Tasmania v Palmer

[2023] TASSC 21

[2023] TASSC 21

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tasmania v Palmer [2023] TASSC 21
PARTIES:	STATE OF TASMANIA
v
PALMER, Kye Douglas
FILE NO:	241/2020
DELIVERED ON:	8 June 2023
DELIVERED AT:	Hobart
HEARING DATE:	Written Submissions
JUDGMENT OF:	Wood J
CATCHWORDS:

Evidence – Admissibility – Exclusions: privileges – Client legal privilege – Loss of privilege – Implied waiver – Defendant's conduct inconsistent with maintaining privilege – Privilege waived in context of an appeal concerning conduct of former counsel – Email from counsel waived privilege in full and took conduct beyond limited waiver – Appeal abandoned and no further reliance on affidavits – State seeks to tender evidence of admissions to former counsel on disputed facts hearing – Unfair to admit evidence of admissions to establish guilt.

Evidence Act 2001 (Tas), ss 90, 118, 119, 122.
Mann v Carnell [1999] HCA 66, 201 CLR 1, applied.
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384, 127 FCR 499; Lazer v R [2021] NSWCCA 132;
Goldberg v Ng (1995) 185 CLR 83, referred to.

Aust Dig Evidence [1181]

REPRESENTATION:

Counsel:

State:	D Earley
Respondent:	K Baumeler

Solicitors:

State:  Director of Public Prosecutions

Judgment Number:	[2023] TASSC 21
Number of paragraphs:	35

Serial No 21/2023 File No 241/2020

STATE OF TASMANIA v KYE PALMER

EDITED REASONS FOR RULING	WOOD J
(delivered orally 8 June 2023)

1 This is an evidentiary ruling that has arisen during a disputed facts hearing. Mr Palmer, the defendant, has pleaded guilty to two counts of assault contrary to s 184 of the Criminal Code. The particulars of count 1 are that the defendant:

"… on or about the 24th day of February 2020 unlawfully assaulted [the complainant] by slapping her to the face, pushing her onto the bed, putting his hands around her throat and squeezing and head butting her to the head."

The particulars of count 2 are that the defendant:

"… on or about the 24th day of February 2020 at a time subsequent to count 1, unlawfully assaulted [the complainant] by wrapping a dressing gown cord around her neck and pulling it tightly and head butting her to the head."

2             The Crown facts have been read in court and defence counsel have indicated the factual matters that are disputed. In relation to count 1, the defendant admits slapping the complainant to the face once. In relation to count 2, he admits pushing his head onto the complainant's head as a mechanism of restraint. All other particulars, and some contextual matters, are denied. Significantly, he is disputing the most serious acts alleged of head-butting and strangulation.

3             On the disputed facts hearing, the State has called the complainant, attending police officers, and forensic nurse examiner, Catherine Graham, to give evidence, and they have been cross- examined.

4             The State seeks to call a final witness, the defendant's former counsel, referred to as Mr A, to give evidence of a number of admissions made by the defendant to him throughout the lawyer-client relationship on this matter. This information would ordinarily never see the light of day as confidential information subject to legal professional privilege. The State says privilege has been waived. The defendant's counsel, Ms Baumeler, objects to the evidence being led. This is my ruling on the issue.

5             The history of the proceedings leading to this disputed facts hearing has involved a listing for trial, a change of plea to guilty on both charges on the indictment before the evidence commenced, a challenge to the pleas of guilty by an appeal to the Court of Criminal Appeal, and finally, a withdrawal of the appeal. It is necessary to set out some matters of background which are uncontentious. Here, I draw from the agreed facts and the summary of the background set out in the State's written submissions:

1	The defendant was indicted on two counts of assault contrary to s 184 of the Criminal Code on Indictment No 327/2020 ("the indictment").
2	On 15 June 2021, the indictment was put to the defendant and pleas of not guilty were entered by him to both counts. A jury was empanelled and the matter adjourned to 16 June 2021 for trial.
3	On 16 June 2021, after counsel for the defendant indicated to the Court that the defendant wished to change his pleas, the indictment was put to the defendant again and pleas of guilty were entered by him to both counts. The learned trial judge then

2   No 21/2023

directed the jury that they should return verdicts of guilty to both counts. The jury returned unanimous verdicts of guilty to both counts. The matter adjourned to 17 June 2021 for a sentencing hearing.

