R v Gould [2018] NSWDC 539

R v Gould [2018] NSWDC 539

The subpoenaed material had a legitimate forensic purpose because it concerned how, why and when the undertaking to principal Crown witness Peter Borgas was granted, the basis on which he was prepared to negotiate and provide information, and matters connected with the current charges and his credibility. In those circumstances the CDPP's duty of disclosure prevailed and the claim of legal professional privilege was trumped for the relevant material, so access was granted on a limited basis.

Jurisdiction
Australia
Judgment Date
02 August 2018
Procedural Posture
Criminal / Procedural Ruling on Crown Notice of Motion to Set Aside Subpoena and Accused's Access to Subpoenaed Material During Trial
Outcome
Access granted on a limited basis.
Legal Topics
['subpoena' 'legitimate Forensic Purpose' 'legal Professional Privilege' 'client Legal Privilege' 'commonwealth Director of Public Prosecutions Duty of Disclosure' 'witness Undertaking or Indemnity' 'credibility of Prosecution Witness']
['criminal Procedure' 'evidence'] ['subpoena' 'legitimate Forensic Purpose' 'legal Professional Privilege' 'client Legal Privilege' 'commonwealth Director of Public Prosecutions Duty of Disclosure' 'witness Undertaking or Indemnity' 'credibility of Prosecution Witness']

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Procedural Posture

Criminal / Procedural Ruling on Crown Notice of Motion to Set Aside Subpoena and Accused's Access to Subpoenaed Material During Trial

Legal Issues

  1. 1 ['Whether the accused identified a legitimate forensic purpose for access to documents evidencing communications between the Commonwealth Director of Public Prosecutions and Peter Borgas or his representatives concerning an undertaking or other concession.' 'Whether the subpoenaed material was protected by legal professional privilege or client legal privilege under the Evidence Act.' "Whether the Commonwealth Director of Public Prosecutions' duty of disclosure required disclosure notwithstanding a claim of privilege."]

Ratio Decidendi

The subpoenaed material had a legitimate forensic purpose because it concerned how, why and when the undertaking to principal Crown witness Peter Borgas was granted, the basis on which he was prepared to negotiate and provide information, and matters connected with the current charges and his credibility. In those circumstances the CDPP's duty of disclosure prevailed and the claim of legal professional privilege was trumped for the relevant material, so access was granted on a limited basis.

Court Disposition

Access granted on a limited basis.

Orders

  • ['Access to some of the subpoenaed documents was granted, with the documents to be identified by the Court.']