Warburton v The Director of Public Prosecutions (NSW)

1. [1]

   After being arrested in a car park in December 2014 and cash totalling some $3.3 million Australian dollars being found in his possession, Mr Warburton was charged with offences under s 193B(1) of the Crimes Act 1900 (NSW). It is alleged that he has dealt with the proceeds of crime, the cash being the proceeds of the sale of illegal drugs. On 19 January 2016, in the committal proceedings, Andrews LCM found under s 62 of the Criminal Procedure Act 1986 (NSW) that there was evidence capable of satisfying a properly instructed jury, beyond reasonable doubt, that Mr Warburton had committed an indictable offence.

2. [2]

   Section 63 of the Criminal Procedure Act then required that Mr Warburton be given an opportunity to answer the charges. His Honour was also thereby obliged under s 63(2) to “proceed to take any statement by or any evidence adduced by the accused person in accordance with Division 4”.

3. [3]

   Section 97 also required that Mr Warburton be given the opportunity himself to give evidence, to call any witness on his behalf and to make “full answer and defence”, by giving evidence and examining and cross-examining the witnesses giving evidence for him, or for the prosecution.

4. [4]

   Mr Warburton served a subpoena requiring a solicitor, Mr Dennis Miralis, to give evidence at the committal. Mr Miralis made an application under s 227 of the Criminal Procedure Act to have the subpoena set aside. Mr Warburton opposed that application, but it succeeded. He now seeks leave to appeal that decision under s 54(1) of the Crimes (Appeal and Review) Act 2001 (NSW), as well as an order under s 55(3)(a), setting aside Andrews LCM’s order.

5. [5]

   Mr Miralis’ client, Rebelution Pty Ltd, a company seemingly incorporated in Cyprus, is not a party to these proceedings. The Local Court has filed a submitting appearance. The prosecution did not appear to pursue any argument on the appeal, but confirmed that it maintained the case it had advanced in the Local Court, namely, that Mr Miralis was prima facie a compellable witness under s 12 of the Evidence Act 1995 (NSW); that there was no apparent legal reason why the subpoena should be set aside as a whole, because it “was on the cards” that he could give some relevant evidence and that questions of privilege could be determined on a case by case basis, in relation to questions to which objection was taken.

6. [6]

   For reasons which I will explain I have concluded that the prosecution’s approach was correct and that his Honour erred in setting aside the subpoena.

The relevant events

1. [7]

   There was no issue about how the relevant events unfolded.

2. [8]

   After he was charged, Mr Warburton became a party to proceedings brought by the NSW Crime Commission under the Criminal Assets Recovery Act 1990 (NSW) in this Court. In January 2015, in New South Wales Crime Commission v Warburton [2015] NSWSC 9, Davies J relevantly ordered:

3. [9]

   There is no evidence as to the particulars which Mr Warburton later provided in relation to the seized cash under order 5, in relation to the source of the cash identified in schedule two. It may be inferred, however, that they were consistent with his case on committal, namely, that the seized cash belonged to Rebelution and had come into his possession as the result of the work he had performed for it as its agent, in the business it operated in Australia. Mr Warburton has made no application in relation to the cash in those, or any other proceedings.

4. [10]

   It is not in issue that Rebelution later entered an appearance in the Criminal Assets Recovery Act proceedings. By a later motion it sought to be joined as a party to those proceedings, as well as orders under that Act in relation to the seized cash, on the grounds that the cash, which belonged to it, was the proceeds of the business it conducts legally in Australia. For its part, the Crime Commission then sought an order for security for its costs in the proceedings.

5. [11]

   Consent orders were eventually made dismissing both Rebelution's motion on a without prejudice basis and the Crime Commission’s security for costs application. Rebelution’s asserted rights in relation to the seized cash were also reserved. Final orders have not been made in those proceedings.

6. [12]

   It is also common ground that as the result of ongoing communications between Mr Warburton’s solicitor, Mr Watson and Rebelution’s solicitor, Mr Miralis, Rebelution has provided Mr Warburton with various information and documents, including an unsigned letter on its letterhead, which expressly contemplates that it could be tendered on his bail application. Other information and documents were conveyed by email and under cover of letters Mr Miralis sent to Mr Warburton. It is not suggested that any of those documents were expressly provided on a confidential basis

7. [13]

   Mr Warburton did not use Rebelution’s letter on his bail application. It was, however, later used by Rebelution itself in support of an application which it made for recovery of the seized cash in the Local Court under s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). That letter was annexed to an affidavit sworn by its solicitor. Mr Warburton was not a party to those proceedings, which were dismissed, but the affidavit and other documents Rebelution had filed in the Local Court proceedings, were amongst the documents sent to Mr Watson.

