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).
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.
There has been some delay in the hearing of that application as the applicant has changed solicitors and he is now not legally represented.
The affidavit evidence filed by the applicant refers repeatedly to having been “not informed” of a number of the matters just recounted. For example, in his affidavit sworn on 23 May 2023 the applicant said that he had not been provided with “sufficient and proper legal advice pertaining to the appeal against conviction”. In addition, the applicant’s affidavit sworn on 9 February 2024 says at paragraph 18 that he was unaware that his solicitor was emailing the CDPP to abandon the appeal against conviction.
The applicant’s objection to the CDPP’s application
When the matter initially came before the Court of Appeal, the CDPP indicated that a subpoena would be issued to obtain the applicant’s former solicitors’ records concerning their representation of the applicant in connection with his conviction appeal, and the applicant did not object.
Against that background the CDPP issued the subpoena. The applicant’s former solicitors have answered the subpoena.
When the CDPP applied to uplift and copy the materials returned on subpoena, the applicant was given an opportunity to indicate whether he objected and to state his grounds. The applicant objected on the ground that the file is protected by legal professional privilege. Whilst he relied on provisions of the Evidence Act 1995 (Cth), the issue must be addressed according to common law principles.
This is a case where the applicant has put into issue his dealings with and his instructions to his solicitors in connection with their representation of him on the conviction appeal. As the High Court explained in Mann v Carnell:[4]
Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege[5]. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication,[6] or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.[7]
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”.[8] This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank,[9] the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
[4]     Mann v Carnell (1999) 201 CLR 1, [28]-[29]. See also Osland v Secretary, Department of Justice (2008) 234 CLR 275, [44]; R v Mekic (2004) 88 SASR 387, [13]-[14]; cf Legal Services Commission v JHW (2012) 223 A Crim R 534; [2012] SASCFC 47, [67]-[74].
[5]     Cross on Evidence, 5th Aust ed (1996), par 25005; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 497-498.
[6]     Benecke v National Australia Bank (1993) 35 NSWLR 110.
[7]     Lillicrap v Nalder & Son(a firm) [1993] 1 WLR 94; [1993] 1 All ER 724.
[8]     eg Goldberg v Ng (1995) 185 CLR 83, 95.
[9] (1993) 35 NSWLR 110.
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.