Supreme Court New South Wales

• Medium Neutral Citation: R v Gittany (No 3) [2013] NSWSC 1670
• Hearing dates: 8 November 2013
• Decision date: 13 November 2013
• Before: McCallum J

Decision

Call by Crown for production of documents over which client legal privilege claimed by accused rejected

• Catchwords: CRIME - evidence - where accused served notice of intention to call evidence that deceased had a tendency to act in a particular way - call by Crown for production of any statements taken by solicitor for accused from persons identified in notice - whether client legal privilege lost upon service of notice - whether client legal privilege lost upon calling witnesses to give evidence in the case for the accused
• Legislation Cited: Evidence Act 1995, ss 97, 119, 122, 167; Evidence Regulation 2010, cl 5
• Cases Cited: Grey v R [2001] HCA 65; Lee v New South Wales Crime Commission [2013] HCA 39; Mallard v R [2005] HCA 68; (2005) 224 CLR 125; Petroulias (No 22) [2007] NSWSC 692; (2007) 176 A Crim R 309; R v Haydon (No 5) [2005] SASC 19; South Australian Government Financing Authority v Bank of New Zealand [2002] SASC 56
• Category: Interlocutory applications
• Parties: Regina; Simon Gittany (accused)
• Representation: Counsel: M Tedeschi AM QC (Crown); P Strickland SC (accused); Solicitors: Director of Public Prosecutions (Crown); Bannisters Lawyers & Attorneys (accused)
• File Number(s): 2011/250258
• Publication restriction: None

Judgment

1 HER HONOUR: Simon Gittany is being tried for the murder of Lisa Cecilia Harnum. At the time of her death, Ms Harnum and the accused were engaged to be married. She died after falling from the balcony of their 15th floor apartment. The Crown case is that she was deliberately lifted over the balcony railing by the accused and "unloaded" over the edge. The accused has given evidence that, after he stopped her from leaving the apartment by the front door, she ran to the balcony and climbed over the railing of her own accord, either slipping or deliberately allowing herself to fall from the awning on the other side.

2 On 18 October 2013, the accused gave notice pursuant to s 97 of the Evidence Act 1995 of his intention to adduce evidence that the deceased had a tendency to act in a particular way, namely, to place herself in a position of danger or potential danger; to self-harm and to attempt suicide. Apart from the accused, the notice identified four potential witnesses who would give evidence of those alleged tendencies.

3 Clause 5 of the Evidence Regulation 2010 provides that a tendency notice must provide certain information. The notice given by the accused provided the following particulars pursuant to that requirement:

3.1 In early 2010, Lisa Cecilia Harnum alighted a moving motor vehicle, driven by George Karam, in the presence of George Karam.

3.2 On a separate occasion, at night, in early 2010, at Liverpool Street Sydney, Lisa Cecilia Harnum when passenger in a taxi cab, alighted the vehicle whilst it was in motion, in the presence of George Karam, Simon Gittany and Rachelle Louise who were also present as passengers in the taxi-cab.

3.3 In May/June 2011 Lisa Cecilia Harnum alighted a moving motor vehicle, driven by Simon Gittany, in the presence of Simon Gittany (driver of the car), and Barbara Gittany (present outside the car). Ms Harnum alighted the car before it had stopped, close to 18 Albion Avenue Merrylands.

3.4 In mid 2010, whilst travelling west on Parramatta Road, in the presence of Peter Mourgelas and Simon Gittany, Lisa Cecilia Harnum, opened the front passenger door where she was seated, and placed part of her body out of the car, whilst the car was travelling at approximately 50 kilometres per hour.

3.5 On 15.7.1999 or thereabouts, Lisa Cecilia Harnum cut her wrists.

3.6 In about September/October 2010, Lisa Cecilia Harnum in the presence of Simon Gittany, ran across George Street, Sydney, not at an area marked for pedestrians to use, and without appearing to look left or right and without stopping or waiting for traffic to pass.

4 At the outset of the trial, the Crown made a formal call for any witness statements, conference notes or other notes relating to the potential witnesses identified in the tendency notice (T2.15). The call expressly did not extend to statements of or notes relating to the accused, although he was one of the potential witnesses identified in the notice. The call was presumably made for the purpose of identifying previous representations made by the witnesses in respect of the proposed tendency evidence: cf s 167 of the Act.

