Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Perish, Anthony v R [2015] NSWCCA 98 Hearing dates: 4 February; 24 April 2015 Decision date: 14 May 2015 Before: R A Hulme J Decision: Crown permitted access to some but not all documents produced Catchwords: EVIDENCE – orders to produce – legitimate forensic purpose – where conviction appeal based on fresh evidence - where witness unavailable for cross-examination – where documents relate to credibility of witness – legitimate forensic purpose established EVIDENCE – orders to produce – claim of client legal privilege – Evidence Act 1995 (NSW) s 119 Legislation Cited: Criminal Appeal Act 1912 (NSW) s 22 Evidence Act 1995 (NSW) Pt 3.10, ss 75, 117, 119, 131A, 142 Cases Cited: Alister v The Queen [1984] HCA 85; 154 CLR 404 Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2) [2014] FCA 481; 312 ALR 403 Attorney-General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; 182 A Crim R 536 Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2009] NSWSC 225; 74 NSWLR 469 Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Re Southland Coal Pty Ltd (rec & mgrs. Apptd) (in liq) [2006] NSWSC 899; 203 FLR 1 Morony v Reschke [2014] NSWSC 359 Perish v R; Perish v R; Lawton v R [2014] NSWCCA 233 R v Saleam (1989) 16 NSWLR 14 Regina v Saleam [1999] NSWCCA 86 Category: Procedural and other rulings Parties: Anthony John Michael Perish (Applicant) Regina (Respondent) Representation: Counsel: Mr M Dhanji SC with Ms G Lewer (Applicant) Ms Dowling SC with Mr F Veltro (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2009/148002 Judgment 1. HIS HONOUR: Anthony John Michael Perish ("the applicant") has an appeal pending before the Court in respect of his conviction for the murder of Terrence Falconer on or about 16 November 2001 and conspiring with Matthew Robert Lawton and Andrew Michael Perish between 1 January 2001 and 17 November 2001 to murder Mr Falconer. 2. One of the applicant's grounds of appeal concerns a contention that there was a miscarriage of justice by reason of the absence at trial of evidence that has since become available. A significant witness at the applicant's trial was known as witness "E". He was involved in events surrounding the murder of Mr Falconer. He co-operated with police after being arrested in January 2009. At his sentence proceedings in April 2010 he confirmed his willingness to give evidence at the trial of the applicant and his co-accused. He received a substantial discount on his sentence for his past and future assistance to authorities. Up to this point he professed to be in fear of violent retribution by the applicant, both for himself and his family. 3. E was then diagnosed with cancer some time prior to the applicant's trial in the latter half of 2011. At the trial he gave evidence that was unfavourable to the Crown: he claimed that he could not remember the relevant events. The Crown was granted leave to cross-examine him and his police interview was adduced in evidence before the jury. 4. By January 2014, E's condition had deteriorated to the point that it became terminal and he was in dire ill-health. On 17 and 27 January 2014 he was visited in his custodial environment (at Prince of Wales Hospital and the Long Bay Prison Hospital respectively) by a barrister (Ms Dymphna Hawkins) and a solicitor (Mr Evan Bongarzoni) and provided them with an affidavit in which he absolved Anthony Perish of all responsibility for the death of Mr Falconer. He was visited by the same barrister accompanied by a legal clerk (Robert Candelori) on 15 March 2014 when he was on his death bed. He died 3 days later. The affidavit was served on the Crown on 17 April 2014. 5. At the time of these events, the applicant had a solicitor at Legal Aid NSW and counsel, Mr Dhanji SC, acting for him in relation to his appeal. 6. The affidavit of E includes the following: "27. I am now telling the truth for the following reasons: (a) I have felt so riddled with guilt that quite early on after making the false statements I contacted the Police Integrity Commissions (PIC) for which I have proof. (see annexure 'A') It became quite clear that the PIC were not interested in following the protocol of my complaint stating to me that 'Apparently today you want to make a truthful statement about the death of Falconer and other matters Anthony Perish & your involvement in the murders of his grandparents.' (b) I am now diagnosed terminally ill with cancer and I wish to make peace with myself by righting any wrongs I have done. This is especially the case putting innocent persons in gaol for crimes they didn't commit, being Anthony Perish, Andrew Perish and Matthew Lawton now wrongfully convicted for the alleged Murder, Conspiracy to Murder and/or kidnapping of Terence Falconer because of my untruthful statements." (Strikethrough in original. Italics indicate handwritten amendments in original.) 1. The applications for leave to appeal by the applicant, Andrew Perish and Matthew Lawton were listed to be heard by the Court on 31 October 2014. On 21 October 2014 the hearing date was vacated on the application of the Crown on the basis that it had not had sufficient opportunity to investigate the circumstances in which E's affidavit came into existence (and another aspect which remains to be determined): Perish v R; Perish v R; Lawton v R [2014] NSWCCA 233. 