R v Eastman (No 22)
[2017] ACTSC 256
•7 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 22) |
Citation: | [2017] ACTSC 256 |
Hearing Date: | 18 August 2017 |
DecisionDate: | 7 September 2017 |
Before: | Kellam AJ |
Decision: | See [153] – [154] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Legal Professional Privilege – Claim by accused that prosecution has had access to privileged communications – application to restrain such members of prosecution who have had access to privileged communications – determination of whether or not communications privileged – appropriate test in circumstances whereby the prosecution has had access to the privileged communications – test is whether or not knowledge of the contents of privileged communications creates a risk of unfair forensic advantage to the prosecution and/or a risk of detriment to the defence case resulting in a risk of an unfair trial |
Legislation Cited: | Crimes Act1900 (ACT) repealed s 475; pt 20 Criminal Code Act 1995 (Cth) s 135.4(7) Evidence Act 2011 (ACT) s 65 New South Wales Crime Commission Act 1985 (NSW) s 13(9) Superannuation Act 1976 (Cth) |
Cases Cited: | Armstrong Strategic Management and Marketing Pty Ltdv Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; 295 ALR 348 Attorney-General (NT) v Kearney (1985) 158 CLR 500 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 |
Parties: | The Queen (Crown) David Harold Eastman (Accused) |
Representation: | Counsel Ms P Dwyer with Mr K Lee (Crown) Mr G Georgiou SC with Ms L Line (Accused) |
| Solicitors DPP (Crown) ACT Legal Aid Office (Accused) | |
File Number: | SCC 111 of 1992 |
Kellam AJ:
The issue at present before me is whether or not certain employees of the Office of the Director of Public Prosecutions (DPP) and certain members of the prosecution legal team in this case should be restrained from acting further for the prosecution on the basis that they have read and had access to a file described as the ‘Colin Daley Quinn’ file (the CDQ file). Parts of the CDQ file are subject to legal professional privilege. A subsidiary issue to be determined is whether or not the CDQ file in the possession of the prosecution should be returned to the defence.
Background
‘Colin Daley Quinn’ is a firm of solicitors who acted for the accused during his 1995 trial. As would be expected, the firm maintained a file relating to the conduct of the defence on behalf of the accused. The file is lengthy containing 1442 pages of documents dated between 1991 and 1995. Subsequent to the conviction of the accused in the first trial, the accused made application in May 2001 for a judicial inquiry into his fitness to plead, pursuant to the now repealed s 475 of the Crimes Act 1900 (ACT).
On 7 August 2001, the Chief Justice of the ACT granted the application for a judicial inquiry and directed that the Chief Magistrate, or a magistrate appointed by him, summon and examine on oath all persons likely to give material information on the matter of the accused’s fitness to plead during the whole or any part of his trial. In consequence of that direction, Cavanagh SM took the evidence in question between October 2004 and February 2005. The Magistrate then transmitted the evidence to the Chief Justice who on 6 October 2005 reported to the Executive (the ‘Miles Report’). His Honour reported that, on the balance of probabilities, the accused had been fit to plead throughout the period of his trial and that there had been no miscarriage of justice by reason of his trial having continued at one point whilst a question as to his fitness remained unresolved. No recommendation was made for the Executive to take any action with respect to the conviction and no action was taken by the Executive.
In the course of the hearing before Cavanagh SM the CDQ file was produced as an exhibit. Ashley AJ gave detailed consideration as to the circumstances under which this occurred in the course of the stay application R v Eastman [No 7] [2015] ACTSC 396 at [22] to [61] (Eastman [No7]).
The Miles Report referred on a number of occasions to file documents which were relevant to the issue of the accused’s fitness to plead. As an appendix to the report the Chief Justice set out the text of a waiver of privilege over the file signed by the accused on 14 October 2004.
On 2 February 2005, the accused made further application under Part 20 of the Crimes Act 1900 (ACT) for an order that an inquiry into his conviction be held. In due course that application was heard by Besanko J who on 4 April 2008 refused to make the orders sought. In his reasons, Besanko J made several references to material derived from the CDQ file. The proceedings before Besanko J were discussed by Ashley AJ in Eastman [No 7] at [65] to [69].
Subsequently, the CDQ file went into evidence in the course of the inquiry conducted by Martin AJ. This inquiry culminated in the report that was submitted to the Registrar of the ACT Supreme Court on 29 May 2014 (the ‘Martin Report’). Despite objection being taken by then counsel for the accused to the acceptance of the CDQ file into evidence in the Martin Inquiry, his Honour ruled that there had been a waiver of privilege over the entire file at the hearing before Cavanagh SM, and for all purposes. Of course this ruling was delivered in the course of an executive process and thus was not a judicial determination of the issue. Ashley AJ considered the file in the context of the Martin Inquiry in Eastman [No 7] at [74] to [76].
The issue arose again in the course of the stay application heard by Ashley AJ in 2015. On 10 September 2015, the prosecution filed submissions in relation to the admissibility of the CDQ file. These submissions included a table setting out 123 (two of these are part of other documents identified in the table) of the documents in the CDQ file upon which the prosecution sought to rely in the course of the stay application.
On 2 October 2015, submissions were filed on behalf of the accused contending that the file was privileged and that the prosecution ought not to be entitled to rely on it. The submissions also contended that orders should be made that those members of the prosecution legal team who had read confidential documents within the CDQ file, should cease to act as part of the prosecution team. It was further submitted that privileged documents within the CDQ file and any copies that had been made should be returned to the accused’s representatives.
A hearing in relation to the issue of the privilege of the CDQ file was held on 27 November 2015 before Ashley AJ.
On 22 December 2015 (see Eastman [No 7] at [77]) Ashley AJ ruled as follows:
(a)that the accused lost all claims to confidentiality over documents from the CDQ file which were made individual exhibits before Cavanagh SM;
(b)that the accused lost all claims to confidentiality over all confidential communications in the CDQ file bearing upon fitness to plead, whether or not they were communications had by the accused with his legal representatives, and, in the case of a communication by the accused with a legal representative, whether or not it was with a person identified in the accused’s signed waiver document;
(c)the accused lost all claims to confidentiality over documents from the CDQ file which were placed before Besanko J;
(d)the accused did not lose a right to assert confidentiality over documents in the CDQ file which do not fall within any of (a), (b), or (c) above.
It should be observed that Ashley AJ did not read the whole of the CDQ file, as counsel for the accused took objection to him so doing. Nevertheless he concluded from a reading of the transcript of the proceedings before Cavanagh SM that the CDQ file contained documents which did not fall into the category of documents relevant to the issue for consideration by the Miles Inquiry. Ashley AJ observed at [51] that then counsel for the prosecution in the course of his cross-examination of the then solicitor for the accused, Mr Ross, ‘did make it clear from time to time that there were many documents in the bundles which did not fall into the category of documents relevant to the issue for consideration by the Miles Inquiry’. Furthermore, his Honour observed at [96]:
In the circumstances which I have described, given the unopposed tender of the file, waiver of privilege over all documents touching upon the issue of fitness to plead ought be imputed against Eastman. The conduct of his counsel, as described, was inconsistent with maintenance of confidentiality over such documents. But for reasons which I have explained, waiver should not be imputed over what may be called unrelated documents by reason of the unopposed tender.
The decision of Ashley AJ in Eastman [No 7] was not appealed by either party and the parties accept that it is binding upon them.
On 1 December 2016, the accused filed submissions referring to issues which the defence considered required to be ruled upon prior to the hearing of the retrial. Notwithstanding the ruling of Ashley AJ referred to above, the matter of the use of some of the material obtained from the CDQ file remains in dispute between the parties. Furthermore, the defence submissions filed on 1 December 2016 refer to the defence’s written submissions which were filed on 2 October 2015 in the course of the argument about the proposed use of the file before Ashley AJ. As stated above, those submissions, apart from contending that the file is privileged and that the prosecution ought to be prevented from relying upon any material included in it, also submit that the members of the prosecution legal team in this matter who have read the file ought to be precluded from acting further in the matter and should be precluded from disclosing to other members of a fresh prosecution team the contents of privileged information in the file. It is submitted further that copies of the file held by the prosecution ought to be returned to the accused.
It is appropriate to observe at this time that Mr Thangaraj SC and Ms Campbell of counsel, who have appeared for the prosecution in other applications in this matter before both Ashley AJ and me, have been ‘quarantined’ from access to the file.
As stated above, the effect of the judgment of Ashley AJ is that some parts of the file are privileged and some parts are not. Despite the submissions made on behalf of the accused as to the return of the file and the preclusion of certain members of the prosecution team from continuing to act for the prosecution, no orders in relation to those matters were made by Ashley AJ. Those submissions were maintained in the defence’s written submissions of 1 December 2016 and are maintained before me now.
Annexed to the prosecution’s written submissions filed 29 May 2017 is a table of documents derived from the CDQ file which the prosecution at that time sought to rely on in the course of the forthcoming retrial. The annexure contains five categories of documents, the first being related to the prosecution’s contention that the accused deliberately manipulated the first trial, which the prosecution contends is relevant to establishing consciousness of guilt on the part of the accused. As I understand the position the documents referred to in that category are no longer a matter of contention at least insofar as the issue of privilege is concerned.
The second category of documents is said to be relevant to the admissions said to have been made by the accused and ‘caught on listening devices installed in his home’. By reason of the fact, as I understand it, that there are ongoing issues as to listening device material, the parties have agreed that further argument as to whether or not certain of those documents are inadmissible should be deferred to a future date, which I have fixed as 6 November 2017.
A third category of documents is said to be relevant to establishing that the accused was not adversely affected by surveillance techniques as claimed by him in the past. These documents arise also in consequence of listening device material.
The fourth category of documents is said to be relevant to the issue of tendency evidence and is thus dependent upon what my rulings may be in relation to those matters.
A fifth category of documents relevant to s 65 of the Evidence Act 2011 (ACT) is no longer in issue between the parties. However, a number of other documents remain contentious in terms of whether or not they are privileged.
