R v Qaumi & Ors (No 35)

During the evidence of the current witness, a witness known as M, Senior Counsel for Farhad Qaumi embarked on cross-examination which attempted to elicit communications between the witness and her solicitor at a time when she stood charged with certain criminal offences. Because of the pressure of time caused by the way in which the issue arose, and to avoid further disruption to the trial, these reasons have been prepared overnight.

The manner in which the matter arose was as follows:

As can be seen, it was unclear precisely who was expected to raise an objection given that the witness is unrepresented in the proceedings and, it seems, the Crown was not on notice that questions would be asked that potentially raised confidential communications between the witness and her lawyers. Because the matter raised a question of privilege under part 3.10 of the Evidence Act 1995 (NSW), it was incumbent upon me to comply with s 132 which is in the following terms:

The jury was excused and there was a short discussion about the way forward. Two documents were handed up and subsequently became exhibits on the voir dire. Senior Counsel acknowledged that the questions he had asked, and proposed to asked, raise questions of client legal privilege. At that stage, the following submissions were made:

I retired to consider the matter but decided to defer the question until later in the day to enable the trial to continue with the least disruption to the jury and flow of the evidence. The documents that had been handed up were marked as exhibits on the voir dire and the jury returned to the courtroom. The jury was advised as follows:

The cross-examination continued until Senior Counsel reached a point where he sought, and was granted, an adjournment overnight to “check the final Browne v Dunns” and work out how to play a disc that had not been working earlier in the day. The question of the client legal privilege was revisited after the jury was excused for the evening.

The first step was to comply with s 132 of the Evidence Act and the transcript records the following:

As can be seen, Senior Counsel for Farhad Qaumi conceded that the questions sought to be asked involved the disclosure of a confidential communication as that expression is defined in s 117 of the Evidence Act and employed in ss 118-119 of the Evidence Act. That concession was correctly made. Section 117 defines confidential communication as follows:

Section 118 creates an “advice” privilege:

Section 119 creates a “litigation” privilege:

While I have used the word “create” with reference to the litigation and advice privilege as defined in ss 118-119 of the Evidence Act, those provisions really confirm the existence of privileges that have existed in the common law for a very long time. The importance of, and rationale behind, the privilege at common law has been emphasised in a number of cases. In Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Dawson J stated (at 128):

McClennan CJ at CL in Thomas v New South Wales [2006] NSWSC 3807 cited Attorney-General for the Northern Territory v Maurice & Ors (1986)161 CLR 475 per Deane J at 490:

The purpose of the common law privilege in relation to legal advice was outlined in Grant v Downs [1986] HCA 80; (1976) 135 CLR 674 by Stephen, Mason and Murphy JJ (at 685):

In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 the High Court distinguished the 'related to, but distinct' rationale for 'litigation privilege'. The court stated at [114]

These great statements of principle show that the ability of a client to speak with a legal practitioner in the knowledge that the communication is confidential is fundamental to the legal system. In the absence of clear evidence that the privilege has been lost, the objection taken by the witness should be upheld.

Having been put in the position where she understood her right to object, Witness M raised an objection to giving the evidence. At that point, the witness was excused while consideration was given to whether the privilege had been lost as a result of her conduct:

As has been observed, Senior Counsel conceded that a relevant privilege applied, but argued that there had been a loss of client legal privilege. Although the submissions were not couched in the terms of the statute, the essence of the submission was that the privilege was lost either because the witness had “acted in a way that is inconsistent with the client or party objecting to be adducing of the evidence” (s112) or because of misconduct on the part of the witness (s 125).

Section 122 and 125 provide as follows:

On the voir dire, Mr Stratton SC tendered a Statutory Declaration of Mohammad Kalal dated 1 April 2014 (exhibit VD 34) and the statement of a witness known as witness I dated 12 August 2014 (exhibit CD 35).

The statutory declaration of the accused Mohammed Kalal is in the following terms:

The relevant part of the statement of Witness I was paragraph 58:

There was no evidence as to where the Statutory Declaration of Mr Kalal came from but Senior Counsel called on the Crown to acknowledge that it formed part of the prosecution brief. The Crown Prosecutor made that concession. Further, he volunteered that the Statutory Declaration appeared to have been used in (or provided to the Crown in advance of) a bail application made on behalf of Witness M. However, by the time the arguments were complete there was no clear evidence that this was the case. Certainly, no evidence was adduced by the party seeking to argue that client legal privilege had been lost. Early in the argument Senior Counsel for Farhad Qaumi speculated that the documents may have been found by police in the course of a search. [1] There is no evidence of that and, given the timing of Witness M’s arrest and the date of the statement, there is at least an inference that the two occurrences are related.

I accept that if it is established that Witness M knowingly and voluntarily disclosed the substance of the Statutory Declaration of Mr Kalal in the course of a bail application (or otherwise), it would fall within the provisions of s 132 of the Evidence Act and the privilege would be lost. However, as the evidence now stands, I am unable to make that finding. There is no clear evidence that the document was used in a bail application or disclosed to the Crown. No questions have been asked, or sought to be asked, to establish that fact. The state of the evidence is such that I am unable to conclude that the witness (“client”) acted in a way that is inconsistent with her raising the objection: s 122(2) and, in particular, that she voluntarily disclosed the substance of the evidence to another person. That may, in fact, be the case but the evidence as it stands does not allow such a finding.

The second basis upon which it is submitted that client legal privilege has been lost is the misconduct exception in s 125. It was submitted that the Statutory Declaration is false and that its use in court proceedings and even its acquisition is conduct of the kind caught by s 125(2). I accept the legal premise behind that submission. However, there are a number of difficulties in coming to a positive finding of misconduct against Witness M.

First, the statement of Witness I suggests that the solicitor who approached him did so on behalf of Farhad Qaumi. It appears that at some relevant time that solicitor was also representing Witness M. However, on its face, the attempt to obtain what is argued to be false evidence from Witness I emanated from Farhad Qaumi, not from Witness M’s instructions to her solicitor.

Second, Witness I states that the solicitor who visited him in gaol told him “that Farhad, Mumtaz and Jamil wanted me to sign the papers”. This gives rise to three possibilities. First, Witness I’s statement is not reliable in one or more respects. Second, it was Farhad Qaumi (and/or his brothers) who solicited the statement from Witness I. Third, the solicitor was lying to Witness I when he told him that he acted on behalf of Farhad Qaumi. I am not prepared to act on that last assumption in the absence of some clear and cogent evidence.

The third problem with the misconduct argument is that Witness M has maintained that the representation in the statutory declaration – that is, that she did not know Mohammad Kalal – is true. The only evidence to support the proposition that it is false comes in the statement of Witness I. However, that statement contains no clear assertion that Witness M knew Mohammad Kalal. All it says is that he was surprised that Mohammad Kalal had signed the statutory declaration “because Witness M has visited the clubhouse before when we have all been there”. That, of itself, does not establish that Witness M knew Mohammed Kalal.

Fourth, as the Crown Prosecutor pointed out, the Statutory Declaration of Mr Kalal was sworn in front of Mr Kalal’s current solicitor and not in front of the solicitor then engaged by Witness M.

I accept that the cross examination upon which Senior Counsel seeks to embark is cross examination of a kind that could substantially undermine the credibility of the witness’s evidence. Similarly, I accept that if the evidence was available to support the submissions being made pursuant to ss 122 and 125 there would be a solid argument that Witness M has lost client legal privilege. However, the state of the evidence at this point is such that I am unable to come to a finding in that regard.

Accordingly, as the evidence stands, I uphold the objection raised by Witness M to answering questions that would disclose communications between her and her solicitor.