Sadler v Director of Public Prosecutions
[2021] SASCA 20
•8 April 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SADLER v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR
[2021] SASCA 20
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Livesey and the Honourable Justice Bleby)
8 April 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE - SCOPE OF PRIVILEGE - LITIGATION OR ADVICE
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE - LOSS OF PRIVILEGE - IMPLIED WAIVER
This is an appeal from a judgment of the District Court of South Australia at the pre-trial stage, determining an application by the second respondent, the Commissioner of Police.
The appellant is currently charged on Information with one count of dishonest dealings with documents, contrary to s 140(4) of the Criminal Law Consolidation Act 1935 (SA). The appeal concerns claims of legal professional privilege made by the appellant over particular documents in her solicitor’s file, which the Commissioner had seized and subsequently returned on a subpoena that the appellant had caused to be issued. The Commissioner sought an order that legal professional privilege had not been established, had been waived, or was excluded by reason of fraud. On 24 September 2020, the trial judge upheld the appellant’s claims of legal professional privilege over some of the documents, but ruled that a number of the documents were either not privileged, or that any legal professional privilege over them had been waived by the conduct of the appellant.
The appellant’s Notice of Appeal complained, in relation to a selection of the documents, that the trial judge erred in ruling that the documents were not subject to legal professional privilege. The Commissioner raised a preliminary issue concerning the competency of the appeal. He did not ultimately submit that the appeal was incompetent, but contested the basis of right on which the appellant purported to appeal.
Held, per Bleby JA (Kelly P and Livesey JA agreeing), granting an extension of time to file the Notice of Appeal, allowing the appeal in relation to Documents 23, 350 and 353 and dismissing the appeal in relation to Document 26:
1. An application by a non-party to proceedings, putting in issue a substantiative right of privilege of a criminal defendant, has necessarily engaged the Court’s civil, declaratory jurisdiction, rather than that application arising incidentally in the criminal jurisdiction.
2. The orders of the District Court were made in the exercise of its civil jurisdiction to make declarations of right, obligations, entitlements and power, pursuant to s 8(1) of the District Court Act 1991 (SA) (DCA) and s 31 of the Supreme Court Act 1935 (SA). Section 43 of the DCA governs the right of appeal. Section 45 of the DCA does not purport to abrogate that right. The appeal is competent.
3. Documents 23, 350 and 350a are subject to legal professional privilege.
4. There is a prima facie basis for concluding that Document 26 was made in furtherance of, or as a step preparatory to, the alleged fraud. Legal professional privilege does not attach to the document.
Criminal Law Consolidation Act 1935 (SA) ss 140(4), 348; District Court Act 1991 (SA) ss 3(1), 8(1), 9(1), 43, 45; Supreme Court Criminal Rules 2014 (SA) r 104D; Criminal Procedure Act 1921 (SA) s 157; Income Tax Assessment Act 1936 (Cth); Supreme Court Act 1935 (SA) ss 30b, 50; Justices Act 1921 (SA); Supreme Court of Judicature Act 1873 (UK) s 48; Criminal Appeals Act 1924 (SA); Criminal Appeal Act 1907 (UK); Federal Court of Australia Act 1976 (Cth) s 24; Criminal Law Consolidation Act 1935 (SA) ss 350, 352(1); Supreme Court Act 1935 (SA) ss 17, 31, 50, 49, 63(1); Independent Commissioner Against Corruption Act 2012 (SA); District Court Rules 2006 (SA) r 160(1)(b), (10), referred to.
Commissioner of Taxation v Tang (2006) 96 SASR 55; R v Garrett (1988) 49 SASR 435; Southern Adelaide Health Service v C (2007) 97 SASR 556; Legal Services Commission v JHW (2012) 223 A Crim R 534; R v Cox and Railton (1884) 14 QBD 153, discussed.
R v Sadler [2020] SADC 133; Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410; Project Blue Sky v Australia Broadcasting Authority (1998) 194 CLR 355; Taylor v Public Service Board (NSW) (1976) 137; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; South West Water Authority v Rumble’s [1985] AC 609; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; R v Millhouse (1980) 24 SASR 555; Skewes v Veenhuizen (1978) 20 SASR 109; Witness v Marsden (2000) 49 NSWLR 429; Alliance Petroleum Australian NL v Australian Gas Light Co (1983) 34 SASR 215; Rochfort v Trade Practices Commission (1982) 153 CLR 134; National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372; R v Allen (2002) 81 SASR 434; Baker v Campbell (1983) 153 CLR 52; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Grant v Downs (1976) 135 CLR 674; Daniel v Western Australia (1999) 94 FCR 537; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121; Goldberg v Ng (1994) 33 NSWLR 639; Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475; Mann v Carnell (1999) 201 CLR 1; Falland & Ors v Symbion Health & Anor (2010) 269 LSJS 189; Cowie & Anor v O’Brien [2019] SASC 203; Varawa v Howard Smith and Co Ltd (1910) 10 CLR 382, considered.
SADLER v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR
[2021] SASCA 20
Court of Appeal – Criminal: Kelly P, Livesey and Bleby JJA
KELLY P: I agree that the appeal should be allowed to the extent proposed by Bleby JA. While I generally agree with the reasons of Bleby JA, I agree with the view expressed by Livesey JA, that the question about the proper construction of s 43 and whether s 45 should be given a broad or restrictive interpretation can be left to a case where it is necessary to decide.
LIVESEY JA: I agree that this appeal should be allowed to the extent proposed by Bleby JA, for the reasons that he gives.
In this case the District Court Judge made orders in the exercise of the civil jurisdiction to ‘make binding declarations of right’ pursuant to s 8(1) of the District Court Act 1991 (SA).[1] Accordingly, s 43 governs the right of appeal. That right is undiminished by s 45. It follows that the appeal is competent.
[1] See s 31 of the Supreme Court Act1935 (SA). Section 8(1) provides:
(1) The Court has the same civil jurisdiction (both at law and in equity) as the Supreme Court at first instance subject, however to the following qualifications:
(a) the Court has no jurisdiction in probate or admiralty;
(b) the Court has no supervisory jurisdiction except as expressly conferred by statute…
Whilst the analysis provided by Bleby JA regarding the analogies to be drawn from the jurisdiction of the Supreme Court and cases such as R v Garrett is,[2] respectfully, persuasive, I would prefer to reserve my view on the proper meaning of s 43 and the decisions of Perry J in Commissioner of Taxation v Tang[3] and of Lander J in R v Allen.[4]
[2] R v Garrett (1988) 49 SASR 435, R v Millhouse (1980) 24 SASR 555.
[3] Commissioner of Taxation v Tang (2006) 96 SASR 55.
[4] R v Allen (2002) 81 SASR 434.
Whilst it may be that those decisions were made per incuriam,[5] questions about the proper meaning and effect of s 43 and whether s 45 should be given a restrictive interpretation (as the appellant contended) or a broad interpretation (as is suggested by some of the cases referred to by Cox J in R v Garrett[6]) may be left to a case in which it is necessary to decide them.
[5] Southern Adelaide Inc v C (2007) 97 SASR 556, [99] (White J).
[6] R v Garett (1988) 49 SASR 435, 446-447 (Cox J, with whom King CJ and Jacobs J agreed).
BLEBY JA: The appellant is currently charged on Information with one count of dishonest dealings with documents, contrary to s 140(4) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). This is an appeal from a judgment of the District Court at the pre-trial stage, determining an application by the second respondent, the Commissioner of Police.