The parties agree that the issue of whether or not any members of the prosecution team should be restrained from continuing to act for the prosecution requires to be determined as soon as possible, and obviously so, as if I were to accede to the submissions advanced on behalf of the accused the course of preparation for trial by the prosecution would certainly suffer some considerable disruption. Accordingly on 17 July 2017 I fixed the matter for hearing on 18 August 2017. On 7 August 2017, the defence filed written submissions. Those submissions contain a table of 33 documents over which the defence maintains a claim for privilege and in respect of which it is claimed that the fact that certain members of the prosecution team have had access to some documents causes the defence prejudice.
First, and before turning to consideration of the manner in which each party approaches the issue, it is appropriate to observe that although no affidavit material is before me, in written submissions filed on its behalf on 15 August 2017 the prosecution concedes that the CDQ file has, or parts of it have, been read by the following members of the prosecution team - Dr Dwyer of counsel, Mr Lee (who has acted as second junior counsel before me) and Mr Catalan Flores both from the ACT office of the DPP. The defence seeks orders that these persons together with Mr Game SC and Ms Roy of counsel who appeared on behalf of the DPP before Ashley AJ on the argument about the status of the CDQ file now be precluded from acting further for the DPP. It is not suggested by the defence that Senior Counsel for the prosecution, Mr Thangaraj SC, or Ms Campbell of counsel be restrained, as the defence accepts the advice of the prosecution that neither of them has read (nor has had communicated to them) the CDQ file, or at least those parts that remain privileged.
The Legal Principles
Upon a reading of the written submissions filed by the parties it appeared (at that time) that there was no dispute between them as to the test to be applied in order for a court to exercise an inherent jurisdiction to restrain legal practitioners from acting in a particular case. It was agreed that the test was set out by Mandie J in Grimwade v Meagher [1995] 1 VR 446 at 452 (Grimwade) where his Honour said:
In my view it cannot be doubted that this court likewise has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done. The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.
In what his Honour described at 454 as the ‘unique, extraordinary and highly exceptional circumstances’ of that case, a sufficient ‘real and sensible risk of a lack of objectivity’ by counsel was found to give rise not only to an ‘undue risk of unfairness or disadvantage to the plaintiff’, but also to a ‘substantial concern that a fair trial would not be had’, and thus ‘to a concern for the integrity of the judicial process and the due administration of justice’.
More recently, in Kallinicos v Hunt [2005] NSWSC 1181; 64 NSWLR 561 (Kallinicos) Brereton J undertook a comprehensive examination of the authorities concerning the court’s supervisory jurisdiction over lawyers. His Honour concluded by summarising the principles that he found were established by the authorities. He confirmed that the test to be applied in the exercise of the inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a lawyer should be prevented from acting. He concluded that the jurisdiction is exceptional and is to be exercised with caution. Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. Also, the timing of the application may be relevant in that the cost, inconvenience and impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.
The test adopted in Grimwade and Kallinicos as to whether or not legal representatives ought to be restrained from acting further in a matter after having read privileged material sourced from an opposing party has been applied in a variety of subsequent civil cases.
In GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123 (Amare), Hollingsworth J gave consideration to circumstances whereby in the course of discovery the defendant had inadvertently provided the plaintiff with electronic copies of documents which it later claimed were the subject of legal professional privilege. The lawyers acting for the plaintiff had read the documents and referred to a number of them in correspondence with the solicitors for the defendant. Subsequently a summons was filed by the defendant seeking the restraint of the plaintiff’s solicitors and counsel from continuing to act in the proceeding. Hollingsworth J observed at [16] that Grimwade had been approved in a number of cases in the Supreme Court of Victoria including in Caruso v Tartaglia [2002] VSC 91 at [9], Sent v John Fairfax Publications Pty Ltd [2002] VSC 429 at [114] and in Spincode Pty Ltd v Look Software Pty Lt (2001) 4 VR 501. Hollingsworth J further observed at [20] that most of the cases in which lawyers have been restrained from acting are cases in which a lawyer is seeking to act against a former client. Her Honour stated that she had been referred to only two Australian cases which had considered an application to restrain lawyers from acting because of disclosure of privileged material, those being H Stanke and Sons Pty Ltd v Von Stanke [2006] SASC 308; 95 SASR 123 (Stanke) and Kingston v State Fire Commission (1998) 8 Tas R 152. In neither case were the lawyers restrained from acting. However, her Honour determined that counsel for the plaintiff should be restrained from acting further in the proceeding before her. Her Honour said at [91]:
It seems clear on the evidence before me that counsel, and not the solicitors, were driving GT’s response to the inadvertent disclosure. The court has not heard from them as to precisely what documents they have read or what they can now recall. But, as the persons who would be cross-examining Amare’s witnesses, there must be very real concerns about their capacity to put out of their mind everything they have seen in the folders of privileged documents. Mindful of the exceptional nature of the order, I have nevertheless come to the conclusion that a fair-minded, reasonably-informed member of the public would conclude that those counsel should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
The issue considered by Hollingsworth J as to whether or not the legal representatives of a party to proceedings who have had access to privileged documents can put the matter out of their mind was also the subject of comment by Campbell JA in Armstrong Strategic Management and Marketing Pty Ltdv Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; 295 ALR 348 at [179(e)] when he stated:
Once a party has read the documents it will frequently be impossible to disregard what has been learned in the subsequent running of the case. Once a lawyer has read the documents it will likewise often be impossible for the lawyer to disregard what has been learned, and often the only way in which one can be sure that what has been learned will not influence the lawyer’s running of the case is for the lawyer to cease to act.
Likewise in Sent v John Fairfax Publications Pty Ltd [2002] VSC 429 Nettle J said at [93]:
As was observed by Drummond J in Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR at 313, it has long been recognised that a solicitor, and I would add, counsel also, who, with the best will in the world, is determined not to make use of one client’s confidential information for the benefit of another, may subconsciously do so.
However, as observed by Hollingsworth J in Amare at [21], and as is clear from the authorities in commercial civil cases to which I have been referred, each case must turn on its own facts. Thus in Stanke, the Court refused to grant the desired relief of restraining solicitors. First, White J did not consider that the circumstances of the release of the privileged documents were such that the supervisory jurisdiction of the Court should be invoked. Furthermore, the fact that the documents in question had been provided in April 2005 and yet no action to restrain their use or to restrain the solicitors for the defence from acting was taken until February 2006, was considered by White J to be relevant. In the case presently under consideration by me, the defence relies upon the fact that the prosecution was given notice, first on 2 October 2015 and, further, on 1 December 2016, in the written submissions filed by the defence, of its intention to seek that those members of the prosecution team who have had access to privileged material should be restrained from acting further.
A number of the authorities dealing with circumstances whereby privileged information has come into the possession of the other party have determined that a relevant consideration is whether or not there is a risk of the misuse of the privileged information in the proceeding. In Hutchins v Cap Coast Telecoms Pty Ltd (in liq) (No 2) [2015] FCA 946 at [32-4] Gleeson J gave consideration to that matter. In the particular circumstances of that case he determined that as there was ‘no real risk of misuse’ of the information, he did not consider ‘that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice’ required the solicitors in question to be restrained from acting.
In Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252, Beach J at [103-4] in concluding in the circumstances of that case that ‘powerful reasons’ pointed against’ the disqualification of the solicitors acting for the plaintiff said:
First, it is not irrelevant that the first basis for disqualification is not satisfied. There is no real risk of misuse of confidential information.
It should be observed that both the defence and the prosecution find comfort in the authorities referred to in the preceding paragraph. The defence emphasises that the consideration must be as to ‘whether a risk exists’, and that it is not for the defence to demonstrate that misuse by the prosecution of the privileged information will actually occur. On the other hand, the prosecution contends that the authorities establish that there must be a ‘real risk’ of misuse of the privileged information and not a fanciful or speculative risk. In this regard and taking into account the fact that the issue before me is in the context of a criminal trial, as distinct from a commercial cause, I consider that an identifiable perception of risk of misuse of any privileged document or communication would be sufficient to justify the making of the orders sought in the case before me.
Furthermore the prosecution argues that the confidential material which is said to cause such a ‘real risk’ must be identified precisely. In this regard the prosecution relies upon another civil case, Campbell v Illawarra Golf Club Pty Ltd [2012] NSWSC 1252. In that case a defendant in the proceeding filed a Notice of Motion seeking that the solicitors for the plaintiff liquidators ‘be declared to have a conflict of interest by continuing to legally represent the plaintiffs’ and to challenge the continued retainer of those solicitors. The basis of the complaint was that those solicitors had acted previously for the defendant in question, in relation to the property the subject of the proceedings. In the context of that case, which related to circumstances whereby a solicitor’s retainer had already come to an end, Garling J accepted at [82] that the relevant test was whether or not the solicitor was in possession of information which was confidential, disclosure of which the former client had not consented to, and furthermore, whether or not the information may be relevant to the matter in which it was sought to restrain the solicitor from acting, contrary to the former client’s interest. The prosecution also argues on the basis of this decision that the confidential information in question must be identified with precision and not merely in global terms. Garling J at [83] quoted with approval the reasoning of Jenkinson J in ReCorrs Pavey Whiting and Byrne v Collector of Customs [1987] FCA 266; 14 FCR 434 at [14] when he said:
.... It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge) (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence and (iv) there is actual or threatened misuse of that information ...."
As observed by me above, each of the cases relied upon by the parties in their respective written submissions in relation to the issues now before me, is a case in the commercial sphere and is not directly related to a case of the nature under consideration by me whereby the prosecution in a criminal case brought against an accused person, is in possession of material which is confidential and the subject of legal professional privilege. Neither party is able to refer me to any previously decided case dealing directly with the issues before me. However, in the course of his oral submissions, Mr Georgiou of Senior Counsel for the accused, referred me to two cases which neither party had referred to in their written submissions, both of which cases were decided in the context of criminal prosecutions and to which I refer further below.
In Lee v The Queen [2014] HCA 20; 253 CLR 455 the High Court dealt with circumstances whereby evidence given at a compulsory examination before the New South Wales Crime Commission (NSWCC) was unlawfully disclosed to police and prosecutors before trial. A father and son had been examined separately by the Commission. The Commission gave a direction under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) that the evidence given by the father, or any information that might enable him to be identified as a person who had given evidence before the Commission, should not be published except in such manner and to such persons as the Commission specified. No such direction was made in respect of the son but it was accepted by the prosecution in subsequent proceedings that such a direction should have been made.
