Supreme Court New South Wales Medium Neutral Citation: R v Macdonald; R v Maitland (No1) [2017] NSWSC 720 Hearing dates: 30 January 2017 Decision date: 30 January 2017 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Passage objected to in document 31A-0184A rejected on the grounds of client legal privilege. Catchwords: EVIDENCE – admissibility – relevance – client legal privilege – s 118 of the Evidence Act 1995 (NSW) – dominant purpose was to seek legal advice – s 125 of the Evidence Act 1995 (NSW) – alleged loss of client legal privilege on the basis of misconduct – whether misconduct substantial issue in trial – privilege not displaced Legislation Cited: Evidence Act 1995 (NSW), ss 118 and 125 Category: Procedural and other rulings Parties: Regina Ian Macdonald (Accused) John Maitland (Accused) Representation: Counsel: M McHugh SC/P English (Crown) M Johnston SC (Accused Macdonald) D Jordan SC/ ES Kerkyasharian (Accused Maitland) Solicitors: Solicitor for Public Prosecutions (Crown) Horton Rhodes Lawyers (Accused Macdonald) Bob Whyman Solicitor (Accused Maitland) File Number(s): 2015/59940; 2015/59990 Judgment: EX TEMPORE 1. Objection has been taken by the accused Mr Maitland to the following words on page 31A-0184A: "If we mention just the Whybrow and Redbank seams can we still access the woodlands hill creek seam at some later stage" 1. The passage objected to is contained in an email dated 15 February 2007 from Mr Maitland to James Stevenson, who was a solicitor from Sparke Helmore and the company secretary of ResCo Services Pty Ltd. 2. The objections made by Mr Jordan SC, who appears with Mr Kerkyasharian on behalf of Mr Maitland, are twofold. First, he objects on the ground of relevance; and, secondly, on the ground of legal professional privilege. 3. I am satisfied that the document is sufficiently relevant to warrant its admission in that it appears to me that the words objected to, in the context of the communication as a whole, tend to show the accused Mr Maitland's awareness of the nature and ambit of the coal resource as well as his motive to minimise the appearance of the size of the resource. 4. The second basis for the objection is that the words are subject to client legal privilege, and, therefore, such evidence ought not to be adduced by reason of s 118 of the Evidence Act 1995 (NSW). As referred to above, one of the recipients of the email was James Stevenson of Sparke Helmore who was both a lawyer and the company secretary for ResCo Services Pty Ltd, the relevant company making the application of which Mr Maitland, the accused, was a director. It appears to me that the dominant purpose of the words in this email was to seek advice from Mr Stevenson on the question whether, if the Whybrow and Redbank seams were mentioned in the application, but the Woodlands Hill Creek seam was not, the Woodlands Hill Creek seam could still be accessed later. I accept that the answer to this question involves a matter of law and that the dominant purpose of these words was for Mr Maitland, on behalf of ResCo Services Pty Ltd, to seek legal advice from Mr Stevenson on that point. 5. Accordingly, I rule the objected to passage inadmissible by reason of s 118 of the Evidence Act. 6. I also mention for completeness that the Crown also relies on s 125 of the Evidence Act which relates to loss of client legal privilege on the basis of misconduct. The question whether these matters amount to criminal conduct is, possibly, the principal issue in the trial. In these circumstances, I am not satisfied that it is appropriate, at least at this stage of the proceedings, and having regard to my limited knowledge of the whole of the evidence, for me to apply s 125 to displace the client legal privilege which is enshrined in s 118. ********** 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: 07 June 2017