Supreme Court New South Wales Medium Neutral Citation: Jacobs v R [2013] NSWSC 633 Hearing dates: 23 May 2013 Decision date: 23 May 2013 Jurisdiction: Common Law Before: Davies J Decision: The Commissioner of Police is excused from producing confidential documents identified as Confidential Exhibits CK1, CK2 and CK3. Catchwords: EVIDENCE - production of documents - application to be excused from producing documents - client legal privilege - police seeking advice from internal Operational Legal Advice Unit - whether advice provided by lawyer - whether pending or anticipated proceeding - Commissioner excused from production Legislation Cited: Evidence Act 1995 Cases Cited: State of NSW v Jackson [2007] NSWCA 279 Category: Interlocutory applications Parties: Commissioner of Police (Applicant on the Motion) Hugo Jacobs (Appellant) Representation: Counsel: G W Turnbull SC (Appellant) Solicitors: A Hill, Crown Solicitors Office (Applicant) Bilias & Associates (Appellant) File Number(s): CCA 2008/63899 Judgment 1On 20 December 2010 Hugo Jacobs (the Appellant) was found guilty by a jury in the District Court of one count of supplying a commercial quantity of methylamphetamine. 2Part of the Crown case included identification evidence regarding the Appellant given by the Appellant's estranged wife, Illiana Ibrahim. Her identification of the Appellant was challenged in those proceedings but he was, nevertheless, convicted. 3He subsequently received, whilst in prison, material that purported to come from his estranged wife that contained statements which, on their face, suggested that she had perjured herself during the trial in relation to the evidence that she gave against him. 4The Appellant had, in any event, appealed or given Notice of an Intention to Appeal to the Court of Criminal Appeal against his conviction and sentence. His solicitor reported the sending of the documents to the police with a suggestion that an investigation should take place. 5An order to produce was served upon the Commissioner of Police for documents associated with that investigation. A large number of documents have been produced but by Notice of Motion dated 23 May 2013 the Commissioner seeks to be excused from producing three documents which have been identified as exhibit A in these proceedings, consisting of confidential exhibits CK1, CK2 and CK3. 6The documents CK1 and CK2 are documents forwarded to the Operational Legal Advice Unit, a unit of the police prosecutions command, by senior Sergeant Graham Dickman and Sergeant Chris McKinnon, who are officers involved in the investigation of the perjury allegations. Exhibit CK3 is an advice provided by that unit. 7The basis for the request to be excused from producing these documents is a claim for client legal privilege pursuant either to s 118 or s 119 of the Evidence Act 1995. Those sections relevantly provide: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) ... (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. 8The three confidential exhibits have been tendered to the Court. Of course, it has not been possible for counsel for the Appellant to have access to those documents and that necessarily involves a disadvantage on the part of the Appellant in seeking to resist what the Commissioner now asks, namely, that he not produce the documents. 9One of the issues thought to be involved in the application was whether the advice was provided by a lawyer as defined in s 117 of the Act. The issue arises in this way. 10An affidavit of Colin Kennedy, who is the manager of the Operational Legal Advice Unit and is himself an Australian lawyer holding an unrestricted practising certificate in New South Wales, explains the operation of the unit in relation to the giving of the advice in this case. He says in paragraph 10 that when a request for legal advice comes in it will be allocated to the most appropriately qualified person. Once a matter is allocated he, Mr Kennedy, will consult with the prosecutor preparing the advice and will agree on the correct approach before the advice is prepared. He says that all legal advice from the office is signed off by him, so that the advice effectively becomes his advice. 11In this case the advice was allocated to senior Sergeant Kenneth Mark Cooke. Sergeant Cooke is not a legally qualified person but is a qualified police prosecutor, having completed the police prosecutor education program. 12Mr Kennedy says that all advice work undertaken by Sergeant Cooke is closely supervised by him and Mr Kennedy directs him in terms of the legal issues and approach to be taken. He said that the advice contained in CK3 was signed off by him. An examination of that document shows that that is so. After Sergeant Cooke's signature appears at the foot of the advice there is then a reference to the Manager of the Operational Legal Advice Unit where Mr Kennedy has, in his own handwriting, written (inter alia), "I agree with this advice" and has signed and dated what he has written. 13I do not entertain any doubt in the light of that, that the advice which has been given and is contained in CK3 is the advice of a lawyer within the meaning of s 117. It is not necessary in those circumstances to delve into the interesting issue of whether Sergeant Cooke might be thought to be the agent of Mr Kennedy within the meaning of s117. The advice was given by Mr Kennedy. 14It is on that basis that s 118 is invoked because it is said that producing the documents would result in the disclosure of the confidential communications made between the client and the lawyer. 15In that regard it is to be noted that whereas s 118 is couched in terms relating to the adducing of evidence, the provisions of that section and the other sections contained in that division of the Act have been extended by virtue of s 131A of the Act so that they apply to a requirement to disclose information in preliminary proceedings. I am satisfied in that regard that the order for production is a disclosure requirement under s 131A(2). 16I am also entirely satisfied from having read CK1 and CK2 that they are to be regarded as confidential communications within the meaning of that term found in s 117 of the Act. They were confidential communications for the dominant purpose of the lawyer; that is, Mr Kennedy providing legal advice to the client regarding the issue of the possible perjury of the Appellant's former wife. The production now to the Appellant of CK3 would result in the disclosure of the confidential communications, being CK1 and CK2. 17I do not have any doubt either that the advice given was advice in answer to the requests that were made in CK1 and CK2. 18Concern was expressed by the Appellant by virtue of statements made in two of the documents which have already been produced. One of these was a document dated 20 December 2012 prepared by Sergeant Dickman. In that document he refers to the advice provided by Sergeant Cooke, being advice contained in confidential exhibit CK3. In that document Sergeant Dickman says: A recommendation arising from that process was that some investigation should follow for the purpose of rebutting claims made by an appeal as these may be of benefit to the prosecution. 19Similarly, in a document from Sergeant McKinnon, he also made reference to the advice from Sergeant Cooke in confidential exhibit CK3. In that document he relevantly said this: In regards to the allegation of perjury dealing with the drug supply matter as per the attached report from senior Sergeant Cook, it has been recommended that further investigation be conducted to negate allegations of perjury during any appeal process. 20In relation to those passages I am entirely satisfied, from having read the advice, that what is contained in their documents is their own interpretation of that advice and that what is contained in their documents is not necessarily what appears in the advice. 21Secondly, in his document Sergeant McKinnon said: In relation to the report by senior Sergeant Cook reference is made to the identification evidence of Illiana Ibrahim being admitted without objection from the defence during the drug supply trial. I do not believe that this was the case and I believe Ibrahim was subjected to rigorous cross-examination during the course of that trail in relation to her evidence. 22In relation to that passage the suggestion is made that there is error in the advice in relation to it being said that Illiana Ibrahim's evidence was admitted without objection. 23Once again, when the full advice is read the true position can be seen and it does not necessarily accord with what inspector McKinnon has stated in his document. 24An alternative basis is put to excuse the production of the documents based on s 119 of the Act. However, it seems to me that s 119 is not available to the Commissioner because it cannot be said that the advice was provided in relation to an anticipated or pending Australian proceeding: see in that regard what was said by Giles JA, with the agreement of Mason P and Beazley JA in State of NSW v Jackson [2007] NSWCA 279 at [67] and [69]. 25I am entirely satisfied that the three confidential exhibits obtain the protection that s 118 of the Act provides and, for that reason, I will order that the Commissioner be excused from producing the documents that are identified as confidential exhibits CK1, CK2 and CK3. ********** 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. Decision last updated: 29 May 2013