5 Mr Strickland SC, who appears for the accused, informed the Court that documents exist which respond to the terms of the call. However, the accused resisted the call on the grounds that the documents record confidential communications between the witnesses and his solicitor for the purpose of these proceedings and so are protected by client legal privilege.

6 The privilege arises by operation of s 119 in part 3.10 of the Evidence Act. That section provides:

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.

7 Although the section refers only to the adducing of evidence, the determination of the accused's obligation to answer the call made by the Crown is governed by the provisions of part 3.10 of the Act as if the objection to production were an objection to the adducing of evidence: see s 131A of the Act.

8 The Crown accepted that the documents called for fall within the class of document described in s 119 but submitted that the privilege has been lost. Specifically, it was submitted that, either by serving the tendency notice or upon the calling of each tendency witness, the accused has or will have knowingly and voluntarily disclosed the substance of the evidence and so acted in a way that is inconsistent with the objection to production, resulting in the loss of the privilege in accordance with s 122 of the Act.

9 It is appropriate to consider the section as a whole. Section 122 provides:

(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.

(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:

(a) the substance of the evidence has been disclosed:

(i) in the course of making a confidential communication or preparing a confidential document, or

(ii) as a result of duress or deception, or

(iii) under compulsion of law, or

(iv) if the client or party is a body established by, or a person holding an office under, an Australian law-to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or

(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or

(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.

(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

10 As noted by Mr Strickland on behalf of the accused, it is necessary to read the section in the context of s 119. The protection attaches to the communication with or confidential document prepared by the lawyer. The test is whether the party concerned has acted inconsistently with maintaining that confidence, such as by knowingly and voluntarily disclosing the substance of the confidential communication (as distinct from the substance of the anticipated evidence concerning the underlying event). An example is where a former client sues a lawyer and deploys, in that action, evidence as to what advice the lawyer gave. The open reliance upon the words said by the lawyer is inconsistent with an objection that the words were said in confidence.

11 The Crown acknowledged that, if the proposition for which he contends is correct, the corollary is that client legal privilege is lost over witness statements and notes of conferences with witnesses in every legal proceeding at the point when the witness is called and perhaps upon service of an outline of the evidence a party anticipates the witness will give (depending on whether the statement or outline was served pursuant to an order of the court: see s 122(5) of the Act).

12 Neither party identified any binding authority on that point. My attention was drawn to two competing authorities of single judges at Supreme Court level in different states. The first in time was the decision of Sulan J in R v Haydon (No 5) [2005] SASC 19 in which it was held that any privilege in the relevant witness statements had been waived by the Crown by calling the witnesses in an earlier trial against two co-accused. The second was the decision of Johnson J in Petroulias (No 22) [2007] NSWSC 692; (2007) 176 A Crim R 309 in which the opposite conclusion was reached in similar circumstances.

13 Mr Strickland's submissions have persuaded me that I should follow the decision in Petroulias (No 22). In my respectful opinion, Johnson J was right to hold in that case (at [70]) that the calling of a prosecution witness at committal proceedings or at an earlier trial does not constitute an implied or imputed waiver of client legal privilege in respect of communications with those witnesses for the purpose of a further trial.

14 The decision in Haydon (No 5) arose out of one of the Snowtown murder trials. Although initially facing nine counts of murder, the accused was ultimately tried on only two counts of murder and six counts of assisting offenders. Two of the Crown witnesses against him were James Vlassakis and Jodie Elliot. Vlassakis had previously pleaded guilty to four of the murders and had given evidence at the separate trial of two of the co-accused. The evidence before Sulan J disclosed that, over the course of several related proceedings, Vlassakis had conferred with officers of the DPP on no fewer than 31 occasions over almost two years, including during the earlier trial of the two co-accused.

15 A subpoena was issued at the request of Haydon's solicitors seeking the production of notes of communications between the DPP and the two witnesses, Vlassakis and Elliot. Counsel for the accused submitted that, once evidence had been given or a statement had been made public or provided to the defence, any privilege attaching to communications in respect of the matters the subject of the statement or evidence was waived (at [23]).