The cases in the committal proceedings

1. [14]

   Mr Miralis relied on an affidavit sworn by his solicitor, Mr Vizintin, to which was annexed various correspondence between he and Mr Watson. Mr Warburton relied on an affidavit sworn by Mr Watson, attached to which was some of that correspondence, as well as other documents. These were marked as confidential exhibits, to which the prosecution was not given access.

2. [15]

   Despite Rebelution’s claimed ownership of the seized cash and the information and documents it had provided Mr Warburton, in the committal proceedings Mr Miralis resisted being called to give evidence, on the basis that, amongst other things, the subpoena had been issued for an improper purpose; that Rebelution had legal professional privilege under s 119 of the Evidence Act in relation to all of its communications with Mr Miralis; that it had a common interest with Mr Warburton in the cash, to which s 122 applied; that s 123 did not apply to evidence Mr Miralis could give; and that the subpoena had no legitimate forensic purpose and amounted to an abuse of process.

3. [16]

   Mr Warburton contended that not only did the issue of the subpoena have a legitimate purpose and involved no abuse of process, but neither s 118 nor s 119 applied to the documents it sought to tender, or the evidence it sought to call from Mr Miralis. His case was that the documents and communications were not “confidential”, they having been provided for the purpose of disclosure by Mr Warburton in the criminal proceedings. Thereby Rebelution waived any privilege which it may have had in them, as did the use Rebelution itself later made of the documents and information therein contained. Nor did s 122 or s 123 preclude the evidence sought to be called from Mr Miralis.

4. [17]

   The prosecution’s case was that the Court should determine the committal proceedings without further evidence being called from Mr Miralis, the requirements of s 63 already having been satisfied. It was argued that almost any relevant information which Mr Miralis had was the subject of legal professional privilege which had not been waived; that almost any other information which he had would be inadmissible hearsay, or at best of almost no weight; and that in so far as his evidence could shed any light on the specific cash involved in the proceedings, Mr Miralis had an interest, as his client’s advocate, in providing evidence which assisted his client.

5. [18]

   One issue in the proceedings was, however, explained to be whether Rebelution was a real company, conducting lawful activities. Given the huge amount of cash found in Mr Warburton’s possession, it was submitted that it would be concluded that it was “vanishingly unlikely” that it had been left in Mr Warburton’s possession to look after, without any means by which the cash would be accounted for, or protected. While it was accepted not to be irrelevant that Rebelution had commenced proceedings seeking the recovery of the cash, that of itself could not explain Mr Warburton’s financial involvement with that company or how he came to hold such vast amounts of cash on its behalf.

6. [19]

   The prosecution thus submitted that if, contrary to the course which it urged, the subpoena issue was to be determined by the Court, that Mr Miralis was prima facie a compellable witness under s 12 of the Evidence Act and that there was no apparent legal reason why the subpoena should be set aside as a whole, because it “was on the cards” that he could give some relevant evidence, albeit likely to be of little weight. Further, that not all questions which could be asked of him would require disclosure of privileged information, because there was no privilege in either the existence of documents Rebelution had itself filed and relied on in court, or their contents, given that thereby they had been communicated to the world at large and thus lacked the necessary confidentiality with which s 118 and s 119 were concerned. In the result questions of privilege should be determined on a case by case basis, in relation to particular questions to which objection was taken.

The decision

1. [20]

   In his 24 October 2016 decision, Andrews LCM noted that Mr Warburton had subpoenaed Mr Miralis to give evidence on committal in order to confirm the provenance of the documents annexed to Mr Watson’s affidavit; to prove that Mr Miralis had taken instructions from Rebelution, to secure the return of the cash seized by the police; and that it was pursuing efforts to recover that cash (at p 3).

2. [21]

   His Honour noted that Mr Miralis’ “primary submission” was that Mr Warburton sought to adduce evidence from him of confidential legal communications, including documents, between he and his client in relation to both Mr Warburton’s criminal proceedings and the civil proceedings in which it was involved (at p 4).

3. [22]

   His Honour rejected Mr Miralis’ case that Mr Warburton had no legitimate forensic purpose and was pursuing a fishing expedition, accepting that it was “on the cards” that his evidence would materially assist Mr Warburton’s case (at p 4). He also accepted Mr Warburton’s case that s 118 of the Evidence Act did not apply to the documents in evidence, they not having been prepared for the dominant purpose of providing Rebelution with legal advice, or otherwise falling within the section.