The Commissioner’s application, the character of which is an issue to be determined on this appeal, was made in consequence of the return of documents by the Commissioner on a subpoena that the appellant had caused to be issued. The substance of the District Court judgment was to determine claims of legal professional privilege made by the appellant over those documents, which comprised the appellant’s solicitor’s file in respect of a personal injury claim.
Background
The appellant owned and operated a small bookshop named Gawler Books in Willaston, South Australia. The prosecution alleges that between 30 September 2016 and 25 October 2016, she knowingly and dishonestly produced falsified timebooks to her solicitors, Radbone and Associates, with the intention of deceiving Allianz Australia Pty Ltd (Allianz), to benefit herself in respect of an ongoing claim for damages for personal injury.
In February 2013, Radbone and Associates wrote to Allianz advising that it had been instructed to act for the appellant in respect of a claim for damages for personal injuries the appellant had suffered during a motor vehicle accident on 19 October 2012 (the CTP claim). The appellant claimed to have been thrown from her bicycle after being rear-ended by a motor vehicle driven by a Ms Riggs. Allianz were the claims manager for the Motor Accident Commission, the compulsory third party bodily insurer in South Australia at that time.
Between 2013 and 2015, Radbone and Associates corresponded with Allianz about the claim. On 25 September 2015, the appellant commenced civil proceedings in the District Court against Ms Riggs, seeking damages for personal injury. In December 2015, Finlaysons Lawyers (Finlaysons) were instructed to act on behalf of Allianz in these proceedings.
The parties continued to correspond in preparation for trial. However, on 20 October 2016, Finlaysons referred the matter to the Allianz Fraud Team to investigate.
On 25 October 2016, Radbone and Associates sent a letter to Finlaysons enclosing the 2015 and 2016 time books, which recorded hours allegedly worked by the appellant’s partner, Richard Stow, at Gawler Books, a signed agreement between the appellant and Richard Stow, and various calculations made by a bookkeeper, Ms May, as to ‘back wages’.[7]
[7] R v Sadler [2020] SADC 133 at [68].
On 17 November 2016, the Allianz Fraud Team referred the matter to the South Australia Police (SAPOL) for investigation. On 24 January 2018, some 14 months later, the appellant was arrested and charged with the offence the subject of the ongoing proceedings in the District Court.
On 10 April 2018, the appellant sent to Allianz a document signed by her and entitled ‘Notice of Demand’ that read as follows:
The undersigned has not been presented with any material facts or evidence that John Radbone (solicitor) had written or verbal authority to present Allianz with confidential business documents (time books) and believes none to exist.
The undersigned now demands that Allianz produce written evidence by way of Affidavit that the time books that they are quoting, and given to SAPOL was given to them with the full consent of the Undersigned.
Failure to produce the evidence and facts by way of Affidavit within 14 days will confirm that the time books and material within were gained without proper consent.
Pursuant to a general search warrant executed on 15 May 2019, members of SAPOL searched the offices of Radbone and Associates and seized the file relating to the appellant’s CTP claim. Radbone and Associates advised SAPOL that the appellant claimed legal professional privilege over the entire file.
In answer to a subpoena for production issued by the District Court at the request of the appellant, the Commissioner produced the file to the Court. The appellant’s solicitors obtained orders to inspect and copy the file. They subsequently produced a Kadlunga-style schedule[8] with a brief description of each document and an indication of the documents over which they were instructed to maintain a claim for legal professional privilege.
[8] Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410.
The Commissioner was the moving party in respect of the next relevant step, which took the form of lodging with the Court a Summary of Argument dated 5 August 2020 that commenced with the following paragraphs:
1.The Commissioner seeks an order in relation to the communications identified in Annexure A to this Outline, that the defendant has either:
a. not established legal professional privilege in respect of the communication; or
b. if legal professional privilege has been established, that the privilege has been waived; or
c. legal professional privilege is excluded by reason of fraud.
2.The Commissioner seeks an order to inspect, uplift and copy the documents identified in Annexure B to this Outline, in relation to which privilege is not claimed.
The appellant did not oppose the order sought in paragraph 2, which was made by consent. The judge heard argument on the application for an order in terms of paragraph 1 on 10 August 2020 and reserved her decision.
The judge’s orders
On 24 September 2020, the judge ruled on the application and delivered reasons. She upheld the appellant’s claims of legal professional privilege over some of the documents, but made the following orders:
1.The Commissioner and the parties have leave to inspect, uplift and copy the following documents from the CTP file produced on subpoena by SAPOL, as such documents are either not privileged, or any legal professional privilege over the documents has been waived by the conduct of the defendant.
· Documents 5, 6, 8-11, 14-19 and 21-24 on p 12.
· Documents 26 and 37 on p 13.
· Documents 145 and 146 on p 17.
· Document 23 on p 25.
· Documents 350 and 353a on p 39.
· Document 370 on p 40.
· Document 26 on p 42.
· Document 70 on p 43.
The appeal
On 26 October 2020, the appellant filed a Notice of Appeal. The Notice of Appeal was out of time. It only complained of the order with respect to a selection of the documents listed above. The grounds of appeal are as follows:
1.In relation to documents 145 and 146 on p 17 – the learned Judge erred in ruling that these documents were not protected by legal professional privilege, in particular, litigation privilege.
2.In relation to document 23 on p 25 – the learned Judge erred in ruling that the report was not protected by legal professional privilege, in particular, litigation privilege.
3.In relation to documents 350 and 350a on p 19 – the learned Judge erred in ruling these documents were not protected by legal professional [sic] and that any such privilege had been waived by the appellant.
4.In relation to document 26 on p 42 – the learned Judge erred in ruling this document was not protected by legal professional privilege and that any such privilege had been waived by the appellant.
5.In relation to document 70 on p 43 – the learned Judge erred in ruling that this document was not protected by legal professional privilege.
In her written submissions dated 7 December 2020, the appellant abandoned grounds 1 and 5 of the appeal. The documents the subject of this appeal are therefore limited to:
Document 23 on page 25;
Documents 350 and 353a on page 39; and
Document 26 on page 42.
Documents 350 and 353a are identical copies of an email. There are, therefore, three documents in contest.
Competency of the appeal
The Commissioner raised a preliminary issue concerning the competency of the appeal. He did not ultimately submit that the appeal was incompetent, but contested the basis of right on which the appellant purported to appeal. Conversely, and perhaps surprisingly, the appellant contested the premise on which the Commissioner accepted that the appeal was competent. It is necessary to resolve whether there is any competent basis for the appeal not only because both parties could be wrong as to the claimed basis of competency, but also because the Court must be satisfied that it has jurisdiction.
The appellant asserted a right of appeal under s 43 of the District Court Act 1991 (SA) (DCA) and Chapter 12A of the Supreme Court Criminal Rules 2014 (SA) (SCCR 2014), on the following basis.
Section 43 of the DCA provides:
43—Right of appeal
(1) A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2) The appeal lies—
(aa)in the case of a judgment given by a Judicial Registrar or the Court constituted of a Judicial Registrar—to the Court constituted of a Judge;
(a)in the case of a judgment given by a Master or the Court constituted of a Master—to the Court constituted of a Judge;
(b)in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge;
(c) in any other case—to the Court of Appeal.
(3) The appeal lies as of right, or by permission, according to the rules of the appellate court but, in the case of an appeal against a final judgment of the Court in its Administrative and Disciplinary Division, permission is required to appeal on a question of fact.
