R v Petroulias (No 22)

[2007] NSWSC 692

Reported Decision: 213 FLR 293

New South Wales

Supreme Court

CITATION:	R (Cth) v Petroulias (No. 22) [2007] NSWSC 692
HEARING DATE(S):	21 and 22 June 2007
JUDGMENT DATE :	29 June 2007
JUDGMENT OF:	Johnson J at 1
DECISION:	The claim of client legal privilege with respect to the documents in MFI11 is upheld. The Accused’s application to inspect the documents produced under subpoena is declined.
CATCHWORDS:	CRIMINAL LAW - trial on indictment before Supreme Court - subpoena directed to Commonwealth Director of Public Prosecutions - seeks production of notes of conferences between prosecuting counsel and solicitors and Crown witnesses - claim of client legal privilege - whether Part 3.10 Evidence Act 1995 or common law principles apply to privilege claim - relationship between client legal privilege and prosecution duty of disclosure - whether privilege waived by prosecution calling witnesses at committal proceedings or earlier trials of Accused - claim for privilege upheld
LEGISLATION CITED:	Evidence Act 1995 Crimes Act 1914 (Cth) Director of Public Prosecutions Act 1983 (Cth) Supreme Court Act 1970 Criminal Procedure Act 1986 Supreme Court Rules Uniform Civil Procedure Rules
CASES CITED:	R v Petroulias (No. 1) [2006] NSWSC 788 Petroulias v R [2007] NSWCCA 134 R v Petroulias (No. 9) [2007] NSWSC 84 R v Petroulias (No. 16) [2007] NSWSC 506 R v Reardon (No. 2) (2004) 60 NSWLR 454 R v Spiteri (2004) 61 NSWLR 369 Mallard v The Queen [2005] 224 CLR 125 R v Bunting (2002) 84 SASR 378 Filipowski v Nikolaos (2004) 136 LGERA 157 R v Ronen [2004] NSWSC 1305 R v Haydon (No. 5) [2005] SASC 19 R v Tracey (No. 2) [2005] SASC 356 Goldberg v Ng (1996) 185 CLR 83 Mann v Carnell (1999) 201 CLR 1 Grant v Downs (1976) 135 CLR 674 Mitsubishi Electric Australia Pty Limited v Victorian WorkCover Authority (2002) 4 VR 332 Australian Securities and Investment Commission v Rich [2004] NSWSC 1089 National Crime Authority v S (1991) 29 FCR 203 AWB Limited v Cole (No. 5) (2006) 155 FCR 30 Esso Australia Resources Limited v Commissioner of Taxation [1999] 201 CLR 49 Mok v New South Wales Crime Commission [2002] NSWCA 53 Wilson v State of New South Wales [2003] NSWSC 805 Meteyard v Love (2005) 224 ALR 588; [2005] NSWCA 444 Seven Network Limited v News Limited (2005) 144 FCR 379 Fleming v White (1981) 2 NSWLR 219 Epacris Pty Limited v Director-General, Department of Natural Resources [2007] NSWCCA 76 Trade Practices Commission v Sterling (1978) 36 FLR 244 Island Maritime Limited v Filipowski [2006] 226 CLR 328 Attorney-General (NT) v Maurice (1986) 161 CLR 475 Benecke v National Australia Bank (1993) 35 NSWLR 110
PARTIES:	Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)
FILE NUMBER(S):	SC 2002/93
COUNSEL:	Mr P Hastings QC; Mr C Hoy (Crown) Mr G Walsh (Accused)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Johnson J

29 June 2007

2002/93 Regina (Commonwealth) v Nikytas Nicholas Petroulias (No. 22)

JUDGMENT (on claim of client legal privilege arising from subpoena directed to Commonwealth Director of Public Prosecutions)

1 JOHNSON J: On 18 June 2007, a subpoena was issued on the application of the Accused seeking production from the Commonwealth Director of Public Prosecutions (“CDPP”) of notes taken during conferences between counsel and/or CDPP solicitors and 14 nominated Crown witnesses.

2 On 21 June 2007, a number of documents were produced in answer to the subpoena. Objection was taken by the CDPP to inspection of the documents by the Accused on the grounds of client legal privilege (I use that term to embrace both the statutory concept of client legal privilege and the common law concept of legal professional privilege). I received submissions concerning that question, orally and in writing, on 21 and 22 June 2007.

3 On 25 June 2007, I announced that the claim for client legal privilege was upheld with respect to the entirety of the documents produced up to that time (MFI11) and, accordingly, I declined to permit inspection by the Accused of the privileged material. I stated that I would give my reasons at a later time. This judgment contains those reasons.

The Subpoena

4 The subpoena directed to the CDPP sought production of the following documents:

“All notes of conferences between counsel and/or CDPP solicitors for the Crown for conferences held with or without any participating officers, agents or lawyers from the ATO or Australian Federal Police and the following witnesses in this case:
1. Emmanuel Aivaliotes.
2. Lowman Chow.
3. Michael Charles.
4. James Targett.
5. Stuart Forsyth.
6. Richard Morgan.
7. Michael Ingersoll.
8. Michael O’Neill.
9. Quincy Tang.
10. Michael Carmody.
11. Michael D’Ascenzo.
12. Jim Killaly.
13. Stephen Dametto.
14. Garry Wills.”

5 The subpoena did not identify a period for which conference notes were sought. At the commencement of argument on the point, Mr Walsh, junior counsel for the Accused, confined the call on subpoena to notes of conferences on and after 23 March 2000, on which date the Accused was arrested and charged (T301.32).

6 The CDPP made no application to set aside the subpoena. A number of documents were produced in answer to the subpoena, being notes of conferences which took place with 12 of the 14 nominated witnesses between January and March 2007 (MFI11). No conference took place in 2007 with Mr Aivaliotes and Mr Forsyth. Given the short period between the issue of the subpoena and argument in support of the privilege claim, the parties agreed that I should first hear argument and determine the claim concerning the documents contained in MFI11. I acceded to this proposal. The present judgment relates to the privilege claim concerning those documents only.

