R v Abu-Mahmoud

1. [1]

   HARRISON CJ at CL: On 28 November 2023, Noman SC DCJ granted a stay of the trial of Mohamed Abu-Mahmoud until the Crown pays costs incurred by him in the circumstances referred to below. Her Honour stayed the trial pursuant to the principles discussed in R v Mosely (1992) 28 NSWLR 735. Mr Abu-Mahmoud and his co-accused, Ali Abbas, are jointly charged with doing an act intending to pervert the course of justice, contrary to s 319 of the Crimes Act 1900.

Background

1. [2]

   The alleged offending occurred in the following circumstances. In July 2016, Mr Abu-Mahmoud’s teenage son Adam Abu-Mahmoud was fatally stabbed by Joshua Dillon. Mr Dillon was charged in relation to that incident on 18 July 2016. In April 2017, Joshua Dillon’s 15-year old brother Brayden Dillon was shot and killed by [CC] while he slept in his bed, allegedly in revenge for the death of Adam Abu-Mahmoud. The Crown alleges that Mohamed Abu-Mahmoud, Ali Abbas and others, in a joint criminal enterprise, paid [CC], before he was arrested for the murder of Brayden Dillon, to provide an affidavit that in terms purported to exonerate any member of Mr Abu-Mahmoud’s family for the murder of Brayden Dillon.

2. [3]

   “Witness C” was [CC]’s solicitor at the time. He is central to the Crown case. His statement was served on Mr Abu-Mahmoud in the prosecution brief of evidence. The statement annexed documents including conference notes and file notes in relation to instructions from [CC] and other matters.

3. [4]

   The trial before her Honour sitting without a jury commenced on 18 October 2023. On 19 October 2023, counsel for Mr Abbas raised a potential issue concerning a possible legal professional privilege claim that [CC] might have concerning these communications with Witness C.

4. [5]

   On 23 October 2023, the Crown informed the court that Witness C was then ready to commence giving evidence and that, despite having been asked about whether he wished to claim privilege, [CC] had not responded to any communication with the Director of Public Prosecutions and had not indicated that he wished to take any objection. The Crown then read an affidavit of Chris Allison deposing to [CC]’s incarcerated circumstances which attached the Crown’s correspondence with him about privilege. Mr Abbas’ counsel told her Honour that his instructing solicitor had spoken to [CC] over the weekend and that [CC] now wished to claim privilege.

5. [6]

   [CC] appeared by audio-visual link from gaol the following day and confirmed that he wished to claim privilege. Inquiries were then made in an attempt to secure legal advice for him without success. The trial was stood over to 25 October 2023.

6. [7]

   On that day, the Crown informed her Honour that funding from the Office of the Director of Public Prosecutions was not available for [CC] to pay for his legal representation. The Crown also informed the court that a document was available indicating that [CC] had expressly waived privilege.

7. [8]

   On 26 October 2023, Ms Wong was identified as counsel who might possibly be available to provide pro bono assistance for [CC]. There were a number of further adjournments of the privilege issue to accommodate Ms Wong’s convenience.

8. [9]

   On 10 November 2023, [CC] swore an affidavit in which he claimed client legal privilege over 11 documents annexed to Witness C’s statement. He gave oral evidence as well in relation to which her Honour observed that “scrutiny is warranted”. Her Honour commented that [CC] was “belligerent”, and that he presented as a witness “tailoring his evidence to accommodate the content” and gave a number of answers that were “evidently not correct”. Neither Witness C’s statement nor its annexures were in evidence, although her Honour had regard to them for the purpose of determining the privilege claim pursuant to s 133 of the Evidence Act 1995.

9. [10]

   Her Honour ruled on 22 November 2023 that no privilege attached to the material over which [CC] asserted a claim of privilege. Her Honour noted that there was no document or communication in that category that had “not [already] lost confidentiality”. Furthermore, her Honour concluded that the relevant documents either did not contain legal advice, were not prepared for the dominant purpose of proving legal advice where they did contain legal advice, or were the subject of express or implied waiver of privilege if the previous conclusions were wrong.

10. [11]

    Mr Abu-Mahmoud filed a notice of motion the next day seeking a temporary stay of the trial until the Crown paid him the costs thrown away by the delay occasioned in calling Witness C in the trial as the result of the need to determine the status of [CC]’s claim. On 28 November 2023, her Honour published her reasons for granting a stay. That decision is the subject of these proceedings.