Subsequently the transcripts of the evidence given by both men were provided to the DPP at the request of the DPP by the NSWCC. Both men were charged and convicted of drugs and firearms offences at trial in the New South Wales District Court. They appealed the conviction to the Court of Criminal Appeal. It is apparent that although the appellants’ legal representatives were aware of the fact that the DPP had possession of the transcripts of evidence given before the NSWCC, they did not know that the transcripts had been provided to the DPP at the DPP’s request in order that the DPP could ascertain any defences that the accused persons may have raised at trial. In written submissions before the Court of Criminal Appeal, the prosecution conceded that in view of the purpose of s 13(9) of the New South Wales Crime Commission Act 1985 in relation to a fair trial, the dissemination of the transcripts was unlawful. Notwithstanding that concession, the Court of Criminal Appeal dismissed the appeals.
Upon appeal to the High Court, counsel for both appellants argued that once unauthorised possession and use of the protected material by the prosecution was established, an irregularity had occurred, consisting of a breach of a basic aspect of the accusatorial system which s 13(9) was designed to protect. It was argued that the failure of the prosecution to observe conditions which were essential to a fair trial had led to a miscarriage of justice and that the breach was such a fundamental defect of process that one did have to consider the effect on the verdict. The High Court, consisting of French CJ, Crennan. Kiefel, Bell and Keane JJ quashed the appellants’ convictions and ordered that a new trial be had. The Court in its joint judgment stated at 466 [32]:
Our system of criminal justice reflects a balance struck between the powers of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92. The principal is so fundamental that “no attempt to whittle it down can be entertained” albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.
At [43-4] the High Court said further:
43. These appeals do not fall to be decided by reference to whether there can be shown to be some “practical unfairness” in the conduct of the appellants’ defence affecting the result of the trial. This is a case concerning the very nature of a criminal trial and its requirements in our system of criminal justice. The appellants’ trial was altered in a fundamental respect by the prosecution having the appellant’s evidence before the Commission in its possession.
44. The prosecution has a specific role in our system of criminal justice, one which entails particular responsibilities. It is not to the point that the defence lawyers did not object or seek a stay of the proceedings. No forensic advantage could have been sought by the failure to do so. It is the prosecution which has the responsibility of ensuring its case is presented properly and with fairness to the accused. It is therefore more to the point that the prosecution’s possession of the appellants’ evidence before the Commission put at risk the prospect of a fair trial, which s 13(9) sought to protect. The prosecution should have inquired as to the circumstances in which the evidence came into its possession and alerted the trial judge to the situation, so that steps could be taken to ensure that the trial was not affected. The trial judge could have ordered a temporary stay, while another prosecutor and other DPP personnel, not privy to the evidence, were engaged.
The High Court at [45-6] referred to its judgment in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 in the following terms:
45. It must be acknowledged that the matters in question occurred, and the decision of the Court of Criminal Appeal was given, before judgment in X7 was handed down. Attention was therefore not directed to the principle of the common law respecting proof by the prosecution, unaided by the accused, which was in that case confirmed as fundamental to our system of criminal justice.
46. In X7, it was held that the compulsory examination of a person with respect to an offence with which the person stands charged would be a departure, in a fundamental respect, from that principle. X7 was ultimately concerned with questions of statutory construction. Nevertheless, the point it makes about what may amount to a fundamental departure from a criminal trial as it is comprehended by our system of criminal justice is relevant to this case. It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the NSWCC Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution.
Whilst the case with which I am presently concerned differs substantially from the circumstances considered in both Lee and X7 in that the allegedly privileged information in the possession of the prosecution is not evidence of an accused person obtained under compulsion, it does appear to me that both those cases are relevant to the determination by me of the relevant test to be applied in consideration of whether or not possession by the prosecution of that information has the effect of altering the forthcoming trial of the accused in a fundamental respect.
As stated above, in the course of his oral submissions, Mr Georgiou referred me to a decision of the New South Wales Court of Criminal Appeal which post-dated both Lee and X7. In R v Seller [2015] NSWCCA 76; 89 NSWLR 155, the two accused had been charged with conspiracy to dishonestly influence a public official contrary to s 135.4(7) of the Criminal Code Act 1995 (C’th). The charges were laid following an audit by the Australian Tax Office (ATO) of certain tax minimisation schemes promoted by Mr Seller and Mr McCarthy from 1999 to 2003. Following the audit, the Australian Crime Commission (ACC) conducted an investigation into certain aspects of the scheme and the participation of those persons in them. Prior to the examination of Mr Seller and Mr McCarthy, an officer of the ATO, a Mr Tang, was seconded to the Commonwealth DPP. He was largely responsible for the compilation of the financial material which exposed the background to the tax minimisation schemes.
Subsequent to Mr McCarthy giving evidence before the ACC, Mr Tang was provided with a recording of that evidence. Mr Tang was then involved in the preparation of questions for the examination of Mr Seller. The ACC later provided the transcripts of the evidence given by both Mr McCarthy and Mr Seller to the Commonwealth DPP. When their trial first came on before Garling J, the accused persons contended that the distribution of the transcripts and the intention of the DPP to call Mr Tang as a witness compromised their right to a fair trial. Garling J granted a permanent stay of proceedings. The Court of Criminal Appeal (see R v Seller [2013] NSWCCA 42; 232 A Crim R 249) allowed an appeal by the prosecution against the permanent stay, but agreed that dissemination of the transcripts was improper and had the potential to prejudice a fair trial. As there was no evidence of actual prejudice, the Court of Criminal Appeal determined that the prosecution could continue but without access to the transcripts. In that regard the Court agreed with the trial judge that the dissemination of material might prejudice a fair trial and for that reason should not have taken place.
Upon retrial the matter came on before Button J who, as part of the pre-trial procedures heard motions brought by the accused persons. In particular, an order was sought that Mr Tang be prohibited from giving evidence in the trial. Button J made that order. The prosecution appealed that order to the Court of Criminal Appeal. Furthermore, the accused sought orders to the effect that the prosecution team and anybody who had had access to what was described as ‘Accusatorial Process Material’ be prohibited from playing any part in the proceedings. It should be observed that it was clear that no members of the prosecution team at the time the matter came on for trial before Button J had had access to the transcripts or other material which had been compulsorily acquired by the ACC. Button J declined to make that order and the accused appealed his failure to do so to the Court of Criminal Appeal.
In the course of his judgment, Bathurst CJ referred to the reasoning of Button J at first instance in some detail. In relation to the order made by Button J prohibiting the evidence of Mr Tang from being produced at trial Bathurst CJ said at [62-3]:
62. The primary judge ultimately concluded that although Mr Tang had a very good understanding of the schemes separate from the compulsorily acquired material, his understanding of them had been substantially enhanced by that material. He accepted that in those circumstances, it would be difficult to cross-examine Mr Tang about his analysis without the jury being made aware of that material.
63. The primary judge stated that the principle which underlay cases such as [X7 and Lee] was that a criminal trial was accusatorial and the Crown bears the onus of proving its case beyond reasonable doubt without compelled assistance from the accused.
Bathurst CJ, with whom Fullerton and Bellew JJ agreed, dismissed the prosecution appeal. He said at [108-9]:
108. It should be noted that unlike X7 (2013), the examination in the present case was not illegal. Further, the dissemination of the material to Mr Tang did not contravene the direction given under s 25A(9) of the Act at the conclusion of the examinations, as at the relevant time, Mr Tang was an officer of the ACC.
109. However, these matters are not conclusive. If in fact the giving of evidence by Mr Tang would alter the trial process in a fundamental respect, in the sense described in X7 (2013) and Lee (2014), then the primary judge was correct in ordering that Mr Tang be prohibited from giving evidence at trial.
At [115] Bathurst CJ said further:
Importantly, Mr Tang’s statements indicate that his evidence will be the vehicle through which a good deal of the prosecution’s documentary case will be led and explained. If it was open to the primary judge to conclude that he was assisted in this task by having the examination transcripts and the compulsory acquired material in his possession, then it was in my opinion open to the judge to conclude that his giving evidence would alter the accusatorial process in the sense described in X7 (2013) and Lee (2014)
As stated above in R v Seller; R v McCarthy the accused persons appealed the decision of Button J not to effectively prohibit the prosecution team from continuing in the trial. Bathurst CJ summarised the submissions put before the Court of Criminal Appeal on behalf of the accused in this regard as follows at [130-2]:
130. In relation to ground 1 of the notice of appeal, the respondents contended that the Crown bore an evidential onus to satisfy the court that the material wrongfully disseminated has not assisted the prosecution in a material way. The respondents submitted that the primary judge erred as he made no finding on that issue.
131. The respondents submitted that the High Court in Lee (2014) explicitly referred to the responsibilities of the Crown. They submitted that as the Crown did not proffer material necessary to test derivative use, the court should require disclosure of such material to ensure that the trial is fair. The respondents submitted that an analogy could be drawn from the line of authority where courts have restrained solicitors from appearing in cases against their former clients where they are in possession of confidential information obtained from that client. They referred to the well-known statements of Brooking JA in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; 4 VR 501 to the effect that the onus lay on a solicitor to show that he or she was not acting in breach of fiduciary obligations or misusing confidential information in acting for a former client.....
132. Senior counsel for Mr McCarthy accepted that the evidentiary onus and legal responsibility of the prosecutor for which his clients contended is not engaged when the risk is merely speculative but only where, as he described it, there was a real risk of some infection ....
In relation to the above submission Bathurst CJ said at [152-3]:
152. In relation to the evidential onus referred to in this ground, for the trial to proceed, the court must be satisfied that it would not result in the trial being unfair such that there is nothing the trial judge can do to relieve against the unfairness ....
153. However, contrary to the submission of the respondents, I do not think that any assistance can be gained from the approach taken by the courts in circumstances where a solicitor seeks to act against the interests of his or her former clients. Whether the restriction on so acting in particular (but not all) cases is put on the basis of the possible misuse of confidential information, a breach of a fiduciary duty, or simply as a matter of fairness and justice (see above the discussion in Spincode by Brooking JA and the cases cited therein), it has no relevance in this field of discourse.