7 It remains necessary for the CDPP to produce to the Court documents which predate 2007 which are caught by the subpoena.

Evidence on the Application

8 In support of the claim of client legal privilege, the CDPP read the affidavit of Karen Louise Wildermoth sworn 20 June 2007 (MFI12). Ms Wildermoth was not required for cross-examination on her affidavit. In addition, the Crown provided me with a copy of the CDPP’s “Statement on Prosecution Disclosure” (MFI13).

9 According to Ms Wildermoth’s affidavit, she has had carriage of the prosecution of the Accused since taking over as instructing solicitor in about mid-November 2006. With respect to the 2007 conference notes (MFI11), Ms Wildermoth stated that the notes had been reviewed previously and found not to contain any material coming within the CDPP’s “Statement on Prosecution Disclosure” and, accordingly, it had been determined that there was no requirement for disclosure to the Accused.

10 Ms Wildermoth stated in the affidavit that the conference notes were created for the purposes of the conduct of the prosecution of the Accused at the trial which commenced on 26 March 2007 and that a claim of client legal privilege was made in relation to the notes. She stated that the conference notes record communications made for the dominant purpose of a pending Australian proceedings within the meaning of s.119 Evidence Act 1995.

11 Ms Wildermoth stated that no conference was held with Mr Aivaliotes or Mr Forsyth (in 2007) and therefore there were no conference notes for those persons.

12 For the purpose of the application, Mr Walsh relied upon a bundle of correspondence between his instructing solicitors and the CDPP between March and June 2007 (MFI14) which touched upon a number of issues.

Background to the Present Application

13 The history of the litigation giving rise to this trial may be found in my judgment, R v Petroulias (No. 1) [2006] NSWSC 788. The Accused is standing trial upon an indictment alleging the following offences:

(a) one count of defrauding the Commonwealth contrary to s.29D Crimes Act 1914 (Cth) ;

(b) one count of agreeing to receive a benefit on an understanding that the exercise by him of his duty as a Commonwealth officer would be affected contrary to s.73 Crimes Act 1914 (Cth) ; and

(c) one count of publishing to a person to whom he was not authorised to publish, documents which came into his possession by virtue of him being a Commonwealth officer and which it was his duty not to disclose, an offence under s.70 Crimes Act 1914 (Cth) .

14 The Accused stood trial for the same charges before Sully J and a jury in 2005 at which the jury was unable to agree and was discharged. All of the 14 Crown witnesses nominated in the subpoena were called by the Crown at that trial.

15 Before then, committal proceedings took place before a Magistrate over 36 days between November 2001 and July 2002. Many of the 14 nominated witnesses were called at the committal proceedings, including Mr Aivaliotes and Mr Morgan.

16 The Accused challenged the order committing him for trial and, after various proceedings before a single Judge in the Common Law Division of this Court and the Court of Appeal, on 27 March 2004, the Accused was committed for trial.

17 On 26 March 2007, the retrial of the Accused commenced before a jury and myself. On 16 May 2007, the jury was discharged by the Court of Criminal Appeal in circumstances outlined in the judgment of the Court in Petroulias v R [2007] NSWCCA 134. Of the 14 nominated witnesses, Mr Chow, Mr Morgan and Mr Ingersoll had given evidence and been excused and Mr Aivaliotes was giving evidence at the time when the 2007 trial aborted.

18 On 13 June 2007, a jury was empanelled and the present trial of the Accused commenced.

19 As mentioned earlier, on 18 June 2007, counsel for the Accused made application for orders abridging time for service of a number of subpoenas, including the subject subpoena directed to the CDPP.

20 In broad terms, the 14 witnesses identified in the schedule to the subpoena fall into the following categories:

(a) Richard Morgan is an important Crown witness who has given evidence with the benefit of an undertaking from the CDPP pursuant to s.9(6) Director of Public Prosecutions Act 1983 (Cth) : R v Petroulias (No. 9) [2007] NSWSC 84 at [17]-[18]; the Crown contends that the Accused recruited him into a commercial arrangement with others outside the Australian Taxation Office (“ATO”) to market tax schemes flowing from Private Binding Rulings and Advance Opinions issued within the ATO under the influence of the Accused; he has given evidence for the Crown against the Accused at committal proceedings in 2001, at the 2005 trial and at the aborted 2007 trial; a substantial attack has been made by the defence concerning the credibility and reliability of Mr Morgan;

(b) Emmanuel Aivaliotes was and remains an officer of the ATO; the Crown contends that the Accused caused him to issue a number of Private Binding Rulings and Advance Opinions, effectively as an instrument of the Accused; he gave evidence at committal proceedings in 2001, at the 2005 trial and was being examined-in-chief when the 2007 trial was aborted; I had granted leave for the Crown to cross-examine Mr Aivaliotes under s.38 Evidence Act 1995 on certain issues ( R v Petroulias (No. 16) [2007] NSWSC 506) and was about to hear submissions in support of a further s.38 application when the 2007 trial ended;

(c) Lowman Chow was and remains an ATO officer who, the Crown contends, at the urging of the Accused, advocated a view within the ATO which was contrary to the approach being taken by Mr Aivaliotes, and which was favourable to applicants associated with Mr Morgan and other persons outside the ATO with whom, on the Crown case, the Accused had an undisclosed commercial relationship;

(d) Michael Carmody is a former Commissioner of Taxation and Michael D’Ascenzo is his successor and the current Commissioner of Taxation;

(e) Michael Charles, James Targett, Stuart Forsyth, Michael Ingersoll, Michael O’Neill, Quincy Tang and Jim Killaly are all serving or former officers of the ATO;

(f) Stephen Dametto was and remains a Federal Agent with the Australian Federal Police and Garry Wills is a former Federal Agent; both were engaged in investigations concerning the Accused.

