Lazar v R [2021] NSWCCA 132

Lazar v R [2021] NSWCCA 132

By raising as a ground of appeal that he was unfit to be tried and by adducing evidence contending he could not and did not give necessary instructions or understand legal advice, Mr Lazar has impliedly or imputedly waived legal professional privilege over those particular communications with his trial legal representatives relevant to fitness. The making of such submissions and the evidentiary material in support are inconsistent with maintaining privilege over the subject communications, and they are therefore open to examination. The waiver extends only to those communications forming the basis of the asserted lack of fitness at trial.

Parties
Applicant: Ian David Lazar; Crown: Regina
Jurisdiction
Australia
Judgment Date
24 June 2021
Procedural Posture
Criminal Appeal / Interlocutory Application – Access to Documents (pending Appeal)
Outcome
Interlocutory orders regarding production and access to documents; waiver of privilege found in part; directions given for future conduct of the matter.
Legal Topics
Legal Professional Privilege, Waiver of Privilege, Fitness to Stand Trial, Appeal Procedure
Criminal Law Evidence Legal Professional Privilege Waiver of Privilege Fitness to Stand Trial Appeal Procedure

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Parties

Ian David Lazar

Applicant

Regina

Crown

Procedural Posture

Criminal Appeal / Interlocutory Application – Access to Documents (pending Appeal)

Legal Issues

  1. 1 Whether the appellant has waived legal professional privilege over communications with his former lawyers in the context of an appeal on the ground of unfitness to be tried
  2. 2 Whether assertions in the grounds of appeal and evidentiary material constitute an implied or imputed waiver over those communications

Ratio Decidendi

By raising as a ground of appeal that he was unfit to be tried and by adducing evidence contending he could not and did not give necessary instructions or understand legal advice, Mr Lazar has impliedly or imputedly waived legal professional privilege over those particular communications with his trial legal representatives relevant to fitness. The making of such submissions and the evidentiary material in support are inconsistent with maintaining privilege over the subject communications, and they are therefore open to examination. The waiver extends only to those communications forming the basis of the asserted lack of fitness at trial.

Court Disposition

Interlocutory orders regarding production and access to documents; waiver of privilege found in part; directions given for future conduct of the matter.

Orders

  • Until further order, William Brewer, Barbara Coorey, Cassandra Simone and Bryan Wrench excused from further compliance with the Witness Orders dated 8 June 2021.
  • The legal representatives of Ian Lazar and the Crown are to confer regarding the means by which the Crown can obtain further evidence in response to the affidavits filed for Mr Lazar.