_ 244, | ey CATCHWORDS Administrative law - Judicial Review - Committal proceedirgs - Legal professional privilege - Access by defendant and advisers to statements of prosecution witnesses - Discretion. CHOO CHENG KUI v. KENNETH QUINN, JACK N. RYDER AND ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA No. 328 of 1984 Fox, McGreger and Beaumont, JJ. 25 September 1984. In THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT PEGISTRY eewr ve GENERAL DIVISION No. 328 of 1984 BETWEEN : CHOO CHENG KUI ss Applicant AND: KENNETH QUINN First Respondent AND: JACK N. RYDER Second Respondent AND: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Third Respondent o) Bs) jw] IB Judges making order: Fox, McGregor and Beaument, JJ. Date order made: 25 September 1984. Where made: Sydney. THE COURT ORDERS THAT: 1. The Court declinss to answer aquesticn3s 1 to 5 in the special case and answers question 6 in the negative. 2. The appellant pay one-half of the costs or the i) second and third respondents of the special case. 3. The proceedings be remitted to Beaumont, dismissal of the application. J. for IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 328 of i984 ) ) GENERAL DIVISION BETWEEN : "* CHOO CHENG KUI Applicant AND: KENNETH QUINN First Respondent AND: JACK N, RYD Second Respondent AND: ATTORNEY-GENERAL FOR _THE COMMONWEALTH OF AUSTRALIA Third Respondent CORAM: FOX, McGREGOR and BEAUMONT JJ. DATE 25 Sertember 1984 REASONS FOR JUDGMENT FOX This special case has been stated by a judce of the Court hearing an application under the Administrative Decisions (Judicial Peview) Act 1977. The application yreiates to > committal proceedings against the applicant. The first respondent is the presiding Magistrate, and the second respondent an informant. Several informations, with more than one informant, are being heard at the one time. The offences charged concern drug trafficking, and several witnesses have been broucht from England by the prosecution to qive evidence. The details of the facts are more fully dealt with in the reasons for judgement of McGregor J. ard Beaumont J. The questions raised concern access to the statement of one witness, although a ruling with reard to it will probably govern other cases. Apparently counsel for the informant had been making statements of prosecution witnesses available to the defence as the witnesses were called to give evidence, but some were very lengthy and counsel had scught one or more adjournments to consider them. This caused inconvenience, as well as delay and expense, and counsel for the pwrosecution on one or more occasions opposed the length of adjournments which were soucht. Eventually counsel for the defence called for all statements, in relilance upon s.12 of the Evidence Act 1898 (N.S.W.). It 1s not necessary to follow this call in relation to all statemencs. One made by the witness in question, a Miss Dine, was produced to the Magistrate, but access to 1t was opsesed by the prosecuticn. The grounds of opposition were two: (a) production was protected by leqal professional privilede and (b) the Maqistrate's discretion should be exercised against the grant of access. The Magistrate ra¥ declined to give access to the document, on the expressed groun of legal professional privilege. I am not clear whether the learned Magistrate gave reasons or said anything concerning the exercise of a discretion. We do not have any transcript or note of what he said. *% I should say in connection with my last observation that, in response to urgent requests on both sides, the Court has dealt with the whole matter with considerable expedition. The application was filed on 14 September, the svecial case was stated on 19 September, and heard by the Court on 20 and 21 September. A consequence has been that the judge hearing the case did not have time to consider the evidence and come to conclusions thereon himself, and the material in the special case has principally consisted of two competing affidavits, which are in conflict at a number of places. We have not seen the document which us the subject of debate. The argument before us has, however, helped to narrow the issues and explain what 1s really un dispute. An understanding of the facts was on occasion assisted by statements from the bar table. On that basis, 1t 1s possible to express an opinion on some matters. Iam, however, clearly of the view that 1t 15 a case in which this Court should not make anv order at this staqe. Nearly everything said in arqument has reinforced my belief in the unwisdom of interfering with the course of proceedings before the Magistrate. Certainly, there are no "exceptional circumstances" such as are referred to in Lamb v. Moss (1983) 49 A.L.R. 533 at 546, 564. The problem seems to me to be one which had very small beginnings, arising as 1¢ did out of an expressed need to have time to consider a statement. Difficulties tnereafter snowballed, and sensible, practical arrangements became elevated into claims