Supreme Court New South Wales Medium Neutral Citation: R v Kinghorn (No 5) [2019] NSWSC 1473 Hearing dates: On the papers Decision date: 28 October 2019 Jurisdiction: Common Law Before: Adamson J Decision: Rulings on privilege made. Catchwords: PRACTICE AND PROCEDURE – subpoenas – claims for privilege – whether waiver imputed PRACTICE AND PROCEDURE – review of earlier ruling of court's own motion Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F Evidence Act 1995 (Cth), ss 117, 118, 119 Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4 Nominal Defendant v Livaja [2011] NSWCA 121 R v Kinghorn (No 4) [2019] NSWSC 1420 R v Leach [2019] 1 Qd R 459; [2018] QCA 131 Category: Procedural and other rulings Parties: Regina Commonwealth Director of Public Prosecutions (Applicant on the privilege motion) Commissioner of Taxation (Applicant on the privilege motion) Commissioner of the Australian Federal Police (Applicant on the privilege motion) John Alan Kinghorn (Accused) Representation: Counsel: D Staehli SC/K Curry (Crown) J Renwick SC/A Garsia (Commonwealth Director of Public Prosecutions) T Howe QC/P Melican (Commissioner of Taxation, Commissioner of the Australian Federal Police) B Walker SC/S Buchen SC/G Huxley/H Atkin (Accused) Solicitors: Office of the Commonwealth Director of Public Prosecutions (Crown, Commonwealth Director of Public Prosecutions) Australian Government Solicitor (Commissioner of Taxation, Commissioner of the Australian Federal Police) King & Wood Mallesons (Accused) File Number(s): 2017/304100 Judgment Introduction 1. On 18 October 2019 I published reasons regarding the determination of issues of privilege raised in motions filed on behalf of the Commonwealth Director of Public Prosecutions (DPP) and the Commissioners of Taxation and the Australian Federal Police seeking that claims for privilege be upheld: R v Kinghorn (No 4) [2019] NSWSC 1420 (the Privilege Reasons). I listed the matter for directions before me on 23 October 2019 for the making of orders. 2. In the Privilege Reasons I made rulings on a sample of documents over which the DPP had claimed privilege which had been provided to me for that purpose in a folder of 20 documents marked MFI 12. The DPP has asked me to rule on further documents. As I understand it from Dr Renwick SC, who appears with Ms Garsia on behalf of the DPP, the DPP would prefer to have rulings on a larger number of documents, both for the purpose of informing future decisions on access in respect of documents which have not been the subject of rulings in my Privilege Reasons and also for the purposes of providing a broader range of documents for an appellate court's consideration in the event that the DPP seeks to appeal against my rulings pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). 3. On 24 October 2019, I was provided with a further volume of documents in respect of which the DPP seeks rulings. I have marked this volume, MFI 15. My rulings in respect of these further documents are set out below. 4. On 23 October 2019, I made orders for access in accordance with the Privilege Reasons (draft orders having been provided by the parties for that purpose). These orders were stayed by consent on 25 October 2019. 5. For the sake of brevity, the term "imputed waiver" will be used in these reasons to describe waiver of privilege imputed by reason of an inconsistency between the maintenance of the privilege and the DPP's maintenance of the prosecution and opposition to a permanent stay, as addressed more fully in the Privilege Reasons. Variation of previous ruling with respect to document 16 in MFI 12 (CDP.501.001.2776) 1. Before setting out my further rulings, it is necessary to record that I reviewed the Privilege Reasons before embarking on the additional task referred to above. My review, which included the ruling on document 16 at [193] of the Privilege Reasons, has led me to consider that my ruling in respect of that document ought be varied. This Court has inherent jurisdiction to recall a judgment or order on its own initiative in circumstances where the judge believes he or she has "erred in a material matter": Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 301-303 (Mason CJ); [1993] HCA 6. Where an error can be addressed without the need to resort to potentially expensive and time-consuming appeal proceedings, this course is permitted: Nominal Defendant v Livaja [2011] NSWCA 121 at [23] (Basten and Campbell JJA and Rothman J); see also Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4 at [39]-[41] (Macfarlan JA, Bathurst CJ and Tobias AJA agreeing). Although it need not, having regard to the course I propose to take, be determined, I consider that it was at least arguably open to the DPP to apply to have me revisit my ruling on document 16, having regard to the apparent anomaly (which I propose, of my own motion, to correct by varying the ruling) between that ruling and the other rulings made in the Privilege Reasons. It may be that the DPP was awaiting the rulings on the documents in MFI 15 (which are made below) before making such an application. 