2. Between 21 October and 5 December 2014 the Crown obtained orders to produce directed to Mr Ian Byrne, solicitor, Mr Evan Bongarzoni, solicitor, Ms Dymphna Hawkins, barrister, and Mr Robert Candelori, legal clerk. The orders required the production of all documents relating to the recipients' involvement with E between October 2012 and 18 March 2014. In early to mid-December 2014, material was produced to the Court registry by Ms Hawkins and Mr Candelori. The then Registrar allowed first access to Legal Aid NSW. The applicant's solicitor accessed the material and obtained instructions to oppose the Crown having access to some of it on the basis of client legal privilege and/or a lack of legitimate forensic purpose. 3. In Court on 11 and 22 December 2014, notices of motion were filed on behalf of the applicant seeking orders that would prevent the Crown having access to documents the subject of the client legal privilege and legitimate forensic purpose claims. 4. On 4 February 2015 the applicant moved on the notices of motion and read affidavits affirmed by the applicant's solicitor on 11 and 19 December 2014 and 23 February 2015. Mr Candelori, Ms Hawkins and Mr Bongarzoni were called and were cross-examined by the Crown. Written submissions for the applicant and the Crown were provided. Unfortunately the matter was not able to be concluded on that day and resumed on 24 April 2015. The Crown read the affidavits of Ms Miriam Rottenberg of that date and of 2 February 2015. Oral submissions were made and I reserved my decision. The evidence The affidavit of the applicant's solicitor of 23 January 2015 1. The applicant's solicitor said that she was instructed by the applicant that he had retained Ms Hawkins to provide him with legal services, including the obtaining of evidence for his appeal proceedings. Such retainer was on a "direct access" basis. On 7 February 2014, the applicant advised his solicitor that he had instructed Ms Hawkins to obtain a statement from E in relation to the appeal proceedings. (I note that Ms Hawkins visited the applicant on 6 February 2014 and infer that she must have discussed with him the affidavit she had recently obtained from E.) The applicant's solicitor said that "after corresponding with Ms Hawkins" she received a copy of the affidavit of E on 17 March 2014. She received the original on 15 April 2014. 2. The affidavit of E includes reference to an annexure "A". The applicant's solicitor said that when she received the affidavit there were no annexures; she had never seen any annexure. 3. The applicant's solicitor filed and served the affidavit with the Notice of Appeal and associated documents on 17 April 2014. 4. On 15 April 2014 the applicant's solicitor received from Ms Hawkins two letters from the Police Integrity Commission dated 30 September 2010 and 1 November 2010. They each bear the handwritten endorsement that they are annexures "A" and "B" to an affidavit of Anthony Perish sworn on 15 April 2014. The applicant's solicitor served these on the Crown on 23 October 2014 and advised that they may have been intended as annexure "A" to E's affidavit. She had instructions from the applicant that he had not sworn any affidavit on 15 April 2014. She also indicated that the applicant does not seek to rely upon these two letters as fresh evidence in his appeal. The only evidence he does wish to rely upon is the affidavit of E. 5. In relation to all of the documents produced by Ms Hawkins, the applicant's solicitor deposed that she believed that they were held by Ms Hawkins as the applicant's legal representative as part of her retainer. Nevertheless, the applicant did not oppose the Crown having access to some of them and copies of such documents had been provided to the Crown. In relation to the remaining documents, she indicated that the applicant opposed access by the Crown either on the basis of a lack of legitimate forensic purpose, that the documents attracted client legal privilege, or both. 6. The applicant's solicitor indicated that the objection on the basis of client legal privilege was that "such access would result in disclosure of confidential communications or documents that were made for the dominant purpose of Mr Perish being provided with professional legal services relating to an Australian proceeding in which Mr Perish is, may be, or might have been, a party pursuant to s 119 of the Evidence Act". The applicant's solicitor provided no further detail. 7. The objection on the basis of a lack of a legitimate forensic purpose was that "none of the … documents relate to the death of Mr Falconer, the investigation of that death, the Appellant's trial or the Appellant's appeal and appear instead to relate to different proceedings in which the Appellant is, may be, or might have been, a party". The applicant's solicitor provided no further explanation. 8. The applicant's solicitor's evidence in relation to the documents produced by Mr Candelori was limited to stating a claim that access by the Crown to certain of his documents was opposed on the basis of client legal privilege. She provided no basis or explanation for the claim. 