Notwithstanding the significant differences in the circumstances of the case before me and the case before the Court of Criminal Appeal referred to above, in my view the conclusion of Bathurst CJ that the civil cases relating to the approach taken by the courts in circumstances where a solicitor seeks to act against the interests of his or her clients, are not apposite to the circumstances of a criminal trial is a relevant consideration for me. That is because of the very nature of such a trial, as spelt out clearly in the cases of X7 and Lee.
Analysis
The circumstances before me are quite exceptional. Neither the prosecution nor the defence has been able to refer me to any criminal case which bears directly upon or is strong authority as to the manner in which I should resolve the issues now before me. It is no exaggeration to say that the circumstances before me are unique. The first trial in this matter took place more than 22 years ago. The CDQ file was tendered in its entirety (except for some documents relating to costs) before the magistrate taking evidence for the purposes of the 2004 inquiry by Miles CJ into the fitness to plead of the accused at his trial. Various parts of the file were referred to in the report prepared by Miles CJ, and in particular those relating to the issue of fitness to plead. Subsequently, in the course of a further inquiry into the conviction of the accused at the first trial conducted by Besanko J, further parts of the file were considered by him. Subsequently, the file was produced before the Martin Inquiry, where as stated above it was determined by Martin AJ that privilege over the whole of the file had been waived by the accused. Finally, the file was the subject of detailed consideration by Ashley AJ as referred to above, and although he did not inspect the file he made rulings as to what parts of the file were and were not the subject of legal professional privilege.
The file has thus been in the possession of the DPP at least since the handing down of the Miles Inquiry report in early October 2005. I am now informed by counsel for the accused that there are 15 documents or communications, which the accused argues are privileged. It is appropriate that I record my appreciation of the endeavours of counsel to resolve some of the issues before me. However there remains dispute as to whether those 15 documents are privileged and I shall turn to consideration of that dispute in due course. However, before doing so and assuming for the moment that at least some documents are the subject of legal professional privilege, the question of what test should be applied to determine whether or not the fact that certain members of the prosecution have had possession of, and/or access to, the privileged documents requires that I order that those persons take no further part in the proceedings, must be determined.
The first matter to be considered in the determination of that test is that the maintenance of the privilege relating to confidential communications is of paramount importance to the law. As stated by Dawson J in Baker v Campbell (1983) 153 CLR 52 at 128:
.... the proper functioning of our legal system depends upon a freedom of communication between legal advisers and their clients which would not exist if either could be compelled to disclose what passed between them for the purpose of giving or receiving advice .... The restriction of the privilege to the legal profession serves to emphasise that the relationship between a client and his legal adviser has a special significance because it is part of the functioning of the law itself. Communications which establish and arise out of that relationship are of their very nature of legal significance, something which would be coincidental in the case of other confidential relationships.
Likewise in Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 532, Dawson J said:
The policy which lies behind the doctrine views unrestricted communication between lawyer and client upon professional matters as being necessary for the proper functioning of our legal system. If inroads could be made upon the privilege in individual cases by involving a "higher public interest", its application would become uncertain and the policy behind it would be effectively undermined.
It is important to remember in this context that as the High Court stated in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 at [11], legal professional privilege is not merely a matter of substantive law, but an important common law right or immunity.
Obviously the first step is to establish whether or not the documents or communications are the subject of legal professional privilege. In this regard it is clear that the party claiming the privilege has the evidentiary onus of establishing the facts which give rise to the privilege. In Grant v Downs (1976) 135 CLR 674 Stephen, Mason and Murphy JJ said (at 689):
It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents from itself, a power which has perhaps been exercised too sparingly in the past, possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.
In the circumstances before me, the documents in question are before me and the character of them is such that they do illuminate the purpose for which they were brought into existence.
Further, and as stated by McHugh J in Commissioner AFP v Propend Finance PTY Ltd (1997) 188 CLR 501 at 553:
The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client’s affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.
As is obvious, any part of the CDQ file which is determined to be the subject of legal professional privilege is inadmissible, and should be returned to the defence and all copies destroyed by the prosecution. The question then arises as to what steps are to be taken with regard to any member of the prosecution team who may have had access to such privileged communications. As stated above, in their written submissions both the prosecution and the defence rely upon the test as being of the type used in civil/commercial cases such as Kallinicos. However, helpful as some of those cases may be, I consider that the test is more akin to that contemplated in XY and Lee, notwithstanding that in the circumstances before me, it cannot be said that the privileged communications came into the hands of the prosecution through compulsion upon the accused or through any illegality. In my view, the appropriate test is whether or not the fact that some members of the prosecution team have had access to privileged documents creates a risk of altering the accusatorial process in the sense described in X7 and Lee. Put another way, is there a risk that having had access to such privileged material will give the prosecution a forensic advantage which deprives the accused of a trial according to law? In consideration of this issue, the fact that the accused has a fundamental right to a fair trial according to law, in which it is incumbent on the prosecution to prove its case, unassisted by any legally privileged material to which it has previously had access, is paramount.
In this regard I conclude that the evidentiary onus and the legal responsibility is upon the prosecution to establish that the fact that it has had possession of any privileged document does not create any real risk that the accused will suffer any unfairness by reason thereof.
The documents or communications in contention between the parties
In the course of oral submissions Mr Georgiou informed me that the documents now in contention, as stated above, total 15 in number. It will be necessary for me to analyse each of those documents and the submissions made in respect thereof in order to determine the issue now before me. Furthermore, the prosecution provided, as Appendix A to its written submissions a helpful table of documents titled “Crown Table – CDQ Documents alleged by Defence to still be privileged”. Both Mr Georgiou and Dr Dwyer used it as the basis of their submissions. For ease of understanding, as did both counsel in their submissions, I shall use what are described in that document as ‘PDF page’ numbers to identify relevant documents rather than the longer computer references known as INQ numbers.
PDF page 262-263
This document is a two page set of handwritten notes made by the then solicitor to the accused, Mr Ross, dated 2 August 1995 and headed ‘Conf client – PB’. Clearly ‘PB’ relates to a Mr Pat Burgess who was junior counsel to Mr Winston Terracini at the time. The document has three numbered paragraphs, the first said to be ‘Re H Ct appeal’. It contains details of the instructions of the accused about lodging an appeal against an order made by Magistrate Carruthers. That note is conceded by Mr Georgiou to have lost its privilege on the basis that it bears upon the fitness to plead of the accused. I shall refer to the second paragraph further below. The third paragraph headed ‘Re witnesses today’ is also conceded by Mr Georgiou to have lost its privilege.
However, the second paragraph headed ‘Re WT’ contains the following notation:
- Does a conv for assault determine his appln for PS entry?
- Need someone to come along to tell us what happens after Super Board make their decision. Dept then makes placement pursuant to guidelines. Is there any formal bar? If not, is there an informal effect?
- Hence call PS commission representative - procedures from time of Russo assault – 87 – 89.
It is submitted by Mr Georgiou that this notation records a point in the conference where Mr Terracini raised ‘an issue that ultimately relates to’ what the prosecution contends is the motive for the commission of the crime by the accused. In this regard, it is the prosecution case that the accused recognised that a conviction for assault arising out of the incident with Mr Russo was likely to ensure that he would not, as he wished, be able to rejoin the public service. The prosecution contends that it was the charge for assault of Russo that was laid against the accused which led him finally to meet with Mr Winchester to seek that the accused’s prosecution in relation thereto be discontinued, and that Mr Winchester’s refusal to do so was what led Mr Eastman to murder him. Mr Georgiou submits that this note reflects part of the inner workings of the defence team and is privileged. The file note relates to what needs to be done in order to prepare the defence case to meet the way in which the prosecution put its case in relation to the evidence relating to the Russo assault.
First, it should be observed that the prosecution has stated unequivocally that it will not rely upon the document in any way. Secondly, the prosecution contends that the note is no longer privileged. Although the document was not exhibited separately at the Miles Inquiry, it was referred to in evidence. The document was referred to specifically in the course of the cross-examination of Mr Ross at p 1132 of the transcript, although a reading of the transcript reveals that the detail of what is now said to be privileged was not the subject of evidence from Mr Ross. However, as Ashley AJ observed in Eastman [No 7] at [103] the Miles Inquiry was a public inquiry, the entire file of which was available for inspection for years both by the substantive competing parties and by members of the public and in that sense publication was at large.
Furthermore it is submitted by the prosecution that the note relates to instructions from the client and therefore is not privileged as it bears upon the issue of fitness to plead as determined by Ashley AJ. In this regard it does remain unclear as to whether the paragraph in question is a notation of instructions from the accused, in which case it would not be privileged, or is a note of what it was that Mr Terracini had stated should be done. It is apparent from a reading of paragraph 2 that the accused was present and making contribution to the discussion. Immediately following the note set out above there is a note whereby the accused is stated to have expressed unhappiness with the number of conferences he was having with Mr Terracini and a note that the accused had threatened to raise that matter with the trial judge. However, if it was the case that the note recorded the advice given by Mr Terracini, it may well be seen as a privileged communication. However, in my view that issue does not require to be determined.
The note in question is brief and although it may reveal the thinking of the accused’s legal team at the time, knowledge of the content of the note by the prosecution could not possibly provide to them a forensic advantage or create any potential prejudice to the defence case. Quite clearly the possible attitude of the Public Service Board to the re-employment of the accused, if he was convicted of assault upon Mr Russo, was an issue at the trial. The accused gave detailed evidence as to his view of that matter. It would be astonishing if the defence had not given consideration to the issue of public service guidelines as a relevant matter.
I do not consider that the fact that the prosecution has had possession of or access to this particular communication would in any way justify an order preventing those members of the prosecution team who have had such possession or access from continuing to act in this trial. I see no risk of any unfairness to the defence case arising in respect of this communication having been accessible to the prosecution.
PDF page 264-267
This document is related to the communication considered by me in the paragraph immediately above. It is a set of typed notes which are undated. The author of the notes is unknown. The document is headed ‘PUBLIC SERVICE WITNESSES’. It states as follows:
There are three major witnesses:
Gunther Very conservative but civil and cooperative in the past
De salis O.K.
Whithear Likely to be hostile.
Gunther is the senior officer De Salis. Client has no problem with these two and Gunther in particular has been quite helpful in the past.
Anticipate a problem with co-operation by Whitear as several verbal confrontations between DE and himself.
