R v Diallo & Ors (No 7) [2024] NSWSC 978

R v Diallo & Ors (No 7) [2024] NSWSC 978

Privilege over KL's expert reports was not lost or waived. Both the service of the reports in KL's own criminal proceeding and the limited disclosures in KL's solicitor's affidavit were not inconsistent with maintaining privilege. The conduct was either in ethical and practical compliance with obligations in the related case (possibly amounting to disclosure under compulsion of law) or did not amount to disclosure of the substance of the privileged evidence. Client legal privilege accordingly remains, and no order for production should be made.

Parties
Prosecution: Rex; Defendant: Ibrahima Diallo; Defendant: AG; Defendant: AD; Defendant: Panashe Morgan Ryan Karise; Interested Party: KL
Jurisdiction
Australia
Judgment Date
08 August 2024
Procedural Posture
Criminal / Pre Trial (procedural Ruling on Privilege/subpoena)
Outcome
Privilege maintained; production declined
Legal Topics
Client Legal Privilege, Loss/waiver of Privilege, Self Incrimination, Subpoena/production of Documents, Protected Confidences, Juvenile Accused, Expert Psychological/psychiatric Reports
Evidence Criminal Law Procedure Client Legal Privilege Loss/waiver of Privilege Self Incrimination Subpoena/production of Documents Protected Confidences +2 more

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 5 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

Rex

Prosecution

Ibrahima Diallo

Defendant

AG

Defendant

AD

Defendant

Panashe Morgan Ryan Karise

Defendant

KL

Interested Party

Procedural Posture

Criminal / Pre Trial (procedural Ruling on Privilege/subpoena)

Legal Issues

  1. 1 Whether client legal privilege over psychologist and psychiatrist reports was lost or waived by disclosures or conduct
  2. 2 Whether service of reports on prosecution in related criminal proceedings was disclosure under compulsion of law
  3. 3 Whether the manner and extent of disclosures in solicitor's affidavit amounted to waiver of privilege

Ratio Decidendi

Privilege over KL's expert reports was not lost or waived. Both the service of the reports in KL's own criminal proceeding and the limited disclosures in KL's solicitor's affidavit were not inconsistent with maintaining privilege. The conduct was either in ethical and practical compliance with obligations in the related case (possibly amounting to disclosure under compulsion of law) or did not amount to disclosure of the substance of the privileged evidence. Client legal privilege accordingly remains, and no order for production should be made.

Court Disposition

Privilege maintained; production declined

Orders

  • Noting that client legal privilege is not lost pursuant to s 122 of the Evidence Act 1995 (NSW), decline to order production of the documents called upon as if under subpoena.
  • Note that this ruling does not prohibit cross-examination of KL on the disclosures made in his solicitor's affidavit (see [60]).