New South Wales Supreme Court CITATION : R v Wilkinson (No. 3) [2009] NSWSC 293 HEARING DATE(S) : 1 April 2009 JUDGMENT DATE : 1 April 2009 JUDGMENT OF : Johnson J at 1 EX TEMPORE JUDGMENT DATE : 1 April 2009 DECISION : Waiver of client legal privilege concerning communications between 13 October 2008 and 15 December 2008 as between the Applicant and his previous legal representatives with respect to the Applicant's plea of guilty to murder. CATCHWORDS : CRIMINAL LAW - application for leave to withdraw plea of guilty - Crown to call as witnesses on application the previous counsel and solicitor of applicant - extent of waiver of client legal privilege LEGISLATION CITED : Evidence Act 1995 CATEGORY : Procedural and other rulings CASES CITED : Mann v Carnell (1999) 201 CLR 1 PARTIES : Regina (Crown) Paul James Wilkinson (Applicant) FILE NUMBER(S) : SC 2008/2802 COUNSEL : Mr JP Kiely SC (Crown) Mr RF Sutherland SC (Applicant) SOLICITORS : Director of Public Prosecutions (Crown) Donnelly Lawyers (Applicant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST Johnson J 1 April 2009 2008/2802 Regina v Paul James Wilkinson (No. 3) JUDGMENT (on waiver by Applicant of client legal privilege - T100) 1 JOHNSON J: I am presently hearing an application by the Applicant, Paul James Wilkinson, to withdraw a plea of guilty entered by him on 12 November 2008 to a charge of murder. 2 A number of documents, including affidavits of the Applicant and reports of medical practitioners, together with the Crown brief, have been tendered on the application. Oral evidence will shortly be adduced on the application for leave to withdraw the plea of guilty. 3 The Crown has raised, at this point, the question of waiver of client legal privilege concerning communications that the Applicant had with his previous legal representatives, Mr Terry Healey of counsel and Ms Frances McGowan, solicitor. 4 The principal issues arising on this application appear to relate to the period 13 October 2008, when I found that the Applicant was fit to be tried, and 12 November 2008, when he entered a plea of guilty to murder. It is the case that Mr Healey and Ms McGowan ceased to be the legal representatives for the Applicant on 15 December 2008, when they were granted leave to withdraw. 5 The affidavit of the Applicant, affirmed on 26 March 2009, reveals a number of communications that took place between him and his then legal representatives in the period from 13 October 2008 to certainly, 12 November 2008. I note that Mr Healey and Ms McGowan continued to appear for the Applicant at sentencing hearings on days between 12 November 2008 and 15 December 2008. I note as well that, contained within exhibit A tab 32 (the statement of the Officer in Charge) are two ERISP interviews dated 16 October 2008 and 21 October 2008 in which the Applicant reveals to police, from time to time, the substance of communications which he had had with his then legal representatives. 6 In addition, there are contained (to a limited extent) within exhibit 4 (a report of Dr Bruce Westmore dated 31 March 2009) and exhibit C (a report of Dr Stephen Allnutt dated 22 March 2009), statements by the Applicant concerning communications which he had with his previous legal representatives. 7 With respect to the question of waiver, counsel for the Applicant, Mr Sutherland SC, has informed the Court that his instructions are not to waive any client legal privilege, except with respect to the communications on the occasions referred to, and the topics referred to, in the affidavit of the Applicant affirmed on 26 March 2009 (exhibit 2). Thus, there is an acceptance by senior counsel for the Applicant that the disclosure by the Applicant of communications with his previous legal representatives, as contained in that affidavit, involve a degree of waiver of client legal privilege. 8 The Crown does not submit that the circumstances of this case result in a type of blanket waiver with respect to all communications between the Applicant and Mr Healey and Ms McGowan from the time that they commenced to act for him in 2005, until the time that they ceased to act for him in December 2008. Rather, the Crown invites a more focused approach, looking at the occasions and topics which are relevant to the present application and in particular, in the period October to December 2008. 9 Whether the approach to be adopted is application of common law principles concerning waiver of legal professional privilege, as stated in Mann v Carnell (1999) 201 CLR 1, or the statutory test in s.122 Evidence Act 1995 (and I consider that the statutory test is the appropriate one), it is common ground, and in my view correct, that there has been waiver by the Applicant of privilege concerning confidential communications with his legal representatives concerning his plea of guilty to murder in the period 13 October 2008 to 15 December 2008. 10 In circumstances where there is an application to change a plea, and where the Applicant seeks to adduce evidence on that application of communications and dealings with former legal representatives, it is common for waiver to be found by Courts, if not accepted without argument by the Applicant. Likewise, where there is an appeal to the Court of Criminal Appeal challenging a conviction entered following a plea of guilty upon the basis of what is said to be a miscarriage of justice concerning the entry of the plea. In such circumstances, it is not uncommon for the former legal representatives to be called as witnesses on the appeal before the Court of Criminal Appeal. 11 On the present application, the Crown has caused subpoenas to issue to a number of persons, including Ms McGowan, Mr Healey and Ms Rochelle Macredie, a solicitor engaged by Ms McGowan, who is referred to in the affidavit of the Applicant of 26 March 2009. 12 For present purposes, it is sufficient to observe that the hearing may proceed upon the basis that the Court accepts that there is a waiver of client legal privilege concerning communications between about 13 October 2008 and 15 December 2008 between the Applicant and Mr Healey, Ms McGowan and Ms Macredie with respect to the Applicant's plea of guilty to murder. I put it no more precisely than that. 13 Depending upon the questioning of witnesses, it may be that other issues will arise as to whether privilege in earlier communications is waived, or whether other related topics are likewise the subject of waiver. It is not presently necessary, however, to consider those issues which may or may not arise. 14 What I have said, I think, is sufficient to identify the areas in which waiver has occurred for the purpose of the commencement of the taking of oral evidence. If further issues arise in this respect, I will return to the topic, if necessary. ********** 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. 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