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

1. 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.

2. 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.

3. 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. Then, there is a further new paragraph, but that is the final paragraph which has been disclosed.

4. The Crown claims legal professional privilege pursuant to s 118 Evidence Act 1995. Equally the privilege could be claimed under s 119. Section 118 is in these terms associated to include the words "confidential communication" is defined in s 117 thus:

“"confidential communication" means a communication made in such circumstances that, when it was made:

(a)  the person who made it; or

(b)  the person to whom it was made;

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”

The words “confidential document” are also defined in s 117. They are this:

“"confidential document" means a document prepared in such circumstances that, when it was prepared:

(a)  the person who prepared it; or

(b)  the person for whom it was prepared;

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.”

5. It should also be noted that there is, in cl 8 of Part 2 of the Dictionary to the Evidence Act, this provision:

“A reference in this Act to a document includes a reference to—

(a)  any part of the document, or

(b)  any copy, reproduction or duplicate of the document or of any part of the document, or

(c)  any part of such a copy, reproduction or duplicate.”

One can therefore see that a reference to a document includes part of a document.

6. Documents are severable.  The learned Crown Prosecutor referred me to the decision of the High Court of Australia in Waterford v Commonwealth of Australia (1987) 163 CLR 54. Commencing at p 87, Deane J said this:

“The carefully expressed reasons of the Tribunal seem to me to adopt the approach that the whole of a document was protected by legal professional privilege if the document was susceptible of being generally described by reference to one or other of the classes of documents mentioned by Lockhart J. in his helpful judgment in Trade Practices Commission v. Sterling (18). For present purposes, the relevant classes of documents referred to by Lockhart J. are "[a]ny communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance" (class (a)) and "[n]otes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications: class (d). Lockhart J. was not, however, concerned with the case of documents which satisfied one or other of those descriptions by reason of part only of their contents in the sense that they contained privileged and non-privileged material or that they had been brought into existence for both a privileged and non-privileged purpose. In the case of such documents, a general classification by reference to the privileged part or privileged purpose does not determine whether privilege can be claimed in respect of the whole.”

7. Similarly, in Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185, Allsop J (as his Honour then was), said this at [157];

“There were, no doubt, a number of reasons why Mr Kennedy wanted to speak with Mr Hafner. As the primary judge found, and as is likely, Mr Kennedy wanted some legal advice from him. As the primary judge found, and as is likely, Mr Kennedy wanted to discuss some matters with Mr Hafner that would not be protected by legal professional privilege. From the background circumstances each was likely to be viewed by Mr Kennedy as pressing; neither was likely to be dominant. That does not mean there can be no privilege in respect of any communication at the meeting. A person can see a legal adviser and receive legal advice and commercial or other non-legal advice. The former will be privileged, the latter not. Difficulties of course can arise in demarcation. Difficulties can arise if the advice is intermingled. The resolution of the issue will generally be a question of fact.”

8. The matter in respect of which the Crown claims privilege was not any request for legal advice, as such. Nor did it set out any facts or circumstances which required the giving of legal advice. As I have earlier indicated to counsel, the matter in respect of which privilege is claimed is certainly an encomium of those acting for the Crown, with whom the Senior Constable Grogin, as the officer in charge, was interacting. However, the document goes on to point out other matters not in respect of which legal professional advice was sought, nor in respect of any advice was sought. It is really a comment upon his own personal circumstances.

9. I am not persuaded on the balance of probabilities that the document is entitled to any legal professional privilege. I, therefore, 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, Mr Eric Navea.

10. 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.

11. The three emails which have been the subject of the claim were marked for identification MFI VD1. 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.

Decision last updated: 03 May 2022