BACKGROUND
When a Commonwealth public servant falls ill he is entitled to a Superannuation pension. The classification of illness is open to review at the instigation of either the ill person or the Superannuation Office. Of course it is relatively rare that the person instigates this as most of those with a disability pension are happy with this.
The procedure for a reclassification is the same whether a person or the Office applies. The person is referred to a government doctor and then to a private doctor. After this, when the medical reports are received an officer of the Superannuation Office, who is himself not medically qualified makes a decision as to; whether the person is fit to go back to work.
The Super Office has the power to refuse to reclassify the person as fit for work, to return them as before or to reclassify their duties.
If a person is unhappy with this decision he may appeal to a more senior officer of the department, which is done simply by requesting that this be done. A review is then undertaken based on the same evidence. If unhappy with this an appeal lies to the AAT and thence to the Federal Court.
It is widely known that all government departments use the provisions of pensioning off people due to medical problems as a de facto way of sacking them. In particular psychiatric complaints, those relating to stress and anxiety are used as a way of getting rid of trouble makers.
In 1988 David Eastman had a seniority rating of eleven and a half years with the public service which would continue through any reclassification.
DAVID EASTMAN
After a dispute with a supervisor, who threatened to forcibly remove him, DE offered his resignation to the public service. This was later reviewed and resulted with DE being placed on a Super pension due to the medical problems associated with stress and anxiety. He then undertook a prolonged struggle to have this medical classification reconsidered so that he could to return to work at the public service.
Some time around August 1988, as part of this process of reassessment DE went to Melbourne where he undertook consultations with three psychiatrists. He clearly remembers that during these consultations he specifically told the doctors of the incident and police action concerning Mr Russo.
DE specifically remembers telling the doctors this because he recalls the feeling of relief at unloading the details. He told the doctors that there was a history of dispute with Russo concerning Russo’s mother parking in DE’s parking place, that on a particular occasion, after he had warned Russo, the mother parked in the place. DE had a verbal exchange with her, she returned to Russo, who came back and assaulted DE. DE then went to the police station, at the time obviously suffering from being punched. He told the doctors that he was a victim of this incident and was innocent of any criminal charge emanating from it. He further informed them that he had cross-charged the other person, Mr Russo, with assaulting him.
Each of the three doctors informed DE that the fact that he was charged with assault did not of itself present a problem, in the light if (sic) the fact that he was entitled to the presumption of innocence, and no version of the facts had been decided to be contrary to his account.
The reports of the doctors were forwarded to De Salis
December, 1988
Based on the reports of the doctors the Super Office found that DE was fit to return to work for the public service. The two officers involved in this reconsideration and decision were DE Salis and Gunther. The reclassification is technically a change from one part of the public service to another, as even while on a Super pension one is considered as being a public servant, albeit one not on active duties. The reclassification of DE was not a complete one. He was restored with a caveat limiting his duties to those including research projects, in which the workload was self-paced and in which contact with the public was not involved.
This reclassification was a major victory for DE who had been fighting for it for a long time.
Such a reclassification does not guarantee a return to work. It simply means that one is on the list of those capable to work. However a written representation is made by the Super Office to the department in which the person last worked, in this case the Treasury. It is then up to the Treasury to decide if there is a place for this person within the department. It could be that the previous skills of that individual are now redundant or not required or that other problems exist which would preclude their rehiring. This situation in which reclassified people are sometimes not placed back in the workforce is due to past situations in which such people, having been redeployed, have caused further problems. The previous employing department thus has no more than a moral obligation to rehire. However there are public service guidelines covering these situations.
DE feels that because of his history of disagreement with the Treasury Department over policy issues it would have been unlikely for him to be redeployed in that department. However he is confident that he would have been offered employment with another department, due to his qualifications, skills and experience.
The relevance of the specific memory of DE telling the doctors of the Russo matter is that it can be inferred that the Super Office, at the time of making the decision to reclassify him, were aware of this matter and it did not preclude them from making a decision which was beneficial to him.
DE is not sure if he had specifically informed De Salis of the Russo matter. He certainly told Gunther about it at some time, but can’t be sure if it was in 1988 or 1999. This could be cleared up by asking them of their recollection. However, reference to the doctors reports could substantiate the inference that they must have known of it anyway when making the decision to reinstate him. At some time DE was in possession of these doctors’ reports, in pursuance to a FOI application, but he no longer has them. They are, however, part of the Crown brief, attached to the DE Salis’ material.
After receiving notification of his reclassification and the caveat over the relevant positions DE looked up the statistics and discovered that many people in this position were not redeployed for a year or two after this. Concerned at his prospects with his limited possible work categories he wrote to the department requesting that his classification with such caveats be reconsidered. This communication was sent in January, 1989
By this time there was a great deal of media attention surrounding the Winchester inquiry in which the prime suspect, while not being named, was described as a Treasury official.
Sometime in early 1989, no later than March, DE rang Gunther and had a conversation in which DE stated that some lesser being than Einstein would have figured out that the media references were to himself as the prime murder suspect. Gunther replied that he was aware that DE was the suspect but that his view was that there were allegations and accusations only and that DE was entitled to the presumption of innocence. IN the light of this the involvement in the Winchester matter would not affect his review of DE’s public service work classification.
In August 1989 Gunther released his reconsideration of DE’s case which relaxed the caveat and upgraded the categories in which he would be able to work.
RELEVANCE
It is the Crown case that DE was driven to the act of killing Winchester by a frustration with the actions and inaction of the police concerning the Russo matter and in particular that this motive was fuelled by the fact that he felt he was going to lose the extremely hard-fought-for and highly valued right to re-enter the public service.
Such an analysis is faulty for the following reasons:
1.It is unlikely that a conviction for common assault would have affected the re-entry into the service. Hopefully research into the policy guidelines and rules in place at the time together with what the actual practice concerning such issues at the time was will demonstrate this. The possible problem may lie in the requirement that members of the public service be of ‘good character’.
2.At the time that the Superannuation Office found that DE was again fit for work in Dec. 1988 they were aware of the Russo affair and the fact that DE was charged with assault. This is evidenced by the by conversations between DE and De Salis and/or Gunther or reference to the matter in the notes of the three doctors, which provided the basis of the decision, or both.
3.At the time of the phone call by DE to Gunther in 1989 Gunther was aware of a possible charge of murder against DE. After this he widened his work classification. If this involvement in a murder charge did not affect such aspects of public service employment then the outstanding charge of assault could not be seen to be relevant either.
4.David Eastman instructs that he never considered at any time that the common assault charge against him in respect of Mr Russo would have any relevance to his re-entering the public service as an active worker. He was aware that such a charge may have an informal impact on prospects for promotion etc but were irrelevant to his reclassification. This is evidenced by his freely admitting his involvement to the three doctors, at a time when he was aware that their reports would provide the basis for his reclassification.
ACTION REQUIRED
1. Speak to Gunther and De Salis. Determine what they remember of the conversations and representations between DE and themselves and whether they were aware of the Russo matter and later the Winchester Inquiry involvement when the relevant decisions were made. Also find out what they know of the policy and practice in place at the time. If they do not recall such conversations determine whether knowledge of DE’s charge for assault would have had any relevance on their decision.
2. Seek to recall Gunther and De Salis
3. Research guidelines for the public service employment concerning character and criminal charges/convictions in place at the relevant time-1988-1989. In particular look at any differences which might have existed between
a. Those seeking employment
b. Those currently in employment
c. Those who were on the sick list who may have been pending reclassification. Need to know also what class of offences are relevant (eg. Offences of dishonesty, sexual offences, those committed against other workers or in the workplace etc.)
4. Consider and find expert witness(es) to lead out the above information in the Defence case.
5. Take steps to gain access to copies of the reports and notes of the three doctors. Consider possible evidence of these doctors in the light of these documents.
I have set out the above document in somewhat labourious detail but that detail is necessary in order to analyse the document in the light of the submissions made by the parties. First, a reading of the document reveals, as is conceded in the written submissions of the defence, that a considerable part of it is based upon instructions of the accused provided to whomsoever it was that prepared the document. Insofar as the document refers to those instructions those parts are no longer privileged. I should observe that in fairness the prosecution informed me that when the document was referred to in the Miles Inquiry, Mr Ross stated that the document did not record instructions from the accused. At 1139-40 of the Miles Inquiry transcript the following passage appears:
Now, in order to identify it, is the next document a four page typewritten document headed “Public Service witnesses”? That’s prepared by Mr Terracini, is it not?---(No verbal reply)
It doesn’t record instructions from Mr Eastman or anything like that?---No, I think that is correct, yes.
Notwithstanding the evidence of Mr Ross in this regard it is, as stated above, quite apparent from a reading of it that substantial parts of the document relate to instructions given by the accused. In written submissions the defence concedes that ‘not all in this document is privileged as it does also contain instructions’ from the accused (see 15). Nevertheless, the defence did not identify to me which parts of the document were in its view privileged and which were not. The written submissions filed on behalf of the defence state that the issues of concern to the defence about this document are first, that it sets ‘out the accused’s attitude and instructions about certain matters relevant to the Crown’s case.’ Clearly, such parts of the document that do that are not the subject of privilege as that would bear upon the issue of fitness to plead. Secondly, it is stated that the document contains ‘statements or predictions about certain witnesses’ attitudes generally towards the defence’. Clearly in that regard, the statements must be the assessment by the accused of the likelihood of co-operation of those witnesses. It is apparent from the section of the document appearing under the heading ACTION REQUIRED that the witnesses had yet to be spoken to, and thus the assessment of whether or not they would be ‘co-operative’, ‘hostile’, ‘helpful’ or unco-operative is highly likely to have been that of the accused and thus not privileged.
That said however, the document does contain an analysis of the relevance of the issue of the Russo assault and the evidence required to rebut the manner in which the prosecution was dealing with that issue. Once again, and accepting that parts of the document are no longer privileged because they apparently contain instructions from the accused, much of that analysis appears on the face of it to be the subject of legal professional privilege. The defence notes that although this document was referred to briefly in the cross examination of Mr Ross in the course of the Miles Inquiry, the document was not exhibited separately from the file before the Miles Inquiry nor was it placed before Besanko J at the Besanko Inquiry. As stated above, it is submitted that the document contains statements or predictions about certain witnesses’ attitudes generally towards the defence and discusses weaknesses in the prosecution case and in that regard provides to the prosecution details of the defence approach to issues at trial. It is submitted that through the use of a privileged document the prosecution is enabled to understand the defence analysis on how the defence will approach an aspect of the prosecution case that suggests that because of the Russo assault matter the accused would have had difficulty re-entering the public service.
