R v Ronen

[2004] NSWSC 1305

CITATION:	Regina v Ronen & Ors [2004] NSWSC 1305
HEARING DATE(S):
JUDGMENT DATE:	25 October 2004
JUDGMENT OF:	Whealy J at 1
DECISION:	I hold that privilege exists and that this has not been waived. I decline to order or permit inspection on the privileged material.
CATCHWORDS:	Legal Professional privilege "Litigation privilege" - Expert witness: The need for the Crown to have expert assistance in the preparation of its case - Waiver of privilege - Prosecutor's duty of disclosure
LEGISLATION CITED:	Evidence Act Criminal Procedure Act (NSW)
CASES CITED:	Mann v Carnell (1999) 201 CLR 1 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Attorney General v Maurice (1986) 161 CLR 475 Goldberg v ING (1995) 185 CLR 83 Gray v The Queen 184 ALR 593 at 607 Bunting v The Queen (2002) 84 SASR 378 at 396-399 Australian Securities and Investments Commission v Southcorp (2003) 46 ACSR 438 at 441-2 Dingwell v The Commonwealth (1992) 39 FCR 521 at 524 Coles v Dyer & Anor (1999) 74 SASR 216 at 226-227 Sevic v Roarty (1998) 44 NSWLR 287 Roach v Page (No 17) 2003 NSWSC 973 at paras 9-11 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217
PARTIES :	Regina v Ida Ronen Regina v Nitzan Ronen Regina v Izhar Ronen
FILE NUMBER(S):	SC 70222/03; 70032/03; 70223/03
COUNSEL:	Mr T. Game SC; Ms S. McNaughton - Crown Mr R. Richter QC; Mr N. Rosenbaum - Accused Ida Ronen Mr I. Hill QC; Mr E. Power - Accused Nitzan Ronen Mr R. Van de Wiel QC; Mr P. JOnes - Accused Izhar Ronen
SOLICITORS:	Mr P. Musgrave - Cth DPP Watsons Solicitors

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :

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

WHEALY J

MONDAY 25 October 2004

70222/03 - REGINA v Ida RONEN
70032/03 - REGINA v Nitzan RONEN
70223/03 - REGINA v Izhar RONEN

JUDGMENT - On legal professional privilege; see transcript 5809

1 HIS HONOUR: The matters for decision arises in this way; during the cross-examination of Ms Wade by Mr Richter QC an issue arose as to Miss Wade's knowledge regarding the nature of the stock that was being sold in the retail stores.

2 The questions and answers to which I am referring in the decision are set out in the transcript at 5596 from line 30 down to 5597 at line 45 as follows:

“Q. Were you aware prior to the execution of the search warrant that the Dolinas were selling things like non-first quality goods?

A. I can't say I have a specific memory.

Q. Were you aware--

CROWN PROSECUTOR: Is this the Dolinas?

RICHTER: Sorry, I said the Dolinas.

Q. I meant On Fovo and Ronen Young Fashion.

A. Right, again, I can't be - I can't be --

Q. Were you aware that On Fovo and Ronan Young Fashions were selling returned goods?

A. At a time prior to the recent work that I've done, I can't be sure.

Q. Were you aware at a time prior to the recent work that you had done that the retail stores were selling obsolete stock, that is a number of seasons out of time?

A. I believe that the evidence of Brandon Greyling and Ian Geller may have pointed to that, yes.

Q. You learnt that during the course of the trial, did you?

A. Probably in respect of Brandon Greyling, I think it may have actually been in respect of his second statement.

Q. Yes?

A. Which was in December or January - December 2003, January 2004.

Q. You conducted an interview with him, did you?

A. I'm not sure if it would be referred to as an interview.

Q. I am sorry?

A. I'm not sure if it is referred to as an interview.

Q. Well, what was it?

A. I may need to seek - to make a claim for legal professional privilege.

HIS HONOUR: All right.

WITNESS: There was a discussion with the Crown.

RICHTER: Q. I am talking about a discussion with Greyling, not with the Crown?

