R v Diallo & Ors (No 7)

1. [1]

   On 1 September 2021 the witness, KL, [1] “witness[ed] the death of [Darcy Moore]”. [2] The prosecution intends to call him in the trial of five young men who have been charged with Mr Moore's murder. KL gave evidence on a pre-trial Basha inquiry on 8 July 2024. When asked about the day Darcy Moore died, he “[preferred] not to answer” and offered “no comment” to several questions. He was a reluctant and uncooperative witness with a studied swagger. When KL was directed to answer, he declined. He did so having received advice from counsel concerning the possibility that he would be charged with contempt. The Prosecutor asked KL about things he said to a psychologist and a psychiatrist regarding the death of Darcy Moore. He prevaricated, and then said more than once, “no comment”.

2. [2]

   The Prosecutor pressed an earlier call for the reports of the psychologist and the psychiatrist. [3] KL asserts that the reports were (and remain) documents that are protected by client legal privilege and litigation privilege. [4] The Prosecutor concedes the documents were privileged but submits the privilege was waived or has been lost because KL’s conduct is inconsistent with him objecting to producing the document or being asked to give evidence about the communications. [5] KL refutes this contention.

3. [3]

   During the pre-trial hearing, which has stumbled along over the last four weeks, the issue was argued on 30 July 2024. I received helpful and persuasive submissions by counsel for both the prosecution and KL. None of the accused men sought to be heard on the issue. I reserved judgment, a jury was empanelled on 31 July 2024, and the trial is now under way. It is expected that KL will be called to give evidence in a few weeks’ time.

4. [4]

   I must make a ruling on the call, decide whether the privilege still attaches to the documents, and whether I should order KL to produce the documents either in their entirety or in some redacted form.

5. [5]

   Despite KL’s contemptuous attitude in the witness box, the service of the reports in KL’s separate murder case, and the disclosure by his solicitor of the fact which comprises the first sentence of this judgment – that KL “meets the [diagnostic] criteria for post-traumatic stress disorder (PTSD) as a result, in part, of witnessing the death of [Darcy Moore]” – I have concluded that neither litigation privilege nor client legal privilege has been lost or waived. These are my reasons for that conclusion.

Factual background and chronology necessary to expose the issue

1. [6]

   Darcy Moore died of stab wounds following an incident near his home in Blacktown on the evening of 1 September 2021. It is alleged that two rival groups (or gangs) of teenagers or young men came into conflict and a large melee broke out. The accused are members of one group (“MOB”) while Mr Moore was a group of the other (“Murda”). [6] On the prosecution case, KL is a member of Murda or associated with members of that group.

2. [7]

   On 11 April 2022, Uati Faletolu was stabbed at the Royal Easter Show and later died.

3. [8]

   On 15 July 2022 KL was charged with Uati Faletolu’s murder. On 15 September 2023 KL entered a plea of guilty in the Children’s Court and was committed for sentence to this Court. He adhered to his plea and the matter was listed for sentence on 4 December 2023 (“the sentence proceedings”).

4. [9]

   On 6 November 2023, his solicitor received a “confidential psychological assessment report” from an expert witness Dr Katie Seidler. I assume that the report was commissioned for the purpose of the sentence proceedings.

5. [10]

   On 13 November 2023 the Supreme Court ordered that a youth justice report be prepared. KL’s solicitor received the report on 30 November 2023. The author of the report “referred to KL having witnessed the [Moore] murder”. KL’s solicitor says:

6. [11]

   KL’s solicitor provided a copy of the youth justice report to Dr Seidler who agreed to provide a supplementary report.

7. [12]

   On 1 December 2023, the senior Public Defender (as Rigg J then was) and her junior, Ms Talbert, advised KL’s solicitors to apply to vacate the sentence hearing. The application was not opposed by the prosecution, was granted by Garling J, and the case was adjourned until 1 March 2024.