4. [23]

   His Honour did not expressly find that s 119 applied to the documents or to Mr Miralis’ evidence, nor did he provide any reasons for such a conclusion. His Honour concluded, however at p 6, that “the commonality between the accused and Rebelution relates to Rebelution getting their money back and the accused obtaining evidence that the moneys found in his possession were paid to him as an agent for Rebelution”.

5. [24]

   His Honour also did not address the provisions of s 122 of the Evidence Act, other than concluding at p 6 that “legal professional privilege has not been waived, through the applicant’s correspondence with the accused’s solicitor, and that any disclosures within the correspondence fell within s 122(5)(c) of the Evidence Act.” No reasons for those conclusions were given.

6. [25]

   His Honour also concluded at p 7 that legal professional privilege had been established and not waived, a conclusion which he considered was supported by Mr Miralis’ refusal to swear an affidavit which Mr Warburton had sought and that to allow evidence to be called “in relation to areas which are subject to legal professional privilege, in circumstances where that privilege has not been waived would amount to an abuse of process.”

7. [26]

   While having referred at p 6 to the submissions advanced in relation to the operation of s 123, his Honour did not resolve what lay in issue as to its proper construction and operation. He concluded at p 7:

The parties’ cases on appeal

1. [27]

   Mr Warburton’s summons included a statement of the grounds of appeal, namely:

2. [28]

   Mr Warburton's case was that Rebelution had no privilege in the matters disclosed in the correspondence and documents it had provided him, so that Mr MIralis had no basis to object to giving evidence about the provenance of the documents or instructions he had been given about them; that any conceivable privilege had been waived; and that no provisions of the Evidence Act precluded him from calling Mr Miralis in the committal proceedings, in order to adduce relevant evidence in accordance with s 27.

3. [29]

   Mr Miralis accepted on appeal that Mr Warburton could tender the documents provided to him by adducing evidence from Mr Watson, given the judgment in R v Pearson (Court of Criminal Appeal (NSW), 5 March 1996, unrep). He argued, however, that Mr Warburton could not adduce evidence from him about any matter in issue on the committal, given the provisions of s 123 of the Evidence Act and what was decided in Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121; (1995) 129 ALR 593; [1995] HCA 33.

4. [30]

   Further, Mr Miralis contended that Rebelution and Mr Warburton had a “common interest” within the meaning of s 122(5)(c) in his criminal prosecution, with the result that his Honour was correct to conclude that evidence could not be adduced from him about the documents. He also argued that there had been no complaint in the Local Court that Rebelution’s conduct had been inconsistent with its maintenance of its privilege, nor had that been pleaded on the appeal, with the result that such arguments could not now be raised on the appeal. In any event, his Honour had been correct to conclude that its privilege had not been waived.

5. [31]

   In written submissions it was also said for Mr Miralis that he could not be called to give evidence because:

Issues on appeal

1. [32]

   In issue was finally thus whether:

Can Mr Miralis give evidence that is admissible under the Evidence Act?

1. [33]

   In issue in the criminal proceedings is not only the source of the cash seized from Mr Warburton, namely from the proceeds of the sale of illegal drugs, as is the prosecution case, or from his legitimate activities as Rebelution’s Australian agent, as he claims, but also whether Rebelution is in fact a legitimate company.

2. [34]

   Rebelution’s claimed ownership of the seized cash is thus unarguably relevant to what is in issue on the committal, as his Honour found. So too are any documents which evidence either Rebelution’s existence, its ownership of the cash, or the nature of the relationship which both it and Mr Warburton have claimed in the various proceedings earlier mentioned existed between them. On the appeal Mr Miralis thus accepted that the documents in Mr Warburton’s hands can be tendered on the committal, but still resists being called, even to give evidence which could prove their provenance.

3. [35]

   Sections 118 and 119 appear in Division 1 “Client legal privilege” of Part 3.10 “Privileges” of the Evidence Act. As discussed in State of New South Wales v Jackson [2007] NSWCA 279 at [35], ss 118 and 119 broadly correspond with the categories of legal professional privilege which have come to be known at common law as advice privilege and litigation privilege. Such privileges do not belong to solicitors such as Mr Miralis. If they exist they belong to clients like Rebelution. Not all communications between lawyers and their clients are, however, privileged under ss 118 and 119 and even when they apply, such privileges can both be waived or lost.

