions made by his lawyers – was not inconsistent with him now resisting the call on the reports in separate proceedings in which he will be (and has been) compelled to be a witness.

The disclosures made in Mr Willcox’s affidavit in these proceedings.

49. As to the disclosures made in the affidavit, I accept Ms Fernando’s submission that Mr Willcox’s affidavit “struck the fine balance between candour and the maintenance of privilege.” The affidavit referred to the contents of those reports in a careful and circumspect way. It noted the Youth Justice Report referred to “KL having witnessed the Coleman murder”. It said the mental health issues adverted to by Dr Ellis (PTSD) resulted “in part, [from KL] witnessing the death of Oliver Coleman”. Similarly, the opinions of Dr Seidler “attributed the foundations of the condition to a number of events including witnessing the death of Oliver Coleman”.

50. Whatever else could be said of KL’s conduct as a witness, it was clear from the outset that he was a reluctant witness who was compelled to attend court and to answer questions. He had a right to object to giving evidence on the grounds of self-incrimination. [25] The factual basis of his objections was straightforward in relation to his involvement in “street gangs” and the dispute between Murda and MOB. However, the grounds of his objection to testifying about what he witnessed on 1 September 2021 were more complex. There needed to be some factual or evidentiary basis for that objection.

    25. He had a right to silence under the common law and a right to object under s 128 of the Evidence Act 1995 (NSW).

51. The limited disclosures made by Mr Willcox provided that evidentiary basis. They established that giving evidence could impact on issues going to KL’s state of mind and on his reliance on a defence of substantial impairment.

52. These were not disclosures made under “compulsion of law” but nor were they inconsistent with him objecting to the production of privileged documents and protected confidences. It is also doubtful that the disclosures, in the carefully phrased affidavit, amounted to disclosure of the “substance of the evidence” contained in the affidavit. The affidavit did not indicate what he witnessed, merely that he had witnessed “the Coleman murder”, and “the death of Oliver Coleman”.

Fairness considerations and relevance

53. This is not a matter where the question of inconsistency and the loss of client legal privilege is informed to any significant degree by considerations of fairness. It is not, for example, the kind of case where a litigant seeks to accuse their lawyer of negligence but then seeks to rely on client legal privilege to prevent the lawyer from adducing evidence of the advice they provided.

54. Based on the evidence in the Basha inquiry, KL is unlikely to give helpful evidence and an application to cross-examine him under s 38 of the Evidence Act is likely to succeed. The Prosecutor will be able to cross-examine about KL’s prior statements that he “witnessed the Coleman murder” or “witnessed the death of Oliver Coleman”. However, as things stand, he will not be in position to cross-examine on the more detailed information that the reports may contain. If KL adopts the same approach when he gives evidence before the jury, the absence of the material from the Prosecutor’s brief is unlikely to make any difference.

55. Another fairness consideration is that KL is a child (now aged 16 years). It is not unreasonable to infer that he has been guided by his legal representatives in making any disclosures that he has.

56. It is self-evident that the details of KL’s observations as recorded by the expert witnesses are likely to be highly relevant to the present proceedings. However, as the authorities demonstrate, mere relevance itself is not ultimately the question to be determined although the degree of relevance may inform the question of consistency for the purpose of s 122.

57. Finally, KL’s conduct in the witness box was non-cooperative and infuriating even though his demeanour and language was generally courteous and respectful. I do not consider his conduct – even if it amounted to contempt – to be a relevant consideration. There may be ways in which he could be punished for his conduct in court (for example, by charges of contempt of court). However, he is not to be punished for his conduct by an unprincipled decision that he lost his right to maintain the privilege which clearly attaches to his communications with the experts with whom he communicated in the course of the preparation of his murder case.

Conclusion: privilege is not lost

58. For the foregoing reasons, I am not satisfied that privilege has been lost. KL’s conduct and the circumstances of this case taken as a whole, does not establish that he has acted in a manner which is inconsistent with the objection to production that was taken on his behalf.

Orders

59. Noting that client legal privilege is not lost pursuant to s 122 of the Evidence Act 1995 (NSW), I decline to order production of the documents called upon as if under subpoena.

60. This ruling does not of itself prohibit the Prosecutor from cross-examining KL, if the circumstances arise, on the contents of Mr Willcox’s affidavit and the disclosure that KL told the experts that he witnessed “the Coleman murder” and “the death of Oliver Coleman”.

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Endnotes

Decision last updated: 06 November 2024