9. The applicant's solicitor's description of many of the documents, in schedules annexed to her affidavit, can be characterised as vague, broad, formulaic and unhelpful. It left the Crown largely to guess as to the nature of many of them. A much more helpful description might have been given without disclosing the contents of the documents and would have assisted the Crown in responding to the applicant's claims of lack of legitimate forensic purpose and client legal privilege. Evidence of Ms Hawkins 1. In her evidence in chief, Ms Hawkins agreed that she entered into an agreement to provide legal services with the applicant in 2013; a costs agreement was dated 6 May 2013. It was a direct access retainer. She acted for him "in relation to certain matters", including obtaining evidence in relation to his appeal against conviction for murder. She agreed that at no stage was she acting on the appeal itself. 2. Ms Hawkins visited E on 17 and 27 January and 15 March 2014 and was accompanied on the first two occasions by Mr Bongarzoni and on the last by Mr Candelori. The purpose of them accompanying her was to assist in obtaining a statement from E. This was part of her provision of legal services to the applicant. She opened a file which she said was confidential. She took statements (plural) from E and they were provided to the applicant's lawyers who were acting on the appeal. 3. The cross-examination of Ms Hawkins was relatively lengthy and much of it was more concerned with the primary issue in the appeal (the credibility of the purported recanting by E) than with legitimate forensic purpose and client legal privilege issues that I am called upon to determine. I will only refer to that which is presently relevant. 4. Ms Hawkins was cross-examined about her evidence that she was retained to provide legal services to the applicant in relation to matters other than the appeal. She was asked what the other matters concerned and she nominated a Local Court claim for the return of property seized by police during the execution of search warrants. She could not think of any other matter. (This is significant in relation to s 119.) Evidence of Mr Bongarzoni 1. Mr Bongarzoni said that he was asked by Ms Hawkins to accompany her at conferences with E on 17 and 27 January 2014. He understood that at the first conference his role was to witness a signature. He did not know the applicant, or know of him. As it turned out, Ms Hawkins was typing notes into a laptop computer, based on the responses given by E to questions asked of him by Ms Hawkins. E read through on the screen what she had typed. At the second conference she had a prepared statement for E to sign. 2. Mr Bongarzoni said that he regarded himself "as an independent legal practitioner in relation to [the first] conference and obligations towards [E]" (4.2.15 at T81). Evidence of Mr Candelori 1. Mr Candelori said that he had attended the conference with E on 15 March 2014 in the capacity of legal clerk at the request of Ms Hawkins. To leading questions in chief, he agreed that he was assisting her in her role in providing legal services to the applicant. The documents he had produced to the Court were produced by him in this capacity. He also agreed that it was his understanding that all documents and oral communications were to be confidential within the context of legal services being provided by Ms Hawkins to the applicant. (Some matters arising in Mr Candelori's cross-examination will be touched upon later.) Submissions Legitimate forensic purpose 1. As indicated earlier, the applicant objects to the Crown having access to some of the documents on the basis that there is not shown to be a legitimate forensic purpose. 2. The principles are not controversial. Where objection is taken on this basis, it is incumbent upon the Crown to identify a legitimate forensic purpose before access will be permitted: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; R v Saleam (1989) 16 NSWLR 14 at 17-18; Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681. 3. The fact that the documents are, or may be, relevant is not enough: Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 at 181-2; Attorney-General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; 182 A Crim R 536 at [59]-[63]. 4. And, not only must a legitimate forensic purpose be established; the Crown must also establish that it is "on the cards" that the documents will materially assist its case: Regina v Saleam [1999] NSWCCA 86 at [11] (Simpson J). 5. Material that enables a party to test the evidence of a witness (in this case one who is deceased) by comparing it with the documents to which access is sought may be a legitimate forensic purpose: Alister v The Queen [1984] HCA 85; 154 CLR 404 at 415 (Gibbs CJ). 6. The applicant maintained that there can be no legitimate forensic purpose in the Crown having access to documents recording matters that do not relate to the death of Mr Falconer, the investigation of that death, or to the applicant's trial or appeal. It was contended that documents of this type appear to relate to different proceedings in which the applicant is, may be, or might have been, a party. 