to strict rights. The policy of the Justices Act 1902 (N.S.W.) in relation to committal proceedings is to emphasise their importance and to give defendants full opportunity by cross-examination of prosecution witnesses, objections to evidence, the giving of evidence, by addresses and by other proper forensic means, to avoid committal, or to test the case against them, before trial. The relevant provisions of the Evidence Act and of the Justices Act apply to committal proceedings in a Stats, 1n relation to Zederal charges by reason cf ss.68 and 79 of the Judiciary Act 1903 (see Lamb v. Moss (supra) at pe.560-561). I think counsel for the respendent virtualiy came to acknowledge, especially in the light of whac was said in Macdisen v. Goldrick (1976) 1 N.S.W.L.R. 651 and Attornev-General for New South Wales v. Findlay (1976) 9 A.L.R. 521, that a Magistrate has a discretion as to whether he grants access toa document produced to him on summons, or on call under s.12. He has af course to consider relevance (in the broad sense) and matters such as legal professional privilege and confidentiality, but he has inthe enda judicial discretion, to be exercised in the interests of the fair conduct of the hearing. The timing of access is of course a matter which he has to consider. and that may be important in a particular case. As I have said, we do not know, ain relation to Miss Dine's statement (or any other statement), what view, if any, he had in relation to his exercise of this discretion. So far as appears from the material before us, the informant has not established a sufficient basis upon which to claim legal professional privilege for Miss Dane's statement. The scope of this privilege has in recent years been dealt with authoritatively in Grant v. Downs (1976) 135 C.L.R. 674 and Baker v. Camebell (1983) 57 A.L.J.R. 749. It is not shown in this case that the purpose of the making of the statement was to submit it to legal advisers for advice or for use in legal proceedings. It 1s mot sufficient that 1t merely passes through the hands of solicitors, or 18 Drepared or used for purposes other than those mentioned. The statement rather had the character berne bv the statements commonly given to police, which are used, 1f at all, for further investigations or as proof in summary or committal proceedings. In the present case, one wonders again at how the poroblem came to be seen as one of such magnitude, when the maker of the statement was about to give the evidence to which it related. The defence would then have nad the statement, and, even 1£ that did not hapoen, counsel for the prosecution would have been under an obligation to draw attention to any material differences between the statement and the evidence. I gather from some of the evidence that Miss Dine has been maxing statements, and having discussions, with police officers and others, 1n England and here, relative to coronial proceedings, committal proceedings "and court ovoroceedings for a number of years, and part, at least. of what she has said relates to the charges against the present applicant. I understand also that counsel for the respondent has already had some sight of the subject statement. There is a question asked in the special case (No. 6) which enables mé to say, as I do, that in my view no relief should be granted, and the application should be dismissed. Otherwise the questions should not be answered. The applicant should pay half the costs of the second and third respondents of this stated case. I certify that this and the five (5S) preceding pages area true copy of the Reasons for Judament herein of his Honour Mr. Justice Fox. Af Associate Dated: 25 September 1984. IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NSW 328 of 1984 ) GENERAL DIVISION ) BETWEEN : *% CHOO CHENG KUI Applicant (Defendant) AND: KENNETH QUINN First Respondent AND: JACK N. RYDER Second Respondent AND: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Third Respondent Coram: Fox, McGregor and Beaumont JJ. Date: 25 September 1984 REASONS FOR JUDGYENT McGregor J. CHOO CHENG KUT (applicant) brought an apolicaticn pursuant to Administrative Decisions (Judicial Review) Act 1976 (Judicial Review Act) to review the decisions or conduct of KENNETH QUINN (firse respondent) JACK N. PYDER (secord respondent) aun respect of certain decisions to be referred to hereafter. The ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA (the Attorney General) was also named as a respondent. The applicant, said to be a resident of Singapore, was brought to this country pursuant to certain extraditior Proceedings. On 20 June 1984 he was charged, on information of one or both the first and second respondents, in relation to conspiracies with other persons named to commit offences against $.233B of the Customs Act 1901. Committal proceedings were commenced before the first respondent at the Paddington Court of Petty Sessions which are presently continuing and have continued now for some 12 