4. [36]

   Clients who have such privileges can either expressly or impliedly waive them, including by the pursuit of conduct inconsistent with their maintenance. Sections 121 and 122 govern the loss of client legal privilege generally and s 123 with loss of client legal privilege in criminal proceedings.

5. [37]

   By the documents Rebelution provided Mr Warburton it supplied him with information about the nature of its business, its relationship with him and its ownership of the seized cash, information which is relevant to what is in issue on the committal. Mr Miralis’ case was that Mr Warburton could tender those documents through his solicitor, Mr Watson.

6. [38]

   For reasons which I will explain , I am satisfied that contrary to the case Mr Miralis advanced, Rebelution does not have the right to object to all evidence which Mr Warburton seeks to adduce from him about those documents.

7. [39]

   As the prosecution urged below, the subpoena should not have been set aside, but any objections in fact taken by Rebelution to particular questions asked of Mr Miralis, must be determined on a case by case basis.

8. [40]

   In the result, Mr Warburton’s appeal must succeed.

Section 118 of the Evidence Act

1. [41]

   On the appeal Mr Miralis did not contend that s 118 provided Rebelution with a basis for objection to evidence being called from him. He relied on s 119. In order to resolve what is in issue on the appeal it is helpful, nevertheless, to bear in mind that s 118 permits a client to object to its solicitor disclosing confidential communications which would result in the disclosure of legal advice it has received, in proceedings to which the Act applies, as it does to the committal proceedings.

2. [42]

   Section 118 provides:

3. [43]

   Both s 118 and s 119 are concerned only with confidential communications and documents, as those terms are defined in s 117(1), namely:

4. [44]

   The evidence established that neither the documents which Mr Miralis accepts Mr Warburton is entitled to tender on the committal, nor evidence which Mr Miralis could give about their provenance fall within s 118. That flows from the circumstances in which the documents came to be created and provided to Mr Warburton, which was not for the “dominant purpose” of Mr Miralis providing legal advice to Rebelution.

5. [45]

   To the contrary, it was for the dominant purpose of Rebelution providing Mr Warburton the assistance he had requested for his bail application and the criminal proceedings. No privilege attaches to what was so communicated.

6. [46]

   Rebelution also itself used some of the information and documents which it provided Mr Warburton in the proceedings it later brought in the Local Court. As I will explain below, thereby it lost any privilege which it could conceivably have had in relation to what it so disclosed to others.

Section 119 of the Evidence Act

1. [47]

   His Honour did not deal expressly with the provisions of either s 117 or s 119. Section 119 provides:

2. [48]

   Mr Miralis thus could not claim that Rebelution had any privilege under s 119 in the documents, they not being confidential as defined in s 117(1). Even if any privilege could conceivably have existed when the documents were created, once provided to Mr Warburton, the privilege was lost. After all, even in the case of a letter sent to the other side in litigation, once it is sent it “ceases to be confidential and there is no privilege in it, not because privilege in the document is waived, but because no privilege attaches to it”. Nor does any privilege exist “in relation to a document the purpose of which is to communicate information to others” as was the purpose of these documents: Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 496-497.

3. [49]

   It follows that contrary to Mr Miralis’ case, Rebelution also has no privilege under s 119 in respect of all evidence which might conceivably be adduced from him about the documents. That section is not concerned with all communications made “for the dominant purpose of the client being provided with professional legal services”, but only with those which are confidential, as defined in s 117(1), at the time that they are made. Even in such a case, the provision of the documents waived privilege in other information which Mr Miralis has, for example, as to their provenance.

4. [50]

   It is only if an objection is taken to evidence being adduced from Mr Miralis which would result in the disclosure of a communication which remains confidential, as defined, and which has not been waived or lost by Rebelution, that Mr Miralis could not be required to give that evidence.

5. [51]

   Thus if, for example, a question asked of Mr Miralis sought evidence of advice he had given Rebelution, which has been kept confidential and not disclosed by the documents and information Rebelution provided to Mr Warburton, the provisions of either s 118 or s 119 or both, would be engaged.

6. [52]

   If the question Mr Miralis was asked, however, concerned the provenance of the documents provided to Mr Warburton, by which Rebelution communicated the information it provided to him, s 119 would not be engaged.

7. [53]

   It follows that in so far as his Honour’s conclusions rested on a view that s 119 permitted Rebelution to object to all questions which Mr Miralis could be asked about the documents which he now accepts that Mr Warburton can tender on the committal, his Honour erred.

