20 April 2020
Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth)  NSWCCA 48
The NSW Court of Criminal Appeal (NSWCCA) has unanimously overturned a decision of the NSW Supreme Court (NSWSC), confirming that in criminal matters, the prosecution’s duty of disclosure does not override a claim for legal professional privilege.
This case arises out of the prosecution of Mr John Alan Kinghorn, who is charged with dishonestly influencing a Commonwealth public official in relation to his tax affairs. The accused seeks a stay of the prosecution on the basis that information obtained from him during compulsory examinations by the Tax Commissioner has been improperly disseminated to the prosecution. The accused caused subpoenas to be issued to the Commissioner of Taxation (Tax Commissioner), the Commissioner of the Australian Federal Police (AFP Commissioner) and the Commonwealth Director of Public Prosecutions (CDPP) seeking documents showing the nature and extent of that dissemination. Each of the Commissioners and the Director objected to the production of certain documents on the grounds of legal professional privilege (privilege).
In response, the accused contended, amongst other things, that:
- the Crown’s opposition to his application for a stay was inconsistent with the maintenance of privilege over documents that fell within the prosecution’s duty of disclosure, and so there had been an imputed waiver of any privilege. This argument was similar to that accepted by the Supreme Court of South Australia in R v Bunting (2002) 84 SASR 378
- the CDPP cannot claim privilege as the ‘client’ in respect of advice she receives from lawyers in her office for the purpose of advising other government agencies
- privilege did not attach to the relevant documents because they were made in furtherance of an offence (namely a 2007 disclosure of material by the Australian Taxation Office (ATO) in contravention of tax secrecy provisions).
In R v Kinghorn (No 4)  NSWSC 1420, the primary judge accepted that the Crown’s opposition to the stay application meant there had been an imputed waiver of privilege in some parts of the relevant documents, and otherwise rejected the accused’s arguments. The parties appealed the decision.
Reasoning of the NSWCCA
Broadly speaking, the NSWCCA unanimously upheld the Director’s and Commissioners’ appeal and dismissed the accused’s appeal.
First, the Court found that the test for whether a prosecutor (or prosecuting agency) is to be imputed with waiver ‘is not informed by the prosecutorial duty of disclosure and an imputed waiver does not arise, per se, from the continuation of a prosecution without disclosure of privileged material that is caught by the duty’ (at ). The Court seemed to accept that the doctrine of imputed waiver, as articulated by the High Court in Mann v Carnell (1999) 201 CLR 1, is limited to preventing a holder of privilege from abusing that privilege to ‘create an inaccurate perception of [a] protected communication’. It is not a means of ‘serving a wider public interest in ensuring a fair trial’ (at ).
Secondly, the Court found that the CDPP’s functions as ‘lawyer’ (in advising other government agencies) and as ‘client’ (in receiving advice from lawyers in her office) are not mutually exclusive, and therefore that the CDPP’s privilege in a communication within the CDPP’s office is not lost merely because it relates to the CDPP’s function of advising other agencies.
Finally, the Court found that the 2007 disclosure by the ATO was authorised by an exception to the relevant tax secrecy provision, and so relevant documents were not prepared in furtherance of an offence.
This is the first decision of an intermediate appellate court to directly consider the interaction between the prosecution’s duty of disclosure and legal professional privilege. The decision provides some certainty for law enforcement and regulatory agencies, including investigators and prosecutors, that the prosecution’s duty of disclosure in a NSW court does not override a claim for privilege.
Although the prosecution may decide to waive privilege in certain material in the discharge of its duty of disclosure, it cannot be compelled to produce material the subject of a valid privilege claims by way of subpoena or other compulsory process.
Text of the decision is available at: https://www.caselaw.nsw.gov.au/decision/5e7712cde4b096e236c21910
Kristy Alexander, Jessica Parker and Nithya Ramesh (AGS) acted for the Commissioner of Taxation and the Commissioner of the Australian Federal Police.
Peter Melican (AGS) was briefed as counsel for Commissioner of Taxation and the Commissioner of the Australian Federal Police on the appeal, with Craig Lenehan SC and Matthew Varley of the NSW Bar.
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