Correspondence Between Solicitors for Accused and CDPP

21 The correspondence relied upon by the Accused provides a background to the present application.

22 On 11 April 2007, the solicitors for the Accused requested from the CDPP tax returns and ATO assessments for the years 1997 to date concerning Richard Morgan and his past associated companies, Morgan HR Pty Limited and Morgan Financial Innovations Pty Limited for years of income between 1997 and 2000.

23 On 12 April 2007, the CDPP informed the Accused’s solicitors of the outcome of a general enquiry of the Insolvency and Trustee Service Australia concerning Mr Morgan. It was revealed that Mr Morgan had become bankrupt on a debtor’s petition on 4 April 2003 and was discharged by law from bankruptcy on 5 April 2006. This information had not been disclosed previously to the Accused. I infer that the CDPP was unaware of it until this time. Mr Morgan’s bankruptcy, and documents relating to it, formed a significant part of the cross-examination of Mr Morgan at the aborted 2007 trial.

24 By letter dated 1 May 2007, the solicitors for the Accused requested the CDPP to confirm that Mr Morgan did not have any criminal convictions in any State or Territory of Australia. It is not clear why the solicitors for the Accused were making this enquiry at that time, given that Mr Morgan had been called as a witness on 17 April 2007 and had given evidence on consecutive sitting days before being excused on 24 April 2007.

25 On 2 May 2007, the CDPP replied stating that the Crown was not aware of Mr Morgan having any criminal convictions and that a criminal history check was being conducted. On 3 May 2007, the CDPP informed the Accused’s solicitors that Mr Morgan had a conviction for larceny in the Adelaide Magistrate’s Court on 2 May 1990 for which he was fined $50.00. Once again, I infer that the CDPP had no prior knowledge of this conviction and that no enquiry had been made concerning Mr Morgan’s criminal history until the defence request of 1 May 2007. This was confirmed during submissions on the present application (T393.52).

26 On 16 May 2007, the jury was discharged at the aborted trial.

27 On 7 June 2007, the solicitors for the Accused sought copies of conference notes between counsel and/or CDPP solicitors and 11 of the 14 nominated witnesses (excluding Messrs Tang, Dametto and Wills). The letter indicated that the notes were sought from the CDPP “in accordance with the prosecution’s duty of disclosure”.

28 By letter dated 12 June 2007, the CDPP responded to this request for production as follows:

“Where notes of conferences exist, they do not fall within any category requiring their disclosure. Where such notes exist they are therefore not provided.”

The Prosecutor’s Duty of Disclosure

29 The prosecutor’s duty of disclosure has been recognised at common law: R v Reardon (No. 2) (2004) 60 NSWLR 454 at 468-469; R v Spiteri (2004) 61 NSWLR 369 at 373-374; Mallard v The Queen [2005] 224 CLR 125 at 133, 149-156. In R v Spiteri, Simpson J (Grove and Shaw JJ agreeing) stated at 374 [17]-[20] that, for New South Wales, the prosecution’s duty of disclosure required disclosure of material which can be seen on a sensible appraisal by the prosecution:

(a) to be relevant or possibly relevant to an issue in the case;

(b) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;

(c) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (a) or (b) above.

30 In recent years, it has been the common practice of Directors of Public Prosecutions throughout Australia to publish a policy or guidelines concerning the prosecution’s duty of disclosure. To this end, the CDPP has published a “Statement on Prosecution Disclosure”. The CDPP’s disclosure obligations are set out in paragraph 1 of the Statement:

“This statement sets out the CDPP's disclosure obligations in the cases it prosecutes.

‘Disclosure’ refers to informing the defendant of:

· the prosecution's case against him/her;

· any information in relation to the credibility or reliability of the prosecution witnesses; and

· any unused material (see section 4.1).

Disclosure requirements continue throughout the prosecution.

The requirements imposed by this statement are to be complied with subject to any laws which are applicable in the prosecution of Commonwealth offences, including State and Territory laws and the National Security Information (Criminal and Civil Proceedings) Act 2004.

There are exceptions to the requirement to disclose material to the defence. These exceptions include situations where the material is immune from disclosure on public interest grounds, where the disclosure of the material is precluded by statute or where legal professional privilege applies to the material. These exceptions to disclosure are discussed below.”

31 Paragraph 3 of the statement makes provision for disclosure affecting credibility or reliability of a prosecution witness:

“The prosecution is under a duty to disclose to the defence information in its possession which is relevant to the credibility or reliability of a prosecution witness, for example:

· a relevant previous conviction or finding of guilt,

· a statement made by a witness which is inconsistent with any prior statement,

· a relevant adverse finding in other criminal proceedings or in non-criminal proceedings (such as disciplinary proceedings, civil proceedings or a Royal Commission),

· evidence before a court, tribunal or Royal Commission which reflects adversely on a witness (e.g. allegations in relation to civil penalty proceedings or dishonesty offences which are yet to be finalised),

· any physical or mental condition which may affect reliability,

· any concession which has been granted to a witness in order to secure that person’s testimony for the prosecution.

3.1 Previous convictions

It is not possible for investigating agencies to conduct criminal checks for all prosecution witnesses. Prosecutors should only request a criminal history check for a prosecution witness where there is reason to believe that the credibility of the prosecution witness may be in issue.

While the duty to disclose to the defence the previous convictions of a prosecution witness extends only to relevant prior convictions, a prior conviction recorded against a prosecution witness should be disclosed unless the prosecutor is satisfied that the conviction could not reasonably be seen to affect credibility having regard to the nature of, and anticipated issues in, the case. In that regard, previous convictions for perjury and offences involving dishonesty should always be disclosed.

The defence may request that the prosecution provide details of any criminal convictions recorded against a prosecution witness. Such a request should be complied with where the prosecutor is satisfied that the defence has a legitimate forensic purpose for obtaining this information, such as where there is a reason to know or suspect that a witness has prior convictions.