7. However, the Crown submitted that a critical issue in relation to the fresh evidence ground of appeal will be the cogency, credibility and reliability of the affidavit of E. The test, then, was whether it was "on the cards" that any of the material objected to by the applicant on the basis of a lack of legitimate forensic purpose, would assist the Crown on this critical issue. Senior counsel for the Crown submitted that this was "a fairly low threshold" in the circumstances of this case, that is, where the applicant claims that an important witness against him at trial had recanted and when that witness is now deceased and thereby unavailable for cross-examination. So, it was submitted that anything that may bear upon the credibility of E would meet the test. 8. Ms Dowling SC identified three possible motives for E having recanted: (1) to help the applicant who was a long-time friend and employer in circumstances in which E had nothing to lose; (2) in retaliation against police because E was charged in relation to Queensland murders and because of dissatisfaction with the handling of his complaint about police corruption; or (3) because he had a crisis of conscience and the recanting was truthful. The Crown has available to it evidence relevant to the first and second propositions: see, for example, the material annexed to Ms Rottenberg's affidavit of 24 April 2015. (In Court on that day I ruled that paragraphs 4 and 5 of that affidavit were admissible over an objection based upon relevance and s 75 of the Evidence Act. The material is relevant to E's possible motive for recanting. The "source" of Ms Rottenberg's evidence was clear: police, and in particular, what Detective Inspector Jubelin had told her about his direct knowledge of what E had told him.) 9. In the light of this, the Crown submitted that anything that is relevant to the relationship between E and the applicant aside from the killing of Terry Falconer, or is relevant to criminal activity in which E might have been involved, is potentially germane to an assessment of his credibility and motivation for his recanting affidavit. The Crown suggested that a useful measure of the relationship between E and the applicant, and matters other than the death of Mr Falconer, can be gleaned from the evidence given by E at his sentence hearing (annexure D to the affidavit of Ms Rottenberg of 2 February 2015). Client legal privilege 1. Part 3.10 of the Evidence Act 1995 (NSW) prohibits the adducing of evidence that discloses certain privileges including client legal privilege. Section 131A extends the operation of this Part to pre-trial processes such as subpoenas and notices to produce. The section uses the term "disclosure requirement" which is defined in sub-s (2) and it is accepted by the parties that it extends to an order to produce issued in this Court. 2. The applicant contends that inspection by the Crown of certain documents produced by Ms Hawkins and Mr Candelori would result in disclosure of his confidential client legal privilege contrary to s 119 of the Evidence Act. The section is in the following terms: "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." 1. The terms "confidential communication" and "confidential document" are defined in s 117(1): "confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. confidential document means a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law." 1. The applicant accepts that he bears the onus of establishing (on balance (s 142)) that inspection by the Crown is prohibited by this privilege. Mr Dhanji SC invited attention to the applicant's solicitor's affidavit of 23 January 2015 where (at [4]) she said that she was instructed by the applicant that he retained Ms Hawkins to provide him with legal services including to obtain evidence for his appeal proceedings. It was submitted by the applicant that the dominant purpose of the documents was in accordance with that retainer and that they had been held in a confidential manner until compulsory order of this Court. 2. The Crown contends that in relation to finalised affidavits or witness statements (as opposed to drafts), privilege does not attach as they are documents which, at the time they were made, were intended to be disseminated, citing Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2009] NSWSC 225; 74 NSWLR 469; Morony v Reschke [2014] NSWSC 359 at [49]-[50]; Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 2) [2014] FCA 481; 312 ALR 403. The latter two cases need to be read with some caution because they involved application of the common law, not the uniform Evidence Act. However, I cannot discern any relevant difference of approach to this particular issue. 3. Mr Dhanji submitted that because it was not Ms Hawkins' decision as to whether a finalised affidavit or witness statement would actually be filed, served and read/tendered in proceedings the Crown's reliance upon the authorities just mentioned was inapposite. 