Ryan v The King

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.