R v Williams - [1999] QSC 185

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No.445 of 1998
Before the Hon. Mr Justice Mackenzie
[R v Williams]
THE QUEEN

v

BRIAN ANDREW WILLIAMS
Applicant

RULING - MACKENZIE J.
Judgment delivered 9 August 1999
CATCHWORDS: PROCEDURE - Criminal law- s 592A Criminal Code application - whether conversation is protected by legal professional privilege.

Grant v Downs (1976) 135 CLR 674
Baker v Campbell (1983) 152 CLR 52

Counsel:Mr J Prus-Butwilowicz for the accused/applicant
Mr B Farr for the Crown/respondent

Solicitors:JA Sherwood & Co for the accused/applicant
Queensland Director of Public Prosecutions for the Crown/respondent

Hearing date: 4 August 1999

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No.445 of 1998
Before the Hon. Mr Justice Mackenzie
[R v Williams]
THE QUEEN

v

BRIAN ANDREW WILLIAMS
Applicant

RULING - MACKENZIE J.

Judgment delivered 9 August 1999

The applicant has been indicted for the murder of his estranged wife on or about 14 February 1998. This was an application under s 592A of the Criminal Code for a ruling in relation to the admission in evidence of part of a conversation between the applicant and a woman, who at the time of the conversation, was a solicitor employed by the Legal Aid Office. It is submitted by the applicant that the conversation is inadmissible because it is subject to legal professional privilege. The prosecution resists that notion.
For the purpose of determining the question, I heard evidence from the woman and the applicant and received into evidence by consent her statement to the police and the transcript of her evidence in the committal proceedings.
The circumstances in which the conversation occurred were that at the time of the conversation the applicant was separated from his wife, and had been in contact with an introduction agency run by a woman named Lucy Jacka. The woman with whom the applicant had the conversation in issue had independently approached the agency in mid-December 1997. She had received two introductions in the weeks following her joining. Then, on 12 January 1998 she received a telephone call from Lucy Jacka, in which Jacka told the woman that, while it was not an introduction, she had a friend on her books whose wife was treating him badly since their separation. She said she was worried about him and believed he needed help. The woman agreed to call him and speak to him. She phoned the applicant from work. She said she was from the Legal Aid Office and that Lucy Jacka had asked her to call him. During this phone call she said "What is it you are wanting, Brian? Do you need some legal advice?". He became upset and said "I've had advice but I just need a friend to talk to". She asked him if there was someone he could talk to now. After composing himself he said "No, I'm ok. Can we meet and chat?". After some discussion it was agreed that she would visit him at his home that night.
She then checked the Legal Aid Office data base to see if the applicant or his wife had received advice from the Legal Aid Office since she wished to avoid a conflict of interest if the meeting resulted in legal advice being given. From the sketchy information given she thought she identified him with a person who was a client of another branch of the Legal Aid Office. It may be that this was an incorrect assumption because he said that he had never been to the Legal Aid Office. When she went to visit him she took with her the relevant forms in case she had to give him advice.
When she arrived at the applicant's home he was on the telephone, apparently in an argument with his wife. When he finished he said his wife wanted the Medicare number. She suggested that his wife might have good reason to need it and suggested he give it to her. After a further phone call was made he introduced himself. She asked if he wanted legal advice and whether he had been to the other branch of the Legal Aid Office. She showed him the forms she had with her as she said this. He said "No, I want this just to be a social visit". She said "fine with me", and put the forms aside. She then accepted a small quantity of wine.
According to her, the conversation extended over the next two hours or so with the applicant mainly doing the talking about his relationship with his wife, his wife's attitude to their children following her entry into a new relationship and other matters. In the course of the conversation about his wife he said the words the prosecution wishes to lead which are as follows in the woman's statement:
"Williams said                   The only way out of this is if my wife is dead and she deserves to die for the hell she has put me and the kids through.
I said something like That would be stupid, what about the kids? The kids deserve to have two parents.
Williams said,  I might as well kill her myself and let it be over and done with.
I saidThat would be smart because then the kids would loose both their mother and their father. (sic)
Williams said,  I find you really attractive and very intelligent and I've said things to you that I have never said to people before. You are a really good listener. Would you go out with me?
I saidYou have a lot of emotional baggage and you need to deal with that before you are able to go out with anyone. You need time to sort these things out Brian.
Williams said,  I can ring you in two weeks then.
I saidI think you will need longer than that."
