R v Haydon (No 5)
[2005] SASC 19
•21 January 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAYDON (No 5)
Reasons for Ruling of The Honourable Justice Sulan
21 January 2005
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - OTHER CASES
LEGAL PROFESSIONAL PRIVILEGE - WAIVER - DUTY OF DISCLOSURE BY PROSECUTING AUTHORITY - DUTY OF DIRECTOR OF PUBLIC PROSECUTIONS
The accused issued a subpoena to the Director of Public Prosecutions seeking production of notes relating to communications involving the Director of Public Prosecutions and her officers and witnesses to be called at this trial - the Director claimed that the communications were protected from disclosure by reason of legal professional privilege - application to set aside subpoena refused.
Director of Public Prosecutions 1991 (SA) s 6, s 7, referred to.
Alister v R (1984) 154 CLR 404; South Australian Government Financing Authority v Bank of New Zealand [2002] SASC 56, applied.
Baker v Campbell (1983) 153 CLR 52; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121; R v Bunting & Ors (No 3) (2003) LSJS 410; Waterford v The Commonwealth (1987) 163 CLR 54, discussed.
Grant v Downs (1976) 135 CLR 674; Mann v Carnell (1999) 201 CLR 1; R v Bunting & Ors (2002) 84 SASR 378, considered.
R v HAYDON (No 5)
[2005] SASC 19
SULAN J: This ruling relates to a subpoena issued by the solicitors for Mark Ray Haydon to the Acting Director of Public Prosecutions seeking production of all notes of conversations between any member or former member of the Acting Director’s office and James Spyridon Vlassakis and Jodie Elliott.
The Acting Director objected to production of the documents on the grounds of legal professional privilege.
Background
The accused, Mark Ray Haydon, is charged with two counts of murder and six counts of assisting offenders. James Spyridon Vlassakis is an important witness to be called by the prosecution.
Initially, Haydon was charged jointly with John Justin Bunting and Robert Joe Wagner with ten counts of murder, alleged to have been committed between December 1995 and May 1999. Vlassakis was charged with five counts of murder. He pleaded guilty to four counts of murder during the committal hearing. Bunting, Wagner and Haydon were committed for trial on 4 July 2001.
Police conducted two lengthy video interviews with Vlassakis which comprised almost 2000 pages of transcript. The interviews commenced on 24 July 2001 and concluded on 28 September 2001. After the interviews had concluded, the Crown filed a fresh information charging Bunting and Haydon with two additional counts of murder, and Wagner with one additional count of murder and one count of assisting offenders.
Prior to the jury being empanelled, the trial judge, Martin J, made orders that Bunting and Wagner be tried separately from Haydon.[1] He also decided that the evidence was not capable of implicating Haydon in the murders of nine of the twelve deceased. He ordered that, in respect of the nine counts where there was insufficient evidence, there be a permanent stay of the prosecution.
[1] R v Bunting & Others (No. 3) (2003) LSJS 410
The trial of Bunting and Wagner proceeded, the Director of Public Prosecutions (“Director”) having decided to commence with that joint trial. As to Haydon, the Director determined to proceed with two of the three counts of murder, being the counts which allege that Haydon between 25 August and 8 September 1998 murdered Troy William Youde, and the allegation that between 20 and 26 November 1998 he murdered Elizabeth Haydon. Haydon was also charged with six counts of assisting offenders. These six counts relate to deceased persons who were murdered by Bunting and Wagner and whose bodies were stored in barrels which were finally discovered in a bank vault at Snowtown.
At the trial of Bunting and Wagner, Vlassakis gave evidence. Prior to and during the trial, he spoke to officers of the Director, and notes were kept of a number of those conversations. Vlassakis is to be a witness at Haydon’s trial.
Haydon was arraigned before me on 4 May 2004. He pleaded not guilty to all counts. A number of preliminary matters were argued. The solicitor for Haydon had sought details of the dates of interviews and meetings which had been conducted between Vlassakis and officers of the Director after Vlassakis had agreed to give evidence for the prosecution. The solicitor for Haydon also subpoenaed information about visits made to Vlassakis by officers of the Director whilst Vlassakis was in custody.