8. [13]

   On 29 February 2024 KL’s solicitor received a confidential psychiatric report from Dr Andrew Ellis, a forensic psychiatrist. Dr Ellis expressed the opinion that KL “meets the criteria for post-traumatic stress disorder as a result, in part, of witnessing the death of [Darcy Moore].”

9. [14]

   On 4 March 2024, Dr Seidler provided her supplementary report in which it was said that KL’s PTSD was attributable “to a number of events including witnessing the death of [Darcy Moore]”.

10. [15]

    Because of its significance to the Prosecutor’s argument, it should be noted that the passages in inverted commas in paragraphs [1], [10], [13] and [14] above are direct quotes from the affidavit of KL’s solicitor (Ex VD H). This affidavit was read, and became an exhibit on the voir dire, in the context of KL making an objection to giving evidence because of the possibility that such evidence may tend to incriminate him. This occurred during the Basha inquiry.

11. [16]

    Returning to the chronological narrative, on 10 May 2024 Garling J granted a further (unopposed) adjournment application. KL’s criminal proceedings are now listed on 6 September 2024 for directions and on 15 November 2024 “for sentence or plea traversal”.

12. [17]

    While Mr Willcox’s affidavit does not provide the precise date of service of the reports, the final paragraph is in the following terms:

13. [18]

    KL’s lawyers became aware that the Prosecutor intended to call him in the present trial on 29 November 2023. The fact that he was represented and would object to giving evidence was discussed early in the pre-trial hearing. [8] Some security issues, arising from threats KL allegedly made, were also discussed. Because of the multifarious complications surrounding his evidence, arrangements were made for him to give evidence when his barrister, Ms Fernando, and his solicitor, Mr Willcox, were both available. He was called on the Basha inquiry on Monday 8 July 2024. That is when the present issue first arose. I was told counsel were attempting to reach some agreement or compromise position but, as with most issues in this case, nothing came of that. The matter was listed for argument on 30 July 2024.

The test for loss of privilege: “inconsistency”

1. [19]

   Section 122 of the Evidence Act 1995 (NSW) provides for the loss of “client legal privilege” (ss 117-119). On their face, the provisions (all of which fall within Division 1 of Part 3.10) relate only to a prohibition of adducing evidence of protected communications and documents. [9] However, the introduction of s 131A in 2007 extended the operation of Division 1 to preliminary proceedings. The parties agreed the present application is to be determined by reference to the provisions of the Evidence Act. They also submitted there was no relevant difference between the common law and the statute. While that was perhaps a questionable proposition, [10] s 122 was amended since the decision in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 and largely reflects the substance of that decision. [11] In the circumstances of the present case, the focus of the inquiry remains the same and cases like Mann v Carnell and GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 (“GR Capital”) are of considerable assistance in determining the issue.

2. [20]

   Section 122 provides:

3. [21]

   In Mann v Carnell, a case decided under the common law, the High Court considered whether privilege was waived in circumstances where the Chief Minister of the Australian Capital Territory disclosed legal advice to a member of the Legislative Assembly when the member was fielding a complaint from a litigant (Dr Mann) whose defamation case was settled by the Territory Government without admission of liability. Dr Mann had complained to the member and the member sought information from the Chief Minister. The legal advice was privileged and disclosed for the purpose of enabling the member to understand why the case was settled and to field Dr Mann’s complaint. It was provided on the basis that it would be returned and it was, although a covering letter was retained by the member. The High Court held that privilege was not lost (“waived”) in those circumstances. Gleeson CJ, Gaudron, Gummow and Callinan JJ said it is the client “who is entitled to the benefit of [the] confidentiality” and the client who “may relinquish that entitlement”. Their Honours explained that:

4. [22]

   As to the relevance of “fairness” and the client’s “subjective intention” their Honours explained at [29]:

5. [23]