3.2 …

3.3 Concessions to witnesses

The prosecution should disclose:

· any concession provided to a witness with respect to his or her involvement in criminal activities in order to secure his or her evidence for the prosecution, whether as to choice of charge, the grant of an undertaking under subsection 9(6) or subsection 9(6D) of the Director of Public Prosecutions Act 1983 or otherwise,

· any monetary or other benefit that has been claimed by, or offered or provided to, a witness. This does not include any payments made in the ordinary and usual course of securing the evidence of a witness (eg the payment of travel and accommodation expenses or the fees of expert witnesses) and disclosure will be subject to any legislative requirements such as witness protection legislation,

· where the witness participated in the criminal activity the subject of the charges against the defendant, whether the witness has been dealt with in respect of his or her own involvement and, if so, whether the witness received a discount on sentence as a result of undertaking to cooperate with law enforcement authorities in relation to the current matter.

3.4 Timing of disclosure affecting credibility or reliability of a prosecution witness

Where the prosecution is in possession of information which is relevant to the credibility or reliability of a prosecution witness that information should be disclosed to the defence:

· in matters to be disposed of summarily - as soon as reasonably practicable after the defendant has entered a plea of not guilty and the case has been set down for hearing,

· in matters to be dealt with on indictment - prior to the committal proceedings.

The requirement to disclose information affecting the credibility of reliability of a prosecution witness continues throughout a prosecution. If the prosecution becomes aware of the existence of such information during the course of a prosecution which has not been disclosed, that information should be disclosed as soon as reasonably possible.”

32 Paragraph 5 of the statement provides for disclosure to the CDPP by investigation agencies:

“This Statement on Prosecution Disclosure relates to information and material held by the CDPP, investigation agencies and third parties. In order for the prosecution to meet its disclosure obligations, the CDPP depends on investigation agencies informing it of information and material covered by this Statement.”

33 The interrelationship between the prosecution’s duty of disclosure and the principles of legal professional privilege has been considered in a number of cases: R v Bunting (2002) 84 SASR 378; Filipowski v Nikolaos (2004) 136 LGERA 157; R v Ronen [2004] NSWSC 1305; R v Haydon (No. 5) [2005] SASC 19 and R v Tracey (No. 2) [2005] SASC 356.

Submissions of the Parties

Submissions of the CDPP

34 Mr Hastings QC, who appears as the lead Crown Prosecutor at the trial instructed by the CDPP, appeared for the CDPP to answer the subpoena. Put shortly, the CDPP advanced the following submissions:

(a) the provisions contained in Division 1 of Part 3.10 (ss.117-126) Evidence Act 1995 concerning client legal privilege apply to the resolution of the present dispute and not common law principles concerning privilege and waiver;

(b) client legal privilege attaches to communications between legal representatives of the Crown and Crown witnesses, in the same way as privilege attaches to confidential communications between legal representatives and witnesses in other proceedings;

(c) the conferencing of witnesses involves communications for the dominant purpose of providing professional legal services in the prosecution proceedings then on foot, and comes within the terms of s.119 Evidence Act 1995 ;

(d) although little may turn on the question, the better view is that the CDPP is the client and lawyers within the office of the CDPP provide legal services to the CDPP;

(e) the prosecution’s duty of disclosure, at common law and under the CDPP’s Statement, stands apart from application of the principles of client legal privilege - the CDPP has a responsibility to disclose material in accordance with this duty but, in circumstances such as this, it is not part of the Court’s function to embark upon the exercise of balancing competing interests in order to determine whether the prosecution’s obligation of disclosure outweighs the interest of client legal privilege;

(f) the test of waiver is to be found in s.122 Evidence Act 1995 ;

(g) waiver or privilege has not occurred in this case, whether s.122 or common law principles are applied;

(h) if an issue of unfairness is perceived ultimately to arise, the solution or sanction is not to imply waiver of privilege, but for the Court to invoke other powers available for the management of the trial to overcome any such perception of unfairness, including the granting of a stay.

Submissions for the Accused

35 Mr Walsh advanced the following submissions for the Accused:

(a) common law principles concerning client legal privilege and waiver apply, and not the provisions of Part 3.10 Evidence Act 1995 ;

(b) although client legal privilege attached to communications between the Crown legal representatives and witnesses, the calling of the 14 nominated witnesses by the Crown at committal proceedings, the 2005 trial and/or the 2007 aborted trial gave rise to waiver with respect to the confidential communications between the Crown legal representatives and these persons, who were not just potential Crown witnesses, but had been called to give evidence by the Crown in proceedings against the Accused;

(c) where the CDPP maintained a claim of client legal privilege with respect to communications recorded in the conference notes, inconsistency and unfairness arose in accordance with the principles in Goldberg v Ng (1996) 185 CLR 83 and Mann v Carnell (1999) 201 CLR 1, so as to constitute implied or imputed waiver of privilege at common law;

(d) particular circumstances giving rise to waiver exist concerning Mr Morgan (his central role as a Crown witness and the failure to disclosure material concerning his bankruptcy and prior conviction) and Mr Aivaliotes (his changed evidence at the aborted 2007 trial leading to orders being made granting leave under s.38 Evidence Act 1995 );

(e) if s.122 applied and not the common law, fairness remained a relevant consideration although of less significance given the statutory test and the way in which it had been construed;

(f) client legal privilege having been waived, inspection of the documents ought be allowed to the Accused and his legal representatives.

Resolution of Competing Submissions

Onus on Privilege Claim

36 The onus of establishing a claim of client legal privilege falls on the party asserting or claiming the privilege: Grant v Downs (1976) 135 CLR 674 at 689. The onus is on the party claiming privilege even though it is the other party that has applied for relief by way of an order for production of the documents for inspection: Mitsubishi Electric Australia Pty Limited v Victorian WorkCover Authority (2002) 4 VR 332 at 337 [11]; Australian Securities and Investment Commission v Rich [2004] NSWSC 1089 at [2].

