R v Seller; R v McCarthy (No 4) [2014] NSWSC 1369

R v Seller; R v McCarthy (No 4) [2014] NSWSC 1369

The privilege claims were upheld because the documents were orthodox legal conference materials for which the required lawyer-client or third-party relationships and dominant purposes under ss 118 and 119 were established; the ACC had not been shown to have prosecuted or acted beyond power, as the Court Attendance Notices recorded Ms Simpkin rather than the ACC as prosecutor and s 13 of the Crimes Act 1914 (Cth) permitted a private prosecution; even any assumed unlawfulness would not of itself defeat client legal privilege; and the Director's maintenance of the criminal proceedings was not conduct inconsistent with the privilege claims under s 122(2).

Jurisdiction
Australia
Judgment Date
06 August 2014
Procedural Posture
Criminal Proceedings; Procedural Ruling on Subpoenaed Documents and Claims of Client Legal Privilege / Pre Trial Hearing of Notices of Motion
Outcome
The claims of privilege by the Commonwealth Director of Public Prosecutions and the Australian Crime Commission were upheld.
Legal Topics
['subpoena for Production of Documents' 'client Legal Privilege' 'dominant Purpose Test' 'australian Crime Commission Powers' 'waiver or Inconsistency Under S 122(2) of the Evidence Act 1995 (nsw)' 'compulsorily Acquired Material']
['criminal Procedure' 'evidence' 'legal Professional Privilege'] ['subpoena for Production of Documents' 'client Legal Privilege' 'dominant Purpose Test' 'australian Crime Commission Powers' 'waiver or Inconsistency Under S 122(2) of the Evidence Act 1995 (nsw)' 'compulsorily Acquired Material']

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Procedural Posture

Criminal Proceedings; Procedural Ruling on Subpoenaed Documents and Claims of Client Legal Privilege / Pre Trial Hearing of Notices of Motion

Legal Issues

  1. 1 ['Whether documents created for or recording conferences involving lawyers, ACC officers and potential witnesses or expert advisers were protected by client legal privilege under ss 118 and 119 of the Evidence Act 1995 (NSW).' 'Whether the Director of Public Prosecutions was providing legal advice to the Australian Crime Commission within lawful functions.' 'Whether any alleged unlawful conduct by the Australian Crime Commission in commencing proceedings prevented a claim of client legal privilege.' 'Whether maintaining the criminal prosecution was conduct inconsistent with the claims of privilege under s 122(2) of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The privilege claims were upheld because the documents were orthodox legal conference materials for which the required lawyer-client or third-party relationships and dominant purposes under ss 118 and 119 were established; the ACC had not been shown to have prosecuted or acted beyond power, as the Court Attendance Notices recorded Ms Simpkin rather than the ACC as prosecutor and s 13 of the Crimes Act 1914 (Cth) permitted a private prosecution; even any assumed unlawfulness would not of itself defeat client legal privilege; and the Director's maintenance of the criminal proceedings was not conduct inconsistent with the privilege claims under s 122(2).

Court Disposition

The claims of privilege by the Commonwealth Director of Public Prosecutions and the Australian Crime Commission were upheld.

Orders

  • ['The claims of privilege are upheld.']