In response, the prosecution states first that it will not rely upon the document at trial. Secondly, it contends that much of the document is not privileged as it is based upon instructions given by the accused and thus bears on the issue of fitness to plead. Furthermore, it is submitted that the issues revealed in the document are matters of fact that are known to the prosecution irrespective of access to the document in question. In that regard, reliance is had upon the evidence given by the accused at the first trial. At that trial (at 4820 of the transcript) the accused claimed that he did not believe that a conviction for the Russo assault would have anything more than a minor impact on his ability to re-enter the Australian Public Service and that he had not received any information that a conviction would prohibit him from re-entering the public service. At 4825 he said that he was not concerned about the possibility of a conviction, as he perceived the public service to be ‘pretty laid back about convictions of a minor nature’. At 4853 he said nobody in the superannuation office had advised him that his prospects of re-entering the public service would be affected if he were to be convicted. Thus the prosecution submits that the defence approach to that issue is well known to them as the accused in his evidence made it clear beyond doubt.
Furthermore, the prosecution relies upon the submissions made to the jury in the final address of the accused whereby the accused made it clear that he was not concerned about the Russo assault and the reasons why he considered that to be so. (See transcript at 6057-9.)
It will be recalled that the document under consideration refers to three potential witnesses, Messrs Gunther, De Salis and Whithear. Those three persons provided detailed statements to the prosecution, in Mr Whitear’s case on 12 January 1994, in the case of Mr De Salis on 12 April 1994 and again on 10 May 1995 and in the case of Mr Gunther on 16 May 1995. Two of them, Mr Gunther and Mr De Salis, gave evidence at the first trial. Mr Gunther gave evidence on 6 July 1995. At that time, the accused was unrepresented and chose not to cross-examine Mr Gunther. Mr De Salis gave evidence the same day and likewise was not cross-examined by the accused. Subsequently, on 1 August 1995, at which time the accused again had representation, Mr Terracini sought leave for each of those witnesses to be recalled so that he might cross examine them. Both of them were recalled the next day to be cross examined by Mr Terracini. Mr Gunther had been Deputy Commissioner for Superannuation between 1987 and 1989. He was cross-examined about his dealings with the accused, and about the fact that in 1988 he had assessed an application made by the accused to be reinstated into the public service and the fact that he had taken the decision that the accused’s health had been so restored as to make him fit for work subject to certain conditions.
Mr Terracini asked the following questions of Mr Gunther at 3507 of the transcript:
Now some time during 1988 did you become aware that Mr Eastman had become involved in an assault with another person?--- Yes sir, I believe I did. Again, my recollection is a bit hazy, but I believe that there was a matter mentioned in the press that came to my attention. I knew he had been involved in some sort of altercation. I wasn’t aware of any of the fine detail.
Well, so far as you are concerned, would that have effected (sic) your decision to have him him reclassified, or reinstated?--- The decision that I would take would be based, almost entirely on the expert medical evidence that would have been sought at the time, and certainly, if someone was awaiting trial on some charge, I would not have been able to take that into consideration, and indeed, would not have taken it into consideration.
Subsequent to that cross-examination Mr Terracini advised the prosecutor that he no longer required Mr De Salis to be recalled. It is obvious however, from the cross-examination of Mr Gunther, that the case being advanced by the accused was that a possible conviction arising from the Russo incident was likely to be of no great significance in relation to the possible re-employment of the accused by the public service.
Furthermore, it is beyond argument that much of the content of the document is well known to the prosecution. The volume of material relating to each of the three named witnesses which is in the possession of the prosecution is substantial indeed.
(a)Mr Gunther had prepared file notes relating to lengthy discussions had with the accused on 16 April 1985 and on 11 June 1985. On 19 February 1991 Mr Gunther was interviewed by police and an eleven page record of that interview was created. Subsequently and no doubt in preparation for possibly giving evidence at the first trial, Mr Gunther signed a statement dated 16 May 1995 in relation to his reconsideration at the request of the accused of the determination made in March 1988. In addition documents in the possession of the prosecution include notes by Mr Gunther in relation to phone conversations with the accused on 16 April 1985 and on 11 June 1985 and on 17 June 1985.
(b)Mr De Salis likewise made a statement to police on 12 April 1994 setting out his dealings with the accused and his involvement in the determination as to the accused’s fitness to return to duty. He made a further statement in relation to such matters on 10 May 1995, no doubt in anticipation of possibly giving evidence at the first trial. In addition documents in the possession of the prosecution include a letter from Mr De Salis to the accused dated 4 June 1985 requesting his attendance at medical examinations, a minute of a phone conversation with the accused on 13 June 1985, a letter to the accused dated 23 October 1985 regarding the determination that the delegate of the Commissioner for Superannuation was not sufficiently satisfied that the accused’s health was restored enough for employment and finally a letter from Mr De Salis to the accused dated 21 December 1988 informing him that the delegate of the Commissioner for Superannuation was then satisfied that the accused’s health was restored sufficiently for a return to work.
(c)In the case of Mr Whithear, the prosecution likewise is in possession of a significant amount of documentation relating to dealings between the accused and Mr Whithear. Those documents include a four-page statement made to police on 12 January 1994, together with minute papers and notes for file dated 29 August 1984, 8 May 1985 and 11 July 1985. The documents record a note by Mr Whithear relating to a conversation with the accused on 8 May 1985 relating to delays, and a note dated 11 July 1985 of the conversation with the accused concerning difficulties in relation to appointments for medical examinations.
On the basis of the extensive material held by the prosecution it is apparent that none of the material appearing in the document preceding the heading ‘RELEVANCE”’ is privileged. It is apparent from a reading of the document that none of the three witnesses had been interviewed by the legal representatives of the accused at the time of the preparation of the document. It is therefore apparent that the detailed history of the matter which appears in the document in the part preceding the heading in question is material which came into existence on the basis of the instructions given to legal representatives by the accused. On that basis it bears upon the issue of fitness to plead and is thus not privileged. However, as stated above, it appears to me to be clear that what follows that heading is an analysis of the prosecution case. It contains reasoning as to why the prosecution argument, that a possible conviction by reason of the Russo assault and the frustration of the accused at police inaction in relation to that matter, drove the accused to the act of killing Mr Winchester, was a faulty analysis. Furthermore such part of the document as appears under the heading of ‘ACTION REQUIRED’ is also in my view clearly privileged as it reveals the strategy and thinking at the time of the legal advisors to the accused.
The question to be determined in relation to this document is whether or not the fact that some of the prosecution team has had access to the privileged parts of the document referred to above, creates a risk of forensic advantage for the prosecution and/or a risk of corresponding disadvantage to the accused to the point of unfairness. In my view, as pointed out above, it is clear that the naming of the three potential witnesses in the document is not privileged on the basis that it is apparent that those names were the subject of instructions from the accused, as is the assessment of whether or not they would be co-operative, hostile, helpful or unco-operative. The question then is whether or not the fact that the document sets out the defence strategy that it would challenge the prosecution case that concern about the Russo assault was relevant to motive, risks prejudice to the case of the accused or gives the prosecution a forensic advantage. In my view it does not. It is quite apparent from the evidence given by the accused and the cross-examination of Mr Gunther that such a strategy has been well understood by the prosecution at all times irrespective of having had access to the document in question. In this regard it is relevant that the prosecution had a significant amount of detailed information as set out in the statements of the three witnesses in question, which had been provided to police well prior to the first trial. The fact that some members of the prosecution team have had access to this document, some parts of which I accept are the subject of privilege, in the circumstances set out above, creates no risk of forensic advantage being gained by the prosecution, nor does it create any risk of disadvantage to the accused in any way so as to justify an order requiring the removal of certain members of the prosecution team from the proceedings.
PDF page 505
This document is a file note in the handwriting of Mr Ross dated 20 August 1995. It reads:
On a number of occasions client has launched into similar tirades as we received tonight. I + others have been present. He then either while we are there or subsequently, makes diary notes which are either totally different to my recollection of the meeting or leave out all of the material which is abusive or critical in some way.
It is submitted on behalf of the accused that this note reflects the solicitor’s opinion as to matters that may be relevant to the credibility and reliability of the accused. In particular it is submitted that the making of diary notes that are either totally different from his recollection or the leaving out of critical material could be used in the event that the accused were to give evidence and if he were to rely upon diary notes or records, to attack his credibility or reliability. Mr Georgiou submits that it ‘arms the prosecution with an understanding that really, if his own lawyer is talking about him being selective, about him leaving things out, this is fertile ground for cross-examination’. It is submitted that prejudice would flow if Mr Eastman were to give evidence at the retrial and the prosecution were to use this document to cross- examine him.
First, the prosecution has stated that it has no intention of using this document in any way. Furthermore, however, it is submitted that although the document was not exhibited separately at the Miles Inquiry, the entire note was read on to the record. At 1157-8 of the Miles Inquiry transcript the following cross-examination of Mr Ross is recorded:
The next document is a file note dated 20 August 1995 by you?---Yes.
But it does discuss Mr Eastman and his conduct?---Yes, it does.
Does it say “on a number of occasions client has launched into similar tirades as we received tonight. I and others have been present. He then either while we are there or subsequently makes diary notes which are either totally different to my recollection of the meeting or leave it (sic) all of the material which is abusive or critical in some way”?---Yes.
Furthermore, the subject matter of the note was referred to in the course of the trial but in the absence of the jury by Mr Terracini in the course of his making an application for leave to withdraw from acting for the accused in the proceedings on 21 August 1995. At p 4246 of the trial transcript, Mr Terracini is recorded as telling the trial judge that:
With respect to some of the matters that the accused purports to constantly record in his diary on many, many occasions in the presence of Mr Ross, Mr O'Loughlin, or Mr Tyndell or Mr Burgess we have indicated that he has only recounted a very small portion in his diary of the conference and, indeed, on at least three or four occasions he has refused to record in his diary the advice that is given and has written and recounted a completely fallacious version of his memory of such a conference.