37 What is required is exposure of facts from which an informed decision can be made as to whether the claim for privilege is supportable: National Crime Authority v S (1991) 29 FCR 203 at 211-212; AWB Limited v Cole (No. 5) (2006) 155 FCR 30 at 44-45 [44]. A party claiming privilege may succeed by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. The character of the documents the subject of the claim may illuminate the purpose for which they were brought into existence: Grant v Downs at 689.

38 The Court has the power to inspect documents itself to determine a claim for privilege and should not hesitate to exercise that power: Re Southland Coal Pty Limited [2006] NSWSC 899 at [14](k).

Common Law Principles or the Evidence Act 1995 ?

39 The provisions of the Evidence Act 1995 apply only to the adducing of evidence and have no derivative application, at common law, to interlocutory processes including the production of documents on subpoena: Esso Australia Resources Limited v Commissioner of Taxation [1999] 201 CLR 49 at 59-64; Mann v Carnell at 9-12. Accordingly, the Evidence Act 1995 has no application to the present situation unless the provisions of that Act concerning client legal privilege are applicable by operation of other statutory provisions.

40 The CDPP submits that provisions contained within Part 75 Supreme Court Rules (“SCR”) have this effect. The Accused submits that Part 75 SCR, and other provisions nominated within it, do not have the effect of applying the client legal privilege provisions in Part 3.10 of the Act where a claim of privilege is made in the context of a subpoena issued for a criminal trial.

41 Part 75 rules 1 and 3 SCR provide as follows:

“1 Application

Subject to section 17 of the Act and except as provided in this Part, the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule to the Act.


…

3 Rules applicable

(1) The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies:


(a) Part 1 (preliminary matters),

(b) rules 2.1 and 2.2,

(c) Part 4 (preparation and filing of documents), other than rules 4.2, 4.9 and 4.12,

(d) Part 10 (service of documents generally), other than rules 10.7 and 10.16,

(e) rule 29.13 (record of trial to be kept),

(f) rules 31.7, 31.11, 31.12, 31.21 and 31.22,

(g) Part 33 (subpoenas), other than:


(i) rules 33.3 (1), 33.3 (8), 33.6 (1) and 33.7, and

(ii) if the issuing party is the Crown, rules 33.2 (3), 33.5 and 33.11,
(h) Part 35 (affidavits).
…”

42 The effect of Part 75 rule 3(1) SCR is to apply the nominated provisions within the Uniform Civil Procedure Rules 2005 (“UCPR”) to proceedings in the Supreme Court for the prosecution of offenders on indictment: clause (a), Third Schedule, Supreme Court Act 1970. Part 75 rule 3(1)(g) makes express reference to Part 33 UCPR concerning subpoenas. Reference is also made in Part 75 rule 3(1)(a) to Part 1 UCPR concerning preliminary matters. The question is whether these provisions pick up and apply the provisions in Part 3.10 Evidence Act 1995 concerning client legal privilege to subpoenas issued in the context of a criminal trial.

43 Part 33 UCPR is silent on the question of the applicable principles where a claim of client legal privilege is made with respect to a subpoena. By way of contrast, Part 21 rule 21.3(2)(d) UCPR, relating to discovery, uses the term “privileged document”. Part 21 rule 21.11(1)(b), relating to notices to produce in civil proceedings, also uses the term “privileged document”. The term “privileged document” is defined in the Dictionary to the UCPR as meaning a document that contains “privileged information”. The term “privileged information” is defined in the Dictionary to the UCPR as meaning, amongst other things, information of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 Evidence Act 1995, be adduced in the proceedings over the objection of any person.

44 Accordingly, the client legal privilege provisions contained in Part 3.10 Evidence Act 1995 constitute the test of privilege to be applied with respect to discovery and notices to produce in civil proceedings by operation of Part 21 UCPR. However, Part 33 UCPR relating to subpoenas does not expressly use the terms “privileged document” or “privileged information” so as to attract the definitions contained in the Dictionary to the UCPR.

45 The only way in which the client legal privilege provisions contained in Part 3.10 Evidence Act 1995 may apply to a subpoena issued in criminal proceedings in the Court is if the provisions contained in Part 1 rule 1.9 UCPR are applicable by operation of Part 75 rule 3(1)(a) SCR. Part 1 rule 1.9 UCPR is in the following terms:

“1.9 Objections to production of documents and answering of questions founded on privilege

(cf SCR Part 36, rule 13; DCR Part 28, rule 16)

(1) This rule applies in the following circumstances:


(a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer,

(b) if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer,
(c) if a question is put to a person in the course of an examination before the court or an authorised officer,
but does not apply in circumstances in which Part 3.10 of the Evidence Act 1995 or Part 3.10 of the Evidence Act 1995 of the Commonwealth applies.

(2) In subrule (1), authorised officer means:


(a) any officer of the court, or

(b) any examiner, referee, arbitrator or other person who is authorised by law to receive evidence.


(3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information.

(4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled.

(5) For the purpose of ruling on the objection:


(a) evidence in relation to the claim of privilege may be received from any person, by affidavit or otherwise, and

(b) cross-examination may be permitted on any affidavit used, and

(c) in the case of an objection to the production of a document, the person objecting may be compelled to produce the document.

(6) This rule does not affect any law that authorises or requires a person to withhold a document, or to refuse to answer a question, on the ground that producing.”

46 The CDPP submits that Part 1 rule 1.9(3) UCPR permits a person to object to production of documents on the ground that the document is a “privileged document” and, in this way, the definitions of “privileged document” and “privileged information” in the Dictionary to the UCPR are attracted to a subpoena issued in criminal proceedings in the Court. In this way, the CDPP submits, the statutory test of client legal privilege within Part 3.10 Evidence Act 1995 applies.

