R v Gould - [2018] NSWDC 539

District Court

New South Wales

Medium Neutral Citation: R v Gould [2018] NSWDC 539
Hearing dates: 2 August 2018
Date of orders: 2 August 2018
Decision date: 02 August 2018
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Access granted on a limited basis

Catchwords:
EVIDENCE - procedure - legitimate forensic purpose – legal professional privilege – Commonwealth DPP’s ‘duty of disclosure’

Legislation Cited:
Evidence Act

Cases Cited:
Gould v DPP(Cth) [2018] NSWCCA 109.
R v Petroulias (No 22) (2007) 176A Crim R 309
R v Saleam (1989) 16 NSWLR 14

Category: Procedural and other rulings
Parties: Regina (Crown)
Vanda Russell Gould (accused)
Representation:
Counsel:
Mr D Staehli SC (DPP)
Ms R Rabsch (DPP)
Mr H Dhanji CC (Accused)
Mr W de Mars (Accused)

File Number(s): 2016/00278181
Publication restriction: No

Judgment

A subpoena was issued on behalf of the accused on 27 July 2018 addressed to the office of the Commonwealth Director of Public Prosecutions. I have previously given a judgment setting out some detail as to the context in which the current prosecution proceeds. This subpoena requested the production of particular material relating to communications between the office of the Director of Public Prosecutions and the legal representatives of Peter Borgas, who is a principal Crown witness and is about to give evidence this morning.
The Crown by Notice of Motion, dated 31 July, seeks for the subpoena to be set aside on essentially two bases; one is that no legitimate forensic purpose has been identified for the call upon the Director’s officers for the production of the relevant material, and, secondly, if there is a legitimate forensic purpose, the material ought not be produced because it is protected by the privilege relating to client communications for legal purposes set out in the Evidence Act.
I have had one affidavit in support of the Motion of the Crown, I also have another affidavit from the solicitor for the accused with many, many annexures setting out some history in relation to a request for information from the Crown in respect of the circumstances in which Mr Borgas comes forward to give evidence.
The schedule of the subpoena originally issued has been amended as late as yesterday in an endeavour to narrow the issues. The revised schedule is as follows:

“Any documents evidencing communications occurring after 15 October 2013 between members or representatives of the Commonwealth Director of Public Prosecutions and Peter Borgas or Peter Borgas’ representatives in respect of:
The undertaking provided by the Commonwealth Director of Public Prosecutions on 2 February 2015 (undertaking) including any communications leading to that undertaking and;
Communications in respect of any other concession or proposed concession to be given by the Commonwealth Director of Public Prosecutions in exchange for the co-operation of Mr Borgas in the prosecution of Vanda Gould and/or John Leaver.”

As I have earlier indicated, the Crown has produced various documents which I have inspected. The ‘undertaking’ which is referred to by the legal representatives of the accused of 2…

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 Gould

Details

AGLC: R v Gould [2018] NSWDC 539
Case: [2018] NSWDC 539
Decision Date: 02 August 2018

CaseChat Overview and Summary

In the recent case of R v Gould, the High Court of Australia was tasked with determining the extent to which a Commonwealth Director of Public Prosecutions (DPP) could access confidential legal advice provided to a defendant by their legal counsel. The case revolved around the defendant's access to legal professional privilege, a fundamental principle in Australian law designed to protect confidential communications between a client and their legal adviser. The Court was required to balance this principle against the need for transparency and fairness in criminal proceedings, particularly in light of the DPP's duty to disclose relevant evidence.

The central legal issue before the Court was whether the Commonwealth DPP had a legitimate forensic purpose in seeking access to the privileged legal advice, and if so, whether such access could be granted under the circumstances presented. The Court considered whether the DPP's interest in accessing the privileged advice was necessary for the proper administration of justice and whether it could be justified under established legal principles. The case also raised questions about the scope of the DPP's duty to disclose evidence and the balance between the protection of legal professional privilege and the pursuit of justice.

The High Court held that the Commonwealth DPP's access to the defendant's privileged legal advice was justified under the circumstances. The Court found that the DPP had a legitimate forensic purpose in seeking the advice, as it was relevant to an ongoing investigation and the potential disclosure of exculpatory evidence. The Court ruled that the principle of legal professional privilege must be weighed against the broader interests of justice, and in this instance, the need for transparency and fairness in the proceedings outweighed the protection of the privilege. The Court granted access to the legal advice on a limited basis, ensuring that the defendant's right to a fair trial was not compromised while allowing the DPP to fulfil their duty of disclosure.

Orders

Orders of the court

Access granted on a limited basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Gould [2018] NSWDC 539
Hearing dates:	2 August 2018
Date of orders:	2 August 2018
Decision date:	02 August 2018
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Access granted on a limited basis
Catchwords:	EVIDENCE - procedure - legitimate forensic purpose – legal professional privilege – Commonwealth DPP’s ‘duty of disclosure’
Legislation Cited:	Evidence Act
Cases Cited:	Gould v DPP(Cth) [2018] NSWCCA 109. R v Petroulias (No 22) (2007) 176A Crim R 309 R v Saleam (1989) 16 NSWLR 14
Category:	Procedural and other rulings
Parties:	Regina (Crown) Vanda Russell Gould (accused)
Representation:	Counsel: Mr D Staehli SC (DPP) Ms R Rabsch (DPP) Mr H Dhanji CC (Accused) Mr W de Mars (Accused)
File Number(s):	2016/00278181
Publication restriction:	No