   It was the inconsistency of the client’s conduct, rather than their subjective intention or questions of “fairness at large” which was determinative. [13] Had the legal report and advice been provided to the member “on the basis that he was at liberty to show them to [Dr Mann]” privilege would have been waived. However, the advice was shown to the member “confidentially” and so the conduct was not inconsistent with the maintenance of the privilege. [14]

6. [24]

   A somewhat similar factual scenario, with a similar outcome, arose in Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37. Mrs Osland was convicted of murder in a joint trial with her son. The jury was unable to agree on a verdict in the son’s case. Mrs Osland appealed all the way to the High Court but her appeals were unsuccessful. [15] She then petitioned the Governor of Victoria for an executive pardon. The pardon was refused and the Attorney General issued a press release saying he had received a joint advice from three Senior Counsel, who were named, and it was on the basis of that advice that he had recommended that the petition be denied. The full text of the press release is set out at [15] in the judgment of Gleeson CJ, Gummow, Heydon and Kiefel JJ. Mrs Osland sought access to the advice by way of a freedom of information request and when the Government refused to release the documents (or almost all of them) she appealed. She again found her way to the High Court. The joint reasons (with which both Kirby and Hayne JJ agreed on this aspect of the appeal) referred to the waiver as “implied waiver” or waiver “imputed by operation of law”. [16] Their Honours confirmed the approach stated in Mann v Carnell and said a finding that privilege is waived:

7. [25]

   The Court concluded that the “evident purpose” of the press release was to “satisfy the public that due process had been followed in the consideration of the petition, and that the decision was not based on political considerations.” [18] It did not involve any relevant inconsistency with the maintenance of the privilege.

8. [26]

   Their Honours went on to confirm at [49] that “questions of waiver are matters of fact and degree” but stressed in the same passage that the decision was made under the common law and not under s 122 of the Evidence Act.

9. [27]

   Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36 (“Glennies Creek”) had some limited factual similarities but it was quite a different case and was decided pursuant to s 122. The Court (Walton J, President, Staff and Blackman JJ) noted at [76] that, while the common law and statutory tests were “expressed slightly differently” the High Court had clarified that the common law principles articulated in Mann v Carnell “apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act.” [19] In Glennies Creek, a Prosecutor for a government department with a very long name had issued a letter expressing their reason(s) for the exercise of particular aspects of the prosecutorial discretion. The correspondence included “expressions of the prosecutor’s views, beliefs and understandings based on advice she had received” (at [97]). This was done in the context of an attack by the other party on the Prosecutor’s conduct and assertions as to her state of mind. Overturning the decision of the primary Judge that the letter was not consistent with the maintenance of the privilege and was lost, the Court held at [97] that the content of the letter “does not and cannot amount to conduct inconsistent with the maintenance of privilege”. The disclosure that the views expressed, and opinions formed, by the Prosecutor were based on legal advice did not amount to a disclosure of the substance of the legal advice. The case includes a helpful, if rather dense, survey of a number of relevant authorities.

10. [28]

    The Court of Appeal considered the issue and a number of the authorities in GR Capital. Macfarlan JA at [57] drew the following propositions from his review of the cases:

11. [29]

    The facts of GR Capital were that the parties to civil litigation reached an agreement and consent orders were entered by the Court. The applicants (referred to as the “judgment debtors”) sought to have the consent orders set aside. The respondent issued a subpoena seeking production of documents containing the legal advice provided leading up to the settlement. The judgment debtors sought to have the subpoena set aside, arguing that the documents were protected by legal professional privilege. The respondent argued that privilege was waived by representations made in the judgment debtors’ notice of motion. Those representations included that the settlement was illegal because it involved transfers of money to China which contravened Chinese foreign exchange and that one of the directors of the judgment debtor corporation was not aware of an available defence of “illegality” when they agreed to the settlement. It is unnecessary to consider the rulings made by the primary Judge, which were vacated. The Court of Appeal at [66] ordered that production was required but limited to “[communications] or recorded legal advice as to the legality or illegality of the underlying transaction or agreement”. Macfarlan JA, with whom McCallum JA (as her Honour then was) and Simpson AJA agreed, found at [59] there was an inconsistency between the assertion that the judgment debtors were ignorant of the possibility of an illegality defence and the maintenance of the privilege regarding advice concerning the existence of such a defence. However, the privilege was not lost in respect of the balance of the advice. Those matters were relevant to the notice of motion but did not “rise beyond relevance to an issue”. The notice of motion and statements made surrounding it did not “implicitly [lay] open the advice they received for scrutiny”.

