R v Rogerson; R v McNamara (No 31) [2016] NSWSC 195

R v Rogerson; R v McNamara (No 31) [2016] NSWSC 195

The relevant part of the recorded conversation was a confidential communication because McNamara was effectively using his daughter to convey instructions to his solicitor, and the circumstances supported an inference that she was under an unspoken or moral obligation not to disclose the contents except to the solicitor. The dominant purpose of the communication was the provision of professional legal services in the current proceedings. Although McNamara knew the call would be recorded and might be monitored, the monitoring arose from circumstances outside his control and the content and purpose of the call indicated an intention that it remain privileged; the Court was not satisfied...

Jurisdiction
Australia
Judgment Date
29 March 2016
Procedural Posture
Criminal Proceedings / Procedural Ruling on Objection to Evidence
Outcome
Objection upheld; evidence excluded.
Legal Topics
['client Legal Privilege' 'confidential Communication' 'dominant Purpose' 'loss of Privilege' 'recorded Prison Telephone Conversation']
['criminal Law' 'evidence'] ['client Legal Privilege' 'confidential Communication' 'dominant Purpose' 'loss of Privilege' 'recorded Prison Telephone Conversation']

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Procedural Posture

Criminal Proceedings / Procedural Ruling on Objection to Evidence

Legal Issues

  1. 1 ['Whether the telephone conversation between McNamara and his daughter was a confidential communication between a client and another person.' 'Whether the conversation was made for the dominant purpose of McNamara being provided with professional legal services relating to the proceedings.' 'Whether any privilege was lost because McNamara knew the conversation would be recorded and might be monitored.']

Ratio Decidendi

The relevant part of the recorded conversation was a confidential communication because McNamara was effectively using his daughter to convey instructions to his solicitor, and the circumstances supported an inference that she was under an unspoken or moral obligation not to disclose the contents except to the solicitor. The dominant purpose of the communication was the provision of professional legal services in the current proceedings. Although McNamara knew the call would be recorded and might be monitored, the monitoring arose from circumstances outside his control and the content and purpose of the call indicated an intention that it remain privileged; the Court was not satisfied...

Court Disposition

Objection upheld; evidence excluded.

Orders

  • ['The evidence of that part of the conversation to which objection was taken shall be excluded.']