4            On 17 June 2021, Crown facts were published and a plea in mitigation was presented by the defendant's counsel, Mr A. At the conclusion of the sentencing hearing, the matter adjourned to 25 August 2021 for sentence.

5            On 25 August 2021, Mr A was granted leave to withdraw from proceedings and Ms Baumeler appeared on the record for the defendant. The matter adjourned to allow Ms Baumeler time to obtain disclosure and instructions.

6            On 1 September 2021, counsel for the defendant indicated an intention to apply to vacate his pleas of guilty. The matter adjourned for this to be considered.

7            On 15 November 2021, counsel for the defendant submitted that it was agreed that given jury verdicts had been returned in this matter, the defendant was unable to apply to vacate his pleas and instead an appeal would need to be pursued.

8            On 7 December 2021, a notice of appeal was filed on behalf of the defendant alleging that the verdicts were unsafe and unsound in that:

(a)	Counsel for the appellant failed to act on his client's instructions by providing imprudent and inappropriate advice to plead guilty to the indictment after the commencement of the trial. Such advice being contrary to the instructions received, resulting in a miscarriage of justice as the appellant was deprived of his right to challenge the facts as alleged by the State.
(b)	That the plea of guilty entered by the appellant was improper in that it was:

(i)          Not a free and voluntary confession of the crimes charged;

(ii)         Obtained by harassment and improper pressure placed upon the appellant by his counsel;

(iii)        Entered in circumstances where the appellant's ability to make a free choice was removed;

resulting in a miscarriage of justice.

9            On 8 December 2021, in support of the appeal, the defendant and his mother filed affidavits detailing interactions and discussions between the defendant and Mr A throughout the lawyer-client relationship leading up to the entering of the pleas of guilty on 16 June 2021.

10          Operating on the basis that legal professional privilege had been waived by the filing of these affidavits, the Crown contacted Mr A and requested he draft an affidavit in response.

11          Prior to filing his affidavit, Mr A requested the Crown write to counsel for the defendant and confirm that privilege had been waived in respect of all of the defendant's matters. At this time, the defendant had a second indictable file on foot.

12          On 15 December 2021, counsel for the Crown sent an email to Ms Baumeler and requested she confirm privilege was waived. On the same day, Ms Baumeler sent an email, stating "… Any material in the affidavit that is signed I don't believe you need my permission as it's implied that privilege is waived by filing. Anything outside the affidavit I would need to get instructions on".

13          On 27 January 2022, during a telephone conversation between the Director of Public Prosecutions and counsel for the defendant, the Director indicated to counsel for the defendant that in his view privilege had been waived by the filing of the affidavits of the defendant and his mother but requested counsel for the defendant confirm this in

3   No 21/2023

writing as requested by Mr A. Counsel for the defendant agreed that privilege had been waived and enquired why she needed to give a written waiver. She raised concerns that if she indicated privilege was waived in full, Mr A may disclose matters relating to the defendant's second indictable matter which had recently been committed to the Supreme Court for trial. The Director indicated that if such confirmation was not given, the State would simply call Mr A to give evidence on the hearing of the appeal without him filing an affidavit. The Director indicated that he was not of the view that privilege had been waived in relation to the new charge but in the interests of resolving the issue, indicated that if counsel for the defendant confirmed privilege was waived in full, he would undertake to only use any evidence gained from Mr A's affidavit in any future prosecutions of the matters subject to the appeal and not in support of any prosecutions relevant to the new charge.

14          On 27 January 2022, the Director sent an email to counsel for the defendant in the following terms: "As discussed if you could give a full waiver of privilege I undertake only to use any material gained on the appeal and further prosecution of the charges subject to the appeal.". On the same date, counsel for the defendant replied via email stating, "I have spoken to Mr Palmer and (sic) the basis of the undertaking I can indicate that Mr Palmer now waives privilege in full".