A schedule setting out the occasions on which officers of the Director met with Vlassakis and made notes was produced by the Director. That schedule shows that Vlassakis had met with officers of the Director on 31 occasions between 19 July 2002 and 10 February 2004. A number of these meetings took place whilst Vlassakis was giving evidence during the trial of Bunting and Wagner.
Jodie Elliott is also to be called as a witness at the trial of Haydon. She had given evidence at the trial of Bunting and Wagner. Statements had also been obtained from her by the police. The solicitor for Haydon sought details of meetings between Elliott and officers of the Director. A schedule was produced which indicates that one such meeting took place on 27 February 2000.
Subpoena subject to this ruling
The basis of the objection was, first, that the meetings with the Director were on an occasion of privilege. The Director claimed legal professional privilege over the production of the notes. Secondly, if legal professional privilege did not apply, that in respect of the notes, the Director should, nevertheless, not be required to produce them.
On 26 July 2004, after hearing argument from Ms Abraham QC, the Acting Director and Mrs Shaw QC, for the accused, I inspected the notes and decided that if legal professional privilege applied to the notes, it had been waived. The notes where the communication was not relevant to the issues at trial were not required to be produced. I indicated that I would give reasons in due course. I now do so.
Director’s submissions
Counsel submitted that the information contained in the notes was subject to an ongoing duty of disclosure by the Director. If anything relevant had been discussed at any meeting between Vlassakis and officers of the Director, as a consequence of which any new information came to light, or if Vlassakis said anything inconsistent with his earlier statements or evidence, or if there was any variation to his earlier statements or evidence, then the Director had an ongoing duty to disclose that information to the defence, and it would have been disclosed.
Counsel informed the court that the usual procedure of the Director in circumstances where new or inconsistent material is obtained from a witness is for the Director to have that witness sign an additional statement which is then provided to the defence. If there is insufficient time to obtain a signed statement, the Director advises the defence by letter. Alternatively, the information is provided orally to defence counsel if the disclosure occurs whilst a witness is giving evidence, and it is not practical to convey the information in writing. She submitted that the Director had acted in accordance with his duty to disclose. Any relevant information had already been disclosed. Such disclosure occurred, in this case, by way of letter.
Counsel submitted that in this case, the procedure had been followed, and that on each occasion when there was a requirement to disclose, disclosure had been made. It was said that none of the matters referred to in the notes were new material or inconsistent material, other than that where advice had already been given to the defence. Counsel argued that the court should accept that the Director had complied with his duty of disclosure. Therefore, any relevant discussion with the Director in which the witness gives an inconsistent statement or adds relevant information to earlier statements on a particular subject or relevant matter would have necessarily been disclosed. The court should, therefore, accept that the defence has had the material.
Counsel submitted that to require the Director to produce the notes would be unduly onerous, and lead to a multitude of such applications in the future. It was contended that, in the exercise of its discretion, the court should not inspect the notes or require their production.
Counsel relied on the decision of Martin J in R v Bunting& Ors.[2] In that case, the defence sought production of notes of communications with prosecution witnesses made by officers of the Director. Martin J declined to inspect the notes. In so doing, he had regard to an undertaking given by the Director that, in respect of those communications, the Director had complied and will comply with the duty of disclosure. She submitted that the subpoena should be set aside or, alternatively, I should order that the Director be not required to comply.
[2] R v Bunting & Ors (2002) 84 SASR 378
Defence counsel’s submissions
Counsel submitted that the court should inspect the notes. It was a matter for the court to determine whether legal professional privilege had been waived, and to decide whether the notes should be produced to the defence. She submitted that if legal professional privilege attached to communications between a witness and the Director, then there was an imputed waiver of privilege in respect of any communication which related to the subject matter of the evidence of that witness. She submitted that once evidence had been given by Vlassakis, then any communications between Vlassakis and the Director relating to that evidence can no longer be privileged. She relied upon the decision of South Australian Government Financing Authority v Bank of New Zealand.[3] Counsel contended that once legal professional privilege was waived, then the defence should be entitled to inspect the notes. She submitted it was not an answer for the Director to say that, as disclosure of relevant information contained in the notes had been made, then the Director should not be compelled to produce the notes of meetings in which that information was provided.