By that time the woman decided to terminate the visit. She got up to leave. As she was saying good-bye, he said "I will be ringing you sooner than you think. I want to see you again."
He rang about 20 minutes after she arrived home. She let the answering machine take the message. It included an invitation to dinner with her children the following Friday. She did not return the call. The only other conversation she had with him was in late January or early February, when he rang her at work. He said that he needed legal advice. She advised him to contact the Legal Aid Office in the area where he lived.
On 15 February 1998 she received a phone call from Lucy Jacka, in which she was informed that the applicant's wife had been killed and that he had confessed. After considering a number of factors including the embarrassment of a dating agency being involved, her position as an officer of the Legal Aid Office and the possible embarrassment to the Legal Aid Office if it acted for the applicant and discussing the situation with a superior officer she contacted the police. After further discussions with the Director of Legal Aid, she gave the statement to the police.
In cross-examination before me, she said that following the call from Lucy Jacka, she phoned the applicant. The purpose of the visit was put in various ways to questions by Mr Prus-Butwilowicz. She said she rang because Lucy Jacka asked her to do so. The applicant seemed distressed and the woman thought that he needed some help. She said that she went to visit him in the capacity of someone who was concerned, and perhaps to be a lawyer which was why she took a legal advice form and an application form with her. She said that she rang him as a favour to Lucy. She didn't know at that stage in what capacity she would be communicating with him. She said that from the information that Lucy Jacka had given her she thought perhaps it would be to do with his legal problems which was why she took with her the advice form and the application form.
In answer to a question from me, she said the following:
"... suppose during the course of conversation that it had emerged that there was some sort of viable legal problem that he had. What did you see yourself as doing in that situation if you thought about it beforehand?-- Because it wasn't a legal advice situation, I was really limited in any comments I made to him. So, when he discussed issues like the bankruptcy, the maintenance, his dispute with the lawyer, I may have agreed with what he said. I may have made a comment. I may have given legal information. I certainly did not give legal advice.
Okay. Suppose the situation had arisen that it became apparent that he did need some sort of follow-up action. What did you have in mind that you would say in that situation, and perhaps you can also say whether that situation did arise?-- If it had arisen that he needed legal advice, then I probably would have said to him, 'Well, you need to get some legal advice.' I would not have been in a position after chatting to him for that long to then go back and put on my hat as a lawyer and speak to him, and that is one reason why when he rang back some time later wanting legal advice that I said that he would have to go to the [local] Legal Aid Office and get it."
In answer to a question whether she was wearing the hat of a lady looking for a date, or that of a legal aid solicitor, she said "I was wearing (name), I'm concerned about this person because someone told me I should be concerned about him and the other hats I hadn't put on". She also said she was not acting in a lawyer role. She was there as an acquaintance and had taken on the role of a listener, "not so much as someone who was interactive because he appeared to be someone who needed someone to listen to him".
She agreed that she had introduced herself as a Legal Aid lawyer, and asked if he needed legal advice. She repeated that he said he just needed someone to talk to. She maintained that when she arrived she ascertained he did not want legal advice and that it was "going to be a bit of chit chat". She agreed that at one time when he complained about the amount of maintenance he was paying, she said he should be going through the Child Protection Agency, and that another time she may have mentioned the availability of Legal Aid conference facilities in relation to matrimonial problems. She said that what she said was not specific to his case. What she said was no more than anyone would be told if they rang the Legal Aid Office and asked the administrative staff about services which were available. She was not acting as a Legal Aid lawyer, but as someone with that knowledge having a chat with him. She could not recall discussing the Family Court with him. She said she was adamant that she was not giving legal advice and was not acting as a lawyer. She that she felt obliged to go to the police because he had said the words to her in a social situation.