(4) A right of appeal conferred by this section extends to a legal practitioner, witness or other person against whom an order under section 42 is made.
Section 3(1) of the DCA contains relevant definitions:
‘action’ means any civil or criminal proceedings in the Court;
‘judgment’ means a judgment, order or decision and includes an interlocutory judgment or order.
Section 43 on its face, and subject to s 45, would appear to confer a right of appeal against any interlocutory judgment in criminal proceedings in the District Court, to a single judge of the Supreme Court.[9] SCCR 2014 Rule 104D then provides, in respect of appeals to a single judge, that permission to appeal is required if a statute so requires. However, s 43 of the DCA provides that the question of permission is a matter for the rules of the appellate court. The argument then goes, as the appellant submits, that even assuming the judgment is interlocutory, there is no requirement for permission. The appeal lies as of right.
[9] On 13 November 2020, the Chief Justice referred this appeal and the question of competency to the Full Court, now the Court of Appeal.
Whether s 43 does indeed have such a broad application turns on the construction of s 45 of the DCA. This provides:
45—Non-application to criminal proceedings
This Part does not apply in respect of appeals and reservations of questions of law in criminal proceedings to which Part 6A of the Criminal Procedure Act 1921 is applicable.
Within Part 6A of the Criminal Procedure Act 1921 (SA) (CPA), s 157 provides:
157—Right of appeal in criminal cases
(1) Appeals lie to the Court of Appeal as follows:
(a) if a person is convicted on information—
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the permission of the Court of Appeal or on the certificate of the court of trial that it is a fit case for appeal;
(iii)subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Court of Appeal;
(b)if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Court of Appeal, appeal against the acquittal on any ground—
(i) if the trial was by judge alone; or
(ii)if the trial was by jury and the judge directed the jury to acquit the person;
(c)if a court makes a decision on an issue antecedent to trial that is adverse to the prosecution, the Director of Public Prosecutions may appeal against the decision—
(i)as of right, on any ground that involves a question of law alone; or
(ii)on any other ground with the permission of the Court of Appeal;
(d)if a court makes a decision on an issue antecedent to trial that is adverse to the defendant—
(i)the defendant may appeal against the decision before the commencement or completion of the trial with the permission of the court of trial (but permission will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial);
(ii)the defendant may, if convicted, appeal against the conviction under paragraph (a) asserting as a ground of appeal that the decision was wrong.
(2) If a convicted person is granted permission to appeal under subsection (1)(a)(iii), the Director of Public Prosecutions may appeal under that subparagraph without the need to obtain the permission of the Court of Appeal.
This section provides for a considerably narrower set of situations that are amenable to appeal than are contemplated in s 43. The present appeal does not fall within its ambit. The question is whether s 45 removes from the ambit of s 43 all criminal appeals, notwithstanding the use in s 43 of terms that extend to criminal matters by their definitions, or simply those that are made specifically the subject of Part 6A of the CPA.
Given the ultimate conclusion that I have reached on the question of competency of the appeal, it is not strictly necessary that I determine this question. However, it was the subject of careful arguments by the parties. My conclusions require engaging to some degree with those arguments in any event.
In Project Blue Sky v Australian Broadcasting Authority, the High Court explained the accepted, contemporary approach to statutory construction:[10]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[11] The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”.[12] In Commissioner for Railways (NSW) v Agalianos,[13] Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
(Footnotes in original)
[10] Project Blue Sky v Australia Broadcasting Authority (1998) 194 CLR 355 at 381.
[11] See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ.
[12] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble’s [1985] AC 609 at 617, per Lord Scarman, ‘in the context of the legislation read as a whole’.
[13] (1955) 92 CLR 390 at 397.
There are textual indicators that tend to support the position advanced by the appellant. Section 43 deploys defined terms that extend to criminal proceedings. Consistently with this, the phrase in s 45, ‘to which Part 6A of the Criminal Procedure Act 1921 is applicable’ on its face directs attention to a subset of all criminal proceedings.
The appellant relied on observations of Perry J in Commissioner of Taxation v Tang[14] in considering the operation of ss 43 and 45 together with the former Part 11 of the CLCA, the predecessor to Part 6A of the CPA. In Tang, an accused was charged with defrauding the Commonwealth. During pre-trial proceedings in the District Court, she issued a subpoena for the production of documents held by the Commissioner that had originally been seized by the Australian Federal Police and handed to the Commissioner. The Commissioner contended that production of the documents would infringe certain secrecy provisions of the Income Tax Assessment Act 1936 (Cth).
[14] Commissioner of Taxation v Tang (2006) 96 SASR 55.
The trial judge held that the documents were required to be produced. The Commissioner filed a notice of appeal and an application for judicial review. Justice Perry held that the notice of appeal was incompetent, as the right of appeal against an interlocutory judgment under s 43 was limited to parties, and the Commissioner was not a party.[15] In the course of reasoning to that conclusion, he said:[16]
The only form of interlocutory appeal provided for in Pt 11 of the [CLCA] is an appeal against what is defined in s 348 of the Act as an “issue antecedent to trial” which is limited to a question as to whether proceedings on an information or account of an information should be stayed on the ground that the proceedings are an abuse of process of the court.
Part 11 of the CLCA does not otherwise provide for an appeal against an interlocutory order or ruling. Its operation is confined to reservation to [sic] questions of law and appeals against conviction and sentence.
It follows that the right of appeal conferred by s 43 of the District Court Act extends to an interlocutory judgment given by a judge in the course of criminal proceedings in that Court.
[15] Commissioner of Taxation v Tang (2006) 96 SASR 55 at [65]-[89] (Perry J).
[16] Commissioner of Taxation v Tang (2006) 96 SASR 55 at [74]-[76] (Perry J).
It appears, with respect, that Perry J reasoned to this conclusion largely by reference to the textual indicators that I have set out above. I certainly accept that those indicators have some force. These paragraphs were strictly obiter, given the basis on which his Honour held the appeal to be incompetent. In any event, I think that there are some further considerations that contribute to this question of interpretation.
In R v Garrett,[17] this Court considered whether s 50 of the Supreme Court Act 1935 (SA) (SCA) authorised an appeal from a refusal by a Supreme Court judge to stay a rape trial as an abuse of process. Section 50 at the time provided, relevantly:[18]
[17] R v Garrett (1988) 49 SASR 435.
[18] Supreme Court Act 1935 (SA) s 50, as at 1987.
Subject to the rules of court an appeal shall lie to the Full Court against every judgment, including every declaratory judgment entered pursuant to s 30b of this Act and any final assessment made thereon, order, or direction of a judge, whether in court or chambers, and also from the refusal of any judge to make any order:
Provided that –
(1) No appeal shall lie from –
(a) an order allowing an extension of time to appeal from a judgment or order;
(b) an order giving unconditional leave to defend an action;
(c) any judgment or order which is by statute, or by agreement of the parties, final or without appeal.
(2) No appeal shall lie without the leave of the judge from any order –
(a) made by consent of the parties;
(b) as to costs only which by law are left to the discretion of the judge.