[3] [2002] SASC 56
Consideration of the issues
The question of whether legal professional privilege is capable of applying to communications with the Director was discussed by Martin J in R v Bunting & Ors.[4] He referred to a passage from the joint judgment of Stephen, Mason and Murphy JJ in Grant v Downs[5], in which the rationale for the doctrine of legal professional privilege was discussed.[6] The rationale for the doctrine is that it facilitates the administration of justice by encouraging those seeking legal advice to be frank and open with their legal advisers in seeking legal advice in their affairs, or for the purpose of the conduct of litigation without fear that the communication will be disclosed. It is recognised that in so protecting such communications the other party is denied the benefit of being informed of relevant information, however, the courts have recognised that in balancing the interests of fairness to the opposing party against the confidentiality afforded to certain communications with legal advisers, the interests of the administration of justice is better served by protecting the confidentiality of the communications. (See Baker v Campbell[7], Waterford v The Commonwealth[8], and Carter v Northmore HaleDavy & Leake.[9]
[4] (2002) 84 SASR 378
[5] (1976) 135 CLR 674 at 685
[6] (2002) 84 SASR 378 at 380
[7] (1983) 153 CLR 52
[8] (1987) 163 CLR 54
[9] (1995) 183 CLR 121
The Office of the Director is established by s 6 of the Director of Public Prosecutions Act 1991 (SA). The powers of the Director are set out in s 7 of the Act, and include the power to institute proceedings in both the criminal and civil jurisdictions. Incidental to those powers is the function of advising the police. The question of whether legal professional privilege applies to communications between the Director or officers of the Director and witnesses has being considered in a number of cases. They are discussed in R v Bunting & Ors.[10] Martin J considered the role of the DPP in South Australia. He said:
“All parties accepted that the Director has been vested with the prosecutorial powers and functions formerly exercised by the Attorney-General. However, the Director’s powers reach beyond the traditional prosecutorial powers to involvement in identified civil remedies and proceedings in connection with the confiscation of profits of crime. Significantly, the power contained in s 7(1)(c) is to claim and enforce civil remedies “either on behalf of the Crown or other persons”. In granting such additional powers, in the absence of a clear indication to the contrary, the legislature must be taken to have contemplated that in appropriate circumstances the exercise of those powers would attract the principles of legal professional privilege. There is nothing in the SA Act inconsistent with that view. The Director and DPP practitioners are subject to the same professional standards as private practitioners and they owe the same duties to the court. In that sense they are as independent as any other legal adviser. These are the safeguards to which Mason and Wilson JJ referred in Waterford.”[11]
[10] (2002) 84 SASR 378 at 382 [12-31]
[11] Ibid at 390 [39]
Martin J concluded that if the Director or his officers acted lawfully, communications between the Director or officers of the Director and witnesses can attract the protection of legal professional privilege. It is not necessary for me to consider in what circumstances legal professional privilege arises. For the purposes of my decision, it is sufficient to conclude that legal professional privilege can be claimed in respect of certain communications between officers of the Director and a witness. The question is, if such privilege exists in this case, whether it has been waived.
Counsel for the accused indicated that the documents evidencing communications which she seeks to examine are only those which are relevant to or relate to evidence or statements of Vlassakis and Elliott, which are in the public domain or have been disclosed to the defence. She submitted that once evidence had been given or a statement had been made public or provided to the defence, any privilege attaching to communications in respect of matters the subject of the statement or evidence is waived.
In South Australian Government Financing Authority v The Bank of New Zealand, [12] the Full Court refused an application for leave to appeal from the decision of Debelle J, who refused a claim for legal professional privilege in respect of statements of a witness which had been provided by a defendant to the plaintiff pursuant to terms of settlement between them. The co-defendant sought production. An earlier statement of the witness had been disclosed to the plaintiff, thereby waiving privilege.
[12] [2002] SASC 56
Debelle J determined that the statements which were the subject of the claims related to the same issue to which the earlier statement related, and in respect of which privilege had been waived. He decided that, because privilege had been waived in respect of the earlier statement, then fairness required that the parties have the whole picture, and he refused the claim of privilege in respect of the later statements. Debelle J recognised that there may be material in the later statements which contained privileged communications unrelated to the subject matter of the earlier statements. He therefore directed that a judge or master inspect the statements so that any privileged communication contained therein can be masked before disclosure.