A. I still may need to seek some advice.

RICHTER: I think we may need to argue about that, your Honour, or perhaps at least the witness needs to take advice.

HIS HONOUR: Yes.

Q. So you are talking about a conference that you have had with legal counsel with Mr Greyling in attendance as well?

A. Yes.

RICHTER: Sorry, sir?

HIS HONOUR: That is what I thought was the problem. It seems there must have been some joint conference with Mr Greyling in attendance with legal advisors at which Miss Wade was in attendance, that is what she was talking about.

RICHTER: That may be so, but I don't believe that makes it legally professionally privileged, your Honour.

HIS HONOUR: I think it may be.”

3 Then Mr Richter asked questions of Ms Wade at the commencement of the evidence before the jury on 18 October 2004. The material starts at transcript 5630 at line 20 and takes in the whole of 5631 down to line 55 and continues over then on transcript 5632 line 25, the whole of 5633 and 5634 down to line 45:

“Q. Ms Wade, you took part in the interview of a number of witnesses in this case, is that right?

A. That's correct.

Q. Amongst others you interviewed Mr Geller?

A. Yes.

Q. You interviewed Mr Segal?

A. Yes.

Q. Who else did you interview?

A. Mr Greyling, Jennifer Lawler, Vanessa Bortolin.

Q. When you interviewed Vanessa - anyone else that comes to mind?

A. A man called David Ainsworth and I also attended an interview that didn't proceed in respect of Stephen Lowy.

Q. So far as those five witnesses, Bortolin, Lawler, Greyling, Geller and who was it, the fifth?

HIS HONOUR: Geller, Segal, Greyling, Lawler and Bortolin.

RICHTER: Thank you, very much.

Q. Do you know when you interviewed Miss Bortolin?

A. It was on, it was the date of her statement, I believe the 4th of December 2003.

Q. 2003?

A. Whatever the date of her statement is, early December 2003.

Q. In that statement you were aware, were you not, that she doesn't disclose a whole lot of material she disclosed here in evidence-in-chief?

A. I would need to compare the two to be a hundred per cent sure but, yah.

Q. Did she talk, for example, about any adjustments to loan accounts or reallocations in her statement?

A. I think she may have in respect of the Krochmalik & Hurwitz duties when she passed the work on to the external accountants.

Q. Would you like to refresh your memory from her statement?

A. Yes, if I had her statement.

Q. I'm sorry?

A. If I can have her statement in front of me.

Q. Whilst it is being looked for I will move on. In any event, you interviewed her and took a statement from her?

A. Yes, with the assistance of Neville Moulds.

Q. I see, the two of you interviewed together?

A. Yes.

Q. When you were interviewing her, apart from getting a statement signed by her, I take it the interview proceeded in the form of questions and answers?

A. It was generally about her duties.

Q. Yes, but it proceeded in the form of questions and answers?

A. Well, we let her speak most of the time.

Q. Did it proceed by way of questions and answers?

CROWN PROSECUTOR: She is answering the question, your Honour.

RICHTER: I don't think she is.

CROWN PROSECUTOR: She has answered the question.

HIS HONOUR: I am not satisfied that Miss Wade is not answering the question. I would let her finish that sentence.

WITNESS: It proceeded by asking her role, what duties she attended to. So it was on a question basis and it was a matter of her speaking to general topic areas.

RICHTER: Q. Yes, do you have a record of the questions that you asked her?

A. I don't believe I do.

Q. Did anyone have a record of the questions that she was asked?

A. The only record that I can remember is my request to go and interview her, which was a case note entry.

…

Q. So far as your interview with Mr Geller was concerned, he was interviewed?

A. Again, the object of it was to obtain a statement from him.

Q. And was it described to your superiors as going to interview him in order to obtain a statement?
A. Well, I didn't organise that interview.

Q. Who organised it?

A. I believe Neville Moulds did.

Q. From the PROMIS notes was that in the form of going out to interview him?

A. I am not sure.

Q. You have not seen the PROMIS notes?

A. I have seen the PROMIS notes but I am reluctant to answer unless I have it in front of me because I can't remember everything.

