R v Qaumi (No 35)

[2016] NSWSC 682

Supreme Court

New South Wales

Medium Neutral Citation:	R v Qaumi & Ors (No 35) [2016] NSWSC 682
Hearing dates:	30 May 2016
Date of orders:	31 May 2016
Decision date:	31 May 2016
Jurisdiction:	Common Law - Criminal
Before:	Hamill J
Decision:	Uphold the objection raised by Witness M to answering questions that would disclose communications between her and her solicitor.
Catchwords:	CRIMINAL LAW – client legal privilege – requirement to advise witness of right to object – whether privilege lost by misconduct – whether privilege lost by voluntary disclose of evidence – lack of cogent evidence – objection upheld
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Attorney-General for the Northern Territory v Maurice & Ors (1986)161 CLR 475 Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Grant v Downs [1986] HCA 80; (1976) 135 CLR 674 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 Thomas v New South Wales [2006] NSWSC 3807
Category:	Procedural and other rulings
Parties:	Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal
Representation:	Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) G Clarke (Kalal)   Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal)
File Number(s):	Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939
Publication restriction:	No publication until the conclusion of the trial.

Judgment

1. During the evidence of the current witness, a witness known as M, Senior Counsel for Farhad Qaumi embarked on cross-examination which attempted to elicit communications between the witness and her solicitor at a time when she stood charged with certain criminal offences. Because of the pressure of time caused by the way in which the issue arose, and to avoid further disruption to the trial, these reasons have been prepared overnight.

2. The manner in which the matter arose was as follows:

“Q. In that call you talk about giving a solicitor $10,000 for bail for Farhad Qaumi?

A. Yes.

Q. And getting a house for surety?

A. Yes.

Q. You sound genuinely pleased to be able to speak to Jamil Qaumi?

A. I did sound that way.

Q. Were you acting?

A. Yes.

Q. Your solicitor was Zemarai Khatiz, is that right?

A. Yes.

Q. At that stage was he Farhad Qaumi's solicitor as well?

A. Yes. At what stage, sorry?

Q. At the time of this phone call?

A. No, I hadn't been charged. He was Farhad's solicitor, not mine.

Q. Would you pause before you answer this question in case there is an objection. At any stage did you have a conversation with Mr Khatiz about obtaining statutory declarations from various co accused in the trial?

A. Can you repeat that, please?

Q. Yes. At any stage did you have any conversations with Mr Khatiz about obtaining statutory declarations from co accused in this trial?

A. For myself?

Q. Yes.

A. Yes. I told him to get one off Mohammed Kalal because I'd never met him before and, yeah, I think that was it.

HIS HONOUR: Are we venturing into territory where the witness should be advised of legal professional privilege. I thought the objection might come from elsewhere but if you're asking her about communications between her and her solicitor -

STRATTON: Yes.

HIS HONOUR: - in respect of her, who is going to make that objection, me? The witness? Without having received any advice or any notice?

STRATTON: That is partly why I asked the witness to pause.”

3. As can be seen, it was unclear precisely who was expected to raise an objection given that the witness is unrepresented in the proceedings and, it seems, the Crown was not on notice that questions would be asked that potentially raised confidential communications between the witness and her lawyers. Because the matter raised a question of privilege under part 3.10 of the Evidence Act 1995 (NSW), it was incumbent upon me to comply with s 132 which is in the following terms:

“132 Court to inform of rights to make applications and objections

If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.”

4. The jury was excused and there was a short discussion about the way forward. Two documents were handed up and subsequently became exhibits on the voir dire. Senior Counsel acknowledged that the questions he had asked, and proposed to asked, raise questions of client legal privilege. At that stage, the following submissions were made:

“HIS HONOUR: Let's just assume for the moment it has relevance in an attack on Witness M's credibility. Are you asking her to disclose a confidential communication, as that expression is understood?

STRATTON: Yes.

HIS HONOUR: Why should she be required to do that? Has she lost her right to privilege?