Grounds of Appeal

1. [12]

   The Crown appeals pursuant to s 5F(2) of the Criminal Appeal Act 1912 and relies upon the following grounds of appeal:

Submissions in the court below

1. [13]

   Mr Abu-Mahmoud submitted that fault as such was not necessary before the court could grant a temporary stay in accordance with R v Mosely principles: it was sufficient if there had been some gross unfairness for which the prosecution as a body must take responsibility, citing R v Fisher (2003) 56 NSWLR 625. Mr Abu-Mahmoud asserted that his situation was analogous to R v Fisher inasmuch as [CC]’s privilege claim led to significant costs being thrown away with the result that his capacity to continue to engage his legal representatives was put in jeopardy.

2. [14]

   Mr Abu-Mahmoud’s central proposition was that the “major failing” of the Director was the lack of steps taken to resolve the privilege issue once it was raised in court on 19 October 2023, which included the relatively modest costs of funding a lawyer to advise and represent [CC]. Mr Abu-Mahmoud did not manage to quantify these costs or the actual extent of the prejudice occasioned by reference to a specified or estimated amount that had been lost.

3. [15]

   The Crown asserted in response that Mr Abu-Mahmoud had not demonstrated that he could not continue in the trial due to his impecuniosity, even though he had asserted that his financial situation had jeopardised his ability to continue.

4. [16]

   The Crown emphasised, somewhat audaciously having regard to the chronology of events to which later reference is made, that it was significant that [CC]’s claim of privilege was wholly without merit. The Director was in possession of an email chain and associated documents that clearly evidenced that [CC] had waived privilege in relation to the documents that the Crown intended to adduce. The Crown therefore submitted that there was no basis to criticise it for not raising as a pre-trial issue that [CC] may have had grounds for objecting.

5. [17]

   The Crown also maintained that Mr Abu-Mahmoud had not established a basis for the asserted responsibility of the Director to fund the legal advice and representation of a third party in the circumstances and that there was no demonstrated link between any such asserted failure of responsibility and costs said to have been wasted. In any event, the transcript demonstrates that the Crown made extensive attempts to contact [CC].

6. [18]

   It also appeared that a considerable part of the delay flowed from [CC]’s reliance upon an affidavit in which he claimed that he had not been advised about privilege, which gave rise to the need for police to investigate that claim with [CC]’s solicitor at the time.

7. [19]

   In summary, the Crown submitted to her Honour that Mr Abu-Mahmoud had not established that there had been any misconduct on the part of the Crown and that it “could hardly be considered reasonable use of public funds to fund a totally unmeritorious application”.

Her Honour’s decisions

1. [20]

   On 22 November 2023, her Honour published reasons for judgment dismissing [CC]’s claim of privilege asserted over his communications with Witness C and Omar Juweinat: R v Abbas; R v Abu-Mahmoud (District Court (NSW) 22 November 2023, unrep). The following paragraphs of her Honour’s judgment should be noted:

2. [21]

   Her Honour concluded that the communications did not fall under client legal privilege but that in any event also determined that there had been a previous consent given by [CC] to the release of the material.

3. [22]

   Her Honour then concluded her judgment, somewhat presciently, with the following final paragraph:

4. [23]

   One week later, on 28 November 2023, her Honour published her reasons for judgment in Mr Abu-Mahmoud’s application for a temporary stay of the criminal trial, pending payment of costs thrown away by reason of the way in which, and the period over which, the privilege claim had unfolded before her: R v Abu-Mahmoud (District Court (NSW), 28 November 2023, unrep). It is particularly instructive to include in this Court’s reasons a reference to several paragraphs of her Honour’s decision.

5. [24]

   Her Honour posed the question for herself at [3]:

6. [25]

   Her Honour thereafter proceeded to summarise the days between the arraignment of Mr Abu-Mahmoud on 18 October 2023 and her judgment on 24 November 2023 that were arguably lost or wasted by reason of the unresolved privilege claim. These days are referrable to Mr Abu-Mahmoud’s contention that he has suffered prejudice of the kind that warranted the grant of a temporary stay.