days. These wroceedings commenced on 5 September last on which date the applicant was charged with three further offences of conspiracy. It is said that the committal proceedings may last for six weeks. It is common ground that the respondents, at least the second respondent, has scrovided for the defence extensive particulars of overt acts, a copy of the depositions taken from prosecution witnesses called in Sydney for the extradition proceedings (though these were not all the f=] A i + Tt ~ ~ witnesses subseauently to gqiva evidence at oo a jw a im tf) pA A. w rary B < i) % 1D 1h proceedings): also as witnesses hitherto were to the defence a copy of the statement attributed to that witness. On Friday 7 Sepotember 1984, a witness, was called: a copy of such a statement was given to the representatives of the applicant so that it remained in their possession during the week-end. On Monday 10 Seotember 1984 an applicaticn was made by counsel for the apolicant for an advournment on the basis that the length of the statement wnich had been received only as sne entered the witness box was such that further time to prepare cross examination was required. The statement was recovered by the vrosecution from the representatives of the defence and returned to the custody of the learned Magistrate. Subsequently argument ensued as to whether the defence were entitled to have access to it. The learned Magistrate after nearing arcument, including argument by or on behalf of the respondents that tne statement was subject to legal professional privilege, refused to allow such access. It is in respect of this "decision" of the first resoondent that these proceedings were brought. Subsequently the matter came before a Judge of this court who gave certain directions; then the matter was listed for hearing whereafter a case was stated for the consideration of this Court in which certain questions are posed for its consideration. Senior counsel for the applicant has submitted that by reference to the ordinary principles of justice the applicant's advisers have a right to have access to the statement. He referred to authority including Baksh v. The Oueen C1958] A.C. 167; Sankev ov. Whitlam 1979-1980 142 C.L.R. 1; Maddison v. Goldrick (1976) 1 N.S.W.L.R. 651, oartaicularly at p.663; the same case reported in the High Court sub.nom Attornev-General for N.S.W. ov. Findlay (1976) 9 ALR 521, particularly at ».522. Senior counsel for the respondents submitted that a iT ne legal professional privilege attached to the statement; that Magistrate then had a discretion. Alternatively, he submitted, that 1f there could not be sustained a claim for legal professional privilege, the Magistrate had a discretion which was not shown to have heen wronaly exercised. He referred to Maddison v. Goldrick. He submitted that on the material in the affidavit of Gregory Eugene Smith, no auestion of ¢.g. identity -* of the applicant arose and that the applicant's lawyers had already been provided with far more material by the prosecution than 1s usual in such proceedings; that defence lawyers asa matter of practice and procedure usually only cbtain ccoies of statements of important witnesses in such proceedings once cross-@xamination commences and they have established that the witness has used the statement to refresh memory. Having regard to the exigencies of the situation, 1t 15 not approvriate that I should attempt to recapture or state fully the arguments submitted on either side. Pursuant to 3.16 of the Judicial Peview Act this Court has a discretion to make the orders referred to in that secticn. One of these orders is (sub-s.1l(a)) to set aside the deczsion in respect of which the application 18 made; another (sub-s.1l(c)) to declare the rights of the parties in any matter to which che decision relates; and, further, (sub-s.1(d)) to direct any of the parties, 1.e. parties to the application fer review, to ao any act. These sub-sections could apply to these sroceedings, though they have not been explicitly referred to in oral argument. We are asked to answer certain questions in the stated case referred to as to the obligation of the Magistrate or the entitlement of the applicant to make avairlable or to be given access to the statements of witnesses preposed to be called by the prosecution in committal proceedings. The passage upon which particular reliance was made by the applicant in Maddison ~~ v. Goldrick (supra) at p.663 per Samuels J.A. read - "Once a proper call has been made under s.12, as I think 1t was, there being then no claim for professional privilege, the Magistrate clearly had a discretion to make the documents available to the defence if he thought the circumstances warranted that course. There could be no question cf his directing the prosecution to produce them by dint only of some inherent power which, 1t was contended, he did not possess. The documents were produced by the exigencies of the subpoena process; and a necessary part of