Ryan v The King - [2024] SASCA 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
RYAN v THE KING
[2024] SASCA 44
Decision of the Honourable President Livesey (ex tempore)
5 April 2024
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE - LOSS OF PRIVILEGE - IMPLIED WAIVER
The applicant seeks to set aside the dismissal of his conviction appeal. The applicant has in affidavits maintained that he was not informed about a number of matters regarding his conviction appeal, particularly the decision to abandon the conviction appeal.
In response, the Commonwealth Director of Public Prosecutions (CDPP) issued a subpoena to obtain the applicant’s former solicitors’ file concerning their representation of the applicant. The CDPP subsequently applied to uplift and copy the materials returned on subpoena and the applicant objected on the ground that the file is protected by legal professional privilege.
HELD (the Court) granting the interlocutory application:
1.Having put into issue his dealings with his solicitors, particularly his instructions, in connection with their representation of him, it would be unjust if the applicant were now permitted to insist on legal professional privilege.
2.The CDPP will be permitted to uplift and copy the materials received from his former solicitors concerning their representation and instructions about the abandoned conviction appeal.

Evidence Act 1995 (Cth); Joint Criminal Rules 2022 (SA), referred to.
Hill v The Queen [2021] SASCA 83; Legal Services Commission v JHW (2012) 223 A Crim R 534; Mann v Carnell (1999) 201 CLR 1; Osland v Secretary, Department of Justice (2008) 234 CLR 275; R v Mekic (2004) 88 SASR 387; Ryan v The King [2022] SASCA 110, considered.

RYAN v THE KING
[2024] SASCA 44
Court of Appeal – Criminal
LIVESEY P (ex tempore):

Introduction

This matter has been called on this morning because Mr Ryan, the applicant who seeks to set aside the dismissal of his conviction appeal, objects to the Commonwealth Director of Public Prosecutions (the CDPP) uplifting and copying material that has come in on subpoena from his former solicitors.
That material addresses their representation of the applicant in connection with his conviction appeal.
For the reasons that follow, the applicant’s objection is rejected. There has been an imputed waiver of privilege.
Relevant background
For the purposes of the ruling today it is not necessary to go into detail about the history of this matter, though some background information is necessary to understand the issue that has arisen.
The applicant and a co-offender were jointly charged with Commonwealth offences and convicted following a trial before a jury in the District Court. The conviction of the applicant’s co‑offender on joint charges was set aside by the Court of Appeal in 2021.[1] After that occurred, the CDPP invited the applicant to add a ground of appeal to his conviction appeal so as to replicate the ground upon which the applicant’s co‑offender succeeded.
[1] Hill v The Queen [2021] SASCA 83, [202]-[217] (Kelly P, Livesey JA and Blue AJA).

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 Ryan v The King

Details

AGLC: Ryan v The King [2024] SASCA 44
Case: [2024] SASCA 44
Decision Date: 5 April 2024

CaseChat Overview and Summary

In this matter before the Supreme Court of South Australia, the applicant, Ryan, sought to set aside a discontinuance of his conviction appeal and press on with that appeal. The applicant and a co-offender had been jointly charged with Commonwealth offences and convicted following a trial. The co-offender's conviction was later set aside on appeal, leading the applicant to amend his own appeal to include similar grounds concerning joint charges.

The central legal issue before the Court was whether the applicant had implicitly waived client legal privilege over communications with his former solicitors concerning his abandoned conviction appeal. This arose in the context of the applicant's application to set aside the discontinuance of his appeal and pursue it with new grounds, after having previously elected to abandon the conviction appeal and proceed only with a sentence appeal.

The Court reasoned that while the applicant may not have intended to waive privilege, his actions in putting his dealings with his solicitors and their instructions into issue by seeking to revive his conviction appeal meant that it would be unjust to permit him to insist on privilege. The Court found that there had been an "imputed waiver" of privilege in these circumstances. Consequently, the Director of Public Prosecutions was permitted to obtain and copy the relevant materials from the applicant's former solicitors concerning their representation and the applicant's instructions regarding the abandoned conviction appeal.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, the applicant’s objection is rejected. There has been an imputed waiver of privilege.Relevant background For the purposes of the ruling today it is not necessary to go into detail about the history of this matter, though some background information is necessary to understand the issue that has arisen. The applicant and a co-offender were jointly charged with Commonwealth offences and convicted following a trial before a jury in the District Court. The conviction of the applicant’s co‑offender on joint charges was set aside by the Court of Appeal in 2021.[1] After that occurred, the CDPP invited the applicant to add a ground of appeal to his conviction appeal so as to replicate the ground upon which the applicant’s co‑offender succeeded.[1] Hill v The Queen [2021] SASCA 83, [202]-[217] (Kelly P, Livesey JA and Blue AJA). Eventually the applicant amended his notice of appeal against conviction to add an appeal ground against counts 11 to 15. These counts concerned joint charges of dishonestly obtaining a financial advantage from a Commonwealth entity. The applicant wished to set aside those convictions and seek an order for remittal for re-trial. Recently, the applicant has sought remittal for re-sentence, not re-trial. The matter was then called over during March 2022. Senior counsel for the CDPP conceded that permission to appeal should be granted and that the CDPP would also concede the appeal concerning that new ground.[2][2] Callover hearings were held before Bleby JA on 15 March and before Livesey P on 28 March 2022. Correspondence between the solicitors then acting for the applicant and the office of the CDPP indicates that the CDPP was attempting to negotiate that, in the event the appeal was allowed, the following consent orders be entered:1.Convictions for counts 11 to 15 be set aside and those counts remitted to the District Court for re-trial.2.The sentence be set aside, and the matter remitted to the District Court for re‑sentence. The solicitor then acting for the applicant responded, confirming that the matter would be discussed with counsel and instructions taken from the applicant. It would appear that there was no further correspondence regarding this proposition. Not long before the conviction appeal was to be heard on 27 June 2022, the solicitor for the applicant sent an email to the office of the CDPP on 1 June 2022, advising that he had been instructed to abandon the appeal against conviction and only proceed with the sentence appeal. He proposed that the hearing before the Court of Appeal be vacated and a fresh date for the sentence appeal be obtained. On 16 June 2022 the applicant’s solicitors filed a signed notice of discontinuance. Under the Joint Criminal Rules 2022 (SA), that took effect as a dismissal. Later, the applicant’s sentence appeal was dismissed.[3][3] Ryan v The King [2022] SASCA 110, [27]-[31].The application to set aside the discontinuance The applicant has now applied to set aside the discontinuance and press on with his conviction appeal. He has filed a new notice of appeal, which includes a number of new grounds in addition to the appeal against the jointly charged offending.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It may be assumed that the applicant did not intend to waive privilege and, probably, did not ever turn his mind to the issue. But, having put his dealings with his solicitors and their instructions into issue it would now be unjust, and not merely unfair, were the applicant to be permitted to insist on his privilege. In those circumstances there has been imputed waiver of privilege. Conclusion Accordingly, the CDPP will be permitted to uplift and copy the materials received from the former solicitors acting for the applicant concerning their representation and his instructions about the abandoned conviction appeal.

Ratio Decidendi

Legal Principle Established

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