8. [54]

   Even if I am wrong in the conclusions I have reached about the operation of s 119 in relation to Mr Miralis’ evidence, I am also satisfied that the evidence establishes that Rebelution has acted in a way that is inconsistent with it objecting to the evidence sought to be adduced from Mr Miralis about the documents it provided Mr Warburton and that s 122(5)(c) does not preclude that evidence being adduced on the committal.

Section 122 of the Evidence Act

1. [55]

   It is in that context that the operation of s 122 of the Evidence Act must be considered. It is concerned only with circumstances where a client does have a privilege in the evidence sought to be called. It specifies the circumstances in which that privilege will be lost.

2. [56]

   The section provides:

3. [57]

   Such a loss of privilege is established by the evidence that Rebelution not only knowingly and voluntarily disclosed the documents not only to Mr Warburton, so that he could use them on his bail application and in defence of the charges, but in the case of some of them, itself relied on the documents in the Local Court proceedings which it brought against the Commissioner of Police, when seeking the recovery of the cash.

4. [58]

   Further, it also later provided Mr Warburton with a copy of the affidavit which its solicitor swore in those proceedings, to which the letter was annexed. On the appeal it was accepted by Mr Miralis that they were used in open court in the proceedings in the Local Court. That was yet a further disclosure inconsistent with the maintenance of any objection to Mr Miralis giving evidence about those documents.

5. [59]

   That was all unarguably inconsistent with Rebelution maintaining a claim of privilege under s 119 in the committal proceedings, in relation to evidence adduced by Mr Warburton from Mr Miralis about the documents.

6. [60]

   Even at common law, such disclosures would have involved waiver of legal professional privilege, as discussed in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [29]. Such a waiver was said in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 at [32] to raise considerations which “apply with equal force in relation to the statutory question posed by s 122(2)”. Those considerations are concerned with questions of fairness.

7. [61]

   There is obvious unfairness in Rebelution’s pursuit of any claim of privilege in relation to evidence Mr Miralis’ could give as to the provenance of the documents it provided Mr Warburton and the information it thereby disclosed, on Mr Warburton’s committal, despite its own reliance on that information in support of the application it advanced in the Local Court.

8. [62]

   There can, in the result, be no question that Rebelution has acted inconsistently with the maintenance of an objection in the committal proceedings to the evidence sought to be adduced from Mr Miralis about the documents, with the result that even if, contrary to my conclusions, a privilege under s 119 did exist, that privilege has been lost.

Section 122(5)(c) of the Evidence Act

1. [63]

   While, as his Honour concluded, it may be accepted that there was a “commonality” between Mr Warburton and Rebelution in relation to the ownership of the cash which they have each claimed was not the proceeds of crime, but the proceeds of its business, it does not necessarily follow that at the time of Rebelution’s disclosures to Mr Warburton, they had the necessary “common interest” in any of the proceedings which were on foot, pending or anticipated. That is what s 122(5)(c) is concerned with.

2. [64]

   His Honour did not identify the proceedings in which he concluded that Mr Warburton and Rebelution had the necessary common interest. Contrary to the case advanced for Mr Miralis on the appeal, that was the relevant consideration on which the application of the exception in s 122(5)(c) depended.

3. [65]

   Mr Miralis’ case was that his Honour must have taken the view that Rebelution and Mr Warburton had a common interest in the criminal proceedings, because they were the proceedings in which the claimed privileged information was sought to be called from him. As a result, any disclosure of the confidential information to Mr Warburton did not result in the loss of Rebelution’s privilege, given the provision made in s 122(5)(c). It was also finally argued that they had a common interest in the Criminal Assets Recovery Act proceedings.

4. [66]

   The phrase “common interest” is not defined in the Evidence Act. In Marshall v Prescott [2013] NSWCA 152, the common law concept of common interest privilege arose for consideration, but the operation of s 122(5)(c) was not there in issue. In Hamilton v State of New South Wales [2016] NSWSC 1213, Beech-Jones J accepted that a party and a non-party could have a common interest in the outcome of litigation, even if there existed a potential divergence of interests at some point in the future, but concluded at [76] that for s 122(5)(c) to be engaged “the relevant interest must be more than a mere preference as to how the litigation should unfold”.

5. [67]

   There his Honour also observed at [76]:

6. [68]

   In that case Beech-Jones J concluded at [78] in respect of proceedings in which misfeasance in public office was alleged against four police officers, that s 122(5)(c) applied to the disclosure there in question, the necessary common interest in the proceedings existing, even though the prospect of those to whom the disclosure was made being joined to the proceedings, or being sued in separate proceedings, then appeared to be remote. His Honour concluded that the same could not have been said at the time of the disclosure, when he found that was a realistic prospect.