STRATTON: Can I hand up a copy of the statement of Witness I, of 12 August 2014, and in particular draw your Honour's attention to paragraph 58. (Handed up.)

HIS HONOUR: Is Mr Khatiz to be a witness in this case? He seems to be playing a prominent role.

STRATTON: That is a matter for the Crown, your Honour. He certainly won't be called by me.

HIS HONOUR: This statement of Witness I suggests that it was your client who wanted this statutory declaration created.

STRATTON: That's what he was told.

HIS HONOUR: I have read that.

STRATTON: In my submission, the effect of section 125 of the Evidence Act well, in my submission legal professional privilege has been lost in two ways; firstly, because the stat dec was provided to the police and, secondly, because it's submitted that the taking of the stat dec was an attempt to pervert the course of justice.

HIS HONOUR: Are those your submissions?

STRATTON: Yes.”

5. I retired to consider the matter but decided to defer the question until later in the day to enable the trial to continue with the least disruption to the jury and flow of the evidence. The documents that had been handed up were marked as exhibits on the voir dire and the jury returned to the courtroom. The jury was advised as follows:

“HIS HONOUR: Members of the jury, I am sure that most of you are aware - if from no other source than the television - that communications between a client and a lawyer are subject to a privilege. Whether or not that privilege applies to the questions Mr Stratton was about to ask or has asked remains undetermined at this stage.

What I have invited Mr Stratton to do is to continue with his cross examination on other areas rather than have you waiting outside for what could be some time while we discuss these matters, because they raise some complex issues. So that matter that arose just before you left has not been resolved. We will resolve it in due course and Mr Stratton may come back to it later.”

6. The cross-examination continued until Senior Counsel reached a point where he sought, and was granted, an adjournment overnight to “check the final Browne v Dunns” and work out how to play a disc that had not been working earlier in the day. The question of the client legal privilege was revisited after the jury was excused for the evening.

THE REQUIRMENT TO ADVISE THE WITNESS OF HER RIGHT TO OBJECT

7. The first step was to comply with s 132 of the Evidence Act and the transcript records the following:

“IN THE ABSENCE OF THE JURY

HIS HONOUR: Thank you.

Q. Witness M, before the jury went out the second last time, you were asked some questions about communications between you and your solicitor, I think it is Mr Khatiz?

A. Yes.

Q. I'm just going to find that particular series of questions and answers. I just want to take you back to what happened. Mr Stratton asked you:

‘Q. Your solicitor was Zemarai Khatiz, is that right?

A. Yes.

Q. At that stage, was he Farhad Qaumi's solicitor as well?

A. Yes. At what stage, sorry?

Q. At the time of this phone call?

A. No, I hadn't been charged. He was Farhad's solicitors, not mine.

Q. Would you pause before you answer this question in case there is an objection. At any stage did you have a conversation with Mr Khatiz about obtaining statutory declarations from various co accused in the trial?

A. Can you repeat that, please?

Q. Yes. At any stage did you have any conversations with Mr Khatiz about obtaining statutory declarations from co accused in this trial?

A. For myself?

Q. Yes?

A. Yes, I told him to get one off Mohammed Kalal because I'd never met him before and, yeah, I think that was it.”

At that point I intervened, you may remember, and asked whether we were venturing into what I called legal professional privilege?

A. Yep.

Q. The law provides clients of lawyers with certain protections to enable free conversation between them. Unfortunately I haven't received many submissions on this but as far as I can tell, section 119 creates what is sometimes called a litigation privilege. It says:

“Evidence cannot be adduced over objection by a client if the Court finds that adducing the evidence would result in a disclosure of a confidential communication between the client and another person or between a lawyer acting for the client and another person, or the contents of a confidential document, for the dominant purpose of the client being provided with professional legal services.”

The Evidence Act also requires for me to attempt to explain to you what that means.

A. Yep.

Q. What I am going to ask you to try to understand is that you do have a right sorry, I should also say there is another privilege in relation to legal advice and it says that evidence is not to be adduced if an objection by the client, if it would result in disclosure of, again, confidential communications, for the dominant purpose of a lawyer providing legal advice to the client.