15          On 1 February 2022, Mr A filed an affidavit detailing his communications with the defendant in relation to this matter and annexed his file notes. Matters relating to communications between Mr A and the defendant concerning his unrelated indictable matter were either omitted or redacted on the basis they remained the subject of legal professional privilege.

16          On 23 August 2022, the defendant was granted leave by a single judge, his Honour Justice Brett, to withdraw his appeal.

17          On 26 August 2022, counsel for the defendant indicated the matter would now require a disputed facts hearing.

18          On 31 October and 1 November 2022, a disputed facts hearing was conducted in relation to the matter. During the hearing, counsel for the Crown indicated the Crown's intention to call Mr A as a witness on the disputed facts hearing to give evidence of matters referred to in his abovementioned affidavit filed on 1 February 2022. Counsel for the defendant indicated that his evidence would be objected to on the basis that it was subject to legal professional privilege. The matter then adjourned for written submissions to be filed on this point.

6            To complete the history, written submissions were filed in November and December 2022, and agreed facts and a folder of attached documents in April 2023.

7            The admissions sought to be admitted are contained in Mr A's affidavit filed 1 February 2022 on the appeal. It is indicated that the Crown intends to, "adduce evidence of statements made by the accused that amount to confessions of the disputed particulars or prior statements that are inconsistent with what, through his counsel, he now asserts to be his case on the disputed facts hearing".

The position of the parties

8 The State seeks to call Mr A to give evidence of admissions made by the accused to the alleged acts of assault. There is no argument that the evidence qualifies as evidence of admissions, as defined in s 3 of the Evidence Act 2001, or about its relevance or probative value. It is pointed out by the State that the evidence the complainant gave on the disputed facts hearing is contested, noting it was put to the complainant during the hearing that most of the alleged acts of assaults did not occur. Her credit is clearly in issue. It is submitted that in these circumstances, "the Crown is entitled to adduce evidence of statements made by the accused that amount either to confessions of the disputed particulars of prior statements that are inconsistent with what, through his counsel, he now asserts to be his case on the disputed facts hearing." Further, the State points out that the evidence was obtained

4   No 21/2023

when it was clear the accused had waived client/lawyer privilege. The evidence was obtained after discussions with the accused's counsel who had acknowledged the client/lawyer privilege had been waived.

9             The defence position is that Mr A's evidence is the subject of legal professional privilege. While privilege was waived, it was only for a specific purpose, being the appeal, which was subsequently withdrawn. The defence characterise client legal privilege as a fundamental tenet within the common law legal system and a critical human right. It is submitted that waiver can occur for one purpose, but remain intact for other purposes. The reason for the waiver was for the appeal, and for the appeal only. Contrary to that proposition, the State is seeking to leverage the process of the appeal to forensically advantage their positon in the subsequent disputed facts hearing. It is not "inconsistent" for the defendant to continue to assert privilege in circumstances other than the appeal. To do so is fair, consistent with the authorities, and most fundamentally, consistent with a core tenet of the common law system. The State's actions are described as "unwarranted, unnecessary, unneeded and a violation of the defendant's rights."

Client legal privilege

10 Sections 118 and 119 of the Evidence Act, provide:

"118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of –

(a)	a confidential communication made between the client and a lawyer; or
(b)	a confidential communication made between 2 or more lawyers acting for the client; or
(c)	the contents of a confidential document, whether delivered or not, prepared by the client, lawyer or another person –
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of –

(a)	a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b)	the contents of a confidential document, whether delivered or not, that was prepared –

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding, including the proceeding before the court, or an anticipated or pending Australian or overseas proceeding, in which the client is, or may be, or was or might have been, a party."

It is conceded by the State that the evidence it seeks to lead from Mr A would ordinarily be caught by ss 118 and 119.

5   No 21/2023

11 However, it is submitted on behalf of the State that as a result of the conduct of the defendant and his counsel, client legal privilege has been lost. This submission relies on s 122, which provides, relevantly:

"122 Loss of client legal privilege: consent and related matters

(1)

This Division does not prevent the adducing of evidence given with the
consent of the client or party concerned.

(2)

Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118 , 119 or 120.