It will be observed that what Mr Terracini stated in open court is very similar to the diary note which is currently under consideration. It is apparent that confidentiality and privilege have been lost in relation to this document particularly by reason of it having been read in full in the course of the Miles Inquiry. It is no longer privileged, but even if it were so, it is apparent that the prosecution has knowledge of its contents independently of the file note and thus there can be no forensic advantage gained by the prosecution in respect thereof.
PDF page 700
This document is a brief note which appears to be in the handwriting of Mr Ross. It states as follows:
Eastman
Conf WT re history of Mafia La Corrava, Costra Nostra, L’Honorata, How to (unreadable) How they operate, background. Professor of Modern Italian History.
The note appears to relate to a conference at which at least Mr Ross and Mr Terracini were present. The defence submits that this note is privileged as it was not exhibited separately at the Miles Inquiry and does not bear upon fitness to plead nor was it placed before Besanko J in the course of his inquiry. It is submitted that the notice sets out matters the defence was investigating regarding the accused’s defence and that it provides the prosecution with notice of the kinds of matters that may be led in the accused’s defence and of an expert the defence was considering briefing.
First the prosecution has stated that it does not seek to rely upon this document in any way. However, the prosecution concedes that if the note is a note of a conference between Mr Terracini and Mr Ross, privilege may not have been waived. However, if the note is based upon instructions given by the accused, then privilege is waived as it would fall into the category of documents which bear upon fitness to plead as identified by Ashley AJ. It is submitted however that even if the note is privileged it is very brief and of no substance. It is vague and general and it is common knowledge that part of the defence is that the murder was committed by the Italian mafia, as explored at length by defence counsel during the Martin Inquiry. It is submitted that the contents of the note could not give any advantage to the prosecution, nor could the fact that some members of the prosecution have knowledge of it cause any disadvantage to the defence.
I agree with the prosecution contention that it is unclear as to whether or not the document is the subject of legal professional privilege, on the basis that it is entirely unclear as to whether it is an instruction from the accused or a suggestion of Mr Terracini. In any event I agree that even if the document is privileged it is so vague and general as to give the prosecution no forensic advantage by reason of the contents of the file note being available to it. There can be no doubt that the so-called ‘alternative hypothesis’ was a matter of significance in the first trial and was a matter of great significance in the course of the Martin Inquiry and, no doubt, will be a matter of significance in the trial about to occur. However it appears to me that a suggestion that it might be necessary to obtain some expert evidence as to the history and behaviour of the Italian mafia would hardly come as a surprise to the prosecution. Certainly the knowledge that at some time in the past some consideration was given to that matter does not give the prosecution a forensic advantage that could be said to render unfair the forthcoming trial of the accused.
Having put in context the position, as I now understand it to be in consequence of the submissions of the parties referred to in the preceding paragraphs, I turn now to a consideration of the documents and communications relevant to the issue of GSR.
The document referred to as PDF page 862 is a facsimile message from a ballistics expert in New Zealand, Mr Kevan Walsh to Mr Ross dated 18 September 1995. It states as follows:
1.The contact I have to obtain permission for the importation of a silencer is a member of the NZ Police stationed at the AFP offices. Should I go ahead and contact him?
2.I don’t want to prejudge the outcome, but I would be very doubtful of being able to provide useful evidence with regard to the effect of carryover/charring using the Klarenbeek type of silencer. I am very wary of presenting ‘theoretical’ considerations.
3.I hate to admit I was misguided (for misguided, read ‘wrong’), but Barnes is correct with the antimony ‘skin effect’ on the projectile.
4.I have no good news.
On the face of this document, it appears to be the subject of legal professional privilege. The communication does not bear upon the fitness to plead of the accused nor was it exhibited separately at the Miles Inquiry or placed before Besanko J in the course of his inquiry.
The defence submits that the communication sets out the nature of a forensic test being contemplated by the defence, the expert’s view about the likely result of the test, and the expert’s attitude towards conducting that test. In consequence it is argued that the prosecution has been provided with information from an expert witness. That information may be used by the prosecution adversely to the defence.
The prosecution submits that the information contained in this document was known and was referred to in the course of the Martin Report.
It is apparent that the prosecution had full knowledge of what it was that Dr Walsh had to say at the time of the Martin Inquiry. The submissions filed on behalf of the DPP before Martin AJ and dated 9 May 2014, and which became Annexure 9 to the Martin Report, referred specifically to the advice obtained from Dr Walsh. Those submissions were specifically dealt with by Martin AJ at [1145] in his report:
In addition, as the submissions of the DPP point out, in relation to the use of the silencer the defence obtained advice from an expert in the field, Dr Walsh, but decided not to call Dr Walsh at trial because his evidence would not have assisted the defence (annexure 9 [110]–[112]). It appears likely that Dr Walsh was present during the trial evidence of Mr Barnes (T 1538–1539).
Furthermore, it is contended that the information contained in this document bears similarity to the file note of 22 September 1995 which was tendered as part of Exhibit 7 on the stay application before Ashley AJ.
However, that said, it appears to me that the production of this document before the Martin Inquiry arose by reason of the access that the prosecution had to the CDQ file. In those circumstances, and even though the document came into the public arena by reason of the Martin Report, the document did not form part of the CDQ file that Ashley AJ considered had lost privilege. It appears to me that the document is privileged. That said the document says very little apart from conceding that some conclusion of Mr Barnes regarding ‘antimony skin effect’ may have been correct. As is now apparent, the evidence of Mr Barnes has been comprehensively dismissed and will not now be relied upon. In addition the issue of the relevance of antimony was the subject of detailed consideration by Dr Wallace and Dr Kobus in the course of the Martin Inquiry. I cannot see how access to this particular document in those circumstances can give the prosecution any forensic advantage, nor can I see any risk of the defence suffering any detriment by reason thereof. Furthermore the matters to which the document in question refers are now as I understand it irrelevant to the trial before me, taking into account the concession made by Dr Dwyer as to the way in which the prosecution now intends to lead GSR and PMC evidence. On the basis of that concession it appears to me to be clear that Dr Walsh’s evidence is now immaterial and irrelevant to the issues now to be put before the jury.
PDF page 919-921
This document, like the document referred to above, is a facsimile message from Mr Kevan Walsh dated 22 September 1995. It states as follows:
Report of Neville Miller enclosed. I have asked him to prepare a brief of evidence - he will have this done on Monday.
I have asked him to spell out his qualifications, experience etc. I will ask him to exclude the reference to PMC Target which is not totally relevant to this issue.
The report referred to above as being enclosed with the facsimile message consists of two pages and refers to the analysis of two PMC Zapper .22 projectiles. The results of the analysis showed that high levels of antimony were present on the outer edges and surfaces and that those high levels of antimony appeared to have significant levels of copper associated with them. The highest levels of antimony were found on the outer surfaces of the projectile. The PMC target projectile did not show high levels of antimony on the outer surfaces. Once again it appears to be clear on the face of it that the above facsimile and the attached report are the subject of legal professional privilege.
In relation to this document the prosecution points out that the document was referred to (although not set out in detail) in the Martin Report at Annexure 9 at [94]. However, as pointed out above, in my view, the fact that documents were produced at the Martin Inquiry does not result in the privilege having been lost. Ashley AJ did not include documents produced before the Martin Inquiry in the three categories of documents which he ruled had lost confidentiality. As Ashley AJ said at [86]:
I have not overlooked the fact that, because the entire file went into evidence at the Miles Inquiry, and as was later admitted as an exhibit at the Martin Inquiry, it may be said that the genie has got out of the bottle, and cannot be put back. But the tender at the Martin Inquiry was in consequence of a ruling which, for reasons which I have attempted to explain, was in my opinion erroneous – though explicably so.
Consequently, I am not convinced that the fact of production or reference to this document at the Martin Inquiry removes the privilege. It is of course true that the issue of antimony levels was a significant matter considered by the Martin Inquiry and was the subject of detailed evidence given by both Dr Wallace and Dr Kobus. It appears to me that the matters referred to in the brief report of Mr Miller referred to above were substantially covered by such evidence and to that extent, to use the words of Ashley AJ, the ‘genie is out of the bottle’. That said however, in my view the most persuasive argument in relation to this document, is the fact that based upon the concessions made by Dr Dwyer in relation to GSR and PMC evidence, the document and the communications to which it refers appear to me to be irrelevant to any issue in the trial.
PDF page 1051 – 1052
This document is a file note in the handwriting of Mr Ross dated 29 September 1995 of a discussion with Dr Hilton Kobus and appears to relate to the evidence of the prosecution in relation to PMC particles. The defence submits that the file note was not exhibited separately at the Miles Inquiry, nor does it bear upon fitness to plead and nor was it placed before Besanko J in the course of his inquiry. The document sets out an evaluation of part of the evidence of the prosecution expert (presumably Mr Barnes) by Dr Kobus and contains matters, that at least at that time, were possibly intended to be led by the defence against the evidence of prosecution witnesses in relation to the prosecution forensics case. On the face of it, this document appears to me to be the subject of legal professional privilege.
The prosecution relies upon the fact that Dr Kobus gave detailed evidence at the Martin Inquiry (transcript 3156-3323) and provided several reports to that Inquiry (Exhibits 173,174 and 175). Indeed, Dr Kobus was an expert retained to assist the Inquiry and was called by Counsel assisting the Inquiry, Ms Chapman QC. The evidence in chief of Dr Kobus is detailed in 116 pages of transcript (from 3156 to 3272) and in 51 pages of cross-examination (from 3272 to 3323). It should also be observed that the evidence of Dr Kobus was in the public domain, the transcript having been placed upon the public website of the Inquiry at the time, although that website has now been removed. I have perused that transcript and the evidence of Dr Kobus does appear to replicate, but in very considerably more detail, the matters that are the subject of the document now under consideration. Accordingly whether or not the communication itself can be said to be privileged, the fact is that by reason of the detailed evidence given to the Martin Inquiry by Dr Kobus, the content of the communication is well known and available to the prosecution independently of any privileged document.