(3) No appeal shall lie without the leave of the judge or of the Full Court from –
(a) any order upon appeal from a court of summary jurisdiction under the Justices Act 1921;
(b) any interlocutory order or interlocutory judgment except in the following cases, namely:-
(i) …
Section 50 has since been updated, although not to material effect for present purposes. In any event, in Garrett, Cox J observed that this section on its face authorised an appeal from a single judge in the criminal jurisdiction of the Supreme Court to the Full Court.[19] However, relying on and accepting the decision of the Full Court in R v Millhouse[20] to the effect that s 49 of the Supreme Court Act did not empower a judge of the Court to reserve a point of law arising in the course of a criminal trial, he concluded that s 50 had no application to an order made or refused in the original criminal jurisdiction of the Court. That criminal jurisdiction is inherited from the Court of Queen’s Bench and the courts created by commissions of assize, pursuant to s 17 of the SCA.
[19] R v Garrett (1988) 49 SASR 435 at 438-439 (Cox J, King CJ and Jacobs J agreeing).
[20] R v Millhouse (1980) 24 SASR 555.
Justice Cox engaged in a detailed examination of the history of the Supreme Court’s appellate jurisdiction.[21] The inherited English criminal jurisdiction contained few methods by which a conviction or order within that jurisdiction could be challenged. A right of appeal against a judgment or order of a single judge of the Supreme Court existed from the founding of the province of South Australia, to the Court of Appeals constituted by the Governor-in-Council,[22] confined to civil actions and, in the case of a jury verdict, to questions of law.[23]
[21] R v Garrett (1988) 49 SASR 435 at 439-440 (Cox J, King CJ and Jacobs J agreeing).
[22] Act No. 5 of 1837, s 16. This Court was succeeded in practice by the Full Court of the Supreme Court well before Federation, but the legislation establishing it was not repealed until 1935. See generally, McDonald, Stephen, “Defining Characteristics’ and the Forgotten ‘Court’” [2016] SydLawRw 9; (2016) 38(2) Sydney Law Review 207.
[23] R v Garrett (1988) 49 SASR 435 at 440 (Cox J, King CJ and Jacobs J agreeing). See also Skewes v Veenhuizen (1978) 20 SASR 109 at 125-126 (Hogarth ACJ, Zelling and Legoe JJ).
The position from 1878 onwards expanded the capacity for appeals:[24]
Section 15 of the Supreme Court Act 1878 provided for the review of a verdict found by a judge or by jury in any cause or matter by way of motion to the Full Court for a new trial, and s 16 gave a right of appeal to the Full Court against an order or direction of judge [sic] of the Court.
[24] R v Garrett (1988) 49 SASR 435 at 441 (Cox J, King CJ and Jacobs J agreeing).
Section 15 was not explicit as to whether it applied to both the civil and criminal jurisdictions. It was based on s 48 of the Supreme Court of Judicature Act 1873 (UK). Justice Cox in Garrett expressed his satisfaction, upon further analysis, that the right of appeal it conferred was confined to civil proceedings.[25]
[25] R v Garrett (1988) 49 SASR 435 at 441-442 (Cox J, King CJ and Jacobs J agreeing).
Justice Cox then carefully analysed the progression of the jurisdictional legislation from 1878. At the time of enactment of the SCA, the CLCA was in force. Part XI of that Act (a later version of which Perry J considered in Tang) essentially reproduced the substance of the Criminal Appeals Act 1924 (SA), which was in turn based on the Criminal Appeal Act 1907 (UK). Part 6A of the CPA is the successor to these provisions.
Justice Cox reasoned that the history of these appeal provisions in South Australia demonstrated that the general provisions in the 1878 Act did not apply to the court’s original criminal jurisdiction, and neither, in turn, did s 50. Section 50 was a consolidation, rather than an innovation.[26] It did have some application to criminal matters, such as those arising under the Justices Act 1921. In any event, he concluded, ultimately:[27]
When s 50 was enacted the appeal provisions of the Criminal Law Consolidation Act had been in force for a decade or so. One might reasonably interpret Pt XI of that Act as a complete code with respect to the review of verdicts and orders made on the criminal side. An appeal under Pt XI could only be brought by a convicted person. If there was to be any relaxation or extension of the rights of appeal conferred by Pt XI, one would expect them to have been enacted by way of amendment to Pt XI and not by words of ambiguous generality in another Act altogether. It is to be noticed that, as in the case of s 16 of the 1878 Act, if s 50 gives an accused person the right to appeal against ancillary orders or directions of a trial judge, or against his refusal to make an order, it presumably gives the same right of appeal to the Crown. One can conceive of cases in which it would be in everyone’s interests to have the correctness of a pre-trial order tested at once, but in many instances the power to appeal against the trial judge’s ancillary orders could be expected to have mischievous and inconvenient results. All of those considerations combine to deny a right of appeal under the Supreme Court Act with respect to a criminal trial.
[26] R v Garrett (1988) 49 SASR 435 at 445 (Cox J, King CJ and Jacobs J agreeing).
[27] R v Garrett (1988) 49 SASR 435 at 445-446 (Cox J, King CJ and Jacobs J agreeing).
In Southern Adelaide Health Service Inc v C,[28] this Court referred to the conclusions of Cox J with respect to the jurisdiction conferred by s 50.[29] Justice Debelle in that case expressed essential agreement with Cox J in Garrett as to the operation of Part 11 of the CLCA as a code with respect to the criminal jurisdiction of the Court to the exclusion of s 50, save and except for identified matters in s 50 itself.[30]
[28] (2007) 97 SASR 556.
[29] Southern Adelaide Health Service v C (2007) 97 SASR 556 at [21]-[23] (Debelle J), [94]-[97] (White J).
[30] Southern Adelaide Health Service v C (2007) 97 SASR 556 at [23] (Debelle J).
However, Southern Adelaide Health Service Inc concerned an appeal by a non-party to criminal proceedings from a refusal to set aside a subpoena. It was a curious appeal, in that while the trial judge had refused to set aside the subpoena, he had upheld a claim for public interest immunity in respect of the documents produced. The Court held that the appeal was incompetent, variously because it lacked utility[31] and that the Health Service had otherwise been successful.[32]
[31] Southern Adelaide Health Service Inc v C (2007) 97 SASR 556 at [92] (White J).
[32] Southern Adelaide Health Service Inc v C (2007) 97 SASR 556 at [18] (Debelle J); [93] (White J) (Anderson J agreeing with both).
While it was not strictly necessary to decide in those circumstances, Debelle J considered that the appellate jurisdiction in s 50 does extend to an aggrieved non‑party in the case of a refusal to set aside a subpoena in criminal proceedings:[33]
Persons to whom a subpoena is addressed are, as a matter of course, persons who are not parties to proceedings. A person attending court pursuant to a subpoena requiring him to give evidence has standing to apply for an order to set it aside or to have compliance with a subpoena subject to conditions as to an anonymity: Witness v Marsden (2000) 49 NSWLR 429 at [60]. It is a well-established procedure for persons, who have been served with a subpoena to produce documents in either a civil trial or a criminal trial, to apply for an order setting aside the subpoena or modifying its terms. It is also well-established in civil proceedings that a person served with a subpoena may appeal if aggrieved by the order which has been made: see, for example, Alliance Petroleum Australian NL v Australian Gas Light Co (1983) 34 SASR 215 where the parties exercised the right of appeal provided in s 50 of the Supreme Court Act; Rochfort v Trade Practices Commission (1982) 153 CLR 134 where the parties appeared to have been exercising the right of appeal provided by s 24 of the Federal Court of Australia Act 1976 (Cth); National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 where a party appealed by leave and the trial was stopped (in that case a civil trial) to enable that party who was seeking to prevent privileged documents from being produced for inspection to appeal against an order to produce them. The practice is sound. Not infrequently, there will be a question whether documents are the subject of some kind of privilege or are confidential documents. That privilege or confidence might be irrevocably lost if there is no opportunity to test the decision at first instance. Waind’s case is an example.
