R v Rogerson; R v McNamara (No 31)

The Crown wishes to lead evidence of a telephone conversation between the accused McNamara and his daughter Jessica McNamara which took place on 27 October 2014, at a time when McNamara was in custody following his arrest.

Ms Shead, who appears on behalf of McNamara, has objected to the evidence, on the basis that the conversation is privileged.

The relevant part of the conversation appears at pg 215 of a transcript tendered on the application. It is common ground that the reference to “Hudson” in the conversation is a reference to Hudson Lu, McNamara’s then solicitor. The conversation is in (inter alia) the following terms (where “V.2” denotes McNamara and “V.1” denotes his daughter):

In light of one of the submissions advanced by the Crown which I have discussed further below, it is relevant to note that at the commencement of the call, a recorded voice stated the following:

Although the terms of that recording are directed to the recipient of the call (in this case, Ms McNamara) it was, as I understood it, accepted by the parties that such recording is also heard by the inmate who places the call (in this case McNamara). As a consequence, McNamara was aware of the fact that the conversation would be recorded, and could be monitored.

Section 117 of the Evidence Act 1995 (NSW) (“the Act”) contains the following relevant definitions:

Section 119 of the Act, upon which Ms Shead relied in support of her submissions, is in the following terms:

Section 122 of the Act deals with the loss of client legal privilege and is in (inter alia) the following terms:

Although Ms Shead initially relied upon s. 118 of the Act, she subsequently eschewed such reliance and based her submissions solely upon the provisions of s. 119.

Ms Shead submitted that the conversation was a confidential communication made between a client (McNamara) and another person (his daughter) for the dominant purpose of McNamara being provided with professional legal services by Mr Lu in relation to the current proceedings. Ms Shead submitted that McNamara was, in effect, conveying his instructions to Mr Lu through his daughter in a way which rendered the conversation a confidential communication within the definition of that term. She submitted, in particular, that there was a clear inference that McNamara’s daughter was under an obligation not to disclose (other than to Mr Lu) the contents of what she was told.

Ms Shead accepted that the conversation may have taken place for more than one purpose, and/or might have had some ancillary use. However, she submitted that viewed as a whole, it was evident that the dominant purpose of the conversation was for McNamara to be provided with professional legal services by Mr Lu in relation to the proceedings which had been brought against him.

Finally, Ms Shead submitted that there was no conduct on the part of McNamara which was in any way inconsistent with the objection which was now taken. She submitted, in particular, that the mere fact that McNamara chose to have the conversation in circumstances where he knew that the conversation may be monitored and would be recorded by the authorities, did not engage the provisions of s. 122(3)(a) or (b) of the Act.

Counsel for Rogerson submitted that I would be satisfied, on the basis of evidence given by Ms McNamara before the jury, that this (and other) recorded conversations were little more than an attempt by McNamara to falsely further his allegation of duress. It was submitted that in these circumstances, the conversation was not a “confidential communication” and could not have been said to have taken place for the dominant purpose of McNamara being provided with professional legal services pertaining to the current proceedings.

In advancing these submissions, counsel emphasised that a conclusion that the conversation was a confidential communication necessarily relied upon certain inferences being drawn in relation to it. The essence of counsel’s submission was that such inferences were not reasonably open.

The Crown submitted that the conversation was not a “confidential communication”, for the simple reason that McNamara had chosen to disclose it to the person(s) who might be monitoring it, and who would record it. The Crown submitted that in these circumstances, simply by having the conversation, McNamara had knowingly and voluntarily disclosed its substance.

In advancing these submissions the Crown sought to draw an analogy between the present circumstances, and those in which conversation is conducted between two people in the physical presence of a third who overhears it. It was submitted that in such a case, any privilege which might otherwise attach to the conversation would be lost. In support of that proposition the Crown relied upon the decision of Howie J in R v Sharp [2003] NSWSC 1117; (2003) 143 A Crim R 344.

In light of the submissions of the parties, three issues arise:

In the circumstances of the present case, whether the conversation constitutes a “confidential communication” essentially turns on the question of whether McNamara’s daughter was under an express or implied obligation not to disclose its contents (other than to Mr Lu).

Obligations of the kind to which s. 119 is directed are varied. They can extend to those which are unspoken, ethical, moral and social. Where, as here, a lawyer is not a party to the communication, the circumstances in which the communication was made will determine whether or not the necessary obligation arises as a matter of inference: State of NSW v Jackson [2007] NSWCA 279 at [41] per Giles JA (Mason P and Beazley JA (as her Honour then was) agreeing).

In the present case, the relevant circumstances include the fact that:

In my view, these circumstances sustain an inference that Ms McNamara was under an unspoken and/or moral obligation not to disclose the contents of the conversation, other than to Mr Lu. The evidence supports a conclusion that McNamara was effectively using his daughter as a person through whom he could communicate with Mr Lu in relation to issues pertaining to the charges laid against him. Although it has been put to Ms McNamara that some of her conversations with her father were, in effect, conducted for the purpose of attempting to falsely construct a defence of duress, I am not able to draw that inference in respect of this particular conversation. Apart from any other consideration, Ms McNamara has not been cross-examined about this conversation at all.

As I have previously noted, the Crown relied upon the decision of Howie J in Sharp (supra) in support of the proposition that the communication was not a confidential one. In essence, the Crown submitted that this decision supported the conclusion that because the conversation was conducted in the hearing of a third party (i.e. the authority which was recording and possibly monitoring it) any privilege was lost. In considering that submission, it is necessary to make some brief reference to some authorities which preceded Sharp.