In addition to the material produced before the Martin Inquiry by Dr Kobus, it is apparent that an affidavit sworn by Dr Kobus on 2 December 1996 was filed in the Federal Court in relation to the appeal by the accused in relation to his conviction. The contents of that affidavit have been known to the prosecution since that time (see INQ.502.00186). Attached to that affidavit were three reports addressed to the accused’s solicitors dated 4 April 1995, 26 April 1995 and 3 October 1995. The affidavit contained strong criticism of the analytical process undertaken by Dr Barnes. The report dated 3 October 1995 dealt with the ‘Barnes silencer theory material’. As to this material, Dr Kobus deposed that the conclusions of Mr Barnes were not supported by any analytical data, nor to his knowledge was there any accepted, documented procedure that allowed specific identification of residue originating from a silencer.
In the circumstances referred to above, it is beyond argument that the opinion of Dr Kobus and his detailed criticism of the evidence led by the prosecution at the first trial is well known to the prosecution. It is clear that knowledge of the information contained in the file note under consideration cannot possibly provide any forensic advantage to the prosecution, nor in the circumstances, does the defence suffer any detriment at all in consequence thereof.
PDF page 1159
This document is a report headed ‘State Forensic Science’ and dated 3 October 1995 signed by Dr Hilton Kobus and the subject of a facsimile sent to Mr Ross on 5 October 1995. The report appears to be a more detailed consideration of the topics discussed between Mr Ross and Dr Kobus referred to in the file note of Mr Ross dated 29 September 1995 and considered by me immediately above. Likewise, on the face of it, this document appears to be the subject of legal professional privilege.
The defence submission in relation to this document and the communication contained within it is that it is privileged, on the basis that it was not exhibited separately at the Miles Inquiry, does not bear upon fitness to plead nor was it placed before Besanko J. It is submitted that it contains the views of the defence expert about aspects of the prosecution forensics case, and that the prejudice which the defence could suffer by reason of part of the prosecution team having had access to the document is in assisting the cross-examination of the defence expert at retrial should the defence expert be called. As pointed out above, however, Dr Kobus gave detailed evidence before the Martin Inquiry and the prosecution is fully acquainted with the evidence that Dr Kobus would give in the event that he was called to give evidence in relation to some relevant matter in the course of the trial.
Furthermore, taking into account the concessions which have been made by Dr Dwyer as to the evidence to be called by the prosecution in relation to GSR and PMC matters, it appears clear that Dr Kobus will not be called to give evidence as such evidence will not be relevant to any issue before the jury in the retrial. In all the circumstances, I am unable to see how there is now any risk that the prosecution has any forensic advantage by reason of access to this document nor can I see any risk to the accused’s right to a fair trial by reason thereof.
PDF page 1164 – 1167
This document is dated 5 October 1995 and appears to be the record, in unknown handwriting, of an interview with a Mr Jones, an Assistant Commissioner with the Public Service Commission, conducted by Mr Ross together with Mr Burgess of counsel. The notes record as follows:
Assistant Commissioner - his area of authority and expertise are Merit Performance and Framework - in charge of misconduct etc.
In deciding what affect an assault conviction/or charge would have on reinstatement of someone who had been found fit for re-employment.
Relevant factors are contained in the ‘Personnel Management Guidelines’ by P.S.B specifically the sections relating to reappointments and criminal charges/convictions.
In these guidelines it outlines what factors are to be taken into account if there is a “conviction or outstanding charge” - thus both would be considered.
A number of factors are listed - including seriousness & circumstances of the charge. Also previous employment history, References from Referees, medical fitness. The important point is that the cumulative history of the applicant is the relevant criteria and the decision which is made is a discretionary one. This will be made by the relevant Secretary.
Jones cannot say what decision would be made now all would have been made in 1989 re Eastman’s history.
Is not aware that there is a lower threshold, officially, for re-employment of those on invalidity pension, than for others, but in practice it may be “a bit easier”
Clearly the interview is related to the possible effect that a conviction for assault might have on the prospects of the re-employment of the accused by the Commonwealth public service and is thus relevant to the way in which the prosecution puts its case as to motive.
On the face of it this document appears to be the subject of legal professional privilege. The defence submits that this document was not exhibited separately at the Miles Inquiry, does not bear upon fitness to plead and was not placed before Besanko J and is thus privileged. It is submitted that Mr Jones provided information to the defence which assists with the assessment of the likelihood or otherwise of an aspect of the prosecution case that the Russo assault could have significantly affected the accused’s attempt to regain employment in the public service. It is submitted that as the defence may call this witness at the retrial, the fact that the prosecution is aware of the contents of the discussion between Mr Jones and the defence team means that there is a risk of the information obtained being used by the prosecution in a manner adverse to the accused.
In response, the prosecution contends that at all times it has been well known that part of the accused’s defence is to undermine the prosecution’s theory that the Russo assault is related to the issue of motive by claiming that he was not concerned about being convicted for the Russo assault and furthermore, that he was not concerned that a conviction would adversely affect his ability to be re-employed in the public service. The prosecution relies upon the evidence referred to above (at [95] ) being the evidence given by the accused in the 1995 trial which evidence was consistent with the way in which the case was run at the first trial.
I have already dealt with similar issues which arise in consequence of this document in relation to PDF pages 264-267 in [76] above. The question to be determined here is, accepting that this document is privileged, whether or not the fact that the prosecution have had access to this document creates a risk of forensic advantage for the prosecution and/or a risk of forensic disadvantage for the accused. For the reasons discussed in [76] above I do not consider that such a risk exists in the circumstances of this document.
PDF page 1170
This document is dated 5 October 1995 and appears to be a note written by Mr Burgess of counsel seeking instructions from the accused as to whether or not to call evidence from two witnesses from the Public Service Board. It appears to have been written in the course of the trial on that day as the note from Mr Burgess concludes by stating ‘[t]he 2 people from the P.S.B are outside waiting for an answer as to whether we want to call them or not - can we get an answer ASAP’.
Below the note from Mr Burgess is another note in response initialled ‘DE’ which states:
Since Adams has not produced any witness to contradict what I said in my evidence, we have got what we want anyway. To put the PSC people in the box, when they are vague as to the whole subject, would appear to confer no benefit, and moreover extends the unknown risks of cross-examination.
Therefore, I tend to think the PSC people are not worth calling, but I leave it to you to decide.
The defence concedes that the note from the accused to Mr Burgess set out immediately above is not privileged as it contains instructions from the accused. However it is submitted that the note from Mr Burgess seeking the instructions of the accused in relation to the calling of the two witnesses from the Public Service Board is privileged.
The prosecution contends that the document is not privileged as it bears on the issue of fitness to plead. Although it is agreed that the document itself was not exhibited separately at the Miles Inquiry, it is submitted that reference was made to it. In the course of the Miles Inquiry Mr Buchanan QC, who was appearing for the Crown in right of the Australian Capital Territory, cross-examined Mr Ross about the document (at transcript T1255.29-36) in the following terms:
........is there a note addressed to Winston and Ian by Mr Eastman, dated 5 October 1995?---Yes.
Below that ... is there a note of - in two different people’s handwriting, first of all Mr Burgess’ handwriting and then Mr Eastman’s handwriting, Mr Eastman dates it 5 October?---Yes.
And Mr Burgess’ note commences “Justin/Winston” and then Mr Eastman’s note commences “Justin/Winston as well”?---Yes.
That’s been marked?---Yes.
First it appears to be clear that the whole document bears upon the issue of fitness to plead in that counsel are seeking instructions to which the accused responded. Furthermore it is to be recalled that Cavanaugh SM determined that the examination of witnesses in the Miles Inquiry was to take place in public (See transcript at 3) and thus the document was produced in the public arena.
I conclude that the document in those circumstances is no longer privileged. However, even if I am incorrect about that, it seems to me that the note is of so little consequence that even if it could be said to be privileged it does not cause the defence any prejudice nor does it give to the prosecution any forensic advantage at all, and in all the circumstances the fact that certain members of the prosecution team have had access to the document does not justify the making of an order that they no longer continue to act in the prosecution case.
Conclusion
In essence the thrust of the concerns expressed by the defence about some members of the prosecution team having had access to the documents referred to above, with the exception of several documents, relates to the topic of the effect of a conviction in relation to the Russo assault upon the prospects of re-employment of the accused or to the topic of GSR. I shall not revisit my conclusions as to matters other than the GSR evidence. In that regard, as I have said, I have concluded that some communications relating to the GSR material is privileged. In that regard I refer to my conclusion relating to PDF page 862, and PDF 919-921 above. As stated above it appears to me that by reason of the prosecution concession referred to in paragraph [123] that material is now completely irrelevant to the issues now the subject of the retrial. However, as Mr Georgiou at the time of making his oral submissions did not accept that the material contained in the privileged GSR material is so irrelevant, I wish to make it clear that I am prepared to hear further submissions in relation to those documents, if my conclusion that the material is irrelevant is not the subject of agreement by the parties.
I should make it clear that had the prosecution intended to continue to rely upon part of the evidence of Mr Barnes and/or Mr Martz I would have been concerned that privileged material relating to that matter has been in the hands of the prosecution and may have considered it appropriate to have made the orders sought by the defence in respect thereof.
Subject to what I have said in the two preceding paragraphs and the order in [154(c)] below, I dismiss the application made by the defence for me to order that certain members of the prosecution team be required to cease to continue to act in the prosecution.
That said, I consider it is appropriate to make some further orders as follows:
(a)That apart from publication of the written reasons for this ruling to the accused and to his legal advisers, the publication of, or oral, written or other transmission of the contents of these reasons for ruling be restricted to those members of the prosecution team who have had access to the CDQ file, and to the Director of the Office of Public Prosecutions, for a period of 14 days from today, or until the determination of any application for leave to appeal, or any appeal, from this ruling whichever is later; and thereafter, that until further order, publication (other than to the parties and their legal advisers) of this rulings and the reasons therefore is prohibited.
(b)That there be liberty to apply in respect of the form of the above order and any other orders sought to be made consequent upon these orders.
(c)If the parties wish to make further submissions in relation to PDF page 862 and PDF pages 919-921 they are to advise the Court on or before 5pm on 13 September 2017 so that the matter can be relisted
| I certify that the one hundred and fifty-four [154] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: 7 September 2017 |
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