12. [30]

    Bellew J took a similar approach in R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066. That is, his Honour examined closely the disclosures of the legal advice that had been made, and ruled that privilege was lost only in relation to those where there had been a clear disclosure of the substance of the advice. It is not necessary to repeat the details of that case which was a decision of another single judge of this Court.

13. [31]

    The cases to which I have referred all concern the disclosure or partial disclosure of the existence or substance of legal advice. By contrast, the present case concerns protected confidences in the form of things said by KL to the authors of reports prepared for his own legal proceedings. There is no dispute that these are protected by the privilege provisions in ss 118 and/or 119. I take the same general approach to the protected communications in the present case as was taken in those authorities relating to the loss of privilege that protects the details of legal advice.

14. [32]

    The questions that arise here include whether the disclosures made by KL in his own criminal proceedings were made “under compulsion of law” (s 122(5)(a)(iii)) and whether those disclosures or others made in the present trial constitute conduct that is inconsistent with KL maintaining the privilege that attaches to the protected confidences contained in the expert reports prepared in his criminal case.

15. [33]

    Another question concerns the reasons for KL’s disclosures in the present case (namely, his desire to protect his right against self-incrimination), his disgraceful conduct as a witness at the pre-trial hearing, and whether those matters impact on the questions raised by s 122 and a determination of whether his conduct is inconsistent with the maintenance of the privilege.

KL’s evidence on the Basha inquiry

1. [34]

   Despite its length, it is worth setting out KL’s evidence on the Basha inquiry in full. [20] I will also set out the relevant parts of the discussion although I will redact aspects that have no present relevance. I include the discussion because it feeds into the Prosecutor’s submission that KL’s reason for disclosing things to this Court (via his solicitor’s affidavit) is relevant to the question I must decide.

2. [35]

   That lengthy passage shows that KL answered some questions and objected to answering others on the basis of the privilege against self-incrimination. When he was directed to answer with the protection of a broadly cast certificate under s 128(5) of the Evidence Act, he declined to give further evidence. He persisted in his refusal even after it was confirmed that he understood he may be in contempt of the Court.

3. [36]

   The reference to KL’s solicitor’s affidavit at the beginning of the above extract (Ex VD H) is a reference to the document upon which the Prosecutor relies to submit that KL “knowingly and voluntarily disclosed the substance of the evidence” over which privilege is maintained (s 122(3)(a)). It is also the source of much of the chronology which is set out above at [6]-[18].

4. [37]

   KL also relied on a second affidavit of Mr Willcox. This was affirmed on 29 July 2024, formally read on the hearing of oral arguments, and marked Ex VD N. The second affidavit established the orders made by Wilson J on 6 October 2023 when the matter was listed for sentence. Her Honour directed:

Consideration and determination

1. [38]

   I turn briefly to consider the arguments and to provide my reasons for the conclusion that privilege has not been lost. First, I will deal individually with those parts of KL’s conduct said to be inconsistent with KL objecting to the production of the documents and then consider the accumulation of those matters “where necessary informed by considerations of fairness”.