The applicant gave evidence that, in his mind, the purpose of his meeting the woman was to get legal advice concerning his situation with respect to his children including maintenance and in relation to his wife's boyfriend. He said he kept open the possibility that she may be interested in him as well. He said he was intoxicated and depressed but not drunk at the time. He said that he could not recall saying to her on the phone in the initial call that he did not want legal advice. He agreed that he probably said, at his home, that he did not want legal advice. He said that he did want legal advice but did not want her to think that he was using her. He maintained that he believed the primary purpose of the visit was to give him legal advice but that he was also intending to "check her out" because she was unattached. He said that he would not have given her the personal information he told her about if he had not believed she was there to give legal advice. He said that she had promised to get someone to give him legal advice and that she was "wearing her legal hat, 100 per cent", when he disclosed the information to her. He said that he had not followed up the question of legal advice for a month with her. He said that he had left a message in the meantime but did not know with whom.
In cross-examination he repeated that he was using her for legal advice, in his mind, but did not want to hurt her feelings by having her think so. If he told her (which he did not confirm or deny) that he did not want legal advice that was part of the process of trying to protect her feelings and not make her feel used.
He claimed that she made notes during the course of the evening. That was not put to her in cross-examination. He also agreed that approaching the Child Protection Agency and mediation were mentioned. He also said that the woman had told him to stop paying maintenance because of his level of income. This was not put to her either. He agreed that he had not instructed his legal representatives in detail about the conversation on the evening. He said that this had occurred because he had come in from prison at short notice for the present hearing.
It is against this background that the question whether the conversation is inadmissible on the basis that it is subject to legal professional privilege must be determined. The matter was argued on that narrow basis.
In Grant v Downs (1976) 135 CLR 674, 685, Stephen, Mason and Murphy JJ observed:
"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."
The material for which the privilege is claimed must be confidential in the context of the solicitor - client relationship. In Baker v Campbell (1983) 153 CLR 52, 74-5, Mason J expressed the view that privilege should not be extended outside the area in which it had been recognised by Australian law. The following passage contains his reasoning:
"Notwithstanding strong judicial assertions of the value of the public interest said to be promoted by the privilege - for the most part assertions made a century ago - of which Greenough v Gaskell (1833) 1 My & K 98 at 103; 39 ER 618 at 621, is an example, it is by no means self-evident that the value of this public interest is greater than the public interest in facilitating the availability of all relevant materials for production in litigious disputes. If we nonetheless continue to accept that the privilege applies to communications in aid of litigation and communications made for the purpose of obtaining and giving legal advice, an evaluation of the competing considerations which lurk beneath the surface of the privilege indicates that the application of the privilege should not be extended outside the area in which it has thus far been recognised in Australian law.
It is one thing to say that the privacy or secrecy of lawyer-client communications made in aid of litigation, especially in aid of the litigation in which the privilege is claimed, shall prevail over an obligation to produce or disclose all materials relevant to the issues in the litigation. To take but one example: to compel the parties to disclose such communications made in the conduct of that litigation would be unfair to them, hamper the preparation of their cases and protract the determination of the litigation. But it is quite another thing to say that communications for advice, the purpose of which is unrelated to actual or prospective litigation, shall prevail over an obligation to produce or disclose materials relevant to the issues in litigation. Why such communications should be privileged, when communications for advice between client and accountant or marriage counsellor, which have taken place with litigation in view, are not privileged, does not admit of convincing explanation. There is also the striking contrast between the privileged lawyer-client communications made for the purpose of obtaining and giving advice and the non-privileged doctor-patient and priest-penitent communications. Each of the three relationships is highly confidential and in each the need for candour is a necessary element. The need for preservation of doctor-patient and priest-penitent confidentiality seems to be as strong as the need for preservation of lawyer-client confidentiality in the area of advice. Consequently the public interest in preserving the secrecy of the latter seems to be no stronger than the public interest in preserving the secrecy of the former."
The inevitable conclusion, in my view, is that in the present situation no relationship of solicitor and client arose. I am satisfied that the applicant told the woman that he did not want legal advice, even though in his own mind, he may have been trying to glean from the conversation something of assistance to him in his matrimonial troubles. However the relationship is classified, the passage quoted from Baker v Campbell and the rationale of the head of privilege that it is concerned with communications between solicitor and client make it inevitable that the attempt to classify the conversation as occurring on a privileged occasion fails. Accordingly, the conversation is not inadmissible on the basis of legal professional privilege.