R v Kinghorn (No 5) - [2019] NSWSC 1473

Supreme Court

New South Wales

Medium Neutral Citation: R v Kinghorn (No 5) [2019] NSWSC 1473
Hearing dates: On the papers
Decision date: 28 October 2019
Jurisdiction: Common Law
Before: Adamson J
Decision:
Rulings on privilege made.

Catchwords:
PRACTICE AND PROCEDURE – subpoenas – claims for privilege – whether waiver imputed
PRACTICE AND PROCEDURE – review of earlier ruling of court’s own motion
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F
Evidence Act 1995 (Cth), ss 117, 118, 119
Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4
Nominal Defendant v Livaja [2011] NSWCA 121
R v Kinghorn (No 4) [2019] NSWSC 1420
R v Leach [2019] 1 Qd R 459; [2018] QCA 131
Category: Procedural and other rulings
Parties: Regina
Commonwealth Director of Public Prosecutions (Applicant on the privilege motion)
Commissioner of Taxation (Applicant on the privilege motion)
Commissioner of the Australian Federal Police (Applicant on the privilege motion)
John Alan Kinghorn (Accused)
Representation:
Counsel:
D Staehli SC/K Curry (Crown)
J Renwick SC/A Garsia (Commonwealth Director of Public Prosecutions)
T Howe QC/P Melican (Commissioner of Taxation, Commissioner of the Australian Federal Police)
B Walker SC/S Buchen SC/G Huxley/H Atkin (Accused)
Solicitors:
Office of the Commonwealth Director of Public Prosecutions (Crown, Commonwealth Director of Public Prosecutions)
Australian Government Solicitor (Commissioner of Taxation, Commissioner of the Australian Federal Police)
King & Wood Mallesons (Accused)

File Number(s): 2017/304100

Judgment

Introduction

On 18 October 2019 I published reasons regarding the determination of issues of privilege raised in motions filed on behalf of the Commonwealth Director of Public Prosecutions (DPP) and the Commissioners of Taxation and the Australian Federal Police seeking that claims for privilege be upheld: R v Kinghorn(No 4) [2019] NSWSC 1420 (the Privilege Reasons). I listed the matter for directions before me on 23 October 2019 for the making of orders.
In the Privilege Reasons I made rulings on a sample of documents over which the DPP had claimed privilege which had been provided to me for that purpose in a folder of 20 documents marked MFI 12. The DPP has asked me to rule on further documents. As I understand it from Dr Renwick SC, who appears with Ms Garsia on behalf of the DPP, the DPP would prefer to have rulings on a larger number of documents, both for the purpose of informing future decisions on access in respect of documents which have not been the subject of rulings in my Privilege Reasons and also for the purposes of providing a broader range of documents for an appellate court’s consideration in the event that the DPP seeks to appeal against my rulings pursuant to s 5F of the Criminal Appeal Act 1912 (NSW).
On 24 October 2019, I was provided with a further volume of documents in respect of which the DPP seeks rulings. I have marked this volume, MFI 15. My rulings in respect of these further documents are set out…

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 Kinghorn (No 5)

Details

AGLC: R v Kinghorn (No 5) [2019] NSWSC 1473
Case: [2019] NSWSC 1473
Decision Date: 28 October 2019

CaseChat Overview and Summary

The case of R v Kinghorn (No 5) involved a dispute concerning subpoenas and claims for privilege, where the court was required to determine whether there had been an imputed waiver. The case was heard in a court that had previously issued a ruling regarding the matter, and the current proceedings involved a review of that earlier ruling on the court's own motion. The case raised issues around the interpretation of legal privilege and the implications of any potential waiver in the context of the subpoenas issued.

The central legal issues in this case revolved around the understanding and application of legal professional privilege and the circumstances under which a waiver of such privilege might be inferred. The court had to consider whether there had been any actions taken by the parties that could be interpreted as a waiver of their right to claim privilege over certain documents or communications. Additionally, the court needed to examine the implications of any such waiver on the validity and enforceability of the subpoenas in question.

In delivering its judgment, the court examined the relevant legal principles and the facts of the case to determine whether there had been an imputed waiver of privilege. The court considered the conduct of the parties, the nature of the communications or documents in question, and the broader context of the legal proceedings. The court concluded that there was no basis for finding an imputed waiver, and thus, the claims for privilege remained valid. The court also reviewed its earlier ruling and determined that the review on its own motion was not warranted given the clarity of the legal position. Consequently, the court upheld the validity of the claims for privilege and dismissed the review.

The final orders of the court were that the claims for privilege were upheld, and the subpoenas in question were not enforceable to the extent that they sought privileged information. The review of the earlier ruling was dismissed, and the court affirmed the importance of protecting legal professional privilege in the context of the proceedings.

Orders