R v Gittany (No 3) [2013] NSWSC 1670

R v Gittany (No 3) [2013] NSWSC 1670

The accused was not obliged to produce the documents because, although the documents were accepted to fall within s 119, neither service of the s 97 tendency notice nor the calling of the witnesses disclosed the substance of the confidential communications with the accused's lawyer. Disclosure of anticipated evidence or underlying facts is not the same as disclosure of the privileged communications, and therefore the accused had not acted inconsistently with maintaining client legal privilege under s 122.

Jurisdiction
Australia
Judgment Date
13 November 2013
Procedural Posture
Criminal Proceeding; Interlocutory Application Concerning Production of Documents and Client Legal Privilege / During Trial for Murder, on the Crown's Call for Production of Documents After the Accused Served a Tendency Notice
Outcome
Crown call for production rejected; client legal privilege maintained.
Legal Topics
['tendency Evidence' 'production of Documents' 'waiver of Client Legal Privilege' 'confidential Communications With Witnesses' 'evidence Act 1995 (nsw)']
['criminal Law' 'evidence' 'client Legal Privilege'] ['tendency Evidence' 'production of Documents' 'waiver of Client Legal Privilege' 'confidential Communications With Witnesses' 'evidence Act 1995 (nsw)']

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Procedural Posture

Criminal Proceeding; Interlocutory Application Concerning Production of Documents and Client Legal Privilege / During Trial for Murder, on the Crown's Call for Production of Documents After the Accused Served a Tendency Notice

Legal Issues

  1. 1 ['Whether client legal privilege over witness statements, conference notes or other notes relating to potential tendency witnesses was lost when the accused served a notice under s 97 of the Evidence Act 1995.' 'Whether client legal privilege over such documents would be lost when the accused called the tendency witnesses to give evidence.' "Whether service of a tendency notice or calling a witness discloses the substance of confidential communications with the accused's lawyer for the purposes of s 122 of the Evidence Act 1995."]

Ratio Decidendi

The accused was not obliged to produce the documents because, although the documents were accepted to fall within s 119, neither service of the s 97 tendency notice nor the calling of the witnesses disclosed the substance of the confidential communications with the accused's lawyer. Disclosure of anticipated evidence or underlying facts is not the same as disclosure of the privileged communications, and therefore the accused had not acted inconsistently with maintaining client legal privilege under s 122.

Court Disposition

Crown call for production rejected; client legal privilege maintained.

Orders

  • ["The accused was not obliged to answer the Crown's call for production of the documents."]