47 It must be said that a somewhat oblique approach has been adopted by the interaction of Part 75 SCR and Parts 1 and 33 UCPR. As the note contained in Part 1 rule 1.9 UCPR makes clear, the provision is the successor to the now repealed Part 36 rule 13 SCR. It had been held that Part 36 rule 13 SCR incorporated by reference relevant parts of the Evidence Act 1995 so as to apply those provisions with respect to subpoenas: Mok v New South Wales Crime Commission [2002] NSWCA 53 at 21; Wilson v State of New South Wales [2003] NSWSC 805 at [12]ff; Meteyard v Love (2005) 224 ALR 588 at 606-607; [2005] NSWCA 444 at [76]ff. I note in passing that the Full Federal Court has construed Order 33 rule 11(1) Federal Court Rules so that those provisions do not govern pre-trial production of evidence, but are limited in their operation to circumstances in which an order is made for production of a document of thing to the Court at a time when the Court is authorised to receive evidence: Seven Network Limited v News Limited (2005) 144 FCR 379. However, that Federal Court decision does not construe the provisions with which I am concerned.

48 It is noteworthy that the Final Report of the Australian Law Reform Commission entitled “Uniform Evidence Law”, ALRC Report 102, 2005, states at paragraph 14.30:

In New South Wales, the Supreme Court and the District Court have amended their rules to provide specifically that the Evidence Act 1995 (NSW) applies pre-trial [Previously this occurred through the Supreme Court Rules Pts 23, 24, 36 and 75, and the District Court Rules Pts 22, 22A and 29] . Since the enactment of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW), privileged documents are defined in the Dictionary of the Rules as information that could not be adduced under Part 3.10 of the Evidence Act 1995 (NSW) [J Hunter, C Cameron and T Henning, Litigation I: Civil Procedure (7th ed, 2005), [8.1]] . The rules apply Part 3.10 of the Evidence Act 1995 (NSW) to discovery, interrogatories, subpoenas, notices to produce and oral examinations. These rules apply the Act only to civil proceedings and not, for example, to subpoenas in criminal matters.”

49 Insofar as Australian Law Reform Commission Report 102 states that the UCPR applies the Evidence Act 1995 to civil proceedings only and not to subpoenas in criminal matters, it seems that the provisions of Part 75 rule 3(1) SCR and Parts 1 rule 1.9 at 33 UCPR have been overlooked.

50 Prior to the commencement of the UCPR in August 2005, Part 75 rule 2(1)(g) and (h) SCR provided for nominated parts of Parts 36 and 37 SCR to apply to criminal proceedings in the Supreme Court. However, Part 36 rule 13 SCR (the statutory predecessor to Part 1 rule 1.9 UCPR) was omitted from Part 75 rule 2(1)(g) SCR. Accordingly, the provision which incorporated by reference relevant parts of the Evidence Act 1995 to subpoenas (Mok v New South Wales Crime Commission; Meteyard v Love) did not apply to criminal proceedings in the Supreme Court. The absence of provisions before August 2005 which incorporated by reference the statutory test of client legal privilege led to an acceptance that common law principles applied concerning subpoenas or analogous procedures: see, for example, R v Ronen [2004] NSWSC 1305 at [14].

51 The combination of Part 75 rule 3(1)(a) and (g) SCR and Part 1 rule 1.9 UCPR closes this gap with respect to criminal proceedings.

52 The only possible impediment to this reasoning is if the words “so far as is applicable” in Part 75 rule 3(1) operate, in some way, to confine particular rules within Part 1 UCPR which apply to criminal proceedings. In my view, the operation of these words does not serve to confine rules within Part 1 UCPR in this way. Firstly, it is apparent that Part 33 UCPR concerning subpoenas was, with certain irrelevant exceptions, intended to apply to criminal proceedings in the Supreme Court. Secondly, Part 75 rule 3(1)(a) SCR provides for Part 1 to apply without exception of any specified rules within that Part. It is apparent that specified rules in other parts of the UCPR have been excluded expressly by provisions contained in Part 75 rule 3(1) SCR. Thirdly, Part 1 rule 1.2 UCPR expressly provides that Dictionary definitions apply to terms in the UCPR. Fourthly, the words “so far as is applicable” (like the phrase “so far as their provisions can be applied”) ought be given a wide construction. The phrase is absolute and there is no modification of the predicate such as would permit contextual appraisal of the suitability of the application of a given section: Fleming v White (1981) 2 NSWLR 219 at 721-725; Epacris Pty Limited v Director-General, Department of Natural Resources [2007] NSWCCA 76 at [69].

53 Although a clearer and more direct route could have been used to apply the client privilege legal provisions in Part 3.10 Evidence Act 1995 to subpoenas in criminal matters in this Court, I am satisfied that the proper construction of Part 75 SCR has this effect. Accordingly, I consider that the provisions of Part 3.10 Evidence Act 1995 apply where a claim of privilege is made in the context of a subpoena issued in criminal proceedings in the Supreme Court. The relevant principles to be applied in determining whether the CDPP’s claim for privilege has been made good are the statutory provisions contained within Part 3.10 Evidence Act 1995.

54 That said, my ultimate conclusion that the claim for privilege ought be upheld would be the same whether the statutory principles or common law principles are applied. I will explain why in the event that my primary conclusion is wrong and the common law principles are applicable.

Who is the Client ?

55 The term “client” is defined in s.117(1) Evidence Act 1995 in the following terms:

“client includes the following:

(a) an employer (not being a lawyer) of a lawyer,

(b) an employee or agent of a client,

(c) an employer of a lawyer if the employer is:

(i) the Commonwealth or a State or Territory, or

(ii) a body established by a law of the Commonwealth or a State or Territory,


(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client - a manager, committee or person so acting,

(e) if a client has died - a personal representative of the client,

(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.”

56 I accept the CDPP’s submission that the CDPP is the client and lawyers working within the office of the CDPP are persons providing legal services to the CDPP as the client: R v Bunting at 391-392 [44]-[45]. There is nothing in the Director of Public Prosecutions Act 1986 (Cth) which is inconsistent with this conclusion. However, nothing turns upon this question in this case. Whether the client is viewed as the CDPP as a statutory officer or the Crown in a wider sense, has no effect on the outcome of the present claim for privilege.

