R v Kinghorn (No 5) [2019] NSWSC 1473

R v Kinghorn (No 5) [2019] NSWSC 1473

Legal professional privilege attaches to the disputed documents as they were made for the dominant purpose of providing legal advice or in anticipation of litigation. However, privilege is imputedly waived as to parts of documents where retaining privilege would be inconsistent with the conduct of the proceedings, particularly regarding the use or disclosure of compelled evidence. The court retains power to revisit and vary prior privilege rulings before access is granted, and such reconsideration is appropriate where a material error or inconsistency is found.

Parties
Prosecutor: Regina; Applicant on the Privilege Motion: Commonwealth Director of Public Prosecutions; Applicant on the Privilege Motion: Commissioner of Taxation; Applicant on the Privilege Motion: Commissioner of the Australian Federal Police; Accused: John Alan Kinghorn
Jurisdiction
Australia
Judgment Date
28 October 2019
Procedural Posture
Criminal / Ruling on Privilege Claims Arising in Pre Trial/procedural Phase
Outcome
Rulings on privilege made; earlier privilege ruling varied; parties requested to prepare draft orders accordingly.
Legal Topics
Privilege, Subpoenas, Waiver of Privilege, Imputed Waiver, Review of Ruling
Criminal Law Evidence Practice and Procedure Privilege Subpoenas Waiver of Privilege Imputed Waiver Review of Ruling

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

Regina

Prosecutor

Commonwealth Director of Public Prosecutions

Applicant on the Privilege Motion

Commissioner of Taxation

Applicant on the Privilege Motion

Commissioner of the Australian Federal Police

Applicant on the Privilege Motion

John Alan Kinghorn

Accused

Procedural Posture

Criminal / Ruling on Privilege Claims Arising in Pre Trial/procedural Phase

Legal Issues

  1. 1 Whether legal professional privilege applies to certain documents sought under subpoena
  2. 2 Whether privilege is waived, including by imputed waiver, in relation to particular communications
  3. 3 Whether the court can and should review or vary its earlier privilege rulings

Ratio Decidendi

Legal professional privilege attaches to the disputed documents as they were made for the dominant purpose of providing legal advice or in anticipation of litigation. However, privilege is imputedly waived as to parts of documents where retaining privilege would be inconsistent with the conduct of the proceedings, particularly regarding the use or disclosure of compelled evidence. The court retains power to revisit and vary prior privilege rulings before access is granted, and such reconsideration is appropriate where a material error or inconsistency is found.

Court Disposition

Rulings on privilege made; earlier privilege ruling varied; parties requested to prepare draft orders accordingly.

Orders

  • Variation to earlier ruling on document 16 (CDP.501.001.2776) to limit imputed waiver to specified portions only.
  • Privilege upheld in whole or part over various documents as detailed; imputed waiver of some parts as specified in judgment.