2. I am satisfied that it is open to me to review my ruling on this document as access has not yet been granted as the orders for access were the subject of a stay by consent which was granted on 25 October 2019. Further, I do not consider myself to be obliged to hear the parties on the variation since the variation is to the benefit of the DPP (who makes the claim) and the accused has made all submissions he wishes to make with respect to privilege, such submissions being confined in any event as he has, necessarily, not been permitted access to documents over which claims for privilege have been maintained. 3. At [193] of the Privilege Reasons, I said: "Document 16 (CDP.501.001.2776) – category L The author of the advice, Mr Ginges, has read the s 264 transcripts, according to the schedule provided. There are three specific references to the s 264 examinations in the advice (dated 16 October 2016) which relates to proposed charges to be laid. I do not consider that the imputed waiver ought be limited to these references. I am persuaded that there is imputed waiver of the whole advice which would otherwise be privileged." 1. Having reconsidered the matter, I am now of the view that the imputed waiver ought not be of the whole document since the references to the examinations of the accused conducted pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) (the s 264 examinations) do not affect the whole of Mr Ginges' advice. It would, in these circumstances, be erroneous to find (as I did in the Privilege Reasons) that there had been imputed waiver of the whole of the advice. As I said in more detail in the Privilege Reasons, the doctrine of imputed waiver is based on inconsistency. Accordingly, imputed waiver ought be confined to only those parts of a document, the maintenance of privilege over which would be inconsistent with a party's conduct of the proceedings. 2. For these reasons, I propose to vary the ruling made in respect of document 16 (CDP.501.001.2776) so as to confine the access to which the accused is entitled to the following portions, which have been the subject of imputed waiver: 1. paragraph [54] of the advice (CDP.501.001.2776_015) from "in Kinghorn's case…" to "by Kinghorn" (in the second line) and from "by physically using... to cards", including the contents of footnote 43; 2. footnote 46 (CDP.501.001.2776_017); and 3. the first sentence in [65] (CDP.501.001.2776_019). 1. This variation will require a change in the orders made on 23 October 2019, which were stayed by consent on 25 October 2019. I request that the parties incorporate such change in the draft orders which will be prepared to include the rulings made in these reasons which are set out below. Rulings on further documents 1. The documents in the bundle (MFI 15) comprise advices given by lawyers. Several refer to other documents, which have not been included in the bundle. I have considered only those documents contained in the bundle. In some cases, the rulings are subject to the contents of documents referred to in the advices. It is at least possible that the contents of these documents will affect the determination of whether there has been imputed waiver. There is a brief description of the documents in the schedule at the front of MFI 15, which also serves as an index. The schedule has been provided to all parties. 2. Where a passage from a document in respect of which I have found imputed waiver has footnotes, the footnotes are included in the imputed waiver, except where otherwise stated. 3. The categories into which the DPP contends the documents fall have also been indicated in the schedule and are reproduced in the headings below. These categories appear from the Privilege Reasons but are reproduced below for convenience. Category Description A Emails between the DPP and the AFP in the period when the prosecution was anticipated B Emails between the DPP and the ATO in the period when the prosecution was anticipated C & E Documents prepared by the ATO, AFP or another party D AFP or ATO emails disclosing communications of the DPP in the period when prosecution was anticipated F Email correspondence between the AFP and other persons for the dominant purpose of the DPP being provided with professional legal services G Email correspondence between the ATO and other persons for the dominant purpose of the DPP being provided with professional legal services H Internal office documents I File notes of privileged conversations with the ATO J Communications regarding the hearing listed for 10 May 2019 K Communications regarding the DPP, AFP and ATO subpoenas L Advices from counsel M Internal office communications N Communications between the DPP and counsel O Privilege claims in relation to matters other than the prosecution of the accused Tab 1 (CDP.001.001.0153) (category L) 1. This document is an advice dated 29 August 2013 by Peter Neil SC to the DPP. I am satisfied that it is privileged under s 117 of the Evidence Act 1995 (Cth) and the common law as it was prepared for the dominant purpose of Mr Neil (as lawyer) providing legal advice by to the DPP (as client). There are several documents referred to in the advice which are not included in MFI 15. However, within the four corners of the advice there is nothing to indicate that there has been any imputed waiver. Accordingly, this document retains its privilege on that basis. Tab 2 (CDP.001.003.0521) (category N) 1. This document is a supplementary advice dated 25 September 2013 by Mr Neil to the DPP. For the same reasons as given with respect to the document at Tab 1, the document is privileged. 