In Re Griffin (1887) 8 LR (NSW) 132, Innes J observed:

In R v Braham and Mason [1976] VR 547 Lush J considered the observations of Innes J and said (at 548):

The decisions in both Griffin (supra) and Braham and Mason (supra) were, of course, determined according to common law principles, and well before the introduction of the Act. That of Lush J was referred to by Howie J in Sharp, which was a case in which the accused had entered premises in the company of police, in the course of which the telephone rang. The accused answered the call and was heard to have a conversation with a person who was identified as her solicitor. That conversation took place in the presence of the police. It was argued that what the accused had said in that conversation had been said in the course of obtaining legal advice from her solicitor and was therefore privileged. Howie J concluded that evidence of what the accused had said in the conversation was admissible.

Having referred to the judgment of Lush J in Braham and Mason his Honour said (commencing at [35]):

The Crown relied upon the decision in Sharp in support of (inter alia) the proposition that the conversation in the present case was not a confidential communication. However in my view, the present case is factually distinguishable from that of Sharp. In my view, the terms of what McNamara told his daughter, and his purpose in doing so, are indicative of the fact that he intended the conversation to be confidential. Although he must have been aware of the fact that the conversation might be monitored, and would definitely be recorded, the circumstances in which he found himself were not by choice. In Sharp Howie J expressly acknowledged that if the circumstances in which the relevant communication took place were involuntary, that may be a factor which would support the conclusion that the communication was one which was properly regarded as confidential.

Further support for the conclusion that the conversation was a confidential communication is to be found in the observations of The Hon. JD Heydon QC in Cross on Evidence (at [25260]):

In the present case, any monitoring of the conversation had come about by reason of circumstances which, for all relevant purposes, were outside McNamara’s control. The presence of a monitor did not affect what I have found to be the primary nature of the conversation, namely one in which McNamara was effectively conveying instructions to Mr Lu through his daughter. For all of these reasons I am satisfied that the part of the conversation to which objection is taken was a “confidential communication” for the purposes of s. 119 of the Act.

In order for s. 119 of the Act to apply, I must be satisfied that the communication which I have found was confidential was made for the dominant purpose of McNamara being provided with professional legal services relating to an Australian or overseas proceeding to which he was a party. There is obviously no issue that what was discussed related to an Australian proceeding to which McNamara was a party. The issue is whether the communication was made for the dominant purpose of McNamara being provided with professional legal services relating to that proceeding.

In the context of statutes dealing with taxation and revenue law it has been observed that the word “dominant”, when used to describe a purpose, is indicative of that which was the ruling, prevailing, or most influential purpose: Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 146 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ; Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 at [7] per Spigelman CJ.

A communication may obviously have more than one purpose. In the present case, Ms Shead expressly accepted that communications between McNamara and his daughter may have been made for multiple purposes. In such a case, whether one particular purpose is dominant in the sense contemplated by s. 119 will be a question of objective fact. However, the subjective purpose for which the communication was made will remain a relevant consideration. On occasions, such a consideration may be decisive: Esso Australia Resources Ltd v Federal Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [172] per Callinan J; Asahi Holdings (Australia) Pty Ltd v Pacific Equity Parties Pty Ltd [2013] FCA 998. If the communication would have been made irrespective of any intention to obtain professional legal services, it is doubtful that the purpose of obtaining professional legal services could be regarded as the dominant purpose: Sparnon v Apand Pty Ltd (1996) 68 FCR 322 at [328]; Westpac Banking Corp v 789 TEN Pty Ltd[2005] NSWCA 321 at [57]; Tabcorp Holdings Limited v Victoria [2013] VSC 302 at [82].

When viewed as a whole, the focus of the conversation in the present case was the provision of information to Mr Lu for the purposes of him providing legal services to McNamara. Given the entirety of what was discussed, I am satisfied that the communication would not have been made but for that purpose. It follows that I am satisfied that the dominant purpose of the communication was the provision of such services.

The final issue is whether, in all of the circumstances, the privilege has been lost. In the circumstances of the present case, this issue falls to be determined according to whether, in light of his knowledge of that the conversation would be recorded and might be monitored, McNamara knowingly and voluntarily disclosed its substance to another person.

The Crown submitted that simply by having the conversation as he did, McNamara had knowingly and voluntarily disclosed its substance. Such a submission tends to proceed upon a literal interpretation of the words “knowingly and voluntarily” and, in my view, reflects a degree of oversimplification.

In determining whether any privilege attaching the conversation was lost as a consequence of what the Crown submitted was McNamara’s knowing and voluntary disclosure of its substance, McNamara’s subjective intention is a relevant consideration. In Sovreign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521, in reference to the words “knowingly and voluntarily”, Austin J said (at [23]):

A generally similar approach was adopted by Jacobsen J in Boensch v Pascoe [2007] FCA 532 at [38].

McNamara has not been called to give evidence on the present application. Whilst I am not able to infer that his disclosure was inadvertent or careless, I am nevertheless of the view that the nature of the conversation, its content, and what I have found to be its dominant purpose, all point to an intention on the part of McNamara that the conversation would be privileged.

In these circumstances, I am not satisfied that McNamara knowingly and voluntarily disclosed the substance of the conversation, or that he expressly or impliedly consented to such disclosure.

For these reasons, the evidence of that part of the conversation to which objection was taken shall be excluded.