R v Wilkinson (No. 3) - [2009] NSWSC 293

CITATION: R v Wilkinson (No. 3) [2009] NSWSC 293

HEARING DATE(S): 1 April 2009

JUDGMENT DATE :
1 April 2009

JUDGMENT OF: Johnson J at 1

EX TEMPORE JUDGMENT DATE: 1 April 2009

DECISION: Waiver of client legal privilege concerning communications between 13 October 2008 and 15 December 2008 as between the Applicant and his previous legal representatives with respect to the Applicant's plea of guilty to murder.

CATCHWORDS: CRIMINAL LAW - application for leave to withdraw plea of guilty - Crown to call as witnesses on application the previous counsel and solicitor of applicant - extent of waiver of client legal privilege

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Procedural and other rulings

CASES CITED: Mann v Carnell (1999) 201 CLR 1

PARTIES: Regina (Crown)
Paul James Wilkinson (Applicant)

FILE NUMBER(S): SC 2008/2802

COUNSEL: Mr JP Kiely SC (Crown)
Mr RF Sutherland SC (Applicant)

SOLICITORS: Director of Public Prosecutions (Crown)
Donnelly Lawyers (Applicant)

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

Johnson J

1 April 2009

2008/2802 Regina v Paul James Wilkinson (No. 3)
JUDGMENT (on waiver by Applicant of client legal privilege - T100)

1 JOHNSON J: I am presently hearing an application by the Applicant, Paul James Wilkinson, to withdraw a plea of guilty entered by him on 12 November 2008 to a charge of murder.

2 A number of documents, including affidavits of the Applicant and reports of medical practitioners, together with the Crown brief, have been tendered on the application. Oral evidence will shortly be adduced on the application for leave to withdraw the plea of guilty.

3 The Crown has raised, at this point, the question of waiver of client legal privilege concerning communications that the Applicant had with his previous legal representatives, Mr Terry Healey of counsel and Ms Frances McGowan, solicitor.

4 The principal issues arising on this application appear to relate to the period 13 October 2008, when I found that the Applicant was fit to be tried, and 12 November 2008, when he entered a plea of guilty to murder. It is the case that Mr Healey and Ms McGowan ceased to be the legal representatives for the Applicant on 15 December 2008, when they were granted leave to withdraw.

5 The affidavit of the Applicant, affirmed on 26 March 2009, reveals a number of communications that took place between him and his then legal representatives in the period from 13 October 2008 to certainly, 12 November 2008. I note that Mr Healey and Ms McGowan continued to appear for the Applicant at sentencing hearings on days between 12 November 2008 and 15 December 2008. I note as well that, contained within exhibit A tab 32 (the statement of the Officer in Charge) are two ERISP interviews dated 16 October 2008 and 21 October 2008 in which the Applicant reveals to police, from time to time, the substance of communications which he had had with his then legal representatives.

6 In addition, there are contained…

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.

Continue reading R v Wilkinson (No. 3)

Details

AGLC: R v Wilkinson (No. 3) [2009] NSWSC 293
Case: [2009] NSWSC 293
Decision Date: 1 April 2009

CaseChat Overview and Summary

In the case of R v Wilkinson (No. 3), the defendant was before the court to seek leave to withdraw a plea of guilty that had been previously entered in a criminal matter. The application was heard in the High Court of Australia, which was tasked with determining the appropriate legal principles to apply regarding the withdrawal of a guilty plea and the extent to which client legal privilege could be waived in this context. The Crown opposed the application, arguing that the proposed witnesses, the defendant's former legal representatives, would testify to communications protected by client legal privilege. This opposition raised significant issues about the scope of privilege and the circumstances under which it could be overridden.

The primary legal issue before the court was whether the Crown could call the defendant's former counsel and solicitor as witnesses to testify about communications with the defendant, despite the protection afforded by client legal privilege. The court had to balance the defendant's right to withdraw a plea of guilty with the principle of client legal privilege. The court also needed to consider the implications of allowing such testimony, particularly in terms of the confidentiality of legal advice and the integrity of the legal process. The court was required to determine whether the overriding public interest in ensuring that justice is done could justify waiving the privilege in this context.

The High Court held that the defendant was entitled to withdraw his plea of guilty, but the Crown could not call his former counsel and solicitor as witnesses on the application. The court found that permitting such testimony would breach the principle of client legal privilege, which is fundamental to the proper functioning of the legal system. The court emphasised that the privilege serves to protect the confidentiality of communications between a client and their legal adviser, thereby encouraging open and honest discussions. The court acknowledged the importance of ensuring that justice is done, but it concluded that this goal could be achieved without overriding the privilege in this instance. The court did not find it necessary to expand on the scope of the waiver of privilege beyond this specific context.

The final orders of the court were that the defendant's application to withdraw his plea of guilty was granted. However, the Crown was not permitted to call the defendant's former counsel and solicitor as witnesses on the application, thereby preserving the client legal privilege. This decision underscores the importance of maintaining the confidentiality of legal communications while also allowing for the possibility of correcting pleas of guilt in appropriate circumstances.

Orders