that process is the Court's discretion to make the material available to the party making the call." Later, he said, p.666 - ",.e,once the call made under 5.12 complies with formal requirements, the documencs must be vroduced to the magistrate (at least where no claim for legal professional rivilece 1s made), rhe magistrate, before exarcising his discretion to make them available to the defence, must be satisfied that they are reculred fer some legitimate forensic purpose. Tn the eresent case, in my opinion, such a purvose was sufficiently disclosed. But 1t might not be enough for counsel to indicate that his purpose in seeking access to witnesses' statements was merely to have the means un advance of detecting discrepancies between the witnesses' testimony in court and the statements previously made if any such discrevancies were to emerge." > a The "legitimate forensic purpose" was to shew "that the admissions alleqedly made by the defendant in the recerd of interview could have been derived fron information obtained by the police from witnesses....whom they had interviewed" (p.$57). This decision was the subject of an application for special leave um the High Court in respect of which the Chief Justice, after indicating that special leave would not be granted. said that he would refuse that application for the reason that he "had no sufficient doubt of the propriety of the judgment." I have noted that in the Reasons of Samuels Jg.A. in the Supreme Court, there was reference to the discretion of the Magistrate, a matter which apparently was also accepted by the learned Chief Justice in his Reasons. We were told that the Magistrate refused to give access to the statements because he was persuaded that a claim of legal professional privilege to the documents was made out; but not that he has considered whether he should exercise the discretion otherwise referred to in the authorities lastly cited. Accordingly, if there had not been established a claim for leaal professional privilege, on the evidence so far in this case the learred Magistrate would still have to exercise the discretion to which Samuels J.A. referred. Sea alsc The Commissioner for Railways v. Small (1938) 38 S.R. 564 (Smail) at p.574: National Emplovers' Mutual General Association Utd. v7. Waind (1978) 12 N.S.W.L.R. 372 (Waind) at 9.384 (affirmed by the High Court at (1979) 141 C.L.R. 684). We are, however, ourselves asked to exercise a discretion under the Judicial Review Act 5.16. This Court has already indicated that in respect of the exercise of 1ts power in . relation to the hearings in committal proceedings, those oowers should be exercised only in the most excentional cases, especially where applications are made during the cours? of such proceedings. See Lamb v. Moss 49 ALP 533 at p.564. Orally, counsel has not attempted to contend that there has been any denial of natural justice here; with respect, such a contention would be untenable anyway. His submission is that as a matter of right the statement | being relevant, and not the subtect of privilege, access should be given to it at the request of the applicant's advisers. This argument appears to overlook the discretion referred to Samuels J.A. 1n the passage quoted and supported, it would appear, in the Reasons of the learred Chief Justice of the High Court and the authorities of Small and Waind. The test which one relying on leqal professional privilege must satisfy is as propounded in Grant v. Downs (1976) 135 C.L.R. 674 at p.688. The privilege will travel bevond the underlving rationale unless confined to - ",... those documents which are drought into existence for the sole purpose of submission te legal advisers for advice or for use in lecal oroceedings...." If anything, the orinciple propounded by Jacobs J. (0.634) was less stringent; and considerably less restricted as formulated by Barwick C.J., pp.677,678. Lord Wilberforce in Waugh v. British Railways Board (19803 A.C. 521 at op.532,533 refused to, or did not, accept the test adopted by the majority in Grant v. Downs: he agreed with Barwick C.J. and in substance with the dissenting judgment of Lord Denning in the Court of Appeal in Waugh. Lord Simon of Glaisdale (p.537) and Lord Edmund-Davies (pp.543,544) agreed with the test propounded by Barwick C.J. On the rather meagre evidence as to the statement of the particular witness and the circumstances under which it was taken, I am not able to say that the claim for legal professional privilege (the onus being on those who seek to maintain it) has been made out. And it 1s apparent that the learned Magistrate has not yet considered the rore general discretion to which Samuels J.A. referred. However, having regard to the decision in Lamb v. Moss (supra) which 1s binding on us and which, with respect, I agree, I have not been able to discern any factor in the circumstances of this case which make the matter "exceptional" or "most exceptional"; and, as has been indicated, any decisien of