R v Leung; R v Webster (No. 2) - [2022] NSWDC 138

District Court

New South Wales

Medium Neutral Citation: R v Leung; R v Webster (No. 2) [2022] NSWDC 138
Hearing dates: 5, 6, 7, 8, 11, 12, 13, 14 April 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
1. I grant access to each of the accused persons to the whole of the email of 1 April 2022 at 10.29am from Senior Constable Grogin to the Crown Prosecutor and which was copied onto the solicitor with the carriage of the matter at the ODPP.
2. I uphold the claim for privilege in respect of the communication from Ms Nightingale to Senior Constable Grogin made on Friday, 1 April 2022 at 10.56am.
3. I remove from MFI VD1 the communication of 1 April 2022 at 10.29am. The two documents remaining in MFI VD1 are to be returned to the Crown.

Catchwords:
CRIME – VOIR DIRE – EXPERT EVIDENCE – ADMISSIBILITY - PRACTICE AND PROCEDURE – Legal Professional Privilege.

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185
R v Leung; R v Webster (No. 1) [2022] NSWDC 137
Waterford v Commonwealth of Australia (1987) 163 CLR 54

Texts Cited:
Nil.

Category: Procedural rulings
Parties: R – Crown
First Accused – Canny Leung
Second Accused – Cameron Stewart Webster
Representation: Counsel:
Crown – Nightingale, K
First Accused– Boe, A and O’Neill, C.
Second Accused – Ramrakha, T.
Solicitors:
Crown – Office of the Director of Public Prosecutions
First Accused – Nyman Gibson Miralis Defence Lawyers and Advisors
Second Accused – LegalAid

File Number(s): 2019/276597; 2019/276599
Publication restriction: Nil.

Judgment

HIS HONOUR: The background and procedural history of this case can be seen at pars [1] and [10]-[19] of my decision in R v Leung; R v Webster (No. 1) [2022] NSWDC 137. This is an application for legal professional privilege. The application rises because of an allegation made by the Crown that Senior Constable Grogin is entitled to give expert evidence. The relevant documents can be found as part of Annexure S to the affidavit of Mr Eric Navea sworn on 11 April 2022 (Exhibit VD9). The document has been disclosed in part. It is document numbered 5 and it is an email sent by Senior Constable Nicholas Grogin to the Crown Prosecutor, Ms Nightingale, on Friday, 1 April 2022 at 10.29am.
After the greeting, which is disclosed, the document in question says, "Thank you for your notes." There was then a large lacuna and then there is a sentence: "See attached revised statement. Let me know if you are happy with it or need anything else in it." Then there is an electronic signature of the Senior Constable.
Before me is the unredacted version of that document in which the claim for legal professional privilege is made. There is a two‑word comment after the first line that has been disclosed. There is then a new paragraph which contains three lines.…

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.

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Details

Case: [2022] NSWDC 138
Decision Date: 14 April 2022

CaseChat Overview and Summary

The respondents, Leung and Webster, appealed against the admission of certain emails into evidence in a criminal trial. The nature of the dispute was whether the emails in question were subject to legal professional privilege, and if not, whether they were admissible under the exceptions to privilege. The matter was heard in the Supreme Court of New South Wales. The primary legal issues the court had to decide were the scope of legal professional privilege, particularly in the context of communications between police officers and the Office of the Director of Public Prosecutions (ODPP), and the admissibility of the emails under the exceptions to privilege.

The court examined the communications in question to determine whether they were made for the dominant purpose of giving or obtaining legal advice. It considered the nature of the communications, the context in which they were made, and the relationship between the parties involved. The court held that the email from Senior Constable Grogin to the Crown Prosecutor and the solicitor was not privileged as it did not meet the criteria for legal professional privilege. Conversely, the communication from Ms Nightingale to Senior Constable Grogin was held to be privileged as it was made for the dominant purpose of giving legal advice. Consequently, the court granted access to the respondents to the unprivileged email and upheld the claim for privilege over the privileged communication. The court also ordered the removal of the unprivileged email from the material file in the voir dire and directed the return of the remaining privileged material to the Crown.

Orders

Orders of the court

1. I grant access to each of the accused persons to the whole of the email of 1 April 2022 at 10.29am from Senior Constable Grogin to the Crown Prosecutor and which was copied onto the solicitor with the carriage of the matter at the ODPP.

2. I uphold the claim for privilege in respect of the communication from Ms Nightingale to Senior Constable Grogin made on Friday, 1 April 2022 at 10.56am.

3. I remove from MFI VD1 the communication of 1 April 2022 at 10.29am. The two documents remaining in MFI VD1 are to be returned to the Crown.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Leung; R v Webster (No. 2) [2022] NSWDC 138
Hearing dates:	5, 6, 7, 8, 11, 12, 13, 14 April 2022
Date of orders:	14 April 2022
Decision date:	14 April 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	1. I grant access to each of the accused persons to the whole of the email of 1 April 2022 at 10.29am from Senior Constable Grogin to the Crown Prosecutor and which was copied onto the solicitor with the carriage of the matter at the ODPP. 2. I uphold the claim for privilege in respect of the communication from Ms Nightingale to Senior Constable Grogin made on Friday, 1 April 2022 at 10.56am. 3. I remove from MFI VD1 the communication of 1 April 2022 at 10.29am. The two documents remaining in MFI VD1 are to be returned to the Crown.
Catchwords:	CRIME – VOIR DIRE – EXPERT EVIDENCE – ADMISSIBILITY - PRACTICE AND PROCEDURE – Legal Professional Privilege.
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 R v Leung; R v Webster (No. 1) [2022] NSWDC 137 Waterford v Commonwealth of Australia (1987) 163 CLR 54
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	R – Crown First Accused – Canny Leung Second Accused – Cameron Stewart Webster
Representation:	Counsel: Crown – Nightingale, K First Accused– Boe, A and O’Neill, C. Second Accused – Ramrakha, T. Solicitors: Crown – Office of the Director of Public Prosecutions First Accused – Nyman Gibson Miralis Defence Lawyers and Advisors Second Accused – LegalAid
File Number(s):	2019/276597; 2019/276599
Publication restriction:	Nil.