There is no reason or principle why a person who has applied to set aside a subpoena to produce documents or to limit its operation should not be able to apply for leave to appeal against an adverse order in criminal trials as well as in the civil trials. If the appeal is in a criminal trial, the appellant will be exercising a right of appeal pursuant to s 50 of the Supreme Court Act. The clear policy of s 350 and s 352 is that appeals should not disrupt the hearing of a criminal trial. However, there will not be a spate of appeals which will disrupt trials. An order made on an application to set aside a subpoena or to limit its operation is an interlocutory order. An appeal against an interlocutory order may be prosecuted only if permission to appeal is granted. This will limit appeals. Furthermore, issues concerning subpoenas in a criminal trial are, as a general rule, resolved on a voir dire hearing before the trial commences before the jury. There is a slight risk only that a criminal trial will be disrupted.
[33] Southern Adelaide Health Service Inc v C (2007) 97 SASR 556 at [24]-[25] (Debelle J).
I do not understand these observations to extend to a defendant in criminal proceedings who might similarly face the loss of an opportunity to appeal against an adverse ruling on legal professional privilege in the kind of circumstances arising in the present case. These remarks were concerned with the position of third parties. Justice Debelle otherwise appears to have endorsed the reasoning of Cox J in Garrett.
The Full Court effectively endorsed this approach in Legal Services Commission v JHW.[34] Counsel for an accused to a charge of murder had applied to inspect documents produced to the Supreme Court by the Legal Services Commission in answer to a subpoena. These documents were from the Commission’s file for the co-accused, who had made certain statements and offered to provide the Director of Public Prosecutions with assistance. The trial judge held that privilege over the documents had been waived.
[34] Legal Services Commission v JHW (2012) 223 A Crim R 534; [2012] SASCFC 47.
The Commission appealed, relying on s 50. The Full Court followed Garrett but held, consistently with the opinion expressed by Debelle J in Southern Adelaide Health Service Inc (although without referring to that decision), that Part 11 of the CLCA was to be treated as a code only in respect of appeals by a convicted person and appeals on decisions on issues between the prosecutor and the convicted person.[35]
[35] Legal Services Commission v JHW (2012) 223 A Crim R 534; [2012] SASCFC 47 at [49] (Doyle CJ, Vanstone and Anderson JJ).
The Court concluded with respect to the relationship between Part 11 of the CLCA and s 50:[36]
In our opinion neither Millhouse nor Garrett determines the outcome in the present case. There are distinctions between the present case, and cases of the kind which we consider the Court had in mind in those decisions, which provide a basis for a different approach in the present case. Like any grant of jurisdiction, s 50 of the SCA should not be read in a limited sense. It has been treated as conferring jurisdiction to entertain an appeal against an order for production of documents on subpoena, in civil cases. In principle, it is available to support an appeal in the present case, unless s 50 is to be read as subject to an implicit exception in relation to orders made ancillary to the exercise of criminal jurisdiction and directed to a party to proceedings in that jurisdiction. We accept, in the light of history and the decisions in Millhouse and Garrett, that neither the accused in criminal proceedings nor the prosecutor in those proceedings could appeal against an adverse decision made in those proceedings in relation to the production of documents on subpoena. The CLCA is a code in relation to appeals by the parties to criminal proceedings against orders made in the course of those proceedings. But we consider that an appeal by an [sic] person who is not a party to the proceedings, being a person against whom an order is made and whose rights are impeached, is available under s 50 of the SCA. Neither s 63 of the SCA, nor the provisions of the CLCA, are apt to exclude this appeal from the scope of s 50 of the SCA. We accept the importance of maintaining the distinction drawn by the Court in Millhouse and in Garrett. But we do not consider that a decision that the appeal is competent in this case erodes that distinction.
(Emphasis added)
[36] Legal Services Commission v JHW (2012) 223 A Crim R 534; [2012] SASCFC 47 at [54] (Doyle CJ, Vanstone and Anderson JJ).
For the purposes of the present case, two issues then arise. The first is whether the relationship that has been established and maintained between s 50 of the SCA and Part 11 of the CLCA, now Part 6A of the CPA, is the same as that between ss 43 and 45 of the DCA and Part 6A of the CPA. The second is that if it is, what are the consequences for the fact that the appellant is a party to the criminal proceedings in circumstances where it was the Commissioner of Police, a non‑party, who brought the application in the District Court?
In R v Allen,[37] Lander J made remarks in obiter on the interaction between ss 43 and 45 of the DCA, suggesting that where a District Court judge was exercising the criminal jurisdiction of that Court, an appeal lay to the Full Court either by leave pursuant to s 352(1) of the CLCA (which fell within Part 11) or as of right pursuant to s 43 of the DCA. He considered that s 45 had the effect that both sections could not apply at the same time.[38] This suggests an approach broadly consistent with that of Perry J in Tang. However, in Southern Adelaide Health Service Inc, White J observed that the Court in Allen may not have had its attention drawn to Garrett, as also appears to have been the case in Tang.[39]
[37] (2002) 81 SASR 434.
[38] R v Allen (2002) 81 SASR 434 at [49]-[52] (Lander J, Martin J agreeing).
[39] Southern Adelaide Health Service Inc v C (2007) 97 SASR 556 at [99] (White J).
In the present case, in arguing that ss 43 and 45 of the DCA have the same relationship to Part 6A of the CPA as does s 50 of the SCA, Ms Doecke for the Commissioner referred further to s 63(1) of the SCA:
(1) The practice and procedure in all criminal causes and matters, including the practice and procedure upon appeal, except as expressly altered by this Act, shall be the same as the practice and procedure in similar causes and matters before the passing of this Act.
This section, Ms Doecke submitted, reinforced that Part 11 of the CLCA, and now Part 6A of the CPA, constituted codes with respect to appeals from the Supreme Court’s original criminal jurisdiction to the extent explained in Garrett and the subsequent cases. Sections 43 and 45 of the DCA must also be read in conjunction with Part 6A of the CPA. However, the criminal jurisdiction of the District Court, and the right of appeal therefrom, could never have been expressed in the same way as in the corresponding provisions of the SCA, as the District Court does not have the same historical foundations.
To this end, the Commissioner submits that s 45 must be read purposively against the historical background summarised above. The DCA created an entirely new criminal jurisdiction, against the background that Part 6A of the CPA and its predecessors have always operated as a code for criminal appeal rights, subject to any other specific and clear conferrals of appellate jurisdiction.
The effect of this submission is that it would be ahistorical and anomalous as a matter of imputed purpose to read the words of s 45, or more specifically its grammatical composition, as expanding the appellate jurisdiction of the Supreme Court from the criminal jurisdiction of the District Court well beyond the current and historical position with respect to appeals from the Supreme Court’s own original criminal jurisdiction. To do so would be to undermine the strong purposive considerations for limiting the appellate jurisdiction prior to completion of a criminal trial that Cox J articulated in Garrett. [40]
[40] R v Garrett (1988) 49 SASR 435 at 445-446 (Cox J, King CJ and Jacobs J agreeing).
A further policy reason apparent in the DCA that speaks in favour of this interpretation is that the District Court exercises almost the same jurisdiction as the Supreme Court over major indictable offences. The Supreme Court’s exclusive criminal jurisdiction is confined to treason and murder, conspiracy or attempt to commit, and assault with intent to commit, either of those offences.[41] It would be most unusual, indeed anomalous, for there to be such radically different appellate avenues depending on the court in which the major indictable offence was heard.