2. There has been imputed waiver in respect of the portion in [26] from "The Minute records that the ATO conducted…" until the end of the following sentence (on CDP.001.003.0528-CDP.001.003.0529). Otherwise there is no imputed waiver, subject to the contents of the Minute dated 29 June 2013, which is incorporated by reference into the advice, and which is not contained in the bundle. Tab 3 (CDP.501.001.8355) (category L) 1. This document is an undated joint advice given by Mr Neil and Mr Ranken (lawyers) to the DPP (as client). It retains its privilege. There has been no imputed waiver. Tab 4 (CDP.501.001.8274) (categories A and C) 1. This document is the cover letter dated 19 November 2015 for the brief provided by the Australian Federal Police (AFP) to the DPP which I found in the Privilege Reasons to mark the date on which litigation was anticipated. The document is privileged. There has been imputed waiver of the following portions of that letter: 1. paragraph [9] from "That on 14 June 2005…" to "(Law part code 41510)"; 2. the introductory words above the first dot point on page 2 (CDP.501.001.8274_0002) from "The following additional…" to "…is also provided". 3. the fifth dot point on page 2 (CDP.501.001.8274_0002), being the passage commencing "Transcripts of interviews…" and ending "not an issue."; 4. the sixth dot point on page 2 and continuing to the top of page 3 (CDP.501.001.8274_0002 to _0003) from "ATO material…" to "using coercive powers". Tab 5 (CDP.001.003.0547) (category H) 1. This document is a copy of the document at Tab 4, which contains handwritten notes. The document is privileged apart from the same three passages referred to above, in respect of which there has been imputed waiver. There has been no imputed waiver in respect of the handwritten notes. Tab 6 (CDP.501.001.2963) (category N) The undated memorandum of advice 1. This document is an undated memorandum of advice from Mr Ginges, barrister, to the DPP (as client). As with the document at tab 2, it referred to the Minute dated 29 June 2013 which was said to have been prepared by Mr Kapeleris and Mr Murphy, both officers of the DPP. This Minute has not been included in the bundle. 2. Various issues are addressed in the memorandum of advice at tab 6, only some of which refer to the s 264 examinations and bear on their use, either as evidence or for the formulation of charges. Those portions which constitute the reasoning underpinning advice about the effect of the law on the s 264 examinations retain their privilege. In the main, the advice itself retains its privilege. The exception to this general proposition is the conclusion as to the admissibility of such examinations, in respect of which I consider there to have been imputed waiver since the conclusion would tend to inform the client (in this case the DPP) as to the use which could be made of the s 264 examinations. For these reasons, I consider there to have been imputed waiver in respect of the part of the last sentence of [42] of the advice (on page 11, CDP.501.001.2963_0011) which commences "I would expect that the.." to the end of that sentence. 3. I consider there to have been imputed waiver of the first two sentences of [66] (on page 17, CDP.501.001.2963_0017) since they are relevant to the "non-use" and "non-dissemination" of the s 264 examinations. 4. I consider that there has been imputed waiver of part of [76] of the advice (on pages 19-20, CDP.501.001.2963_0019 to _0020). The parts of [76] in respect of which there has been imputed waiver are: 1. from the beginning of [76] to the first colon in the first line; and 2. the whole of subparagraph h. of [76]. The appendix to the undated memorandum of advice 1. Mr Ginges has attached an appendix to his advice (which commences at CDP.501.001.2963_0023) which contains notes which he has made from reading through certain evidentiary material. The appendix to the undated memorandum of advice attracts privilege. There has been imputed waiver of the following parts of the appendix: 1. paragraphs [23] and [24] of the appendix (on pages 35 and 36, CDP.501.001.2963_0035 to _0036), since these paragraphs show dissemination and use of the s 264 examinations of the accused; 2. paragraph [39] (on page 39, CDP.501.001.2963_0039) and the associated