4. The Crown submitted that the evidence adduced by the applicant in relation to the documents produced is insufficient to support a finding that they were made for the dominant purpose of the provision of legal services to the applicant relating to a proceeding which was anticipated or pending and which the applicant is, may be, was, or might have been, a party. Further, the Crown submitted that the evidence was insufficient to support a finding that allowing inspection by the Crown would result in the disclosure of a confidential communication or document. It was noted that the applicant's solicitor made claims to these effects (affidavit of 23 January 2015 at [15] and [18]), but the mere assertion of privilege is not sufficient to discharge the onus. The Crown referred to Re Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) [2006] NSWSC 899; 203 FLR 1 at [14] where Austin J set out a number of principles relating to client legal privilege including: "(g) Purpose is a question of fact - The purpose for which a communication is made or a document is created is a question of fact (Esso Australia Resources Ltd v Commission of Taxation (Cth) (1999) 201 CLR 49; Waterford v Commonwealth (1987) 163 CLR 54; Bauhaus at [24]). Purpose and intended use must be determined objectively, having regard to all of the evidence (AWB Ltd v Cole at [122]). Purpose cannot be proved by mere assertion by a third party. Normally (but not always) the relevant purpose is that of the maker of the communication for which privilege is sought." 1. The Crown submitted, correctly in my view, that there was no evidence as to the purpose for which each of the documents were created, let alone evidence that they were made for the dominant purpose of providing legal services to the applicant. The Crown noted that documents G, H, S to Y (as they are identified in the applicant's solicitor's affidavit) were said by the applicant's solicitor to be irrelevant to the present appeal (23 January 2015 affidavit at [21]). But she also said that they "appear instead to relate to different proceedings in which the appellant is, maybe, or might have been, a party" (my emphasis). I take the applicant's solicitor's use of the word "appear" to indicate that she was surmising and not speaking on the basis of instructions. The Crown was critical of the adequacy of this evidence. 2. In respect of documents which may relate solely to E, the Crown noted that the applicant could not advance a claim of privilege where the privilege was not his but E's. Determination 1. I gave some "on the run" rulings in relation to some of the documents during the course of the hearing on 4 February 2015, indicating that a legitimate forensic purpose was not apparent. As it emerged at the second hearing date, those rulings were made with an incomplete understanding of the issues. I was invited to reconsider them and agreed to do so. No objection was taken to this course. 2. Having inspected the documents as I was invited to, and having regard to the evidence and submissions, I make the following determinations, adopting the lettering and descriptions in annexure C and D to the applicant's solicitor's affidavit of 23 January 2015. Hawkins B and Candelori H – Affidavit of Robert Candelori 27 March 2014 Hawkins C and Candelori I – Transcript of conversation dated 15 March 2014 Hawkins MM and Candelori K – DVD recording of conversation dated 15 March 2014 1. The affidavit is an account of the conference with E on 15 March 2014. The affidavit annexes the DVD recording of it as well as its transcript. 2. To leading questions in his evidence in chief, Mr Candelori agreed that the documents he had produced (which of course includes these) were "produced in the course of [his] capacity in assisting Ms Hawkins providing legal services to Mr Perish" and that he understood that any documents or oral communications engaged in by him, or in his presence, "were to be confidential within the context of legal services being provided by Ms Hawkins to Mr Perish". (4.2.15 at T7) 3. However, in cross-examination, Mr Candelori said the purpose of this affidavit was to provide a means of admitting into evidence, if necessary, the recording of the conference with E on 15 March 2014. When he swore it he understood that he might be called as a witness. He agreed in re-examination that it was not his decision as to whether his affidavit would in fact be used in the appeal proceedings. 4. I reject the suggestion that there is something significant in the fact that it was Ms Hawkins who was retained by the applicant, not Mr Candelori. In any event, Ms Hawkins agreed that the reason she got Mr Candelori to swear an affidavit was because she thought that it might be used in the appeal proceedings. I accept that the purpose (or a substantial part of the purpose) for bringing the affidavit into existence was for use as evidence in the appeal. 5. The broad and bare assertions of the applicant's solicitor, and of Mr Candelori in response to leading questions in chief, do not, in my view, detract from the evidence given by Mr Candelori in cross-examination. There is nothing about the appearance of the affidavit that indicates it was a draft and that its final content and use might be settled by the lawyers acting in the appeal. According to Mr Candelori, the affidavit was the final version of evidence he would give as a witness for the applicant in the appeal. 6. In these circumstances, I am not persuaded by the applicant on the balance of probabilities that client legal privilege attaches to the affidavit and its annexures. Legitimate forensic purpose is conceded by the applicant. Hawkins F – Handwritten notes concerning conference with E 1. Document F comprises what is obviously a list of questions to be put to E in relation to the Falconer matter as well as a message to E. In different handwriting are answers to the questions. 