[41] District Court Act 1991 (SA), s 9(1).
Mr Henchliffe QC for the appellant argued that a sound policy reason for instead interpreting s 45 narrowly lay in the damage that would otherwise necessarily result to a defendant’s common law rights, which would not then be capable of cure. The potential use of documents held wrongly not to be privileged, prior to trial, would not be capable of cure.
This consideration is true of trial proceedings in the Supreme Court as much as it is in the District Court. Nevertheless, the effect of the submission is that there is a clear drafting difference in s 45 that gives textual support to the interpretation the appellant urges. Given that circumstance, the observations of Debelle J in Southern Adelaide Health Services Inc v C,[42] as to the prejudice that a non-party would suffer in the event of a non-appellable, adverse ruling on legal professional privilege in respect of documents produced on subpoena, apply with all the more force to a defendant.
[42] (2007) 97 SASR 556.
This submission urges a policy reason for interpreting s 45 of the DCA narrowly, in light of its text, and in opposition to a historical and purposive context which otherwise supports a broad reading. Nevertheless, as an argument of interpretation grounded in a competing consideration of purpose, it has strength.
The risk of a party being prejudiced by an erroneous determination of a claim of legal professional privilege asserts a powerful policy reason for the existence of a right of appeal against a decision that determines the privilege to have been lost, whatever the stage of the proceedings. Determination of the existence of the privilege has a different character from ordinary interlocutory decisions with respect to procedure, or evidential rulings that occur as a matter of course at the pre-trial stage or during trial.[43]
[43] Baker v Campbell (1983) 153 CLR 52.
Legal professional privilege has been described as applying to communications as a rule of substantive law.[44] It has been described as a legal right,[45] albeit one a breach of which would not give rise to an action on the case for damages, or an apprehended breach of which could itself be restrained by an injunction.[46] Nevertheless, injunctive relief may be available to protect the associated equitable duty of confidence owed by a solicitor, requiring the return of documents obtained by trick, or restraining a third party from making use of them.[47]
[44] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[45] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 556 (McHugh J).
[46] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 564‑567 (Gummow J).
[47] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 564‑567 (Gummow J); Lord Ashburton v Pape [1913] 2 Ch 469.
Relatedly, where a statute authorises the issuing of a warrant for search and seizure, where that authorising statute does not manifest an intention to oust the privilege, the privilege will continue to apply to documents otherwise within the scope of the warrant.[48] The powers of search and seizure will not extend to documents the subject of the privilege. It follows that injunctive relief is available against police from seizing, retaining and perusing documents that are privileged, as the power conferred by the warrant in such a case does not extend to such documents.[49]
[48] Baker v Campbell (1983) 153 CLR 52.
[49] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 567‑568 (Gummow J).
Non-parties to criminal proceedings will raise claims of legal professional privilege attaching to documents that they have produced in answer to a subpoena. To do so is to raise an objection that the relevant power to compel does not extend to those documents.
In the event of an adverse determination of such an objection by a non-party in criminal proceedings in the District Court, which is necessarily a determination that the power to compel did so extend, the combined effect of s 45 of the DCA and Part 6A of the CPA does not prevent an appeal by the non-party under s 43. This is consistent with the decision of this Court in Legal Services Commission v JHW[50] and the obiter remarks of Debelle J in Southern Adelaide Health Service Inc v C.[51] On any view, the regulation of appeals by these sections is concerned with parties to the criminal proceedings.
[50] (2012) 223 A Crim R 534; [2012] SASCFC 47.
[51] (2007) 97 SASR 556.
The present case raises challenges to the limits of that conclusion, in that the aggrieved party, with just as substantive a claim to legal professional privilege over their legal file as any non-party has over their own, is a party to the criminal proceedings. This is a relatively unusual occurrence that has arisen on account of the nature of the prosecution and its procedural history. The effect of the appellant’s submissions is to make the general proposition that there is no reason not to afford to parties the right of appeal under s 43 that is available to non-parties in respect of determinations of legal professional privilege in the course of criminal proceedings.
For the reasons I have discussed above, in the ordinary case where documents are seized in the course of an investigation, and the prospective criminal defendant makes a claim of legal professional privilege, it is open to that defendant to seek a declaration that the power of seizure did not extend to certain documents on account of legal professional privilege, and associated injunctive relief. The District Court has jurisdiction to make such declarations as part of its civil jurisdiction.[52]
[52] District Court Act 1991 (SA), s 8(1); Supreme Court Act 1935 (SA), s 31.
In short form, this requires the Court to determine the substantive claims of privilege. Guidelines have in the past been established for preservation of the status quo pending the resolution of claims of legal professional privilege in curial proceedings.[53] In the case of a seizure of documents by the Independent Commissioner Against Corruption, for example, Schedule 3 of the Independent Commissioner Against Corruption Act 2012 (SA) prescribes a regime for the determination of privilege.
[53] See, e.g., Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 567‑568 (Gummow J).
I consider that the appellant does have a right under s 43 to appeal against the determinations by the judge in this case, but not for the reason he advances. In circumstances where the appellant did not seek equitable relief following the seizure of the solicitor’s file, my reasons depend on the fact that the subject of the appeal is a determination of a claim of legal professional privilege on an application by a non-party to the proceedings.
I am conscious of the general statement of the Court in Legal Services Commission v JHW[54] to the effect that an accused in criminal proceedings cannot appeal against an adverse decision made in those proceedings in relation to the production of documents on subpoena.[55] That statement speaks to the archetypal situation where a non-party produces documents with an attendant claim of privilege that the Court rules on. For the reasons the Court gave in that case, the non-party would have a right of appeal under s 43 of the DCA.
[54] (2012) 223 A Crim R 534; [2012] SASCFC 47.
[55] Legal Services Commission v JHW (2012) 223 A Crim R 234; [2012] SASCFC 47 at [54] (Doyle CJ, Vanstone and Anderson JJ).
The question then arises as to the proper characterisation of a case where a non-party produces documents in answer to a subpoena issued in criminal proceedings, but seeks orders with respect to claims of privilege made by the accused that have not been previously determined. Not being a party to the criminal proceedings, the non-party can only have engaged the civil, declaratory jurisdiction of the Court under s 8(1) of the DCA and s 31 of the SCA, in parallel with the Court’s criminal jurisdiction. The subject matter of that engagement, however framed as a matter of form, is necessarily the question of the existence of the power to seize the file in the first place. The determination of such an application for a declaration as to the existence of a power is amenable to appeal under s 43.
There is then the potential for anomaly as between the positions of the non‑party and the criminal defendant. In the ordinary course of a return on a subpoena, Legal Services Commission v JHW[56] recognises that s 50 (and by extension, s 43 of the DCA) confers appellate rights on the non-party affected by the determination of a claim of privilege in the criminal jurisdiction, because they are a non-party. There are sound policy reasons for that, as the non-party’s substantive rights have been placed in issue. The criminal defendant has no such reciprocal right of appeal, the determination of privilege on the non-party’s claim being incidental to the criminal proceedings.
[56] (2012) 223 A Crim R 234; [2012] SASCFC 47.