Q. All right, I am not sure I have been given it either but we will get around to that. You, in evidence-in-chief Mr Game asked you this at 5176:

Q. Now, did you come to be involved in the actual interviewing of certain people relating to the Ronen investigation quite early on?

A. That's correct, yes.'

Q. Do you recall that?

A. Yes, that's correct.

Q. Why didn't you give him this business about I was taking a statement?

A. Because in my mind they are the same thing.

Q. Didn't seem to be in his mind when he objected but he asked you about your interviewing certain people and you said that's correct?

A. Yes. Well, if that's the record because, as I have said, interview and statement in my mind are the same thing.

Q. The next question is, Mr Game:

Q. Could you tell us how that came about?

A. Basically I had a lot of case knowledge, even though I wasn't doing a lot of investigative work on the Ronen side of the investigation, I still had a lot of case knowledge concerning key people that needed to be interviewed and several of the people, actually I believe had an accounting type role and so I --

Q. When you say all of the people?

A. That I interviewed or that I assisted in interviewing. So that was why I became involved in interviewing certain persons, because they had an accounting type of role in respect of the Ronen business.

Q. And so it was by that means that you came to be the person who interviewed people on the accounting side, as it were, with respect to the investigation concerning the Ronens?

A. That's correct.'

You were at that stage the expert, the only expert, in this Ronen investigation and you were interviewing witnesses, right?

CROWN PROSECUTOR: Your Honour, may I object? The last question said assisted and dealing with the process of the questioning.

RICHTER: Q. Interviewing or assisting in interviews, right, your assisting in interviews consisted in suggesting questions to be asked, did it not?

A. It was putting questions to the witnesses.

Q. I see, so you actually, the assistance was in the form of taking part in the interview by way of questioning?

A. Yes.

Q. Was it?

A. Which hat were you wearing when you were conducting those processes, for example with Mr Geller or Mr Greyling?

A. Well, I only had the cap in respect of Ian Geller, Brandon Greyling, Jennifer Lawler. I was the financial investigator assigned to that matter and at that point in time I had not attended to any of the detailed financial analysis work that I have since done, since September 2003.

Q. But at that stage - I'm sorry did I cut you off?

A. Well, basically I went there knowing accounting terminology and that was the purpose of my role, to assist in asking questions relating to the flow of information from source information through to the final financial statement and income tax returns.

Q. But at that stage you had already formulate a view of the case, had you not?

A. There were certain evidence that we collected during the course of the investigation concerning the allegation --

Q. At that stage --

A. before the courts.

Q. Had you formulated a view of the allegation in relation to the allegation of the cash skim?

A. Well, there was evidence that we had collected relating to the allegation.

Q. Had you formulated a view?

A. I am not sure what you are asking me, whether or not I thought your clients were guilty?

HIS HONOUR: Do you mean had you formed a view or formulated, they are different?

RICHTER: Formed, formulated, had she come to a view.

HIS HONOUR: That is what I was getting at, formulated is an expression.

RICHTER: Q. Had you come to a view in relation to what was going on by the time you interviewed these people?

A. I believe so, based on the evidence that had been collected to that point in time."

4 On 19 October 2004 Miss Wade volunteered further information on the general topic that had been raised by the questioning and the extended questioning to which I have made reference. This will be seen at transcript 5712 at lines 25 through to 55:

“ EXAMINATION ON VOIR DIRE .

WITNESS: Your Honour, yesterday Mr Richter asked me questions concerning taking of interviews or statements and I don't believe I have answered him completely in reference to conferences with witnesses that may be subject to LPP. So I will just --

Q. Could you be a bit more --

A. I have attended conferences with the prosecutors with certain witnesses which I didn't name yesterday. So, I would just like to make that clear.