7. [69]

   At the time of the disclosures made to Mr Warburton, the criminal charges had been laid against him, he was pursuing a bail application and orders had been made by Davies J in the proceeds of crime proceedings. Rebelution was neither then, nor now a party to any of those proceedings, although it did later enter an appearance in the proceeds of crime proceedings. When its motion was dismissed, it also reserved its right to pursue its claim to ownership of the cash. Mr Warburton was not a party to the Local Court proceedings.

8. [70]

   That did not provide a basis for the conclusion that at the time of its disclosures, Rebelution had any relevant interest in the criminal proceedings, amounting to more than a mere preference as to how they should unfold. It is not suggested that it could ever become a party to those proceedings. Nor could it be bound by whatever is decided in them, other than perhaps in relation to what is decided in relation to Mr Miralis’ application to have the subpoena set aside. That it and Mr Warburton do not have interests in common in relation to the subpoena is, however, apparent.

9. [71]

   What is in issue on a committal is whether on all of the evidence, “there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence”: Criminal Procedure Act, s 64.

10. [72]

    If that is decided adversely to Mr Warburton, in any subsequent trial in issue will be whether or not he has committed the offences with which he has been charged. Undoubtedly, Rebelution might have a preference as to the outcome of the proceedings, but as Beech-Jones J observed in Hamilton v State of New South Wales, that is not sufficient to engage s 122(5)(c).

11. [73]

    Just because a stranger to such criminal proceedings like Mr Miralis happens to be in a position which enables him or her to be subpoenaed to give evidence which is relevant to what is in issue, the witness does not thereby acquire any ‘interest’ in the proceedings, let alone one that he or she has in common with a party to the proceedings.

12. [74]

    In this case the subpoena has been issued by the accused. The accused’s interests on committal are to resist being referred to trial and at any trial, to resist the charges being found proven. The witness’ interests in the proceedings are quite different. The witness must comply with the subpoena, unless an application to set it aside is made and succeeds and if evidence is given, must comply with his or her oath or affirmation, whether the evidence given helps or hinders either the prosecutor or the accused’s case. Those obligations do not give the witness any interest in the proceedings themselves.

13. [75]

    If an application to set aside a subpoena is made by the witness and resisted by the accused, as it was in this case, it may be accepted that thereby the witness acquires an interest in the application so made in the proceedings, but even then his or her interest and that of the accused are entirely at odds.

14. [76]

    In the result it cannot be concluded that in the circumstances, where Mr Miralis has been subpoenaed to give evidence and has made an application to have the subpoena set aside, an application which Mr Warburton resists, that either Mr Miralis or his client Rebelution have any interest in common with Mr Warburton in the proceedings.

15. [77]

    The Evidence Act certainly gives Rebelution the right to object to Mr Miralis giving evidence about matters in which it has the right to claim legal professional privilege under s 118 or s 119. Even if that right is exercised and the question of whether the privilege has been lost must be determined, that will not give Rebelution an “interest” in the criminal proceedings, let alone one that it has in common with Mr Warburton. Again, in that event their interests will be quite different.

16. [78]

    Even if its solicitor does give evidence, because Rebelution is not a party to the proceedings, it will not bound by any conclusions reached, even as to the source or ownership of the cash seized from Mr Warburton. As Mr Miralis accepted, how the issues which arise for determination in the criminal proceedings are resolved, cannot affect Rebelution’s right to seek to recover the cash in the proceeds of crime proceedings, nor can the outcome affect how the issues which arise for determination in those proceedings will be resolved.

17. [79]

    It seems to be more arguable that Mr Warburton and Rebelution have a “common interest” in the proceeds of crime proceedings, but I consider that it must also be concluded that while they both undoubtedly have an interest in those proceedings, they are not common ones.

18. [80]

    That is because Mr Warburton’s interest in those proceedings is in respect of the property which belongs to him, which was restrained by the orders made by Davies J, that being specified in Schedule 1 and Rebelution’s only interest is in relation to the cash specified in Schedule 2.

19. [81]

    Mr Warburton claims no ownership of that cash. On the committal his case is that it belongs to Rebelution. That is no doubt what it would claim in the event that it pursued any further application in those proceedings, but for his part, even then Mr Warburton would have no interest in its claim. Nor does Rebelution have any interest in any claim Mr Warburton might pursue in relation to his property.