7. [26]

   Her Honour then dealt with the issue of fault:

8. [27]

   Her Honour’s reference to 2020 in [19] of her judgment derives in part from the Crown’s somewhat veiled statement to her Honour on 25 October 2023 that “[t]his is the email chain, effectively, in June 2020 that relates to information that indicates that [CC], through his representatives at that time, waived privilege over various things”.

9. [28]

   It seems to be a reasonable assumption that her Honour’s decision on [CC]’s claim for privilege would, if she had been asked to determine it as either a pre-trial issue or on the first day of the trial as a preliminary matter, as referred to at [44] of her Honour’s earlier judgment, have been the same. In other words, it is perfectly clear that none of the arguments in fact advanced by or on behalf of [CC], when fairly given the opportunity to be heard to which her Honour made reference, would have produced any different outcome if her Honour had received and considered them at a pre-trial stage or as a preliminary matter on the first day of the trial.

10. [29]

    Her Honour then proceeded, under the subheading ‘Assuming responsibility’, to determine Mr Abu-Mahmoud’s application for a temporary stay:

Comment

1. [30]

   It is important before proceeding to pause and reflect upon the terms of the order made by her Honour. It was as follows:

2. [31]

   The costs referred to in that order were unspecified amounts for legal attendances that her Honour was satisfied were occasioned or thrown away by reason of the time taken to dispose of [CC]’s privilege argument. It is uncontroversial that her Honour had no power to order the Crown to pay Mr Abu-Mahmoud’s costs: see R v Mosely at 739-40. However, her Honour did not do so. Moreover, the form of the order her Honour made is well supported by authority, not limited to Mosely. For example, Simpson J said this in R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41 at 631:

3. [32]

   The practical effect of her Honour’s order, therefore, can only be that the trial is stayed until such time as the unfairness to Mr Abu-Mahmoud arising from the depletion of his trial funds as a consequence of the privilege argument is ameliorated. Accordingly, the issues in this appeal are really first, whether the putative unfairness to Mr Abu-Mahmoud sounds in a tangible way, in the sense that it imperils his ability to pay for legal representation for the balance of the trial and secondly, whether the Crown is at fault in the sense that the unfairness was caused by it.

4. [33]

   So much is apparent from the judgment of Gleeson CJ in Mosely at 741:

Ground 1

1. [34]

   Ground 1 asserts that her Honour erred in holding that the decision of the Director of Public Prosecutions not to fund legal representation for [CC] on his privilege claim was a consideration relevant to the grant of a temporary stay. Put another way, the Crown contends that, to the extent that her decision to grant a temporary stay took account of the fact that the Director chose not to fund [CC], she took account of an irrelevant consideration: House v The King [1936] HCA 40; (1936) 55 CLR 499.

2. [35]

   The Crown emphasised that even though her Honour acknowledged that any funding provided by the Director for [CC]’s legal representation would be “discretionary funding”, her Honour in fact considered the Director to be responsible for doing so. That is said to be clear from her Honour’s rejection of the submission that the Director of Public Prosecutions was no more responsible than other agencies: at [25].

3. [36]

   This argument was developed further as follows. There is no authority that supports the extension of the Mosely principle to require the Crown to pay an accused’s costs incurred as the result of the actions of a third party, in this case [CC], who was neither a witness nor a party, over whom the Crown had no control and to whom the Crown owes no responsibility. R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41 is said to be “inapposite”. In that case, the third party was directly funding the accused.

4. [37]

   The Crown emphasised that only in exceptional circumstances does the District Court have power to protect an accused from unfairness or injustice by temporarily staying proceedings or refusing an adjournment until the Crown has agreed to compensate an accused for costs “thrown away” through the fault of the Crown: Mosely; Fisher; Petroulias v R [2007] NSWCCA 154; R v Issakidis [2015] NSWSC 834. The “touchstone in every case is fairness” to the accused, whether occasioned by the Crown or by the investigating body, and the “power is to be exercised only in the most exceptional circumstances”: Petroulias at [17]. All of the circumstances are relevant to the consideration of unfairness, including the availability of legal aid: Fisher at [47]; Issakidis at [78]. In the present case, the evidence was silent as to whether legal aid was available. The Crown also criticised Mr Abu-Mahmoud’s evidence about whether in any event he could continue to fund private representation.