Q. Who do you name yesterday?

A. I named the people that I --

Q. There were five people that you named yesterday?

A. That were interviews that led to statements.

Q. Plus two others, Mr Lowy and Mr --

A. Yes.

Q. Ainsworth?

A. Mr Ainsworth and Mr Lowy.

Q. Now you are saying you attended conferences with other people beyond those persons named?

A. One person from which a statement was obtained from me previously, which was Mr Greyling, and the other person, Mr Lorenzo Mastroianni. But that was in conference, it wasn't in respect of taking a statement.”

5 Further questions were then asked by Mr Richter, although a number of objections were raised to this process when he did so. I will however set out, for convenience sake again, this material. It is at transcript 5715 line 25 over the page to 5716 down to the commencement of line 30. It continues at 5716 line 55 over to 5717, the end of line 50:

“ RICHTER: Q. Miss Wade, when you say you attended a conference, I don't want to discuss contents if it is subject to legal professional privilege, but did you partake in any questions posed to the witnesses or related to anyone to the witnesses to clarify issues or to pursue issues?

A. Yes, I did.

Q. Were any of those conferences after the commencement of the trial?

A .I believe one was in November, I believe both may have been in November of 2003. So, I don't think, no.

Q. Any conferences with witnesses and prosecution team this year?

A. The only people I have been with are Brandon Greyling and Lorenzo Mastroianni.

Q. This year?

A. Well, I think they were actually last year, I am not sure of the exact date but I don't believe during the course of this trial at all.

Q. Brandon Greyling and Mastroianni and you took an active part in posing questions and doing things like that?
A. I believe I provided a list of questions.

Q. Did you ever interview Hazel Connolly?

A. No, I don't believe I did. No, I didn't. No, I didn't.

Q. By the way, your participation in those conferences --

CROWN PROSECUTOR: Your Honour, I think the witness was trying to clarify something, I don't think this was an invitation to Mr Richter to conduct a cross-examination on it.

HIS HONOUR: I will allow Mr Richter to continue.

RICHTER: Q. Those conferences that you attended that you have referred to, that was done at a time when you knew you were to be the principal Crown expert witness, is that right?

A. I had started to undertake work that I have now given evidence on in this Court.

Q. On your statements?

A. Yes, one of my statements, I had commenced some work on that.

Q. So, those conferences with those witnesses occurred when you knew you were to be a witness in this case?

A. Well, the content of the questions I was asking was --

Q. Didn't ask that. You knew you were to be a witness in this case?

A. At that point in time I hadn't finalised a statement hut I was leading to certain financial work which was bound to give me, or require me to give evidence. So, yes, I knew I was going to be a witness.

RICHTER: Q. So far as the conference with Mr Greyling was concerned, were notes actually kept of the questions asked and the answers given by Mr Greyling?

A. I have kept a document that lists questions to, the recommended questions to ask and I have a handwritten document with answers that he said to certain things as best as I could keep a record.

Q. So, you have a record of the questions that were asked?

A. Yes I do, well no, sorry, they are a record of my recommended questions.

CROWN PROSECUTOR: I think we are going to have, I thought we were going to clarify what the subject was, now Mr Richter is launching into matters, I thought we were going to clarify what the subject was, I thought we had agreed that before. I thought that was clear.

RICHTER: Your Honour, I will move on.

CROWN PROSECUTOR: All I am concerned about is that we clarify what it is and how it is done, that's all, I am not concerned about --

HIS HONOUR: And if it is a question that is properly admissible, of course you could not object.

CROWN PROSECUTOR: Yes.

HIS HONOUR: You can move on or stay where you are, it is up to you, Mr Richter.

RICHTER: I don't understand if that was objected to, there was an objection when I was asking about her records of the questions going to be asked.

HIS HONOUR: I don't think it has been objected to.

CROWN PROSECUTOR: Recommended questions.

RICHTER: Q. Recommended, were those questions asked?

A. I can't be a hundred percent sure based on my memory but I know I have looked at some of the handwritten notes from things that Mr Greyling said and some of those things were answered.

Q. Are you able to lay your hands on the list of recommended questions?
A. I have it in the office.

Q. Perhaps you might be able to bring it in after lunch?

A. Well, it was a document that I produced and gave to the Crown Prosecutors.”

6 At 2pm on that day Miss Hickton appeared for the Australian Crime Commission, as the transcript records at 5736, and certain documents were produced by the witness. The issue was postponed then until the next day.