When you were asked about those questions and you provided some answers, were you talking about a time when you had been charged with a criminal offence?

A. Yes.

Q. And had you engaged this Mr Khatiz for the purpose of representing you?

A. Yes.

Q. In the court case?

A. Yes.

Q. And to provide you with advice?

A. Yes.

Q. And the discussion that you were asked about concerning obtaining statutory declarations, were those conversations in the context of that relationship?

A. Yes.

Q. Did you understand at that stage that communications with Mr Khatiz were confidential in the sense that they were not to be disclosed?

A. I knew they're confidential but I thought in Court I have to answer everything.

Q. I know that is what you thought today

A. Yes.

Q. Which is why you answered it, but when you were taking advice from him and when you were telling him your instructions, did you have an understanding that what you were telling him was confidential?

A. Yes.

HIS HONOUR: Mr Stratton, I am just working through it, as you can see, on my feet as it were.

STRATTON: Yes.

HIS HONOUR: It is a confidential communication that certainly attracts the litigation privilege and may attract the advice privilege, is that correct?

STRATTON: I concede that.

HIS HONOUR

Q. Witness M, you therefore have a right to object to answering those questions.

A. Okay.

Q. The question then becomes, one, whether you need the opportunity to obtain further legal advice in relation to the matter or, two, whether you, on what I have told you, one, understand what I have told you and, two, seek to object to answering the questions.

A. Okay.

Q. So what do you want to do?

A. I object to answering the question.”

IS THERE A VALID OBJECTION BASED ON CLIENT LEGAL PRIVILEGE?

8. As can be seen, Senior Counsel for Farhad Qaumi conceded that the questions sought to be asked involved the disclosure of a confidential communication as that expression is defined in s 117 of the Evidence Act and employed in ss 118-119 of the Evidence Act. That concession was correctly made. Section 117 defines confidential communication as follows:

“‘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.”

9. Section 118 creates an “advice” privilege:

“118 Legal advice

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 made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”

10. Section 119 creates a “litigation” privilege:

“119 Litigation

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.”

11. While I have used the word “create” with reference to the litigation and advice privilege as defined in ss 118-119 of the Evidence Act, those provisions really confirm the existence of privileges that have existed in the common law for a very long time. The importance of, and rationale behind, the privilege at common law has been emphasised in a number of cases. In Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Dawson J stated (at 128):

“The restriction of the privilege to the legal profession serves to emphasize that the relationship between a client and his [or her] legal adviser has a special significance because it is part of the functioning of the law itself. Communications which establish and arise out of that relationship are of their very nature of legal significance, something which would be coincidental in the case of other confidential relationships.”

12. McClennan CJ at CL in Thomas v New South Wales [2006] NSWSC 3807 cited Attorney-General for the Northern Territory v Maurice & Ors (1986)161 CLR 475 per Deane J at 490:

“It is a substantive general principle of the common law and not a mere rule of evidence that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practising lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings. (See generally, Baker v Campbell (1983) 153 CLR 52.) That general principle is of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that it advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and tribunals of the land. Its efficacy as a bulwark against tyranny and oppression depends upon the confidence of the community that it will in fact be enforced. That being so, it is not to be sacrificed even to promote the search for justice or truth in the individual case or matter and extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials."

13. The purpose of the common law privilege in relation to legal advice was outlined in Grant v Downs [1986] HCA 80; (1976) 135 CLR 674 by Stephen, Mason and Murphy JJ (at 685):

“The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.”

14. In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 the High Court distinguished the 'related to, but distinct' rationale for 'litigation privilege'. The court stated at [114]

“The rationale for the second head of legal professional privilege arises from the need to maintain, in an adversary system of litigation, the freedom of the lawyer and client to make such investigations and inquiries and to engage in such preparation as they think fit in order to further their case. A party to litigation should not be forced to prepare his or her case knowing that statements, advices and other documents, which have been created, may be required to be disclosed to the other party who can then make use of the documents for his or her own advantage. As Brennan J said in Baker v Campbell:

‘the relevant purpose of the privilege is the “maintenance of the curial procedure for the determination of justiciable controversies - the procedure of adversary litigation”. His Honour went on to say that "[i]f the prosecution, authorized to search for privileged documents, were able to open up the accused's brief while its own stayed tightly tied, a fair trial could hardly be obtained".'”

