New South Wales Supreme Court CITATION : Nye v State of New South Wales & ors [2003] NSWSC 366 HEARING DATE(S) : 28/11/03, 29/11/03, 23/4/03 JUDGMENT DATE : 30 April 2003 JUDGMENT OF : O'Keefe J DECISION : Leave refused to the defendants to withdraw their consent to the tender of Exhibits BJ and BK. CATCHWORDS : Practice - Procedure - Consent to tender of documents - Application to withdraw consent - Power of court - Inherent jurisdiction - Discretion - Criteria for exercise - Interests of justice - Fair trial of action - Status quo - No actual prejudice - No evidence of possible prejudice - Claim as to possible prejudice - Conscious and deliberate decision by experienced and competent counsel - Reasons for exercise of discretion appropriate notwithstanding that the moving party does not require reasons. LEGISLATION CITED : Evidence Act 1995: s 55 Supreme Court Rules: Part 40, rule 9 Garry Raymond Nye State of New South Wales Wayne Popplewell PARTIES : Wayne Desmond Gordon Peter James Hawley David John Barnett Director of Public Prosecutions FILE NUMBER(S) : SC 21458/96 COUNSEL : Plaintiff: Mr B Donovan QC with Mr D Baran and Mr C Thompson Defendant: Mr I Temby QC with Mr P Lakatos SOLICITORS : Plaintiff: Miss E Faccin - Carol & O'Dea (Sydney) Defendant: Ms G Fuller - Crown Solicitor's Office (Sydney) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'Keefe J 30 April 2003 21458/96 Nye v State of New South Wales & ors JUDGMENT Background 1 This is an application by the defendants for leave to withdraw their consent to the admission into evidence of two documents dated 6 August 1991 (Exhibit BJ) and 28 May 1992 (Exhibit BK), that were tendered and admitted without objection on 28 November 2002. 2 The documents had been part of a large volume of material that had been produced by the New South Wales Police Service. Such material was the subject of objection on the grounds of public interest immunity and legal professional privilege. The two documents in question had been the subject of a claim based on legal professional privilege made on behalf of the Director of Public Prosecutions. After having perused all the documents, I gave judgments on 13 September and 27 September 2002, the effect of which was that the Director's claim for legal professional privilege in relation to a passage in each of the documents fell within recognised exceptions to the rule relating to legal professional privilege. As a consequence I ruled that legal professional privilege did not attach to such passages in those documents. However, because of the nature of the material and the possibility that the defendants may wish to appeal, the relevant passages in the documents to which it had been held that legal professional privilege did not apply, were not included in the body of the judgment, but were appended to it in a sealed envelope. 3 The defendants, being dissatisfied with the decisions, sought leave to appeal to the Court of Appeal. Judgment refusing leave to appeal was given by the Court of Appeal on 7 November 2002, it being decided that: (i) The two passages from the documents afforded some basis for the conclusion that the privilege which would otherwise exist must give way to the plaintiff's application for access, as they might establish a relevant abuse – namely the continuation of a weak case against the plaintiff in order to assist the prosecution of stronger cases against another accused person or accused persons. (ii) No error had been demonstrated in the conclusion arrived at in the court below. 4 Heydon JA (as he then was) went on to lay out for the defendants the courses open to them in relation to the passages the subject of the decision. He said: "The refusal of leave at this stage does not prejudice the Director from doing any of the following things: (1) opposing the tender of the passages in question into evidence in relation to which tests under the Evidence Act will be relevant which are rather different from those which had to be considered by O'Keefe J; (2) at the end of the trial, applying for leave to appeal if that be necessary, or appealing as of right, if that is possible, and contending that a material reason for the Director failing, if the Director does fail, was any error which O'Keefe J was responsible for in the judgments under appeal." (para 22) 5 On resumption of the hearing of the trial junior counsel for the defendants informed the court that following the decision of the Court of Appeal, the defendants had "determined not to proceed to the High Court". I infer from that, and from what had appeared in the judgment of Heydon JA, that consideration was given by those advising the defendants as to the strategy to be adopted, or stance to be taken, in relation to the passages which had been the subject of the application to the Court of Appeal, and to the documents in which such passages appear. The tender of the documents 6 The passages in the relevant documents again arose for consideration on 28 November 2002, when there was argument as to whether or not they should be made available as part of the public record of the trial, or should remain the subject of a confidentiality order. Junior counsel for the plaintiff then indicated that he was proposing to tender them. As it transpired, the documents were not in court at the time of the proposed