7 The documents which were produced were marked for identification as 170, 171 and 172. There were further documents formally produced on Friday 22 October 2004 and they were marked for identification 174, 175 and 176. There was a separate category of documents marked 173 for identification.

8 Argument proceeded last Friday when the broader issue of privilege was debated at length. It may be convenient if I set out the arguments of counsel for the defence to explain the way in which the issue falls to be determined.

9 Mr Hill QC argued the principal argument on behalf of the defence. He said that there were three categories of material for consideration. The first was the list of questions and the notes of answers given at conferences or proposed conferences. Secondly, there was the material Miss Wade had prepared to assist in pre-trial questioning of the witness. (This was the material marked for identification 175 and 176). Thirdly, there was the ratio material. However, it has been agreed I can put the last mentioned material to one side.

10 Mr Hill argued in relation to the first two areas that the duties of prosecutorial disclosure would result in an implied waiver of privilege for the relevant material, or at least part of it, and would compel its production.

11 Mr Richter QC put a separate argument. His argument was this: the fact that Ms Wade has been called as an expert to express opinions places her in automatic conflict with her role as a financial investigator and case officer. She was, he said, directing in effect the collection of material to support those expert opinions. Consequently, he argued, there was an implied waiver of privilege in relation to the material, or the bulk of it, produced as a result of his cross-examination and call. This material, Mr Richter argued, was and is central to the opinions Miss Wade has expressed.

12 It is very clear that the defence wish to see this material because they say it would be relevant to the issue that they wish to urge upon the jury in the ultimate, namely that Ms Wade's expert views are compromised by the dual role she has performed. One could well understand the forensic reasons why the defence would be anxious to have this material and to be able to use it in cross-examination. Of course, the defence have not seen the material and it may be that in the ultimate it is not as compelling as they think it might be. Nevertheless, the forensic intent is clear and understandable.

13 The Crown's response to the arguments may be simply stated. The Crown argues that a reading of all the material, especially in the light of the chronology, will demonstrate that the material is in fact privileged and that privilege has not at any point been waived. This is so whether the material is examined from the point of view of the prosecutorial obligation to disclose or whether it is examined in the light of the principles relating to waiver of privilege arising out of the calling of an expert witness in litigation.

14 The principles applicable to the resolution of these issues are not in contest. The defence singly argued that decided authority is of little assistance to the present situation. The starting point is the recognition that the matter in issue falls to be determined by the application of the common law and not by resort to the provisions of the Evidence Act - Mann v Carnell (1999) 201 CLR 1, Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49.

15 The nature of legal professional privilege (or client legal privilege as it is expressed in statutory terms) is enshrined in our legal system and its current interpretation is well known, as is the rationale for its continued presence in the law – (see Esso at 64, paragraph 35). Where the privilege applies, it inhibits or prevents access to potentially relevant information.

16 On the other hand, the law also recognises that the conduct of the client who has the claim for privilege may constitute a waiver of that privilege. Moreover in certain circumstances the conduct of a client may be regarded by the law as inconsistent with the continued recognition of the privilege. In that situation the law will, as a matter of fairness, impute a waiver of privilege - see Attorney General v Maurice (1986) 161 CLR 475, Goldberg v ING (1995) 185 CLR 83 and Mann v Carnell (supra at 13 (29)).

17 In criminal trials there is a common law duty of disclosure imposed on the Director of Public Prosecutions. There are as well statutory duties of disclosure - see for example s 138 of the Criminal Procedure Act (NSW). In certain situations this duty will require, consistently with the principle in Mann v Carnell, that relevant information, and perhaps otherwise privileged communications relating to that information, be disclosed to the defence. In that sense waiver of privilege will be imputed in respect of the privilege attaching to the communications and the duty of disclosure will "prevail" over legal professional privilege - Gray v The Queen 184 ALR 593 at 607; Bunting v The Queen (2002) 84 SASR 378 at 398-399.