5. [38]

   The Crown submitted that where unfairness to an accused has been established because of fault on the part of the Crown, even the undesirable consequence of fragmenting the ordinary course of criminal proceedings may be warranted in exceptional circumstances as a matter of fairness. However, in the case of delay caused by a third party application at trial, it is not warranted.

6. [39]

   Finally, the Crown submitted that “ideally, [CC]’s waiver of privilege would have come to light earlier”. That submission proceeded upon the basis that the late revelation that [CC] had waived his privilege claim some years earlier could not have been known or anticipated by the Crown in this case, so that no fault can be attributed to the Crown in the circumstances.

Consideration – Ground 1

1. [40]

   I do not accept that in arriving at her decision, her Honour took account of an irrelevant consideration or that as a consequence the exercise of her discretion to order a temporary stay miscarried. It must be accepted, as her Honour clearly did, that the Crown had no obligation, strictly understood, to provide legal assistance to [CC] or to contribute funds for him to retain lawyers, and also that her Honour had no power to require the Crown to do so. Her Honour’s consideration of the prospect that the Crown might possibly assist [CC] with funds to retain lawyers to help with his privilege claim arose in the context of her conclusion that Mr Abu-Mahmoud had been the victim of unfairness in being required to call upon funds earmarked for his trial as the result of an avoidable issue. It was her Honour’s conclusion that the Crown was at fault. I do not read anything said by her Honour as suggesting that fault included a refusal to pay [CC]’s costs. The reference to the Director having more responsibility for funding “than other agencies” was no more than an allusion to the fact that, as her Honour had found, the Crown caused the situation where [CC]’s legal costs even arose. As her Honour said, the Crown should have sought to resolve this issue prior to trial or should have been in a position immediately to satisfy the court that privilege, if it applied, had been waived.

2. [41]

   Indeed, this topic was not merely referred to in her judgment. It received attention in the early stages of the trial as the following extracts from the transcript reveal:

3. [42]

   Nor am I attracted to the argument that the Crown cannot be expected to be responsible for the legal fees of a non-party over whom it has no control. That the Crown is not responsible may be accepted without question. However, framing the issue in terms of responsibility clouds the real issue of whether payment of [CC]’s legal costs might have been a reasonable course for the Crown to take, even if not obliged to do so. As the Crown uncontroversially assured her Honour on 23 October 2023,

4. [43]

   The issue is not whether the Crown was responsible to fund [CC] but whether, as the party at fault for the wasted costs, the Crown might have been expected to take reasonable steps to salvage a situation for which it was responsible. Time taken to find lawyers for [CC] was a significant contributor to the delays that occurred.

5. [44]

   As her Honour found, the Crown was in possession of reliable evidence that [CC] had previously and irrevocably waived his lawyer client privilege. [CC]’s assertion that he had not voluntarily done so was a needless distraction that could have been entirely avoided if correspondence that made it clear that he had waived the privilege had been presented to the court in a timely way.

6. [45]

   It must be borne in mind that the Crown case against Mr Abu-Mahmoud effectively revolved around Witness C giving evidence of his dealings with [CC], including correspondence with him, which the Crown contends supports the allegation that Mr Abu-Mahmoud had taken steps in the creation of affidavit evidence that falsely purported to exculpate members of his family in the murder of Brayden Dillon. The apparent simplicity of the Crown case is effectively matched by the importance of Witness C’s evidence and, in the same vein, by the need to ensure that it was not potentially imperilled by [CC]’s claim.

7. [46]

   Her Honour did not take account of an irrelevant consideration at all. The fact that the unfair consequences for Mr Abu-Mahmoud could, not to say should, have been avoided by securing legal advice for him was a legitimate consideration informing her Honour’s decision to grant him a temporary stay.

Ground 2

1. [47]

   This ground asserts that her Honour erred in finding that the Crown was at fault so that the principle in R v Mosely applies. The Crown submitted that there were two aspects of the fault found by her Honour as a precondition to the grant of a stay. First, that the Director should have funded legal advice for [CC], dealt with under Ground 1. Secondly, that the privilege issue was not raised well ahead of trial so that “steps could have been taken to provide [CC] with an opportunity to obtain legal representation if he chose”: at [24].