20. [82]

    Even if Rebelution made a further application in relation to the seized cash and called evidence from Mr Warburton to support its case, that would not give him any interest in its claim.

21. [83]

    It follows that the resolution of any issues which could conceivably arise for determination in those proceedings are also not ones in which Mr Warburton and Rebelution have any interests in common. Claims which either of them may advance in those proceedings, can have no impact on any claims which the other might pursue. In the result, while undoubtedly they each have an interest in the proceedings, their interests are different interests, not common ones.

22. [84]

    It follows that it must be concluded that his Honour was wrong to decide that the evidence which might be given by Mr Miralis fell within the exception provided by s 122(5)(c).

23. [85]

    Also necessary to consider in this context is Rebelution’s disclosure of the letter it provided Mr Warburton, in the Local Court proceedings, when it relied on the affidavit sworn by its solicitor, to which the letter was annexed.

24. [86]

    That disclosure was not one which could conceivably fall within the exception provided by s 122(5)(c), because that was not 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”. That disclosure was rather made in order for Rebelution to advance the claims it made in those proceedings.

25. [87]

    In the result it follows that the exception provided by s 122(5)(c) did not apply to evidence which Mr Miralis could give about the documents provided to Mr Warburton.

Section 123 of the Evidence Act

1. [88]

   Mr Warburton also claimed that even if Rebelution had any privilege to claim in respect of Mr Miralis’ evidence under s 118 or s 119, s 123 permitted him to adduce that evidence. That section provides:

2. [89]

   The proper construction of this section was in issue. The section is concerned with a defendant in criminal proceedings adducing evidence. It precludes evidence about communications and documents falling within the s 117 definitions made or created by an “associated defendant” and a lawyer being adduced, even if they are in the defendant’s hands. That term is defined the Dictionary to the Evidence Act to mean:

3. [90]

   Rebelution does not fall within the definition, no prosecution having been instituted against it. Nor has it been suggested that any such prosecution is contemplated or likely.

4. [91]

   Mr Miralis’ case was that s 123 could not, however, apply to him, because of what was decided in Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121; (1995) 129 ALR 593; [1995] HCA 33, the section not having reversed or overridden that decision. The question which there arose for determination was whether at common law “persons having in their possession or power documents which are subject to legal professional privilege can be compelled to produce those documents on subpoena issued on behalf of an accused person in criminal proceedings when those documents may establish the innocence of the accused or may materially assist his defence but the person entitled to the privilege does not waive it” and whether “the immunity from production which is generally conferred by legal professional privilege is subject to an exception in favour of protecting the liberty of the subject” (see at Carter at [126]).

5. [92]

   There by majority the High Court held that a person cannot be compelled to produce documents or communications subject to legal professional privilege under a subpoena issued by an accused in criminal proceedings, even if that might assist their defence, or establish their innocence.

6. [93]

   Thus, Mr Miralis submitted, Carter precluded his evidence from being adduced on subpoena.

7. [94]

   As I have already explained, however, even if Rebelution did have the legal professional privilege Mr Miralis claimed it had under s 119, that privilege has been lost. In the result, the decision in Carter can be of no assistance to the case which Mr Miralis advances.

8. [95]

   Nevertheless the proper construction of s 123 having arisen as it has, the arguments which the parties advanced should be dealt with.

9. [96]

   The judgment in Carter was delivered on 14 June 1995. The Evidence Act, which came into operation on 1 September 1995, did not arise for consideration in that case. The only reference there made to that new legislative scheme was by McHugh J, who said at 167:

10. [97]

    At footnote 157 it was said “cf. Evidence Act 1995 (Cth), s.123” (seemingly omitted from the Commonwealth Law Reports, see Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 129 ALR 593 at 627).

11. [98]

    As was contemplated in Carter, the Legislature may exclude or restrict the operation of common law principles: see at 126 per Brennan J; 138, 141-2 per Deane J and 162, 167 per McHugh J. Section 9 of the Evidence Act thus provides:

12. [99]

    The Explanatory Notes to the Evidence Act state:

13. [100]

    Mr Warburton relied on R v Pearson, where Gleeson CJ (as his Honour then was) observed:

14. [101]

    This common ground was accepted by the Court, which concluded that the accused was entitled to have access to documents required by subpoena to be produced by an insurer, even though legal professional privilege attached to them.