18 Finally there is a well settled body of legal principle surrounding the criteria to establish whether communications contained in documents prepared in connection with or relating to an expert report and otherwise privilege maintain or lose that privilege - see Australian Securities and Investments Commission v Southcorp (2003) 46 ACSR 438 at 441-2; Dingwall v The Commonwealth (1992) 39 FCR 521 at 524; Coles v Dyer & Anor (1999) 74 SASR 216 at 226-227; Sevic v Roarty (1998) 44 NSWLR 287; Roach v Page, (No 17) 2003 NSWSC 973 at paras 9-11.

19 Relevantly for present purposes the law appears to be settled that where privileged material is sent to an expert witness but is not relied upon as a basis for the expert's opinion, privilege will be maintained in relation to that material.

20 I turn now to resolve the issues having regard to these principles. My task, as I see it, is to examine the documents which have been conveniently collected into one folder and to examine those documents in the light of the chronology supplied to me and the facts as I have been able to ascertain them.

21 What is in issue here is the existence of that which is commonly known as litigation privilege. I am conscious of the academic debate surrounding the question as to whether privilege neatly divides itself, in a legal sense, into the two categories of advice privilege and litigation privilege but it is not necessary for me to address or resolve that debate.

22 I will identify the documents that are contained in the folder and I will do so in a generalised manner:

23 1. MFI 170 comprises a confidential memorandum of 3 November 2003 from Ms Wade to the Director of Public Prosecutions, together with a minute containing analysis and suggestions for topics to be raised with Mr Greyling at a conference proposed for 5 November 2003.

24 There is also a copy of Mr Greyling's earlier statement of 12 March 2001 with notations on it, presumably by Ms Wade.

25 There are a number of documents which had been selected by Ms Wade as relevant to the matters mentioned in her minute.

26 Finally, there are notes made by Ms Wade in handwriting at the conference. These appear to be her record of the substance of a number of statements or answers made by Mr Greyling at different stages during the November 2003 conference. They are not a verbatim recording of the answers.

27 The circumstances surrounding the making of Mr Greyling's third statement appear to be as follows: there was, as I have said, a conference on 5 November 2003 attended by the Crown Prosecutor, Ms McNaughton of counsel, Ms Penny Musgrave, who was the solicitor for the Director of Public Prosecutions, and Ms Wade. Ms Musgrave took notes of the answers given by Mr Greyling to questions asked by Senior Counsel. She then set about the preparation of Mr Greyling’s third statement. There was a further conference on 10 December 2003. Ms Wade did not attend that conference. The third statement of Mr Greyling was subsequently settled and signed following the December conference in the presence of Ms Musgrave. Ms Wade’s notes of her understanding of the answers made by the witness were not used.

28 2. MFI 171. This material relates to the witness Susan Broomfield. There is an e-mail sent from Ms Wade to Ms Musgrave suggesting matters that might be raised with the witness Ms Broomfield at the conference proposed on 11 November 2003. Ms Wade did not attend this conference.

29 3. MFI 172. This comprises a memorandum addressed and sent to the solicitor for the Director of Public Prosecutions. A copy was placed on Ms Wade’s file. The memorandum relates to a proposed conference with Jennifer Lawler on 12 November 2003.

30 This conference did not proceed as Miss Lawler declined to attend.

31 4. MFI 174. This group of documents relates to a witness conference with Lorenzo Mastroianni on 19 November 2003.

32 There I s again a confidential communication from Ms Wade to the solicitor Ms Penny Musgrave containing material to be passed on to the Crown Prosecutor and to junior counsel, to assist in the conference. There are a number of suggested questions and topics contained in the communication.

33 Nextly, there is a statement of Mr Mastroianni dated 5 April 2001. There do not appear to be any notations on this document but it is referred to in the attached minute by numbered paragraphs.

34 The defence, of course, has the statement of Mr Mastroianni and he has been called as a witness in this case by the Crown.

35 There are a number of documents attached to the minute. These again have been apparently selected by Ms Wade to enable the prosecutor to understand the contents of her memo and for use in the conference.