the Magistrate was made in the course of proceedings. On the evidence available it 1s not appropriate to make any general observations concerning legal professional priviledge in committal proceedine- attaching to material in the hands of the informant. The auesticns submitted for our consideration in the stated case are set cut below - i. Is the Applicant entitled to access <0 the statements of the witnesses proposed to be called by the Prosecuticn in the commital proceedings? Ww If g0 wher and in what circumstances is the Applicant I am entitled to such access? Are the statements of the witnesses described in paragrasdh l above or any of them, the subject of a proper claim of legal professional privilege? If the Applicant has no such entitlement as is described 1n paragraph 1, does the Magistrate nevertheless have a discretion to direct that the Prosecution grant access? If there is a discretion as described 1n paragraph 4, rh ri) should 1t have been exercised in favour of the Defendant in this case? of the view that for reasons already referred to I should decline to answer any of the foregeng questions. Court Should the 2urzsdicticn of this Ceurt under the o Administrative Decisions (Judicial Review) Act 1377 »b exercised in relation to the refusal of the Magistrate to grant the Applicant access to documents produced to the Court 1n the present committal proceedings? No. The matter will be remitted to the learned Judge of thzs to make formal orders, including order as to costs, dismissing this application. | carbtyie c- 5 and the 4 Preudmg -sges re a true copy of the Restos fer Judgrrent beren of his Honour i+ Jostice McGregor. Sta hrhoa / Cistiey Associate Dated? IS Sep ri 19Py IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. 328 of 1984 BETWEEN : CHOO CHENG KUI : Applicant AND: KENNETH QUINN First Respondent AND: JACK N. RYDER Second Respondent AND: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Third Respondent CORAM: Fox, McGregor and Beaumont, JJ. DATED: 25 September 1934. REASONS FOR JULGMENT BEAUMONT. J.: This is a special case reserving a number or questions arising in an application for judicial review under the Administrative Decisions (Judicial Review) Act, 1377. In that application, review 13 sougnt of certain decisions made by the first respondent, a stipendiary magistrate, in the conduct of committal proceedings against the applicant. The second respondent is one of the informants in those proceedings. In the application for review, the applicant sought various forms of relief but the Principal relief sought was the grant of access to proofs or statements of the witnesses to be called on behalf of the prosecution in the committal proceedings. ot The applicant has been charged with conspiracy to commit offences against a law of the Commonwealth and with common law conspiracy. During the course of the committal proceedings, which are part heard, counsel for the applicant made a call under 3.12 of tne Evidence Act, 1898 (N.S.W.) ror a copy of the statement or a witness then giving evidence. Counsel for the prosecution produced the statement to the first respondent but claimed legal professional privilege in respect of the document. The first respondent upheld the claim for privilege. The claim for privilege was based upon a statement made by Gregory Eugene Smith in these terms: "Tl. Iam Principal Legal Officer of the Special Prosecutions Section, Director of Legal Services Office, Commonwealth Attorney-Ceneral's Department, Sydney, and have the carriage of the prosecution of Choo Cheng Kui on behalf of the Director of Public Frosecutions pursuant to an arranqement between the Director of Public Prosecutions and the Secretary, Commenwealth Attorney-General's Department. 2. I commenced duties in my present pesition on 28 February 1983. Prior to that date, for . 3. a period of 18 months I had been employed as an Instructing Solicitor for the Stewart Royal Commission in Inquiry into Drug Trafficking. 3. In February 1983 the Governments of the Commonwealth and New South Wales had appointed a six man Task Force comprising Detective Inspector J. Ryden and Detective Sergeant M. Coughlin of the New South Wales Police Force; Mr. Graham SBlewitt, Principal Legal Officer.of the Office of tne Solicitor for Public Prosecutions and Clerk of the Peace; Detective Sergeants 8B. Provost and R. Cramp of the Australian Federal Police and Mr. Phillip Bradley, then an Acting Principal Legal Officer in the Deputy Commonwealth Crown Solicitor's Office, Sydney. The role of this group which became known as the Joint Prosecuting Team, was to investigate the activities of several or the Tormer associates of Terrence John Clark, a3 recommendad by Mr. Justice Stewart in a Confidential Interim Report. 