In the present case, however, a non-party, the Commissioner, has put in issue the substantive right of privilege of a criminal defendant. Strictly, I think the position is that this substantive right has been put in issue via the question (possibly not recognised by the parties at the time) of whether the Commissioner had the power to seize the file. For a statutory scheme to deny a right of appeal against an adverse determination of the accused’s claim of privilege, which is in turn determinative of a question of whether the police had a power they purported to exercise, would be extraordinary.
The answer lies, to my mind, in understanding the jurisdiction necessarily being exercised. Once it is recognised that in this particular (and likely unusual) circumstance, the application by the non-party has necessarily engaged the Court’s civil, declaratory jurisdiction, rather than arising incidentally in the criminal jurisdiction, s 45 of the DCA does not purport to prevent the defendant from appealing under s 43, whatever its true construction.
Although it is not strictly necessary to decide, I consider that the existence of this civil, declaratory jurisdiction, conferred in the same Act that contains ss 43 and 45, considerably blunts the purposive argument that the appellant makes for a narrow reading of s 45 in opposition to the arguments of historical context and purpose made by the Commissioner. The existence of the declaratory jurisdiction is a contextual indicator that speaks against the purposive argument that only a narrow reading of s 45 would prevent irremediable prejudice to a defendant in this circumstance.
Certainly, inconveniences and difficulties arising out of interlocutory orders and evidential rulings that do not amount to substantive declarations of right, obligations, entitlements or power on an application by a non-party will arise, as Cox J recognised in Garrett. However, as Cox J also explained, the benefits of so limiting appeals are considerable.
The question is then whether this is an appropriate characterisation of what occurred in the present case. I return to the form of the first order sought by the Commissioner:
1.The Commissioner seeks an order in relation to the communications identified in Annexure A to this Outline, that the defendant has either:
a. not established legal professional privilege in respect of the communication; or
b. if legal professional privilege has been established, that the privilege has been waived; or
c. legal professional privilege is excluded by reason of fraud.
The only orders capable of meeting the description of those sought by the Commissioner are declarations. It was the Commissioner, a non-party, who produced the documents in answer to the subpoena. The documents were not the Commissioner’s. That the Commissioner, in substance, was seeking declarations in respect of the communications, and thereby as to the power of the police to have seized them in the first place, is the only characterisation of what occurred that satisfactorily allows for a conclusion that the District Court was, in determining privilege, exercising a jurisdiction that it actually (and necessarily) had.
While there are obvious benefits in the discipline of identifying the jurisdiction being exercised at the time, this argument occurred in the course of the Court engaging in pre-trial steps in the ordinary course of its criminal jurisdiction. In that context, the form and course of the application were unusual, but I would not allow any deficiency in the form of the application to stand in the way of recognising its true character.
The orders of the Court were made in the exercise of its civil jurisdiction to make declarations of right, obligations, entitlements and power, pursuant to s 8(1) of the DCA and s 31 of the SCA. Section 43 governs the right of appeal. Section 45 does not purport to abrogate that right. The appeal is competent.
Legal professional privilege
Legal professional privilege was summarised by the High Court in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission as:[57]
a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.
(Footnote omitted)
[57] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [9] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
In Grant v Downs, Stephen, Mason and Murphy JJ explained the rationale for legal professional privilege as follows:[58]
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 existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision.
[58] Grant v Downs (1976) 135 CLR 674 at 685.
The privilege can be distilled into two categories or limbs, the first known as ‘advice privilege’, and the second as ‘litigation privilege’. Advice privilege covers oral or written communications passing between a lawyer and client, provided those communications are confidential and were made for the dominant purpose of seeking legal advice. Litigation privilege attaches to confidential oral or written communications or documents made for the dominant purpose of use in existing or reasonably contemplated judicial or quasi-judicial proceedings. Litigation privilege has long been recognised as extending to confidential communications passing between a solicitor and third parties, or a client and third parties.[59]
[59] Daniel v Western Australia (1999) 94 FCR 537 at [23] (Nicholson J).
In Esso Australia Resources Ltd v Federal Commissioner of Taxation,[60] the High Court emphasised that courts have ‘power to examine documents in cases where there is a disputed claim, and it should not be hesitant to exercise such a power’.[61]
[60] (1999) 201 CLR 49.
[61] Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at [52] (Gleeson CJ, Gaudron and Gummow JJ).
Fraud
Legal professional privilege does not attach to communications that are made in the furtherance of future criminal offending or fraud. The accepted formulation of this principle is found in R v Cox and Railton.[62] That decision concerned two men, Cox and Railton, who enquired of a solicitor for advice on frustrating a judgment for damages against Railton. The solicitor advised them against their intended course, but this did not dissuade the men, who were subsequently indicted for conspiracy to defraud. The question arose as to whether evidence from the solicitor as to the conversation that had taken place was subject to legal professional privilege. The Court of Queen’s Bench determined that privilege does not exist where the advice sought is intended to facilitate or to guide the client in the commission of a crime of fraud.[63]
[62] R v Cox and Railton (1884) 14 QBD 153.
[63] R vCox and Railton (1884) 14 QBD 153 at 165.
While this rule has come to be known as an ‘exception’ to the doctrine of legal professional privilege, this is not an accurate description of its character. In Commissioner of Australian Federal Police v Propend Finance Pty Ltd, Gaudron J, referring to McHugh J in Carter v Northmore Hale Davy & Leake,[64] said:[65]
[T]he so-called “exceptions” to legal professional privilege, namely, communications to further illegal purposes, communications made for the purpose of frustrating the processes of the law and communications made to further an abuse of public power “are in truth not exceptions at all”. Rather, legal professional privilege never attaches to them. This has some significance in relation to the nature of the evidence necessary to raise a question of illegality.
(Footnote omitted)
[64] (1995) 183 CLR 121.
[65] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 546 (Gaudron J). See further at 556 (McHugh J).
This distinction is important. As Gaudron J went on to discuss, this characterisation informs the application of the law:[66]
If illegality were a true exception to legal professional privilege, it would be arguable that the person challenging the existence of the privilege should establish that the communication in question was made in furtherance of some illegal purpose. However, it is not a true exception and, thus, it is not necessary that illegality be established positively. On the other hand, a mere allegation of illegal purpose is not, itself, sufficient. There must be “not merely an allegation ... of a fraud, but ... something to give colour to the charge”, “some prima facie evidence that it has some foundation in fact”. The reason for this is obvious. Persons are presumed innocent, not guilty. And, thus, there must be evidence to raise a sufficient doubt as to a claim of privilege to cast a further evidentiary onus on the person making the claim to show that, in truth, the privilege attaches.
(Footnotes omitted)
[66] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 546 (Gaudron J).
The judge held that she was satisfied, on a prima facie basis, that each of the documents remaining in contention were communications made in furtherance of, or as a step preparatory to, the alleged fraud, being the offence charged. That offence is particularised as follows:
Alison Jane Sadler, between the 30th day of September 2016 and the 25th day of October 2016 at Adelaide, Willaston or other places, dishonestly engaged in conduct by possessing, producing or using a document, namely time books, knowing the document to be false and intending to deceive Allianz Australia Limited, or people generally, or to facilitate deception of another, or people generally, by someone else and by those means to benefit herself or cause detriment to Allianz Australia Limited such benefit or detriment being money of the value of more than $30,000.
It was common ground that when considering whether the documents in question were made in the furtherance of future criminal offending or fraud, it must be prima facie established that the communications were made in furtherance of this alleged conduct.