2. [39]

   In written submissions, the Prosecutor referred to the fact that the reports have “been made available to those acting for the Director of Public Prosecutions who are currently prosecuting KL” for the Easter Show murder. [21]

3. [40]

   The Prosecutor acknowledged that he was not provided with the reports by his colleagues at the DPP and Crown Prosecutors’ Chambers in compliance with the principles discussed in Harman v Secretary of State for Home Department [1983] 1 AC 280. [22] In that case, Lord Diplock (at 294) described what has come to be known in lawyers’ shorthand as an implied undertaking or Harman undertaking in the following way:

4. [41]

   The High Court had confirmed that these principles constitute a substantive obligation under Australian law: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [106]. The DPP and the individual Prosecutors have conducted themselves in conformity with those principles. The Prosecutors conducting the present trial now seek the documents based on the call made in Court which, Ms Fernando accepts, has the same compulsory nature as a subpoena to produce the documents.

5. [42]

   The service of the documents on the DPP, and the reliance on them in KL’s own murder case, may not technically or strictly amount to a disclosure made under compulsion of law for the purpose of s 122(5)(a)(iii). However, KL’s lawyers had ethical obligations. The requirements of disclosure and service that arose in KL’s proceedings were such that serving those reports is not conduct inconsistent with KL attempting, now, to maintain the privilege attaching to the documents.

6. [43]

   In Akins v Abigroup Ltd (1998) 43 NSWLR 539, the Court of Appeal adopted a “broader meaning” of the phrase “under compulsion of law” in s 122(5)(a)(iii). [23] That case was decided in the context of the exchange of evidentiary statements in the brutal environment of the Commercial List. Mason P referred (at 551E) to the “nearly invariable sanction” for a breach of directions as “deprivation of testimonial use of the witness concerned”. His Honour also referred (at 551F) to the obligations of advance disclosure as “the promotion of early settlement”. While KL’s murder trial is criminal litigation, similar considerations apply. The disclosure of the material to the Prosecutors in that case resulted in the adjournment application being unopposed and also put the prosecution on notice that it may need to retain its own expert to consider the issue of substantial impairment. Priestley JA said (at 553C):

7. [44]

   It should also be recalled that s 122(5) set out matters the “[mere]” existence of which is “not to be taken” as establishing that a client or party acted in a manner inconsistent with their taking objection to adducing the evidence or, here, producing the documents.

8. [45]

   Dr Seidler’s first report was prepared for the sentence proceedings and may have fallen within the ambit of the orders for service made by Wilson J on 4 November 2023. It is true, as Ms Fernando acknowledged, that the issue was “not quite as simple” as she had put it in her written submission. [24] That is because an issue arose as to the integrity of KL’s guilty plea and KL was contemplating – or being advised about – a possible substantial impairment defence and whether to seek to traverse the plea of guilty.

9. [46]

   While the service of the reports was (perhaps) not strictly necessary to comply with the orders made by Wilson J, there was an obligation – possibly falling short of a legal “compulsion” – to notify the Court and the prosecution of the reasons that KL was applying to vacate the date upon which the sentence proceedings were listed for hearing and the foreshadowed motion to traverse his plea of guilty.

10. [47]

    Further, s 151 of the Criminal Procedure Act 1986 (NSW) provides for notice to be given if an accused is to rely on substantial impairment as a defence to a charge of murder. The preparation of the case may not have reached that stage, but KL’s lawyers were under an ethical obligation to the Court to disclose the reasons for the adjournment application, the fact that an application to traverse the plea may be made, and the evidentiary bases of those applications. Mr Willcox’s affidavit (Ex VD H) asserts that the documents were served on the Prosecutor “solely for the purpose of use in KL’s own criminal proceedings”.

11. [48]

    For those reasons, KL’s conduct – clearly based on decisions made by his lawyers – was not inconsistent with him now resisting the call on the reports in separate proceedings in which he will be (and has been) compelled to be a witness.