tender. However an accommodation was arrived at that there should initially be a notional tender of the documents so that argument about public or restricted access could proceed. When this had been done, junior counsel for the defendants said: "The position taken by the defendants is that the tender will not be objected to but there will be applications in relation to restricted access and applications in relation to confidentiality of the exhibit until such time as your Honour makes a final ruling about the documents. " This is clearly a reference to what had been said by Heydon JA, namely that whilst the passages were relevant as evidence going to the purpose of the Director of Public Prosecutions, a determination as to the Director's actual purpose would have to be made, one way or the other, in the findings of fact at the conclusion of the case. (per Heydon JA at para 16). Hodgson JA adopted a similar approach (at paras 30, 31 and 34). 7 Counsel for the defendants reinforced the statement set out in paragraph 6 above, as follows: "The position adopted on this side of the Bar Table is in the event that the tender, as it has been, is sought and your Honour is required to make a ruling, it would be the position of this side of the Bar Table that the entirety of the documents should go in ." (italics added) 8 Later in the day of 28 November 2002 the documents dated 6 August 1991 and 28 May 1992, in which the passages that had been ruled to be outside the ambit of legal professional privilege, were brought to court. The whole of each of such documents was tendered and admitted without objection. However, a decision as to whether the documents should be made public or should remain the subject of the existing restriction was deferred until a later date. 9 Later again on 28 November 2002, there was further argument directed towards the confidentiality order. The defendants argued that such an order should be made. During the course of this argument, junior counsel confirmed that whilst "the documents are in", further evidence from the defendants could be called (although there was an express reservation that no decision had been made in that regard) which "could assist … in determining what the purpose of the author of the document (sic) was". When it was suggested that, at the stage to which the trial had proceeded, the issue was admissibility, not the determination of the ultimate issue, and that admissibility was governed by the concept of relevance as set out in s 55 of the Evidence Act 1995, junior counsel for the defendants said: "I had (sic) no argument with your Honour's statement in that regard and that is why no objection is being taken to the matters in evidence before the court. The only issue is dissemination of the information until such time as your Honour arrives at a conclusion on the balance of probabilities." and "I do not argue it is not admissible. I accept that." 10 When it was pointed out to counsel that there had been no objection and that the admission of the documents had not been limited in any way, he said: "I wish to retract the consent and to formally object." This application was opposed by counsel for the plaintiff. The arguments 11 Written submissions were lodged on behalf of all parties and the matter was again argued on 23 April 2003, on which date decision was reserved. 12 There was no issue joined between the parties as to the existence of a power in the court to grant or refuse the application on behalf of the defendants to withdraw their consent to the tender of Exhibits BJ and BK. The defendants correctly conceded that the power was discretionary and arose out of the inherent power of the court to control its own procedure. The court regulates its procedure so as to ensure that the interests of justice are best achieved. Subject to any particular statutory enactment or specific provision in the rules, the interests of justice should be the guiding principle for the exercise of a discretion of the kind in question in the present case. No particular statutory enactment or specific provision in the rules has been relied on by the defendants, although reference was made to the power of the court to review or reconsider interlocutory orders pursuant to Part 40 r 9 of the rules. Such a discretion has to be exercised judicially, in accordance with proper principles, not capriciously. The fair trial of the action and the orderly conduct of proceedings before the court are relevant in this regard. So too are questions of possible prejudice to any of the parties. The timeliness of an application is also material, as is the reason for the application. Since the discretion is wide in its ambit, it is probably not possible to be definitive as to all the considerations that may be material to its exercise in a given case. Such considerations are likely to vary from case to case. 13 The defendants submitted that in exercising the jurisdiction in the present case, the court should take into account: (a) the circumstances of the case; (b) the circumstances in which the non-objection occurred; (c) whether any prejudice has been occasioned to the opposing party; (d) if so, whether that prejudice can be cured by means other than disallowing the application eg, by costs; (e) above all whether, having regard to all relevant matters, the parties will be accorded a fair trial. 