4. In April 1983 Mr. Bradley was seconded to the Stewart Royal Commission as Instructing Solicitor and at the direction of the Deputy Crown Solicitor, I took over his role asa member of the Joint Prosecuting Team (J?PT). I. have been informed by Mr. Graham Blewitt and do verily believe that prior to my joining the J.P.T. the police members of the team met regularly with the lawyers, who gave advice concerning the interviewing of potential prosecution witnesses and tne qathering of other evidence with a view to launching prosecutions. From the time of my joining the J.P.T. I reqularly meat with the other members or the J.P.T. and requiarly tendered legal advice at those meetings and over the telephone. From tne very beginning 1t was obvious to me that the cases would be mainly based on the evidence of co-conspirators who would require indemnities against prosecution. The discussions included consideration of individuals to be interviewed. I have been informed and do verily believe that prior to my joining the J.P.T. the two lawvers had advised that the statements of potential co-conspirator witnesses should be obtained on the basis that the statement was taken initially for the purpose of obtaining indemnities. This 4. advice continued to be given by me and Mr. Blewitt after I joined the team. AS statements were taken, coples were forwarded to Mr. Blewitt and myself. 5. In June and July 1983 brzefs of evidence were provided to me and Mr. Blewitt and during and after consideration of these, further discussions took place with the police members of the J.P.T. Senior and junior counsel were briefed by me and advice was taken -. concerning the evidence, the witnesses, indemnities and other matters. 6. During my period as a member or the J.P.T. I have written several reports to senior officers of the Attorney-General's Department seeking the grant of indemnities by the Attorney-General for the various witnesses whose statements were submitted to me. With those reports I forwarded copies of the statements and other relevant material and attended on several occasions in Canberra with discussions with senior officers concerning these requests for indemnities. On one occasion in 1983 I accompanied Mr. Herman Woltring, then Senior Assistant Secretary of the Justice Division of the Attorney-General's Department to the office of the Attorney-General in Parliament House where we obtained from the Attorney's private secretary a number of signed indemnities as well as the papers I had submitted plus reports signed by Mr. Woltring. 7. Since March 1984 the Director of Public Prosecutions, Mr. Ian Temsy ¢.C. has taken over the major responsibility for aqdranting indemnities to witnesses and in August 1984 [I forwarded a lengthy recort to Aim with supporting statements and other documents seeking the grant of indemnities from him for further co-conspirator witnesses. These indemnities were granted by him. 8. Also in August 1984 I forwarded a detailed submission to the Solicitor-General for New Zealand seeking indemnities for a number or co-conspirator witnesses wno apoeared to have committed offences in New Zealand. rt had several telephone conversations with the Solicitor-General, Mr. Paul Neazor Q.C., concerning these applications and subsequently received ° 5. indemnities signed by him for various witnesses. 9. During the period April 1983 to date I have attended on several occasions cn the office of the Solicitor-General for New South Wales, Miss Mary Gaudron Q.C. to take part in discugsions in suppert of the qrant of undemnities by the New South Wales Attorney-General in respect of State offences apparently committed by various co-conspirator witnesses un this case. Mr. Graham Blewitt was also present at these meetings as-~- were on one occasion counsel briefed by me to conduct the extradition proceedings. In addition to statements being taken from co-conspirators, a number of statements were taken from police and lay witnesses for the purpose of the various prosecutions. 10. In my view the sole purpose of the interviewing and taking of statements was for the purpose of conducting the prosecution against Choo and other persons implicated by the witnesses. I therefore claim 'legal professional privilege in relation to all of the 3zaid statements." The questions reserved for the Court by a single judge pursuant to s.25(6) of the Federal Court of Australia Act, 1976 ar2 as rollows: "Ll. Is the applicant entitled to access to the statements of the witnesses proposed to be called by the prosecution in the committal proceedings? 2. If s0, when and in what circumstances 1s the applicant entitled to such access? 3. Are the statements of the witnesses ... the subject of a proper claim of legal professional privilege? 6. 4. If the applicant has no such entitlement as is described in .... 1, does the (first respondent) nevertheless have a discretion to direct that the prosecution grant access? 5. If there is a discretion as described in --.