15. These great statements of principle show that the ability of a client to speak with a legal practitioner in the knowledge that the communication is confidential is fundamental to the legal system. In the absence of clear evidence that the privilege has been lost, the objection taken by the witness should be upheld.

16. Having been put in the position where she understood her right to object, Witness M raised an objection to giving the evidence. At that point, the witness was excused while consideration was given to whether the privilege had been lost as a result of her conduct:

“HIS HONOUR: Witness M, there are certain circumstances in which your conduct might mean that you have to answer the questions anyway.

WITNESS: Yes.

HIS HONOUR: And what we're about to do is have a debate about that.

WITNESS: Okay.

HIS HONOUR: I think it best if we do that in your absence.

WITNESS: All right.

HIS HONOUR: Thank you, you can go with the officers.

Loss of privilege

17. As has been observed, Senior Counsel conceded that a relevant privilege applied, but argued that there had been a loss of client legal privilege. Although the submissions were not couched in the terms of the statute, the essence of the submission was that the privilege was lost either because the witness had “acted in a way that is inconsistent with the client or party objecting to be adducing of the evidence” (s112) or because of misconduct on the part of the witness (s 125).

18. Section 122 and 125 provide as follows:

“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 the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3)  Without limiting subsection (2), a client or party is taken to have so acted if:

(a)  The client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or

(b)  the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4)  The reference in paragraph (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5)  A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

(a)  The substance of the evidence has been disclosed:

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

(ii)  as a result of duress or deception; or

(iii)  under compulsion of law; or

(iv)  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 part of the law, under which the body is established or the office is held; or

(b)  of 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

(c)  of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the 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 given by police officers).”

“125 Loss of client legal privilege: misconduct

(1) This Division does not prevent the adducing of evidence of:

(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or

(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:

(a) the fraud, offence or act, or the abuse of power, was committed, and

(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power, the court may find that the communication was so made or the document so prepared.

(3) In this section:

‘power’ means a power conferred by or under an Australian law.”

19. On the voir dire, Mr Stratton SC tendered a Statutory Declaration of Mohammad Kalal dated 1 April 2014 (exhibit VD 34) and the statement of a witness known as witness I dated 12 August 2014 (exhibit CD 35).

20. The statutory declaration of the accused Mohammed Kalal is in the following terms:

“My solicitor Hassan Hallak has advised me that Witness M had given me and my co-accused instructions to shoot the owner of a local business in Bankstown called Chocolata as indicated in her fact sheet.

I wish to inform the court that at no point in my life have never met, spoken, called or text messaged this woman.

Further, I have no idea who she is and I could not tell anyone not even my lawyer as to her appearance as I do not know her.

Again I wish to say I don’t know this woman and the police facts are incorrect as to me meeting her to take any such instructions to do anything inkling shooting someone.

I am willing to give this evidence in court at any time that I may be required to, and understand that to lie on a statutory declaration means I will face a further charge. My solicitor has explained to me what would happen if I lied on this declaration.

I am telling the truth I don’t know or never met this woman Witness M at any point in my life.”

21. The relevant part of the statement of Witness I was paragraph 58:

“58. I don't know the exact date, but towards the start of 2014 whilst I was at Long Bay gaol I received a visit from a lawyer, I can't recall his name but it would be on my visitor log. He told me he was from Zemarai's office. He told me that Farhad wanted me to sign a stat dec saying that I didn't know Witness M. I told him that wasn't true. He told me that Farhad, Mumtaz and Jamil wanted me to sign the papers. I told him I wasn't going to sign it. I heard later on that Mohammad KALAL (Moey) signed it which I thought was strange because Witness M has visited the clubhouse before when we have all been there.”