Waiver
A person entitled to the benefit of legal professional privilege may waive the privilege. The common law doctrine of waiver is an area of difficulty, with recognised ‘internal conflict within the authorities’.[67] A broad definition of the doctrine was offered by Clarke JA in Goldberg v Ng, adopted from Cross on Evidence, 4th Australian ed (1991):[68]
[W]aiver occurs where the party entitled to privilege performs an act which is inconsistent with the confidence preserved by it.
[67] Goldberg v Ng (1994) 33 NSWLR 639 at 673 (Clarke JA).
[68] Goldberg v Ng (1994) 33 NSWLR 639 at 673 (Clarke JA).
Waiver may be express or implied. Express waiver occurs through ‘intentionally disclosing protected material’.[69] Such a waiver will usually be obvious on its face. Implied waiver, also known as waiver ‘imputed by operation of law’,[70] occurs where the Court, informed by considerations of fairness, considers that an act of the privilege holder is inconsistent with the maintenance of the confidentiality preserved by the privilege, despite any contrary subjective intention of the individual performing the act. The High Court said in Mann v Carnell:[71]
[69] Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475, 487 (Mason and Brennan JJ).
[70] Mann v Carnell (1999) 201 CLR 1 at [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ), see also Goldberg v Ng (1995) 185 CLR 83 at 95.
[71] Mann v Carnell (1999) 201 CLR 1 at [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
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.
I turn to the application of these principles to the remaining documents in contest. I have inspected each document.
Ground 2
In relation to Document 23, the judge said:
This is a report prepared by an accountant, Jim Rossiter dated 17 June 2015. Having had careful regard to its contents, I am satisfied, on a prima facie basis, that this communication was made in furtherance of, or as a step preparatory to, the alleged fraud. It is not privileged.
The Commissioner raised an issue on the appeal, which had not been raised before the judge, that having regard to the description of the document as a ‘report’, the document was an expert report relevant to the subject matter of the action. He submitted that rule 160(1)(b) of the District Court Rules 2006 (SA) as then in force had required this report to be served on the CTP insurer, and that it was necessarily not privileged.
Mr Henchliffe submitted that the rules did not require that privilege was lost, as rule 160(10) of the District Court Rules 2006 (SA) limited the loss of legal professional privilege to expert reports that had been served under the rule. If the report had not been served, privilege was necessarily maintained, apparently notwithstanding that to fail to serve the report would have been in breach of the rules.
It is not necessary to determine the merits of this argument, which adheres somewhat grimly to the text of rule 160(10).[72] Whether the ‘report’ is properly characterised as an expert report was not agitated in the District Court. Had this been in issue, there may have been cause to adduce evidence about how it came into the appellant’s possession and why it had not been disclosed in the civil proceedings.[73] I would not permit the Commissioner to agitate on appeal, for the first time, the possibility that this was an expert report with a concomitant loss of privilege.
[72] See, however, Falland & Ors v Symbion Health & Anor [2010] SASC 119; (2010) 269 LSJS 189 at [13]-[14] (Bleby J).
[73] See the discussion in Cowie & Anor v O’Brien [2019] SASC 203 at [14]-[22] (Kelly J).
As to whether the report was a communication made as part of a criminal or unlawful proceeding or in furtherance of an illegal object, there is no suggestion that the author was knowingly engaged in furthering such an object. I accept that a document could meet such a description even where the author was an unwitting participant.[74]
[74] Varawa v Howard Smith and Co Ltd (1910) 10 CLR 382 at 390 (Isaacs J).
I have inspected the report. Having regard to the description of the offence charged, I disagree with the judge that there is a prima facie basis for concluding that it was made in furtherance of, or as a step preparatory to, the alleged fraud. There may be a fine line, on occasion, between documents meeting that necessary description and documents that are simply relevant to proof of the offence charged. Whether or not this document meets the latter description, I do not consider that it meets the former. I would hold that the report is privileged.
Ground 3
In relation to Documents 350 and 353a, the judge said:
Documents 350 and 353a are one and the same, being an email from Radbone and Associates dated 25 October 2016, attaching a letter to the defendant, attaching a copy of a letter to Finlaysons. I am satisfied, on a prima facie basis, that this communication was made in furtherance of, or as a step preparatory to, the alleged fraud. If I am wrong in this respect, I am satisfied that any legal professional privilege which attached to this communication has been impliedly waived by the defendant, by her conduct in sending the Notice of Demand to Allianz CTP. The communication is not privileged, nor is the duplicate.
The original of the letter to Finlaysons that was attached to this correspondence (‘the Finlaysons letter’) had enclosed the time books the subject of the charge. That letter is, of course, not privileged. I have inspected the email and attached letter to which the Finlaysons letter was attached. I do not agree that there is a prima facie basis for being satisfied that they were made in furtherance of, or as a step preparatory to, the crime alleged. Again, that question is distinct from whether the documents have some evidential value to the proceedings the subject of the charge. The correspondence is, in my view, privileged.
The question is then whether the appellant, by reason of the Notice of Demand dated 10 April 2018, waived that privilege. The appellant accepted that the terms of the Notice of Demand had the effect of asserting to Allianz CTP that she had not given her solicitor authority to present the time books, or properly consented to him doing so. The appellant’s solicitor sent her this correspondence after they had sent the Finlaysons letter attaching the time books.
The appellant’s submissions focused to an extent on the fact that the Notice of Demand containing the putative waiver was sent to Allianz CTP rather than the police. However, Mr Henchliffe accepted that the waiver, if that is what it was, could not be party-specific. Rather, if the document evidenced that the appellant had given an instruction to hand over the time books, there would then be a good prospect that she had waived privilege over it. I would add that in such a case there would be a strong prima facie basis for being satisfied that such a document was made in furtherance of, or as a step preparatory to, the crime alleged.
The Commissioner accepted that the appropriate approach to the question of waiver is to consider whether there is an inconsistency between the appellant issuing the Notice of Demand and maintaining the privilege over the document. I do not consider that there is any inconsistency. I would hold that the document remains privileged.
Ground 4
In relation to Document 26, the judge said:
This document is a statement of instructions provided by the defendant to Radbone and Associates on 13 July 2015. I have carefully considered its contents. I am satisfied, on a prima facie basis, that this communication was made in furtherance of, or as a step preparatory to, the alleged fraud. If I am wrong in this respect, I am satisfied that any legal professional privilege which attached to this communication has been impliedly waived by the defendant, by her conduct in sending the Notice of Demand to Allianz CTP. The communication is not privileged.
The appellant submits to the effect that there is no prima facie basis on which the Court could be satisfied that this document was made in furtherance of, or as a step preparatory to, a crime alleged to have occurred over 15 months after the communication. I find that submission quite unpersuasive, having regard to the exposition of the test in Commissioner of Australian Federal Police v Propend Finance Pty Ltd.[75] Notwithstanding the 15-month time lapse, there is manifestly, on the face of the document, a prima facie basis for the Court to reach the necessary state of satisfaction. I would hold that legal professional privilege does not attach to the document.
[75] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
In those circumstances, it is unnecessary to decide whether, by reason of sending the Notice of Demand, the appellant has waived privilege. There is a strong argument in favour of there being a relevant inconsistency between the contents of this document and the appellant sending the Notice of Demand. It is not necessary to decide that question, however, in circumstances where it is clear that privilege does not attach to the document.
Conclusion
I would grant an extension of time to file the Notice of Appeal. I would allow the appeal in relation to Documents 23, 350 and 353a, and hold that legal professional privilege exists and is maintained over those documents. I would dismiss the appeal in relation to Document 26.
4
28
1