15. [102]

    Mr Miralis relied on R v Wilkie [2008] NSWSC 885 and DPP (Cth) v Galloway (a pseudonym) & Ors (2014) 46 VR 809; [2014] VSCA 272. In R v Wilkie, Grove J held :

16. [103]

    In DPP (Cth) v Galloway, what arose for consideration was a question asked in cross-examination of one of the solicitors of the Commonwealth Director of Public Prosecutions, on a stay application, which would have disclosed the contents of legal advice given by the Director to the Australian Federal Police, information not then in the hands of the accused. The Victorian Court of Appeal there considered that the construction of s 123 turned on the meaning of the phrase “adducing evidence” as it was there used and that the issues which arose for consideration in that case, had not been considered or decided in R v Pearson.

17. [104]

    It was concluded that the enactment of s 123 was not intended to generally abrogate the common law right to legal professional privilege in relation to confidential legal advice and that it did no more than provide a statutory exception to s 118 and s 119, without which “the holder of the privilege would have been entitled under those sections to object to the accused adducing evidence of a privileged communication already in his/her possession”: DPP (Cth) v Galloway at [8]. No consideration was there given, however, to the consequences of waiver to which s 122 would apply.

18. [105]

    At [38] it was noted that as s 123 was concerned with the removal of the privilege, it had to be “interpreted as having no broader scope than Parliament can be seen clearly to have intended”. It was thus concluded that the section could not be construed so as to mean that no prosecution witness could decline to answer a question in cross-examination on the ground that to do so would result in the disclosure of privileged communications or the contents of a privileged document (at [41]).

19. [106]

    At [85] - [87] it was concluded:

20. [107]

    The difficulty is that even construing s 123 in this narrow way, does not assist Mr Miralis’ case on the appeal. Nor do the circumstances in which the documents were provided to Mr Warburton bring Mr Miralis’ evidence within Carter.

21. [108]

    Rebelution has no privilege to claim under s 119 in relation to the evidence Mr Miralis can give about the documents, Rebelution having not only provided Mr Warburton the documents in the way I have explained, but also having used some of them as it did in the Local Court. In the result Mr Warburton’s right to call evidence from Mr Miralis about the documents does not depend on s 123 of the Evidence Act, nor is such evidence being called from him precluded by what was decided in Carter.

Conclusion

1. [109]

   In the result, it must be concluded that his Honour erred in setting aside the subpoena.

2. [110]

   As was the prosecution case below, Mr Miralis has relevant and admissible evidence to give about what is in issue on the committal. Any claims of privilege which are available to be made by Rebelution in relation to any particular questions asked of Mr Miralis to which objection is in fact taken, must be decided on a case by case basis, if the question is pressed.

3. [111]

   On the morning of the hearing of the appeal, I made an interim order under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW), without determining the merits of the application, which was supported by an affidavit sworn by Mr Miralis’ solicitor.

4. [112]

   It emerged during the course of the hearing that the evidence on which the parties’ cases turned had become confidential exhibits in the committal proceedings, to which the prosecutor had not been given access. It was common ground that those exhibits should be dealt with in a similar way on this appeal, but that did not resolve the question of whether a final suppression order should be made.

5. [113]

   A final order was pressed under s 8(1)(a) and (e) of the Act, which provide:

6. [114]

   Mr Miralis’ solicitor deposed to his concerns that he having not only acted for Rebelution in its Supreme Court and Local Court applications in 2015 and 2016, but also currently appearing for another accused, who also had a relationship with Rebelution and who is also defending charges of dealing with property reasonably suspected of being the proceeds of crime, that the potential consequences of media coverage of these proceedings would affect his ability to continue acting for Rebelution and his other client. He was also concerned that any reports of he being required to give evidence, could damage his professional reputation.

7. [115]

   In submissions reference was made to other concerns not dealt with in the affidavit, as to information in these proceedings becoming public, which could have consequences for Mr Miralis’ ability to continue acting for his clients. That any of these concerns had a basis in the possibility of any conflict preventing him from continuing to act for his clients was, however, eschewed.

8. [116]

   In the result I declined to make the final suppression order sought, having in mind that in all of the circumstances I have discussed, I was not satisfied that Mr Miralis’ concerns could conceivably provide a proper basis for a conclusion either that the suppression order sought in relation to the appeal was necessary to prevent prejudice to the proper administration of justice, or that it was otherwise necessary in the public interest. Further, I was also not satisfied that any such public interest, even if established, could significantly outweigh the public interest in open justice.

9. [117]

   For the reasons given, I order that:

   1. (1)

      Leave to appeal be granted;

   2. (2)

      The appeal be allowed;

   3. (3)

      The order setting aside the subpoena be quashed; and

   4. (4)

      The matter be remitted to the Local Court for further hearing.