36 Finally there are Ms Wade's handwritten notes of her understanding of a number of the answers given by Mr Mastroianni at the conference. They are not verbatim. Again my understanding is that Ms Musgrave took down the actual answers by Mr Mastroianni for the purposes of preparing his statement. There was a further conference on 10 December 2003. Mr Mastroianni attended but Ms Wade did not.

37 The third statement of Mr Mastroianni was settled and signed at this conference, or shortly after it, in the presence of Ms Penny Musgrave. It does not appear that the notes Ms Wade took at the conference on 19 November 2003 were used in the preparation of the statement or, for that matter, used by the prosecution for any purpose.

38 5. MFI 175. This bundle of documents relates to the proposed pre-trial examination of Ian Geller. He had declined to be the subject of a conference with the Crown at some stage prior to February 2004. (See my earlier decision of 3 February 2004).

39 There is a confidential minute from Ms Wade to Ms Penny Musgrave analysing the earlier statements of Mr Geller and suggesting a number of topics and areas where he might be questioned.

40 There is as well a group of documents selected by Miss Wade to support the analysis made in that memo of 4 February 2004.

41 6. MFI 176. There is a short note of 30 January 2004 to the Crown Prosecutor, together with a minute to Ms Penny Musgrave relating to questions and topics which might be explored with Miss Lawler during her pre-trial examination.

42 This is followed by a series of other e-mails or notes to the lawyers bearing various dates, January, February, 31 March, 1 April 2004. These may be I think generally described as briefing notes, or briefing reports and there are documents attached to them. The latter series appear to relate to payroll reports.

43 I should say that Miss Hickton for the Australian Crime Commission has made a claim for public interest immunity in relation to two small matters which appear, or perhaps more accurately I should say, do not appear in the latter part of the materials that I have identified. They have been marked. I have deferred my consideration of this aspect of the material for later debate, should it become necessary.

44 The chronology which has been provided to me establishes that Miss Wade signed her statement which compared the amounts deposited in the Ronen Young Fashion and On Fovo Pty Ltd bank accounts to retail sales income on 15 December 2003.

45 Her charted documentary evidence was finalised on 29 January 2004. It was not until 8 June 2004 that Ms Wade came to the analysis and statement of opinions relating to the business relationship between the Dolina companies and On Fovo Pty Ltd and Ronen Young Fashion. No doubt, however, those matters would have been in her mind prior to that time.

46 The statement which analysed the cost of sales in On Fovo Pty Ltd and Ronen Young Fashion was made on 8 June 2004.

47 Her next statement which analysed the amounts deposited in the retail bank accounts to retail sales income for the years covered by MYOB records was also finalised in early June.

48 On 2 July 2004 Miss Wade signed her statement which examined the figures appearing in the front of the red books.

49 What then is the position regarding the contested claim for legal professional privilege? I have come to the conclusion that without exception the material I have identified and scrutinised is privileged.

50 So far as MFI’s 170, 171 and 172 are concerned, Ms Wade's own description of lists of questions and answers does not adequately reveal that the material comprises, firstly, confidential briefing notes for the prosecution legal team in connection with the trial and these are accompanied by her own selection of material to support and explain the briefing notes. Secondly, there is, in the case of Mr Greyling, her annotated witness statement, and thirdly, there are her handwritten notes of the substance of answers made by the witness. This latter category of a document was clearly not made for the purposes of compiling or preparing a witness statement. Indeed, as the facts indicate, these documents were not used by the legal team for any purpose apparently and the task of compiling the statement, and ultimately settling it, in each case fell to Ms Musgrave.

51 The documents in relation to the pre-trial examination again may be I think properly described as confidential briefing notes for the prosecution team in relation to both Mr Geller and Ms Lawler.

52 Moreover, it is also clear to me after examining the documents carefully that there is very little correlation between the topics suggested by Ms Wade in her confidential briefing notes and the third statement signed by Mr Greyling.