Are the Communications During Conferences Between Prosecution Lawyers and Witnesses Caught by Privilege ?

57 The present case involves a claim of litigation privilege under s.119 Evidence Act 1995 which is in the following terms:

“Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.”

58 I have examined the documents contained within MFI11 for the purpose of determining whether they are notes of conferences held this year between prosecution counsel and solicitors and Crown witnesses. I have had regard to the evidence of Ms Wildermoth in her affidavit sworn 20 June 2007 concerning the conferences and their purpose. I am satisfied that the conference notes record confidential communications for the dominant purpose of a pending Australian proceeding, being the trial of the Accused, and thus fall within s.119 Evidence Act 1995.

59 If the common law principles were applicable, I would likewise be satisfied that the documents record communications passing between the CDPP’s legal representatives and third persons, namely witnesses, for the purposes of pending litigation: Trade Practices Commission v Sterling (1978) 36 FLR 244 at 246. I am satisfied that the communications contained in the documents were made for the dominant purpose of a lawyer providing legal services so as to attract client legal privilege at common law: Esso Australia Resources Limited v Commissioner of Taxation at 73,107.

60 A similar conclusion has been reached in other cases by application of common law principles with respect to subpoenas requiring production by the Director of Public Prosecutions of communications between prosecution lawyers and prosecution witnesses during proofing sessions. In R v Bunting, Martin J concluded at 401-402 [86]:

“The fourth category of documents comprised notes made by DPP practitioners of communications with prosecution witnesses during proofing sessions. In my view those communications occurred in privileged circumstances: TPC v Sterling 246. Bearing in mind the undertaking given by the Director that in respect of information received in those privileged communications the Director has complied and will continue to comply with the duty of disclosure by waiving privilege, I declined to inspect the notes and upheld the Director's claim.”

61 In R v Tracey (No. 2), Nyland J took a similar approach to a subpoena seeking production of proofing notes between prosecution lawyers and potential witnesses. Nyland J said at [28]-[31]:

“[28] I turn first to the question of the proofing notes. Counsel for the defence sought production of the notes of interviews and meetings between employees of the DPP and potential witnesses in relation to the Watson investigation, including but not limited to what are sometimes referred to as ‘proofing notes’.

[29] Ms Chapman produced a schedule of those notes which referred to pre-committal notes taken by Ms Geyer, pre-trial notes taken by herself and pre-trial notes taken by Ms Geyer. That schedule is set out in Exhibit VDP009. That document showed that some of those proofing sessions had resulted in a number of further statements being provided to the defence.

[30] Ms Chapman said in court [at T56] that the Director was well aware of the duty of disclosure. She said she had read the proofing notes of both herself and Ms Geyer and assured me that there was nothing which came within the duty of disclosure which had not been disclosed, with the exception of the proofing of Matthew Smith. She said, however, that a further statement of Smith would be provided to comply with her duty of disclosure.

[31] The issue of the proofing notes is not an easy matter to resolve. Martin J in R v Bunting & Ors [(2002) 84 SASR 378] dealt with a similar problem and said (at 401–402):

The fourth category of documents comprised notes made by DPP practitioners of communications with prosecution witnesses during proofing sessions. In my view those communications occurred in privileged circumstances: Trade Practices Commission v Sterling (at 246). Bearing in mind the undertaking given by the Director that in respect of information received in those privileged communications the Director has complied and will continue to comply with the duty of disclosure by waiving privilege, I decline to inspect the notes and uphold the Director’s claim.
Consistent with those remarks, and in the light of the assurance given in court by Ms Chapman, I declined to order that the documents to be produced for inspection either to me or to defence counsel.”

62 In my view, documents recording communications between prosecution lawyers and prosecution witnesses for the dominant purpose of pending criminal proceedings against the Accused are clearly subject to privilege, whether the statutory test or common law principles are applied.

Relevance of the Prosecution Duty of Disclosure to the Privilege Question

63 I accept the CDPP submission that the prosecution’s duty of disclosure at common law, and under the CDPP Statement, does not bear upon the existence of privilege under the Evidence Act 1995 or at common law, or the question whether any privilege has been waived: R v Bunting at 393 [49]-[51].

64 The duty of disclosure operates so that the CDPP ought disclose to the defence all documents to which the duty attaches, irrespective of whether client legal privilege applies to the relevant documents. However, it is for the CDPP to exercise his independent prosecutorial discretion to decide whether information is subject to the duty of disclosure. It is not for the Court, in the context of a subpoena hearing, to supervise or review the CDPP’s discharge of his duty during the course of the trial: Mallard v The Queen at 155-156 [81]-[84]; Island Maritime Limited v Filipowski [2006] 226 CLR 328 at 355 [81]; R v Petroulias (No. 1) at [65]. Apart from this question of principle, at a practical level, the CDPP and his officers, no doubt advised by prosecuting counsel, will be in a far better position than a trial judge to form a view as to whether documents ought be disclosed in the discharge of this duty. The trial judge will not usually be aware of the course of prior disclosure, the range of statements taken from Crown witnesses and the variety of other issues and factors bearing upon the duty of disclosure, especially in the context of a complex fraud case with a long litigious history, such as the present case. Even given the advantages which I have as the trial judge engaged in a range of interlocutory applications and trials since July 2006, I am not in a position to review, in some way, the Crown’s discharge of its duty of disclosure.

65 The CDPP, of course, will have in mind potential consequences in the event of conviction, if information has not been disclosed which ought to have been disclosed, and where a conviction may be challenged on appeal upon the basis that a miscarriage of justice has flowed from a refusal or failure to disclose such material.

Has Privilege Been Waived in the Circumstances of this Case ?