2. There is no doubt that there is a legitimate forensic purpose in the Crown having access to these documents. However, it is also clear that client legal privilege attaches to them and there is no basis to consider that such privilege has been lost. Hawkins G – Handwritten notes concerning conference with E Hawkins H – Handwritten notes concerning conference with E dated 23 January 2014 1. Hawkins G is a list of topics concerning other criminal matters to be the subject of questioning of E. Ms Hawkins said it was in her handwriting (4.2.15 at T64). Hawkins H appears to be a record of answers provided by E to the matters listed in Hawkins G. Ms Hawkins initially said they were written at a conference on 23 January 2014 but corrected that to 27 January 2014 (4.2.15 at T66). 2. Ms Hawkins was asked whether the notes in Hawkins G were made in relation to proceedings to which the applicant was a party but she declined to answer, asserting "privilege" (4.2.15 at T65). No attempt was made to articulate any basis for such a claim. 3. There is a legitimate forensic purpose in the Crown having access to these documents in that they are potentially relevant to the credibility of E. I am not persuaded that client legal privilege attaches to them in that there is no evidence they were prepared for the dominant purpose of the applicant being provided with professional legal services relating to a proceeding, pending or anticipated, in which the applicant is or may be, or was or might have been, a party. Hawkins S – Affidavit of E dated 27 January 2014 Hawkins T – Handwritten note by E dated 23 January 2014 Hawkins U – Typed document addressed to E dated 6 December 2012 Hawkins X – Typed document addressed to E dated 25 August (no year) Hawkins Y – Further typed page (apparently out of order and should be final page of document referred to as Item U) 1. These documents do not relate to the Falconer matter but to alleged criminal activity of E. Hawkins T was in E's handwriting according to Ms Hawkins and, if the date is correct, it must have been written by him before she saw him on 27 January 2014 (4.2.15 at T67). 2. Ms Hawkins confirmed that Hawkins U was from the NSW Crime Commission. It, and Hawkins X and Y had nothing to do with the Falconer matter. (4.2.15 at T68) 3. There is a legitimate forensic purpose in the Crown having access to these documents in that they are potentially relevant to E's credibility. There is no evidence that they have anything to do with the applicant being provided with professional legal services relating to a proceeding, pending or anticipated, in which he is or may be, or was or might have been, a party. Hawkins V – Typed document relating to E dated 1 May 2012 Hawkins W – Correspondence addressed to E dated 2 May 2012 and hand-dated 3 May 2012 1. These relate to an issue that is of public record and well known to the Crown. There is no legitimate forensic purpose and it is certainly not on the cards that these documents would materially assist the Crown. (But the credibility of the applicant's objections to the Crown having access to various documents is not enhanced by his objection to it having access to documents it created itself.) Hawkins CC to Hawkins LL – Letters and emails between the applicant's solicitor, Dymphna Hawkins, her clerk and Evan Bongarzoni dated between 7 March and 16 April 2014 1. These relate to the transfer of documents concerning E relating to the Falconer matter from Ms Hawkins to the applicant's solicitor. There is no objection on the basis of lack of legitimate forensic purpose; but none is apparent except to the extent that some of them may have some relevance to the "annexure A" issue. But in any event, client legal privilege attaches and there is no basis to consider that such privilege has been lost. Candelori E, F & G – Emails between Dymphna Hawkins and Robert Candelori between 18 and 28 March 2014 1. These relate to the preparation of Mr Candelori's affidavit and the DVD and transcript of the 15 March 2014 conference with E. Client legal privilege attaches and has not been lost. (Legitimate forensic purpose is not apparent either.) Temporary stay of orders taking effect 1. Senior counsel for the applicant asked that if the Crown is granted access to any of the documents there be a stay for one week in giving effect to such order(s). This was on the basis that such time was required to obtain instructions as to whether the applicant would wish to have the matter determined by the Court pursuant to s 22(2) of the Criminal Appeal Act 1912 (NSW). The Crown did not oppose this request and I will accede to it. Orders 1. The following orders make reference to the documents by the lettering adopted in annexure C and D to the affidavit of the applicant's solicitor of 23 January 2015. After 7 days from the date of delivering this judgment, the Crown is permitted access to the following: Documents produced by Ms Dymphna Hawkins: B, C, G, H, S, T, U, X, Y and MM Documents produced by Mr Robert Candelori: H, I and K ********** Amendments 18 May 2015 - Substitution of description of applicant's solicitor 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: 18 May 2015