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 69Category: Procedural and other rulings Parties: Regina (Crown)
Joseph Gatt (Accused)Representation: Counsel:
Solicitors:
Mr A Robertson (Crown)
Mr P Boulten SC (Accused)
Mr Berg (George Borg)
Solicitor for Public Prosecutions (Crown)
The Law Practice (Accused)
File Number(s): 2014/186944 Publication restriction: Nil
Judgment
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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.
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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.
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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.…
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- AGLC
- R v Gatt (No 6) [2018] NSWSC 487
- Case
- [2018] NSWSC 487
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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