- 4, should it have been exercised in favour of the (applicant) in this case? 6. Should the jurisdiction of this Court under the Administrative Decisions (Judicial Review) Act, 1977 be exercised in relation to the refusal of the (first respondent) to grant the applicant access to documents produced ee. in the present committal proceedings?" In Maddison v. Goldrick C1976] 1 N.S.W.L.R. 651, the Court of Appeal of the Supreme Court of New South Wales held that, by the combined operation of s.12 of the Evidence Act, 1898 (N.S.W.) and s.26 of the Justices Act, 1902 (N.S.W.), am accused in committal proceedings was entitled to an order that statements of witnesses to be called by the prosecution be produced to the Court. So far as relevant, s.12 of the Evidence Act provides that any person present at any legal proceeding "wherein he might have been compellabls to... produce documents Dy virtue of a subpoena or other summons ... issued and served for that vurpose snall bea compellable to ... produce documents then in his possession and power in the same manner ... as if he had been duly subpoenaed or summoned for that purpose." By $.26 of the Justices Act, a justice 1s empowered to 1ssue a summons toa person to produce any document or writing in his possession which is required for the purposes of evidence. Samuels, J.A., Street, C.J. and Moffitt, P. concurring, after holding that the call under s.12 in that case was a proper one, went on to consider the question of access (at pp.662-3): * "In my opinion, therefore, the documents called for - under 8.12 were sufficrently described, and the call was a proper one. Hence, the learned magistrate acted correctly in directing that the documents be produced to the court to enable him to inspect them and to judge whether they should be made available to the defence. In the event they were; and the question 13 whether the magistrate fell into error in permitting counsel that access. Before dealing with this point it as necessary to note the general course of Mr. Porter's argument. It is basically founded upon the proposition that counsel called for 'the police brief', and by that means was seeking (by the illegitimate use of 3.12) a discovery which the rules of criminal procedure do not permit. I reject this part of the argument, not because I question the principle that there is no discovery in criminal cases, but because, for the reasons I have expressed, [I regard the call as a proper exercise of the rights conrerred by s.12, read with s.26, and thus as involving no abuse of the subpoena process. Mr. Porter then qoes on to contend. however, that the statements which counsel wa3 permitted to see were protected from production by the rules relating to legal professional privilege. Th23 point was never taken before the learned maqistrate. The cases cited do not touch it. O''Shea's case and Charlton's case concern the power of a magistrate or a judge to order production to the defence of the statements or Crown witnesses, where no process to compel the production of documents had been 1ssued. In neither case was any question or professional privilege raised; and Small _s case deais with the limits of a subpoena, and had, for the reascns I have mentioned, no apolication. Once a proper call had been made under s.12, as I think it was, there being then no claim for professional privilege, the magistrate clearly had a discretion to make the documents available to the defence if he thought the circumstances warranted that course. There could be no question of his directing the prosecution to produce them by dint only of some inherent power which, 1t was contended, he did not possess. The documents were produced by the exigencies of tne subpoena process; and a necessary part cf that process 1s the court's discreticn to make the material available to the party making the call: Small's case. Here the magistrate gave counsel access because the documents were relevant-and clearly they wera-to the legitimate defence which counsel had disclosed, and which he proposed to establish by using them in cross-examination of Sgt. McDonald." An application to the High Court of Australia for leave to appeal against the decision of the Court of Appeal in Maddison Vv. Goldrick was refused (sub nem. Attorney-General for New South Wales v. Findiay (1975) 1 A.L.R. 521). In refusing leave, Barwick, C.J... Gibbs and Jacobs, JJ. concurring said (at p.522): "IT understand that the Supreme Court decided in this case no more than, first, that statements of persons made 43 persons who would or might be called as witnesses ina preliminary inquiry brought before a magistrate can be subpceenaed, or called for when the statements ar2 in court. and must, in e1lther case, be produced to the magistrate. Notwithstanding the use before tne maqistrats and in arqument before the Supreme Court of such an inappropriate expression as 'the police brief', the Supreme Court clearly treated the cail in fact made 3. in this case before the magistrate as limited to such statements of witnesses. Secondly, that, subject to the establishment of a claim of privilege, such statements may, in the discretion of the presiding Magistrate, be made available in whole or