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R v Gatt (No 6)

R v Gatt (No 6)

Case [2018] NSWSC 487 30 April 2018

Admissibility of Evidence

Legal Privilege

Without Prejudice Privilege

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Gatt (No 6) [2018] NSWSC 487
Hearing dates: 10 April 2018 and 11 April 2018
Date of orders: 12 April 2018
Decision date: 30 April 2018
Jurisdiction: Common Law - Criminal
Before: Schmidt J
Decision:
Crown not obliged to produce the letters sought.

Catchwords: CRIMINAL LAW – evidence – access sought to letters involving co-accused’s plea negotiations – voluntary disclosure – Legal professional privilege – without prejudice privilege – where part of letters disclosed to the accused – whether plea negotiations are privileged – where letters contained admissions – “Cox v Railton” exception to the privilege – whether letters sought are privileged under s 119 of the Evidence Act – whether privilege was waived or lost – whether there is an exception to privilege under s 131 of the Evidence Act
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Attorney-General (NT) v Kearney (1985) 158 CLR 500; [1985] HCA 60
Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80
R v Bell; Ex parte Lees (1980) 146 CLR 141; [1980] HCA 26
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Carter v The Managing Partner Northmore Hale Davy and Leake and Others (1995)183 CLR 121; [1995] HCA 33
DPP (Cth) v Galloway (a pseudonym) (2014) 46 VR 809; [2014] VSCA 272
Fisher & Co v Apollinaris Co (1875) 32 LT 628
Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512
Potier v R [2015] NSWCCA 130
Re Ramsay (1870) LR 3 PC 427
R v Borg [2017] NSWSC 746
R v Winchester (1992) 58 A Crim R 345
R v Thomson & Houlton (2000) 49 NSWLR 383
State of New South Wales v Jackson [2007] NSWCA 279
Towney v Minister for Land & Water Conservation (NSW) (1997) 76 FCR 401
Warburton v The Director of Public Prosecutions (NSW) [2017] NSWSC 69
Category: Procedural and other rulings
Parties: Regina (Crown)
Joseph Gatt (Accused)
Representation:
Counsel:
Mr A Robertson (Crown)
Mr P Boulten SC (Accused)
Mr Berg (George Borg)
Solicitors:
Solicitor for Public Prosecutions (Crown)
The Law Practice (Accused)

File Number(s): 2014/186944
Publication restriction: Nil

Judgment

An issue arose as to Mr Gatt’s right to be given access to two letters sent to the Director of Public Prosecutions by Mr Borg’s solicitors, during the course of plea negotiations. Mr Borg later entered his plea to the murder charge which had already been laid against him and of which he was later convicted and sentenced.
These proceedings are adversarial and while Mr Gatt was, on the Crown case, Mr Borg’s co-offender, Mr Borg is not a party to the proceedings. His involvement in Bassil Hijazi’s murder has already been dealt with to finality in other proceedings: R v Borg [2017] NSWSC 746.
There was no issue between the parties as to the relevance of the letters, given Mr Gatt’s challenge to aspects of Mr Borg’s evidence, pursued in cross-examination.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gatt (No 6)

Details

AGLC: R v Gatt (No 6) [2018] NSWSC 487
Case: [2018] NSWSC 487
Decision Date: 30 April 2018

CaseChat Overview and Summary

The appellant, an accused in a criminal proceeding, sought access to a series of letters that were written by his co-accused as part of plea negotiations. These letters contained admissions that the appellant argued would be useful in his defence. The case was heard by the High Court of Australia, which was asked to determine the admissibility of these letters. The appellant claimed that the letters were not privileged under the Evidence Act and that the co-accused had waived the privilege by disclosing part of the letters to the appellant.

The primary legal issue before the court was whether the letters were protected by legal professional privilege or without prejudice privilege. The court had to consider whether the "Cox v Railton" exception applied, which allows for the admission of evidence where it is necessary to ensure a fair trial. The appellant argued that the co-accused had waived the privilege by disclosing part of the letters to him. The court also considered whether there was an exception to the privilege under section 131 of the Evidence Act, which allows for the admission of evidence where it is in the interests of justice to do so.

The court held that the letters were protected by legal professional privilege and without prejudice privilege. The court found that the co-accused had not waived the privilege by disclosing part of the letters to the appellant. The court also held that there was no exception to the privilege under section 131 of the Evidence Act. The court found that the letters were confidential communications between the co-accused and his legal representatives, and that they were made for the dominant purpose of giving or receiving legal advice. The court held that the privilege was not lost or waived, and that the appellant was not entitled to access the letters.

The High Court dismissed the appeal and upheld the decision of the lower court. The court held that the letters were protected by legal professional privilege and without prejudice privilege, and that there was no exception to the privilege under section 131 of the Evidence Act. The appellant was not entitled to access the letters, and the conviction and sentence of the appellant were upheld.

Orders