(3)

Without limiting subsection (2), a client or party is taken to have so acted if –

(a)	the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b)	the substance of the evidence has been disclosed with the express or implied consent of the client or party.

…"

12 The State submits that privilege has been lost on two bases, namely that, pursuant to s 122(1), the defendant consented to the adducing of the evidence; and that, pursuant to s 122(2), he acted in a way that was inconsistent with privilege being maintained.

Consent
13	Section 122(1) is concerned with the adducing of evidence given with the consent of a client or party concerned. The term "client" is defined in s 117(1) as a person or body who engages a lawyer and extends to an agent of a client. Undoubtedly, agency requires authority from the client.
14	The State argues the defendant consented to the adducing of evidence by his counsel indicating to the Crown in writing that privilege had been waived "in full". I note, in this context, the State are not arguing that the meaning of consent includes implied consent at common law. Whether or not common law principles informing the meaning of consent are imported into the section does not need to be decided. Implied consent at common law is tantamount to the same test as arises under s 122(2). See the discussion in Odgers, Uniform Evidence Law, 16th ed, page 1069.
15	There can be no suggestion of express consent such that the defendant or his agent, Ms Baumeler, expressly consented to the adducing of the evidence by the State from Mr A on the disputed facts hearing. It was argued for the State that it is clear, from counsel for the defendant indicating to the State in writing that privilege had been waived "in full", that the defendant consented to adducing the evidence of the otherwise confidential communications between him and Mr A. That may be so, but that is not an express consent of the confidential communications between him and Mr A being "adduced" for the specific purpose of the disputed facts hearing. In my view, there is a distinction between a waiver of privilege and consenting to the adducing of the evidence now sought to be admitted on the disputed facts hearing.

Legal principles on inconsistent conduct

16 Section 122(2) is concerned with a kind of waiver that is often referred to as implied waiver or imputed waiver. It arises where the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.

6   No 21/2023

17           The High Court decision of Mann v Carnell [1999] HCA 66, 201 CLR 1 provides useful guidance as to the common law principles regarding implied waiver of legal professional privilege. In Mann v Carnell, the plurality judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ stated at [29]:

"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' [23]. 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 [24], 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." (My emphasis.)

18           It can be seen that considerations of fairness inform the court's view about whether there is an inconsistency between the conduct of the client and maintenance of the confidentiality, rather than providing some "overriding principle of fairness operating at large". The common law principles articulated in Mann v Carnell apply with equal force in relation to the statutory question posed by s 122(2): Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46, 250 CLR 303 at [32].

19           Whether there has been implied or imputed waiver is a matter of judgment to be made in the context and circumstances of the case, and in the light of any considerations arising from that context or those circumstances: Osland v Secretary, Department of Justice [2008] HCA 37, 234 CLR 275 at [45]; GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 at [57] for a summary of relevant principles post Mann v Carnell.

20           A well-known statement about the circumstances that will bring about an imputed waiver is that of Allsop J (as he then was) in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384, 127 FCR 499, at [58], to the effect that where a "party entitled to the privilege makes an assertion (express or implied) or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication," waiver of the privilege will be imputed.

21           I accept the argument for the defence that an imputed waiver may be for a specific or limited purpose and not for all purposes: Goldberg v Ng [1995] HCA 39, 185 CLR 83 at pp 95-96 and cases at footnote 27; British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43, 8 VR 571 at [17]; B and Others v Auckland District Law Society and Another [2003] 2 AC 736. As a consequence of Mann v Carnell, the proper inquiry is to focus on the conduct of the accused and what it discloses rather than the accused's subjective intention in this regard: GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd at [53]. The inquiry will concern whether the disclosure was for a limited purpose or whether it constitutes an express or intentional general waiver of legal professional privilege.

