R v Pratten (No 16) [2015] NSWSC 1501

Supreme Court New South Wales

Medium Neutral Citation: R v Pratten (No 16) [2015] NSWSC 1501 Hearing dates: 22 May 2015 Date of orders: 22 May 2015 Decision date: 22 May 2015 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: 1. Claim for legal professional privilege upheld; 2. Leave granted to accused's counsel and instructing solicitor to withdraw from the proceedings. Catchwords: LEGAL PROFESSION – application to withdraw from criminal proceedings – conflict between accused and legal practitioners – doubt as to whether leave necessary – leave granted; PRIVILEGE – alleged waiver by lawyers – documents tendered to Court – conflict with client – tender refused. Legislation Cited: Evidence Act 1995 Cases Cited: R v IAS [2004] SASC 240; (2004) 146 A Crim R 416 Category: Procedural and other rulings Parties: Regina (Crown) Timothy Charles Pratten (Accused) Representation: Counsel: D. Fagan SC/K. Curry (Crown) P. Lowe (Accused)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Swifte Law (Accused) File Number(s): 2010/00315475

EX-TEMPORE Judgment 1. HIS HONOUR: Let me deal firstly with the claim for privilege. I am not convinced that the documents that were tendered, and on which there may be a claim for privilege are in fact privilege pursuant to the terms of s 118 or s 119 of the Evidence Act. The documents were tendered by counsel appearing then for Mr Pratten, the accused, there was no objection taken at the time, nor could there have been. Nevertheless the privilege, if there be one, is one that pertains to Mr Pratten, not counsel, solicitor, or indeed the Court. 2. The Court has since received a communication from Mr Pratten directly. The effect of that communication is that Mr Pratten made clear that: first he did not give authority to waive any privilege that may exist; secondly, he was not bound by that which counsel had done, and that there weren't clear instructions given for the email which is Exhibit A, nor for the tendering of the emails which are communications between a number of people, including junior and senior counsel, and Mr Pratten, and others. 3. In the circumstances, and notwithstanding my view, that it is unlikely a privilege attaches to many of these communications, I am of the view that there is in relation to this application a conflict in interest between counsel appearing and seeking leave to withdraw and the accused, and, therefore, I ought not take the tender by counsel as a tender on behalf of the accused, and I reject the tender. I will hand these documents back. 4. The next aspect is the issue of the withdrawal from the proceedings. Mr Lowe has provided the Court with authority, being the Full Court of the Supreme Court of South Australia in a judgment entitled Queen v IAS [2004] SASC 240, and reported in (2004) 89 SASR 159. At page 165 of the report, at [22] and [23], his Honour Justice Besanko, whose judgment constitutes the majority judgment, (both their Honours Justice Duggan and Anderson, concurring in his reasons) suggests that leave to withdraw is not essential in most instances, and if leave to withdraw were required, refusal of that leave would be in extraordinary circumstances, such as because it was frivolous, or to suit personal inconvenience. 5. As already stated, there is a conflict between that which counsel was seeking to do in the proceedings and the instructions, or lack of them, from Mr Pratten. In those circumstances, without deciding whether leave to withdraw is necessary, to the extent that leave is necessary, leave is granted. That leave applies not only to counsel but to solicitors. That resolves the only issues before the Court.