66 Section 122 Evidence Act 1995 is relevant to the question of waiver:

“122 Loss of client legal privilege: consent and related matters

(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made:


(a) in the course of making a confidential communication or preparing a confidential document, or

(b) as a result of duress or deception, or

(c) under compulsion of law, or

(d) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.


(3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure.

(4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than:


(a) a lawyer acting for the client or party, or

(b) if the client or party is a body established by, or a person holding an office under, an Australian law—the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held.

(5) Subsections (2) and (4) do not apply to:


(a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or

(b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.


(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence by police officers).”

67 No party submitted that s.123 Evidence Act 1995 has any bearing upon the present application.

68 Mr Walsh submits that privilege has been waived in this case by the Crown calling in the committal proceedings, the 2005 trial and/or the 2007 aborted trial the witnesses identified in the schedule to the subpoena. He submits that, applying common law principles of waiver, relevant inconsistency and unfairness arises in these circumstances where the CDPP seeks to maintain a claim of privilege with respect to the conference notes caught by the subpoena. He relies upon Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481, 487-488, 497; Goldberg v Ng at 84, 95-98 and Mann v Carnell at 13 [28]-[29], 15 [34].

69 In support of the submission that waiver has occurred at common law, Mr Walsh relies upon the decision of Sulan J in R v Haydon (No. 5). After referring to a number of authorities, including R v Bunting and Mann v Carnell, Sulan J said at [27]-[32]:

“[27] 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.

[28] 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.

[29] 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.

[30] 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.

[31] 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 R [(1983-4) 154 CLR 404] , 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 [Ibid at 414–415] .

[32] 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.”

70 I do not consider that the calling of a prosecution witness at committal proceedings or at trial constituted an implied or imputed waiver for the purpose of a further trial. If this view was correct, than the mere act of the prosecution serving witness statements under the Criminal Procedure Act 1986, in advance of committal proceedings, would constitute waiver. The calling of a witness or witnesses at committal proceedings would have the same effect. The calling of the witnesses at trial would, likewise, have the same effect. Indeed, from the moment that the witness was sworn or affirmed, any privilege would be waived. With respect, this cannot be correct. I do not consider that the bare fact that a witness or witnesses have been called at committal proceedings or at an earlier trial satisfies the test for waiver at common law. I do not understand the judgment of Sulan J in R v Haydon (No. 5) as laying down such a broad principle.

71 I do not accept the defence submission that the calling of witnesses by the Crown, per se, constitutes waiver at common law (if that test was applicable). The authorities point to an additional requirement. For example, in Mann v Carnell at 13 [29], Gleeson CJ, Gaudron, Gummow and Callinan JJ said:

“Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is ‘imputed by operation of law’ [eg Goldberg v Ng (1995) 185 CLR 83 at 95] . This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank , the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. 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.”

72 In this passage, their Honours referred to the decision of the New South Wales Court of Appeal in Benecke v National Australia Bank (1993) 35 NSWLR 110 where waiver of privilege arose from the giving of evidence in legal proceedings concerning instructions to a barrister in related proceedings whilst the client attempted, at the same time, to prevent the barrister from giving the barrister’s version of those instructions. For privilege to be waived at common law, an inconsistent stance must have been taken. That has not been demonstrated in the present case. Accordingly, even if the common law principles of waiver were applicable as the Accused submits, the privilege has not been waived in this case.

73 I do not accept that the calling of witnesses at committal proceedings or at earlier trials of the Accused gives rise to waiver applying the statutory test in s.122 Evidence Act 1995.

74 The specific defence submissions made concerning Mr Morgan and Mr Aivaliotes do not demonstrate that privilege has been waived. In any event, the position is theoretical at present concerning Mr Aivaliotes as no conference notes with him are contained in MFI11.

75 Whether the common law or the Evidence Act 1995 applies, I am satisfied that the privilege has not been waived in this case.

Conclusion

76 In summary, I am satisfied that the claim for privilege has been made good with respect to the documents contained in MFI11 and that privilege has not been waived. My conclusion is the same whether the provisions contained in Part 3.10 Evidence Act 1995 or the common law apply. Accordingly, the Accused will not be permitted to inspect the documents produced to the Court.

77 The evidence adduced on this application raises questions concerning the timeliness of the CDPP’s disclosure to the Accused of Mr Morgan’s bankruptcy and prior criminal conviction. In this respect, Mr Hastings QC explained (T393.50):

“Certainly I can assure your Honour if they had arisen in the course of the conference, we would have immediately alerted the defence to them. As your Honour would know from the correspondence, for some reason it never occurred to us that Mr Morgan would have a conviction. No one has ever checked until the request from the defence on this, you know, when this matter was in its younger days. Similarly, in relation to the bankruptcy, notwithstanding the numbers of occasions he has been in the witness box and cross examined, he had never been asked questions about that, and there was a question from the defence which prompted the inquiry which led to that being revealed, rather than something which emerged in a conference, which we certainly would have caused to be brought to the attention of the defence.”

78 Against this background, it seems to me that the Crown ought give direct and express attention to the documents caught by the subpoena, being notes of conferences which have taken place since 23 March 2000. To the extent that the Accused has sought to call in aid on the present application suggested deficiencies in timely disclosure by the CDPP of matters concerning Mr Morgan, it is appropriate for the Crown, through prosecuting counsel, to examine the notes so that assurances may be given to the Accused and the Court that there is no material contained within these documents which is subject to the prosecution’s duty of disclosure. At the time when I announced my decision on this question on 25 June 2007, Mr Hastings QC accepted readily this responsibility (T392-395).

79 It is necessary for the CDPP to produce all documents caught by this subpoena in addition to 2007 conference notes contained in MFI11. When those documents are produced to the Court, I will inspect them, in conjunction with any further evidence which the CDPP seeks to rely upon, for the purpose of satisfying myself that privilege attaches to the documents.

80 With respect to the documents contained within MFI11, I uphold the claim for client legal privilege. I decline the Accused’s application to inspect the documents.

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