12. [49]

    As to the disclosures made in the affidavit, I accept Ms Fernando’s submission that Mr Willcox’s affidavit “struck the fine balance between candour and the maintenance of privilege.” The affidavit referred to the contents of those reports in a careful and circumspect way. It noted the Youth Justice Report referred to “KL having witnessed the [Moore] murder”. It said the mental health issues adverted to by Dr Ellis (PTSD) resulted “in part, [from KL] witnessing the death of [Darcy Moore]”. Similarly, the opinions of Dr Seidler “attributed the foundations of the condition to a number of events including witnessing the death of [Darcy Moore]”.

13. [50]

    Whatever else could be said of KL’s conduct as a witness, it was clear from the outset that he was a reluctant witness who was compelled to attend court and to answer questions. He had a right to object to giving evidence on the grounds of self-incrimination. [25] The factual basis of his objections was straightforward in relation to his involvement in “street gangs” and the dispute between Murda and MOB. However, the grounds of his objection to testifying about what he witnessed on 1 September 2021 were more complex. There needed to be some factual or evidentiary basis for that objection.

14. [51]

    The limited disclosures made by Mr Willcox provided that evidentiary basis. They established that giving evidence could impact on issues going to KL’s state of mind and on his reliance on a defence of substantial impairment.

15. [52]

    These were not disclosures made under “compulsion of law” but nor were they inconsistent with him objecting to the production of privileged documents and protected confidences. It is also doubtful that the disclosures, in the carefully phrased affidavit, amounted to disclosure of the “substance of the evidence” contained in the affidavit. The affidavit did not indicate what he witnessed, merely that he had witnessed “the [Moore] murder”, and “the death of [Darcy Moore]”.

16. [53]

    This is not a matter where the question of inconsistency and the loss of client legal privilege is informed to any significant degree by considerations of fairness. It is not, for example, the kind of case where a litigant seeks to accuse their lawyer of negligence but then seeks to rely on client legal privilege to prevent the lawyer from adducing evidence of the advice they provided.

17. [54]

    Based on the evidence in the Basha inquiry, KL is unlikely to give helpful evidence and an application to cross-examine him under s 38 of the Evidence Act is likely to succeed. The Prosecutor will be able to cross-examine about KL’s prior statements that he “witnessed the [Moore] murder” or “witnessed the death of [Darcy Moore]”. However, as things stand, he will not be in position to cross-examine on the more detailed information that the reports may contain. If KL adopts the same approach when he gives evidence before the jury, the absence of the material from the Prosecutor’s brief is unlikely to make any difference.

18. [55]

    Another fairness consideration is that KL is a child (now aged 16 years). It is not unreasonable to infer that he has been guided by his legal representatives in making any disclosures that he has.

19. [56]

    It is self-evident that the details of KL’s observations as recorded by the expert witnesses are likely to be highly relevant to the present proceedings. However, as the authorities demonstrate, mere relevance itself is not ultimately the question to be determined although the degree of relevance may inform the question of consistency for the purpose of s 122.

20. [57]

    Finally, KL’s conduct in the witness box was non-cooperative and infuriating even though his demeanour and language was generally courteous and respectful. I do not consider his conduct – even if it amounted to contempt – to be a relevant consideration. There may be ways in which he could be punished for his conduct in court (for example, by charges of contempt of court). However, he is not to be punished for his conduct by an unprincipled decision that he lost his right to maintain the privilege which clearly attaches to his communications with the experts with whom he communicated in the course of the preparation of his murder case.

21. [58]

    For the foregoing reasons, I am not satisfied that privilege has been lost. KL’s conduct and the circumstances of this case taken as a whole, does not establish that he has acted in a manner which is inconsistent with the objection to production that was taken on his behalf.

Orders

1. [59]

   Noting that client legal privilege is not lost pursuant to s 122 of the Evidence Act 1995 (NSW), I decline to order production of the documents called upon as if under subpoena.

2. [60]

   This ruling does not of itself prohibit the Prosecutor from cross-examining KL, if the circumstances arise, on the contents of Mr Willcox’s affidavit and the disclosure that KL told the experts that he witnessed “the [Moore] murder” and “the death of [Darcy Moore]”.