7   No 21/2023

22 Before considering the application of s 122(2), I note s 122(3), which operates as an aid to subs (2). The State is not relying upon this subsection and, in any event, I am not convinced that it applies to this case. The uncontentious facts do not indicate, adopting the wording of subs (3)(a), that the defendant "disclosed the substance (of Mr A's) evidence to another person". The State has not sought to demonstrate that the defendant's disclosure of information in his appeal affidavits included evidence which was, in substance, the same evidence sought to be adduced from Mr A. In relation to subs (3)(b), the substance of Mr A's evidence has not been disclosed with the express or implied consent of the defendant. It should be noted that Mr A's affidavit was not in existence at the time of the defendant's conduct relied upon as an implied or express waiver. Further, there is no suggestion that he was aware of what Mr A's evidence would be at the time his counsel indicated privilege was waived. Waiving privilege is not the same as consenting to the disclosure of the substance of certain evidence. As it transpires, a conclusion about these matters is not necessary as the ruling on this hearing turns on subs (2) rather than the construction or application of subs (3).

Reasoning

23           It can be seen from the authorities discussed above that in considering imputed waiver, the important issue is the defendant's conduct and whether that conduct is inconsistent with maintaining privilege. The accused's conduct which is relied upon as giving rise to waiver is the defendant's disclosure of matters regarding his instructions to his lawyer, set out in affidavits filed for the purpose of his appeal, and his counsel's email stating that, in light of the Director's undertaking, he waived privilege in full.

24           The accused's disclosures in his affidavit material must be considered in context and the circumstances in which they were made. Critically, the context is the appeal proceedings. The communications are solely relevant to his appeal. It is only for the purpose of the appeal that he invites scrutiny of those communications with his lawyer, not for any other purpose. Once he abandoned his appeal, he abandoned reliance on the affidavit material, which had no relevance outside the appeal. Having regard to this conduct of the defendant's disclosures and the circumstances of that conduct, I have no reservation in concluding his waiver was limited to the purpose of and confined to the appeal.

25           However, there is also the defendant's conduct of the email, which waived privilege in full. This was given in the context of the undertaking by the Director. The Director's undertaking was in terms that the material gained would only be used for the purpose of the appeal and the prosecution of the charges the subject of the appeal. No matter what the accused subjectively intended, his conduct, in responding as he did and providing that waiver in full, is inconsistent with his conduct in now asserting privilege on the disputed facts hearing. Relevantly, the same email shows he had had access to legal advice and, in fact, the waiver was communicated by his lawyer. I conclude the email took his imputed waiver beyond a limited waiver for the purpose of his appeal, and his conduct, viewed in totality, amounts to a general waiver in relation to the prosecution of charges the subject of the appeal.

26           That, however, is not the end of the matter. The Director intends to use the evidence on a disputed facts hearing to establish guilt. That is an unusual step, and in my research I have not found a precedent where privilege has been waived and defence counsel has been called by the State as a witness to disclose admissions made during the taking of instructions by the defendant in order to establish guilt on a trial or disputed facts hearing. A concern about such use was mentioned in Lazer v R [2021] NSWCCA 132 at [37] in regard to the use of communications with a solicitor and counsel disclosed to establish a miscarriage of justice by reason of the appellant's unfitness to stand trial. In relation to the "obvious concern" about the potential use at any possible retrial that might result from the appeal, Beech-Jones J stated:

8   No 21/2023

"All that can be noted at this point is the possible reliance on ss 90 and 135 of the Evidence Act to preclude such evidence that is obtained for one purpose from being deployed for another."

27 Section 90 of the Evidence Act provides:

"90 Discretion to exclude admission

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if –

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it
would be unfair to a defendant to use the evidence."

The discretion to refuse to admit evidence of an admission sought to be adduced by the Crown requires consideration of whether using the evidence would be unfair to the accused having regard to the circumstances in which it was made. In Em v R [2007] HCA 46, 232 CLR 67, the judgment of Gummow and Hayne JJ stated that the circumstances in which an out-of-court admission can be said to be unfair cannot be defined exhaustively, but that the discretion given by s 90 is to be engaged as a final or "safety net" provision: [109]. The focus of s 90 is on the fairness of using the admission at trial, per Gummow and Hayne JJ at [107]. The unfairness associated with the use of an admission might extend to forensic disadvantages that an accused might suffer at trial: Haines v The Queen [2018] NSWCCA 269 at [271].