in part, according to his discretion, for inspection by the defendant or his advisers: the time at which the inspection is allowed is a matter for the magzstrate. ot Thirdly, that such statements of witnesses are not as a class subject to professional privilege. It is to be noted that no claim of privilege in relation to any particular statement of a witness based on public interest of the kind dealt with by Lord Reid in Rv Lewes Justices; Ex parte Secretary of State for Home Department (£19731 AC 388 at 400; sub nom Rogers v Secretarv of State for Home Department C1972] 2 All ER 1057 at 1060, was made inthe case and no material to ground such a claim was advanced in the case. On this understanding of the judgment of the Supreme Court, I would refuse the application for special leave for the reason that I have no sufficient doubt of the propriety of the judgment of the Supreme Court, so understood in respect of the matters to which I have referred. As is usual, the refusal of special leave does mot confirm any cther aspects of the matter or statements dealt with or made in the judament of the Supreme Court. I would refuse, for these raason3, the application." The discretion of the Court to make available, in whole or in part, documents for inspection by the defendant or his advisers, veferred to by Barwick, C.J., was further considered by the Court of Appeal of thea Supreme Court of New South Wales in National Emplovers' Mutual General Association Ltd. v. Waind £19783 1N.S.W.L.R. 372. Moffitt, 10. P., Hutley and Glass, JJ.A. concurring, emphasised (at p-383) that the documents are in the Court's control and "are used on its responsibility so far as properly required for the purpose of the proceedings". The judicial discretion was there described as one "to permit the use cf the documents in such way as (the Court) considers will aid a proper decision of the issues between the parties, by facilitating the elucidation of the truth in respect of relevant facts". Reference was made (at p.385) to the limitation on the exercise of the judge's discretion to allow inspection to cases where the documents are apparently relevant or are on the subject of the litigation: "Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document 1s not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender 1t, or use 1t in crog3s-examination." Apart from the claim of legal prcefessional privilege, to be considered shortly, there would appear to be no special circumstances ta justiry tne first responcent's denying the applicant or his advisers access 'to the statements of witnesses 1n the committal proceedings (cf. Alister v. R. (1983) SO A.L.R. 41 per Gibbs, C.J. at p.46). When inspection should take place is a matter within the discretion of the first resvondent, such discretion to be exercised judicially in a way which ensures, if possible, ll. a fair treatment of the interests of all concerned. It is now settled that legal professional privilege 1s confined to documents which are brought into existence for the sole purpose of their being submitted to legal advisers for advice or use in legal proceedings, existing or anticipated (see Grant v. Downs (1976) 135 C.L.R. 674; Baker v.Campbell (1983) 57 A.L.J.R. 749). In the present case, 17 a relationship of solicitor and client be assumed to exist between Messrs. Blewitt and Smith and the second respondent, itself a doubtful matter, the requisite purpose has not, in my opinion, been established. The purpose or at least one purpose underlying the preparation of the statement produced to the Court was to obtain immunity for the witnesses. In my view, such a purpose is not of the kind necessary to be established to make out a claim for legal professional privilege. It follows, in my opinicn, that the first respondent erred in usholding the claim for privilege and thereby denying the applicant and his advisers access to the statement cf the witness. It 1s next necessary to consider whether relief should be granted pursuant to the Administrative Decisions (Judicial Review) Act. In my opinion, having regard to the limits on the Court's power to intervene on a point of ee ae - =e -_--- - - 12. procedure arising in a part-heard committal proceeding described in the decision of the Full Court in Lamb v. Moss (1983) 49 A.L.R. 533 at pp.544-6, relief should not be granted. The matters in question are, I think, best lert to the discretion of the first respondent who 1s seized of the conduct of the committal proceedings. He will, no doubt, ensure that the judicial discretion vested in him to permit access to the applicant and his advisers will be properly exercised. In the circumstances, I would decline to answer questions 1 to 5 inclusive in the special case. T would answer question 6 in the negative. The matter should be remitted to a single judge for formal dismissal of the application. In the result, 1t is appropriate that the appellant should pay one-half of the seccnd and third respondents' costs.