14 In their submissions, the defendants conceded that the material in the documents was relevant to the proceedings but that as only a short time had elapsed between the consent admission of such documents and the application for leave to withdraw consent to their tender, there would be no discernable prejudice to the plaintiff. It was not claimed that there would be any actual prejudice to the defendants from the refusal to allow the consent to the tender of the documents to be withdrawn. The highest that it was put was as to a possibility of prejudice from a refusal – namely that "to do so may cause prejudice to the defendants by further disclosure if the court were to ultimately hold that the documents were privileged and to any potential appeal rights relating to this issue". (para 10). Analysis 15 There was no assertion of, or evidence as to, any actual prejudice. The only reasons advanced in support of possible prejudice were those referred to in paragraph 14 above. The first of these, namely possible "further disclosure", would be, and is, negated by protective orders of the kind recognised as appropriate in the initial decisions and by the Court of Appeal. The second reason is one which would seem highly likely to have been the subject of consideration well before the tender of the documents took place. Counsel for the defendants frankly stated in the course of argument that a decision was made not to seek special leave to appeal to the High Court from the decision of the Court of Appeal. It would seem unlikely that the same highly experienced and competent counsel would not have discussed, probably in detail, the stance that the defendants should take in relation to the two passages that had been the subject of my decisions and the decision of the Court of Appeal. The stance in fact taken was not to object to the tender of such passages, but rather to press for the admission of more than the passages themselves, so as to include the whole of each of the documents. It is that stance which has given rise to the status quo. 16 The status quo is that the documents have been tendered by consent. That which has been tendered extends beyond that which was the subject of the ruling at first instance, and the decision of the Court of Appeal. Senior counsel for the defendants very fairly indicated that should leave be granted he would "not be putting forward further argument and it may well be that the document will be admitted". Furthermore, he indicated that the defendants did not seek reasons for the decision and that if the court simply followed the course of marking the documents as an exhibit "we will be making no further request on the court". However, in my opinion, it is in the interests of justice, in accordance with the dictates of natural justice and a recognition of the need for openness and transparency in the decision making process of the court, that reasons be given. 17 It is true that not a great deal of time had passed between the consent to the tender of the documents and the application for leave to withdraw such consent. That is a consideration, but not decisive. I take it into account. However, no material that was unknown at the time of the tenders has been suggested; no new factual circumstance has been asserted. No evidence has been given as to any prejudice that would or may be suffered by the defendants should leave to withdraw such consent be refused. As I infer from the statements made by counsel for the defendants in the course of argument, a considered decision was made not to seek to reverse the decision of the Court of Appeal and a strategy devised in relation to the stance to be taken by the defendants in relation to the relevant passages in the documents. The stance taken was not to object to the passages but to press for more than the passages themselves. 18 In the conduct of a trial, decisions are made, often on the run, which may have a significance in the trial. Mistakes can be made in such circumstances. This is not such a case. There were in my view a number of deliberate decisions made in relation to the documents in question. The first was not to seek to reverse the decision of the Court of Appeal by applying for special leave to appeal to the High Court. Another was to consent to the tender of the documents, but to contend that they should not be made public. When these considerations and those referred to in the foregoing paragraphs, (including but not limited to those referred to in paragraph 13 above) are combined with the history of the matter, the absence of any demonstrated prejudice to the defendants and the fact that the orderly conduct of a trial militates in favour of parties being bound by considered and deliberate decisions that they make for the purposes of the trial, I am of opinion that it has not been shown that it is in the interests of justice that the defendants should be given leave to withdraw their consent to the tender of Exhibits BJ and BK. I am also satisfied that the fair trial of the action would not be prejudiced by the refusal of such leave. Conclusion 19 For the foregoing reasons, I refuse to grant leave to the defendants to withdraw their consent to the tender of Exhibits BJ and BK. ********** Last Modified: 05/02/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.