22. There was no evidence as to where the Statutory Declaration of Mr Kalal came from but Senior Counsel called on the Crown to acknowledge that it formed part of the prosecution brief. The Crown Prosecutor made that concession. Further, he volunteered that the Statutory Declaration appeared to have been used in (or provided to the Crown in advance of) a bail application made on behalf of Witness M. However, by the time the arguments were complete there was no clear evidence that this was the case. Certainly, no evidence was adduced by the party seeking to argue that client legal privilege had been lost. Early in the argument Senior Counsel for Farhad Qaumi speculated that the documents may have been found by police in the course of a search. [1] There is no evidence of that and, given the timing of Witness M’s arrest and the date of the statement, there is at least an inference that the two occurrences are related.

    1. Transcript (T) 2399.

23. I accept that if it is established that Witness M knowingly and voluntarily disclosed the substance of the Statutory Declaration of Mr Kalal in the course of a bail application (or otherwise), it would fall within the provisions of s 132 of the Evidence Act and the privilege would be lost. However, as the evidence now stands, I am unable to make that finding. There is no clear evidence that the document was used in a bail application or disclosed to the Crown. No questions have been asked, or sought to be asked, to establish that fact. The state of the evidence is such that I am unable to conclude that the witness (“client”) acted in a way that is inconsistent with her raising the objection: s 122(2) and, in particular, that she voluntarily disclosed the substance of the evidence to another person. That may, in fact, be the case but the evidence as it stands does not allow such a finding.

24. The second basis upon which it is submitted that client legal privilege has been lost is the misconduct exception in s 125. It was submitted that the Statutory Declaration is false and that its use in court proceedings and even its acquisition is conduct of the kind caught by s 125(2). I accept the legal premise behind that submission. However, there are a number of difficulties in coming to a positive finding of misconduct against Witness M.

25. First, the statement of Witness I suggests that the solicitor who approached him did so on behalf of Farhad Qaumi. It appears that at some relevant time that solicitor was also representing Witness M. However, on its face, the attempt to obtain what is argued to be false evidence from Witness I emanated from Farhad Qaumi, not from Witness M’s instructions to her solicitor.

26. Second, Witness I states that the solicitor who visited him in gaol told him “that Farhad, Mumtaz and Jamil wanted me to sign the papers”. This gives rise to three possibilities. First, Witness I’s statement is not reliable in one or more respects. Second, it was Farhad Qaumi (and/or his brothers) who solicited the statement from Witness I. Third, the solicitor was lying to Witness I when he told him that he acted on behalf of Farhad Qaumi. I am not prepared to act on that last assumption in the absence of some clear and cogent evidence.

27. The third problem with the misconduct argument is that Witness M has maintained that the representation in the statutory declaration – that is, that she did not know Mohammad Kalal – is true. The only evidence to support the proposition that it is false comes in the statement of Witness I. However, that statement contains no clear assertion that Witness M knew Mohammad Kalal. All it says is that he was surprised that Mohammad Kalal had signed the statutory declaration “because Witness M has visited the clubhouse before when we have all been there”. That, of itself, does not establish that Witness M knew Mohammed Kalal.

28. Fourth, as the Crown Prosecutor pointed out, the Statutory Declaration of Mr Kalal was sworn in front of Mr Kalal’s current solicitor and not in front of the solicitor then engaged by Witness M.

CONCLUSION

29. I accept that the cross examination upon which Senior Counsel seeks to embark is cross examination of a kind that could substantially undermine the credibility of the witness’s evidence. Similarly, I accept that if the evidence was available to support the submissions being made pursuant to ss 122 and 125 there would be a solid argument that Witness M has lost client legal privilege. However, the state of the evidence at this point is such that I am unable to come to a finding in that regard.

30. Accordingly, as the evidence stands, I uphold the objection raised by Witness M to answering questions that would disclose communications between her and her solicitor.

**********

Endnote

Decision last updated: 12 December 2016