R v Sawyer-Thompson (Ruling No 1) - [2016] VSC 316

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0070

Between:

THE QUEEN
and
BONNIE KATE SAWYER-THOMPSON	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2016
DATE OF RULING:	23 May 2016
CASE MAY BE CITED AS:	R v Sawyer-Thompson (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2016] VSC 316

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CRIMINAL LAW – Murder trial – Return of subpoena issued by DPP to psychologist to produce file note referred to in psychological report on accused – Report commissioned by accused’s solicitor and served on DPP – File note contains instructions of accused – Accused objects to disclosure of file note to DPP – Whether file note must be produced pursuant to Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials – Whether any client legal privilege over file note waived – Evidence Act 2008 (Vic), ss 117, 118, 119 & 122 & 131A – Criminal Procedure Act 2009 (Vic), s 189.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Thompson	Office of Public Prosecutions
For the Accused	Ms R. Sleeth	Victoria Legal Aid

HIS HONOUR:

Overview

Bonnie Kate Sawyer-Thompson (“the accused”) is charged with the murder of Jack Brian Nankervis (“the deceased”) at Morwell on 20 June 2014.

At trial, the accused proposes to rely on the defence of duress. The accused’s solicitors have had her examined by forensic psychologist Jeffrey Cummins. Mr Cummins has prepared a report, dated 21 September 2015, in which he expresses opinions potentially relevant to such a defence. It is proposed that Mr Cummins will be called in the defence case at trial.

Mr Cummins’ report has been filed with the Court and served on the Director of Public Prosecutions for Victoria (“the Director”). A pre-trial hearing is about to occur at which Mr Cummins and two other experts (who are to be called at trial by the Director) are to give evidence and be cross-examined.

In paragraph [3] of his report, Mr Cummins lists various documents he read, including a “File Note dated 8/9/2014 detailing Ms Sawyer-Thompson’s instructions about the offence and her relationship with … Phil Mifsud”. The accused told Mr Cummins that Mr Mifsud is the person with whom she was in an abusive relationship and who in effect forced her to kill the deceased.

The Director has issued a subpoena to Mr Cummins requiring the production of the file note. Mr Thompson, who appears for the Director, calls upon the subpoena. Ms Sleeth, who appears for the accused, objects to release of the file note. She makes an application to set aside the subpoena, essentially on the basis that the file note is the subject of client legal privilege that has not been waived. Mr Thompson submits that the file note must be produced pursuant to Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials and that, in any event, any client legal privilege over the document has been lost by waiver.

For reasons that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 316
Decision Date: 23 May 2016

CaseChat Overview and Summary

The accused, Sawyer-Thompson, was on trial for the murder of an individual, and the case was heard in the Supreme Court. The Director of Public Prosecutions sought to subpoena the accused's psychologist to produce a file note that was referenced in a psychological report on the accused. The report had been commissioned by the accused's solicitor and subsequently served on the DPP. The file note in question contained instructions given by the accused. Sawyer-Thompson objected to the disclosure of the file note to the DPP, leading to a legal dispute over whether the file note should be produced under Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials. The key issue was whether any client legal privilege over the file note had been waived.

The court had to determine if the file note was subject to client legal privilege and whether any such privilege had been waived. The court examined the provisions of the Evidence Act 2008 (Vic) and the Criminal Procedure Act 2009 (Vic), particularly sections 117, 118, 119, 122, 131A, and 189. The court concluded that the file note was indeed subject to client legal privilege as it contained the accused's instructions. However, the court found that the privilege was not waived because the note was prepared for the dominant purpose of giving legal advice. As such, the file note was not required to be produced in response to the subpoena.

The court ruled that the file note prepared by the psychologist, containing the accused's instructions, was protected by client legal privilege and did not need to be disclosed to the DPP. The ruling highlighted the importance of the dominant purpose test in determining the applicability of client legal privilege in criminal trials. The court's decision was in line with statutory provisions and legal principles governing the protection of confidential communications between a client and their legal advisor.

Orders