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

Supreme Court New South Wales

Medium Neutral Citation: R v Diallo & Ors (No 7) [2024] NSWSC 978 Hearing dates: 8 and 30 July 2024 Date of orders: 8 August 2024 Decision date: 08 August 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) 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. (2) Note that this ruling does not prohibit cross-examination of KL on the disclosures made in his solicitor's affidavit (see [60]). Catchwords: EVIDENCE – client legal privilege – whether privilege waived or lost – whether conduct inconsistent with maintenance of the privilege – multifarious complications – where witness faces unrelated murder charge – where expert reports provided to prosecution in those proceedings – where witness objects to production of reports on Prosecutor's call in these proceedings – Prosecutor's proper compliance with Harman undertaking – whether reports served under compulsion of law – broad or strict approach – consideration of authorities – brutal environment of the Commercial List EVIDENCE – loss of client legal privilege – relevant considerations – whether witness's contemptuous but courteous approach in witness box is a relevant consideration – considerations of fairness – where witness a child guided by lawyers – where Prosecutor denied more detailed understanding of witness's observations – where witness declines to answer questions – "no comment" – disclosures in present proceedings – where witness objects to giving evidence – privilege against self-incrimination – contents of solicitor's affidavit – disclosures striking "fine balance between candour and maintenance of privilege" – whether substance of evidence disclosed Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Criminal Procedure Act 1986 (NSW), s 151 Evidence Act 1995 (NSW), ss 38, 117, 118 119, 122, 122(2), 122(3)(a), 122(5)(a)(iii), 128, 131A Cases Cited: Akins v Abigroup Ltd (1998) 43 NSWLR 539 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 Harman v Secretary of State for Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36 Osland v Secretary, Deptartment of Justice (2008) 234 CLR 275; [2008] HCA 37 Osland v The Queen (1998) 187 CLR 316; [1998] HCA 75 R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066 Category: Procedural rulings Parties: Rex (Prosecution) Ibrahima Diallo (Defendant) AG (Defendant) AD (Defendant) Panashe Morgan Ryan Karise (Defendant) KL (Interested party) Representation: Counsel: E Balodis (Rex) R Wilson SC (Diallo) M Avenell SC (AG) B Robinson (AD) M Smith (Karise) M Fernando (KL)