The Full Court refused leave to appeal. Gray J referred to the passage from the High Court judgment of Mann v Carnell[13] in which Gleeson CJ, Gaudron, Gummow and Callinan JJ discussed the principles applicable to waiver of privilege.[14] When there is conduct by a person seeking to make a claim of legal professional privilege, inconsistent with the maintenance of confidentiality which the privilege is intended to protect, then there has been a waiver imputed by operation of law. Even though that consequence had not been contemplated by the party making the claim, waiver will be imputed when such conduct, inconsistent with a claim of confidentiality, is established. The High Court said:
“ … Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege…
What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”[15]
[13] (1999-2000) 201 CLR 1
[14] [2002] SASC 56 at [28] per Gray J
[15] Mann v Carnell (1999-2000) 201 CLR 1 at 13 referred to in South Australian Government Financing Authority v The Bank of New Zealand [2002] SASC 56 at [28] per Gray J
If the subject material is adduced in evidence or disclosed in a statement, then the confidentiality of that material no longer exists, and fairness dictates that communications dealing with that subject matter no longer attract legal professional privilege, as there had been an imputed waiver in respect of them. Although the question of whether there has been imputed waiver may be difficult to resolve in a particular case, the principle is clear that the conduct of the party claiming the privilege in adducing evidence on that subject matter imputably waives the privilege in respect of that subject matter. In those circumstances, fairness dictates that the other party should have all material produced to it relating to that subject matter.
If legal professional privilege existed in respect of communications between Vlassakis and Elliott and officers of the Director, then any claim had been waived over the subject matter of their evidence and statements.
This case is exceptional. Vlassakis, who is an admitted accomplice, gave extensive evidence at the trial of Bunting and Wagner over a three-month period covering a long period of time between 1994 and 1999 in which he was required to recall many events and many conversations. He provided two statements to the police. The first statement was over a period between 24 May and 2 June 1999, containing 848 pages of transcript. He was again interviewed between 24 July and 28 September 2001, over twenty days, and the transcript of that interview numbered 1992 pages.
Whilst giving evidence at the trial, there were a number of occasions when he had discussions with officers of the Director in order to clarify matters and discuss his evidence. The number of meetings alone is an unusual feature of this case. I accept that from time to time prosecuting counsel do speak to a witness during their evidence but not to the extent that it occurred in this case. Notes were made whenever any topics relating to his evidence, or when any matters of substance, were discussed.
As to notes made of discussions relating to the subject matter of Vlassakis’ evidence, any privilege that may have existed in respect of those communications had been waived. I accept the assurance of prosecuting counsel that the Director had complied with the duty of disclosure. However, I do not consider that is a sufficient reason in this case not to order production and inspection of the notes. In Alister v The Queen, [16] upon the trial of three men for conspiracy to murder, the accused sought the production of material from the Australian Security Intelligence Organisation. The production of the documents was resisted on the grounds that it would be prejudicial to security. The majority of the High Court, Gibbs CJ, Murphy and Brennan JJ held that the trial judge was in error in refusing to require the production of the documents for inspection to determine whether, if such documents existed, they should have been disclosed. Gibbs CJ observed:
If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.”[17]
[16] (1983-4) 154 CLR 404
[17] Ibid at 414-415
The observations of Gibbs CJ are apposite. If the accused were denied the opportunity of his legal advisers examining the notes, it may well leave him with a legitimate sense of grievance. The fact that he is assured by the Director that disclosure of all matters relevant to the defence have been made will not alleviate the sense of grievance from a denial to permit him to check the material himself. Given the extensive volume of material in this case, errors can be made, and it is fair that the defence has an opportunity to check for themselves whether complete disclosure has been made. It follows that fairness dictates that any relevant notes should be produced.
If a written note is made of relevant discussions with officers of the Director, then fairness dictates that inspection of those notes should usually be permitted. Having regard to the conflicting interests of the maintenance of confidentiality on the one hand, and fairness to the accused on the other hand, I considered the interests of the accused prevailed. I directed that the notes be produced for my inspection. Those notes which were not relevant were excluded. If a note contained material which I considered should be disclosed, I directed that other references of no relevance be masked, and the note be produced.
As to the two notes of conversations with Elliott, I considered that sufficient disclosure of the contents of those notes had been made by the Director in a letter, and I declined to order production.
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