53 The inference I draw from a careful reading of all the material, for example as demonstrated in MFI 70 and the ultimate statement, is that the lawyers appear to have questioned the witness over a range of areas and in a manner that departed somewhat from the topics and questions in Ms Wade's briefing notes. I infer that the prosecution lawyers were guided by Ms Wade's notes but took their own course in respect to the questioning and preparation of the witness's third statement.

54 These remarks apply also to the statement prepared by Mr Mastroianni when it is compared to the briefing notes given by Miss Wade to the lawyers before the conference.

55 May I then make these further general observations. First, Ms Wade's assistance to the lawyers for the prosecution occurred in relation to her role as a financial analyst and investigator. I have accepted that the Director of Public Prosecutions as the client is entitled to have its lawyers utilise a third party expert to assist in relation to an understanding of the accounting and financial issues in this complex trial. The documents prepared by Ms Wade derive their privileged nature from the fact that they are communications addressed to by the client for the benefit of his legal advisors in connection with the conduct of the litigation. It is quite apparent that the lawyers, notwithstanding their wide experience and expertise, could not be expected to function, and the client could not be properly advised, without assistance of this kind - see Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217.

56 Secondly, there is in my opinion no basis for any finding that the prosecutorial duty of disclosure requires, having regard to considerations of fairness, an imputed waiver of privilege in respect of any of the material. I am conscious of the fact that Mr Hill QC urged that I should examine the material but not in an unduly technical manner. I have endeavoured to read it carefully and without undue regard to technicalities. Nevertheless, I have come to a clear view, having examined the material, that all of Ms Wade's material demonstrates no more than the bringing to bear of an analytical mind, guided no doubt by its area of expertise, to the pre-existing statements of witnesses who are or were connected to the Dolina Group by their various functions as either financial employees or advisors.

57 Ms Wade’s briefing notes and the selected material referred to in them contain no more than one would expect them to contain. In my view there is nothing there that the prosecution was obliged to disclose and the confidentiality and the privilege that I have identified is maintained.

58 Thirdly, in her position as an expert witness in the trial, Ms Wade has made it quite clear that she has relied on a number of documents for the purposes of the formation of those opinions. She has precisely identified such information in relation to the reports or statements where she has expressed opinions. Again, I have endeavoured to read the disputed material free from an over technical approach.

59 I have come to the conclusion that it cannot be said that the opinions are, even in part, based on the materials in MFI 170 to 176, with, of course, the exception of the ratio material which I have excluded from present consideration.

60 Of course, it may be that there will or could linger in her memory some trace of Mr Greyling or Mr Mastroianni's answers given in the conference she attended. But she has made it clear and I accept that it is the contents of their statements and/or evidence-in-chief, together with other documents identified, that have formed the basis of the opinions she has expressed.

61 In my view as a consequence there is no scope for any imputed waiver of privilege in relation to the material under discussion arising out of her position as an expert witness in the trial.

62 This I think gives the answer to Mr Richter's submission. His argument assumes Ms Wade is hopelessly compromised by her dual position as an investigator and expert. Of course, as a matter of fact it may be. But equally the jury may find it can repose complete trust in Ms Wade's objectivity and impartiality. That, in my opinion, is in truth very much a jury question. Nor do I consider that her position in the case is necessarily unique or markedly unusual. In my view, her dual role does not automatically compromise her although no doubt it will be suggested it has. For my part as the trial Judge I am satisfied that the material on which she has placed reliance for the purposes of establishing a basis for her opinions is the material she has identified.

63 I have examined the material in the documents marked for identification but I am not satisfied that she has, in any material sense, been influenced by the contents or scope of the notes she made during conferences, prior to conferences or prior to pre-trial examination, as the case may be. As I say, so far as her opinions are concerned, that is, those she has expressed as an expert witness before the jury, I am satisfied that it has been. The ultimate statements of the witnesses and their evidence-in-chief in the light of all of the other documentary material she has identified that has formed and cemented her opinions, as an expert.

64 For those reasons I hold that privilege exists and that this has not been waived. I decline to order or permit inspection of the privileged material.

**********

Last Modified: 07/16/2007