28 Section 90 is apposite to the situation that has arisen.

29           The terms of the Director's undertaking, set out above at [5] sub-par 14, are relevant to the question of fairness. It can be seen that the undertaking was not only part of the context for the waiver that was given but, as stated in the email, the waiver was given "on the basis of the undertaking". The undertaking was ambiguous about whether the evidence to be obtained from Mr A would be used beyond the appeal and used for the purpose of a retrial or the prosecution of the charges at a sentencing or disputed facts hearing. Further, it can be gleaned from the context and communications leading up to the undertaking that the undertaking was drafted in terms to distinguish between charges that were the subject of the appeal for which the undertaking was given, as opposed to other outstanding charges in relation to unconnected proceedings. The undertaking made it clear that the evidence disclosed would not be used in relation to those other charges. While there is certainty in that regard, the terms do not provide certainty with respect to the Director's intentions about the use of the evidence beyond an appeal.

30           Also relevant is that the context for the undertaking was the pending appeal. It would be reasonable to expect that once the appeal was resolved, and in the event of a retrial or a disputed facts hearing, the Director's approach would reflect usual prosecutorial practice in conducting criminal trials. The proposed use of the disclosed evidence to prove the guilt of a defendant in relation to disputed conduct arises out of a discrete and unusual set of circumstances. As noted, no precedent has been found for this approach in relevantly similar circumstances. This is not surprising. Significantly, the proposed course flies in the face of fundamental values of our criminal justice system, including its adversarial nature and basic fairness.

31           The unfairness associated with the use of the admissions relates to the use of the evidence at a disputed facts hearing in light of the circumstances in which the admissions were made. This is not unfairness arising from any conduct by Mr A, but rather arises from the stance of the Crown in now seeking to admit the evidence when it would be unfair to do so having regard to the circumstances in which the admissions were made. These circumstances include that at the time the defendant spoke

9   No 21/2023

freely with his counsel, he had a legitimate expectation that what he said would be confidential and he was not cautioned or forewarned about the risk that the State might use his admissions to his lawyer as evidence of guilt on a trial or disputed facts hearing. He was not then aware of any potential development that could lead to a situation where his admissions may be admitted on his trial. While he later waived that privilege, his conduct in laying the communications open to scrutiny was solely in order to pursue his appeal. The unfairness to the defendant includes that his reason for waiving privilege has gone and disappeared with the abandonment of his appeal. Here, the accused's limited purpose in waiving privilege assumes significance. While his communications with his lawyer could be admitted on his appeal, fairness dictates that they should not be used for the altogether different purpose as evidence of admissions to prove his guilt.

32           For these reasons, I conclude that to allow the State to adduce the evidence of the defendant's admissions to his former counsel to prove his guilt would be unfair to the defendant in all the circumstances.

33           Another possible avenue for the defence is an application for an order of stay of proceedings on the basis of abuse of court process. This was mentioned by defence counsel in written submissions but not pressed, as the point about limited waiver of privilege was regarded as dispositive of the objection to the evidence. It is unnecessary for me to determine the availability of this remedy, but I observe that if an application had been pursued, there would be broader considerations that would take on significance, such as the implications of the proposed course for the administration of justice and for public confidence in the integrity of court processes: Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27, CLR 256 at [9], [14]-[15]. Also bearing on the ramifications of admitting the evidence beyond the individual case is the wider interest of upholding privilege. Lord Taylor of Gosforth CJ in Derby Magistrates' Court, Ex p B [1996] AC 487 at 507 and 508 stated:

"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests … it is not for the sake of the applicant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors."

34          The question of whether, in circumstances such as this, there has been an abuse of process does not require determination given the conclusion I have reached.

Conclusion

35 For the above reasons, I conclude privilege has been waived by the defendant in full with respect to the conversations he had with his lawyer concerning the charges which are now the subject of the disputed facts hearing. These conversations include the accused's admissions regarding the alleged conduct and disputed particulars. However, I refuse to admit the evidence pursuant to s 90 of the Evidence Act. For the State to use the evidence of the defendant's admissions to establish his guilt would be unfair to the defendant, having regard to the circumstances in which the admissions were made.