footnote, which is relevant to the use to which the s 264 examinations have been put; 3. paragraph [41], the first three lines (on page 39, CDP.501.001.2963_0039), and subparagraphs e. and h. (on page 40, CDP.501.001.2963_0040), which constitute references to these matters by the accused's then solicitors in response to the ATO's position paper; 4. paragraphs [53]-[56] (pages 48-56, CDP.501.001.2963_0048 to _0056), which analyse statements made by the accused in his s 264 examinations and provide, by that analysis, an indication of the forensic use of such statements, including by reference to other evidence; 5. subparagraph j. of [69] (page 66, CDP.501.001.2963_0066), which invites a comparison between what the accused said in his s 264 examinations and other evidence; 6. paragraph [76] (page 68, CDP.501.001.2963_0068) in which a similar comparison is made as in (5) above; 7. the second and third sentences of paragraph [77] (page 68, CDP.501.001.2963_0068); and 8. paragraph [93] (page 72, CDP.501.001.2963_0072) in which a comparison is made of the same category as in (5) and (6) above. Tab 7 (CDP.005.002.0295) (category L) 1. This document is a memorandum of advice dated 28 February 2017 from Mr Ginges (as lawyer) to the DPP (as client). It attracts privilege. There has been imputed waiver with respect to the first sentence of paragraph [20] on page 5 (CDP.005.002.0299) only. Tab 8 (CDP.501.001.2877) (category L) 1. This document is a memorandum of advice dated 6 June 2017 from Ms Abraham QC and Mr Kalyk (as lawyers) to the DPP (as client). It attracts privilege. There has been imputed waiver of the following: 1. the first sentence of paragraph [10] (page 3, CDP.501.001.2877_003) and the words "In particular:", together with subparagraph (5) (on page 4, CDP.501.001.2877_004); 2. paragraph [39] (on pages 11-12, CDP.501.001.2877_0011 to _0012), which is relevant to the influence of the s 264 examinations on the framing of the charges; and 3. the first sentence of paragraph [51] (on page 14, CDP.501.001.2877_0014) and the following words, "This was made up of the following:", together with subparagraph (3). Tab 9 (CDP.005.002.0021) (category H) 1. This document, dated 23 June 2017, is an internal DPP document which attracts privilege as it was prepared by lawyers (employed officers of the DPP) for the dominant purpose of providing advice in anticipation of litigation to be brought by the DPP. There has been imputed waiver of the opening words of paragraph 22 (on page 5, CDP.005.002.0025) up to "namely:" and subparagraph c), and the contents of footnotes 15 and 16, but not the handwritten endorsements. Tab 10 (CDP.501.001.3208ff) (category N) 1. The document at tab 10 comprises four documents, each of which has been identified by the DPP as belonging to category N: 1. an email chain between the DPP and counsel regarding the statement of George Montanez (CDP.501.001.3208); 2. an internal ATO email dated 26 February 2018 (CDP.501.001.3209); 3. a draft of George Montanez's statement (CDP.501.001.3210); and 4. suggestions made by Mr Ginges on the draft of George Montanez's statement (CDP.501.001.3211). 1. These documents will be addressed in turn. Document (1) (CDP.501.001.3208) 1. This email chain attracts privilege under s 119 of the Evidence Act 1995 (Cth) and the common law. There has been imputed waiver of the following: 1. that part of the email sent from Ms Cooper on behalf of Mr Montanez on 27 February 2018 at 3.34pm (on CDP.501.001.3208_0002) which comprises the details of time, date, senders and recipients of the email, subject and importance, together with the words from "In response to the questions below" (in blue) to "s 264 interview for John Alan KINGHORN" (in blue); 2. the corresponding request on (CDP.501.001.3208_0003 to _0004), which comprises the details of time, date, senders and recipients of the email, subject and importance, together with the words from "As George is unavailable to conference" to "s 264 interview for John Alan KINGHORN?". Document (2) (CDP.501.001.3209) 1. These documents attract privilege under s 119 of the Evidence Act and the common law. There has been imputed waiver of the following: 1. that part of the email sent from Ms Griffin to Mr Montanez (and copied to others) on 26 February 2018 at 2.53pm which comprises the details of time, date, senders and recipients of the email, subject and importance, together with the words from "I have attached below an extract from an email that…" (in black) to "…made later in the statement" (in red), as well as the next portion in blue from "Tania response" to "…follow this up further with George"; 2. that part of the email on CDP.501.001.3209_002 which is in red from the heading "Kinghorn's position" and the paragraph directly underneath that heading; 3. that part of the email on CDP.501.001.3209_003 which is in red from the heading "Reasons for Settlement" and the paragraph directly under that heading; and the second dot point (in black) on that