2. [48]

   The Crown submitted that this second finding was infected with error: her Honour acted upon a wrong principle and took into account an irrelevant matter. This is said in the Crown’s submission to be because “the Crown had no responsibility in principle to raise a privilege issue with a third party, who had comprehensively abrogated the requisite confidentiality in previously-privileged communications”. [Emphasis added]

Consideration – Ground 2

1. [49]

   This submission in my view misapprehends the issue. The Crown was obliged, and might have been expected, to prove its case by the timely and ordered adducing of evidence. As already noted, that included principally, but not exclusively, the evidence of Witness C. It can hardly be controversial that the responsibility for any issues with the evidence of a witness, such as Witness C, which issues the Crown ought reasonably to have anticipated might be productive of delay, should be sheeted home to the Crown. The issue has nothing to do with whether the Crown should have provided [CC] with legal representation but whether the Crown should have avoided the issue entirely by scotching the very possibility of his belated and obviously doomed claim for privilege at an early stage when it was in possession of the means to do so.

Ground 3

1. [50]

   Ground 3 asserts that her Honour erred in determining that Mr Abu-Mahmoud had suffered unfairness due to delays in Witness C being called at trial, so as to attract the principles in Mosely. Two bases for this submission are noted.

2. [51]

   First, given the requirement for actual or practical unfairness, and the high threshold for exceptional circumstances, the Crown submitted that the evidence does not demonstrate that Mr Abu-Mahmoud could not continue to fund his legal representatives in the trial. I take that submission to accept, although I would otherwise conclude, that an inability to do so, if established, would amount to relevant unfairness.

3. [52]

   That proposition can be easily dealt with. The evidence at trial was that Mr Abu-Mahmoud was funding his trial largely through borrowing money and that the funds for the trial had been exhausted. This emerges from the affidavit of Ms Abigail Bannister dated 23 November 2023:

4. [53]

   Ms Bannister was not required for cross-examination and the evidence was received without challenge. If the Crown’s position in this Court is that her Honour made findings without evidence, I am unable to accept it.

5. [54]

   Secondly, the Crown asserts that [CC]’s privilege claim was wholly without merit and was comprehensively dismissed by her Honour. It seems to me that the indisputable hopelessness of [CC]’s revivified privilege claim is an argument that is inimical to the Crown’s position, rather than the opposite: it could and should have been dealt with decisively at an early pre-trial stage or soon before the trial proper commenced utilising the information in the Crown’s possession that privilege had been waived. The unmeritorious nature of the claim which the Crown now seeks to advance in its favour only supports the fact that without [CC]’s unnecessary and avoidable intervention, it would have taken very little court time to resolve. The weakness of [CC]’s claim does not support Ground 3.

Orders

1. [55]

   It follows in my opinion that as none of the grounds of appeal has merit, the appeal should be dismissed.

2. [56]

   DHANJI J: I agree with the orders proposed by Harrison CJ at CL and with his Honour’s reasons.

3. [57]

   As his Honour makes clear, the Crown, at all times, intended to call as a witness in its case a solicitor who was to give evidence of his communications with his erstwhile client. An issue of client legal privilege necessarily arose. Part 3.10 of the Evidence Act 1995 (NSW) is titled “Privileges”. It contains provisions dealing with client legal privilege, other privileges and circumstances where a privilege which might ordinarily exist does not, or is lost. Section 132 provides:

4. [58]

   It was inevitably going to “appear” to the Court that [CC] “may have grounds for making an application or objection” under a provision within Part 3.10 of the Act. It was therefore inevitable that the primary judge would need to be satisfied that [CC] was aware of his entitlement to make a claim for privilege, and if he did so, to resolve that claim. As Harrison CJ at CL points out, the fact that the claim was ultimately found to be meritless did not impact this fact.

5. [59]

   The Crown, on the appeal before this Court eschewed any reliance on a complaint the decision at first instance was unreasonable or plainly unjust, that is, the last category of error referred to in House v The King [1936] HCA; (1936) 55 CLR 499. Despite this, the Crown’s submissions, both in writing and orally delved into the merits, without any clear demarcation of matters going to the specific errors complained of in the grounds. Perhaps this was merely a reflection of the difficulty in seeking to establish the grounds. Be that as it may, as the history set out by Harrison CJ at CL demonstrates, arguing the merits did not help. The Crown’s complaints in this Court must fail for the reasons given by Harrison CJ at CL.

6. [60]

   HUGGETT J: I agree with the orders proposed by Harrison CJ at CL and Dhanji J’s further observations.