16 In support of that submission, the accused relied upon the decision of South Australian Government Financing Authority v Bank of New Zealand [2002] SASC 56. However, that was a case in which legal professional privilege was held to have been waived because a draft affidavit, a witness statement and conference notes had all been discovered and produced by the plaintiff to the defendant, evidently with no claim of privilege.

17 As already noted, the waiver in Haydon (No 5) was alleged to arise both from the giving of evidence in the previous trial and from the disclosure of a witness statement. In treating those as acts of the same kind, the submission overlooked the distinction between a fact and the communication of a fact to a lawyer. It is useful to consider three steps in the legal process. The first is that a witness sees or hears (or otherwise perceives) an event. The second is that he or she may communicate something concerning that event to a lawyer (confidentially) for the purpose of legal proceedings. The third is that the witness gives evidence in the proceedings as to his or her initial observations of the event. The step that is protected by client legal privilege is the second step. It is a protection of the confidential communication, not of the underlying facts or observation. The reason that step is protected is so as to encourage frank and open discussions between clients (or their potential witnesses) and lawyers. It is that confidential communication disclosure of which cannot be compelled (unless the privilege is lost). Disclosure of the facts observed may coincide with what was said to the lawyer but does not of itself disclose the communication with lawyer.

18 Sulan J accepted the submission put on behalf of the accused, holding that, by calling the witnesses at the earlier trial of the two co-accused, there had been an imputed waiver of any privilege attracted by the documents. His Honour said:

If the subject material is adduced in evidence or disclosed in a statement, then the confidentiality of that material no longer exists, and fairness dictates that communications dealing with that subject matter no longer attract legal professional privilege, as there had been an imputed waiver in respect of them. Although the question of whether there has been imputed waiver may be difficult to resolve in a particular case, the principle is clear that the conduct of the party claiming the privilege in adducing evidence on that subject matter imputably waives the privilege in respect of that subject matter. In those circumstances, fairness dictates that the other party should have all material produced to it relating to that subject matter.

19 With great respect to his Honour, I do not agree with that conclusion which, in my view, confused disclosure of the underlying facts with disclosure of the confidential communication with the lawyer. There had been no imputed waiver of the confidential communications with the DPP. What had been disclosed was the facts the witnesses would say they had observed. Of course it was implicit in the disclosure of those facts that something to that effect had been said to a lawyer. But the choice to call the witness (and, to that end, to give notice of the anticipated evidence of the witness) was different from a choice to deploy in the action the very content of a confidential communication with a lawyer, as necessarily occurs where a client sues a solicitor for negligent advice.

20 The position in Haydon (No 5) was complicated by the fact that the DPP had evidently served statements of the witnesses in accordance with its duty of disclosure. It has been recognised that the Crown has a duty at common to disclose all relevant evidence to an accused and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty: Grey v R [2001] HCA 65; cited in Mallard v R [2005] HCA 68; (2005) 224 CLR 125 at [17]. The Crown's duty of disclosure probably takes its place among the fundamental elements of the accusatorial system of criminal justice, the nature of which was considered recently by the High Court in Lee v New South Wales Crime Commission [2013] HCA 39.

21 The service by the Crown, pursuant to its duty of disclosure, of a witness statement or an outline of anticipated evidence is arguably not inconsistent with the maintenance of client legal privilege. The Crown is acting under the compulsion of a duty at common law in serving such a statement: cf s 122(5)(iii) of the Evidence Act. However, that issue does not arise in the present case, since the party alleged to have waived privilege is the accused. He has not served any witness statements and is under no obligation to do so.

22 In any event, I am not persuaded that the privilege (which it is accepted exists) has been lost. As to the service of the s 97 notice I do not accept, as submitted on behalf of the accused, that such a notice is served under compulsion of law. While the failure to serve a tendency notice has a forensic consequence, there is no compulsion to serve such a notice. The determinative consideration is the fact that neither the service of such a notice nor the calling of a witness discloses the substance of confidential communications with the lawyer. It may be anticipated that in most cases the content of the notice and of the evidence will coincide with such confidential communications but that is not the test.

23 For those reasons, I ruled that the accused was not obliged to answer the Crown's call.

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Decision last updated: 14 November 2013