page. Document (3) (CDP.501.001.3210) 1. This document is a draft (unsigned) undated statement of George Montanez. It is privileged under s 119 of the Evidence Act and the common law. I do not consider there to be any imputed waiver of this draft statement, although it is referred to in emails parts of which are the subject of imputed waiver (see above). Document (4) (CDP.501.001.3211) 1. This document is privileged for the same reasons as set out for document (3) above. I do not consider there to have been imputed waiver of any part of this statement. Tab 11 (CDP.005.002.0003) (category M) 1. This document, dated 11 July 2018, is a committal report prepared by staff of the DPP (as lawyers) for the DPP (as client) concerning the indictment. It attracts privilege under ss 118 and 119 of the Evidence Act and the common law. 2. There has been imputed waiver of the following portions of this document: 1. subparagraph j. on page 3 (CDP.005.002.0005); 2. the introductory words to paragraph [42] (on page 9, being CDP.005.002.0011) and the first row of the cell directly underneath those words; 3. the introductory words to paragraph [44] down to "…include:" and subparagraph c., including footnotes 22 and 23 (on page 10, being CDP.005.002.0012); 4. the portion of sub-paragraph k. on page 13 (CDP.005.002.0015) from "If it is only..." to the end of subparagraph k and subparagraph l. 1. I add for completeness that there is significant discussion about the s 264 examinations of the accused in this document. However, the discussion substantially concerns matters of law but does not, apart from those portions identified above (which have been found to be the subject of imputed waiver), concern particular use or dissemination of the s 264 examinations of the accused. For that reason I am not persuaded that there has been imputed waiver of portions of the document other than as set out above. Tab 12 (CDP.501.001.3862) (category A) 1. This document, dated 16 August 2018, is a disclosure certificate signed by Federal Agent Hiscoe. It attracts privilege under s 119 of the Evidence Act and the common law. It contains a schedule which lists certain documents and categories of document and which contains a column setting out, in respect of each item or category a comment to provide more detail about the item or category. I do not consider there to have been any imputed waiver of any part of this document. Tab 13 (CDP.501.001.8354) (category L) 1. This document is a joint advice by Mr Neil and Mr Ginges dated 24 September 2018. It attracts privilege under ss 118 and 119 of the Evidence Act and under the common law. The topic of the advice is, as revealed by the schedule of documents prepared by the DPP, which has been provided to the accused's representatives, the impact of "Leach", which I take to be a reference to R v Leach [2019] 1 Qd R 459; [2018] QCA 131 (Leach), a decision of the Queensland Court of Appeal which was handed down on 22 June 2018 and which is germane to the accused's application for a stay of proceedings, as appears from the Privilege Reasons (see [2019] NSWSC 1420 at [39]-[41]). 2. There is no imputed waiver of any part of this advice. Tab 14 (CDP.501.001.3913) (category N) 1. This document is a further joint advice dated 23 January 2019 by Mr Neil and Mr Ginges on the topic of Leach. It attracts privilege under ss 118 and 119 of the Evidence Act and under the common law. There is no imputed waiver of any part of this advice. Tab 15 (CDP.501.001.7865) (category L) 1. This document is a supplementary joint advice dated 6 March 2019 by Mr Neil and Mr Ginges on the topic of Leach. It attracts privilege under ss 118 and 119 of the Evidence Act and under the common law. There is no imputed waiver of any part of this advice. Tab 16 (CDP.003.001.0547) (category M) 1. This document is an internal DPP minute dated 7 March 2019 on the topic of the indictment and the s 264 examinations (as identified in the schedule prepared by the DPP and provided to the accused). It attracts privilege under s 119 of the Evidence Act and the common law. There is no imputed waiver of any part of this advice. Tab 17 (CDP.501.001.7860) (category H) 1. This document is entitled "search report". It is an internal DPP document which records the responses of officers of the DPP to counsel's advice. Although it is undated, the relevant entries are dated 7, 8 and 12 March 2019. It attracts privilege under ss 118 and 119 of the Evidence Act and the common law. There is no imputed waiver of any part of this advice. Orders 1. As orders for access previously made have been stayed, I request the parties to provide draft short minutes incorporating the rulings set out above, including the variation of the ruling in respect of document 16 (CDP.501.001.2776). If the form of such orders is agreed, they can be made in chambers. Otherwise, I will hear the parties in due course on the form of such orders. ********** 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 October 2019