[2024] SADC 6

Prosecution: R Counsel: MS J LITSTER WITH MS S HALIKIAS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: TROY STEPHEN BELL Counsel: MR S JOYCE - Solicitor: MR H PATSOURIS - PATSOURIS & ASSOCIATES Hearing Date/s: 09/10/2024 to 13/10/2023, 16/10/2023, 19/10/2023, 23/10/2023 File No/s: DCCRM-18-1019 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. R v BELL (No 10) [2024] SADC 6 Ruling of his Honour Judge Stretton 2 February 2024 COMMUNICATIONS LAW - TELECOMMUNICATIONS - OTHER MATTERS CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE CRIMINAL LAW - EVIDENCE - RELEVANCE Application to exclude evidence of four recorded phone calls on the basis that the recordings were subject to legal professional privilege, and also on the basis that they were wrongly transcribed and used in the investigation in breach of a term of the authorising Telecommunications Act warrant which prohibited the transcription and use of any ‘apparently legally privileged material’. Further, that the recorded conversations were variously irrelevant or more prejudicial than probative. In the course of the hearing it was conceded that none of the conversations were with a lawyer for the purposes of seeking and receiving legal advice, and hence did not directly attract legal professional privilege. The first of the four conversations foreshadowed that legal advice would be sought in the future, and, after the event, the subsequent three conversations to some extent referenced legal advice given. In each of the recorded conversations matters relevant to the allegations were discussed. Held: 1. None of the conversations attract legal professional privilege. 2. There is no principle of indirect or derivative legal professional privilege attaching to a person’s subsequent repeating, recounting or referencing an earlier legally privileged discussion. 3. The use of the phrase ‘apparently legally privileged material’ in the warrant was to prevent investigators transcribing and using any apparently legally privileged conversations (which might have been automatically or inadvertently recorded) in the course of, and for the purpose of their investigation. It did not extend privilege to unprivileged conversations, nor prevent the otherwise legitimate use of and ultimate admissibility of unprivileged conversations. -- 1 of 11 -- 4. In each case the conversations contained conversation relevant to the alleged facts, the probative weight of which outweighs any prejudice, which such relevant conversations will be admitted. 5. Portions of the third and fourth conversation referencing possible interviews or future conversations are irrelevant and have the potential to be prejudicial if misunderstood by a jury, and will be excluded. 6. Two portions of the fourth conversation are only relevant to the identity of the caller, and accordingly will only be admitted if the identity of that caller remains an issue at trial. Esso Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; R v Bell (No 8) [2023] SADC 134; R v King [2002] SASC 140; R v TB & Anor (No 3) [2023] SASC 61; R v Swaffield (1998) 192 CLR 159, considered. -- 2 of 11 -- R v BELL (No 10) [2024] SADC 6 1 The accused’s previous lawyers recently unilaterally withdrew from this case.1 At that time there were still several outstanding defence applications to exclude evidence, some overlapping, some repeated, and some entirely new. 2 The accused’s new lawyers have consolidated, critically reviewed, and consequently withdrawn significant aspects of the outstanding matters, resulting in a single remaining Rule 39 notice to encapsulate what remains that the defence seeks to be determined prior to any empanelment of the jury.2 3 This ruling concerns evidence of alleged conversations between the accused and two lay witnesses that were recorded pursuant to a Telecommunications Service Warrant. The application 4 The defence application is put on the basis that the Prosecution is precluded from leading evidence of: • An intercepted telephone communication between the accused and prosecution witness X on the grounds that it is irrelevant and/or the prejudicial effect of the proposed evidence outweighs its probative value, that the conversations are subject to Legal Professional Privilege and that the use to date and any further use in the case would be in breach of one of the Telecommunications Service Warrant’s conditions which provided that: ‘Any communications involving apparently legally privileged material will not, after they have been identified, be transcribed or provided to any ICAC investigator or otherwise used in the course of the investigation’.3 • Three intercepted telephone communications between the accused and person Y, on the grounds that; in that the evidence is inadmissible and/or, any probative value is outweighed by its prejudicial effect, the conversations are subject to Legal Professional Privilege and that the intercepted telephone communications detail matters relating to his defence, including advice received from his then solicitor, and that the use to date and any further use in the case would be in breach of one of the Telecommunications Service Warrant’s conditions which provided that: ‘Any communications involving apparently legally privileged material will not, after they have been identified, be transcribed or 1 Without the leave of the court or the agreement of the accused. The circumstances are set out in R v Bell (No 8) [2023] SADC 134 and hence unnecessary to repeat. 2 Prior extant applications FDN 191, 199, and a further amended consolidated application not formally accepted, were all dismissed by consent at T 2635. 3 FDN 280, para 5. -- 3 of 11 -- [2024] SADC 6 2 provided to any ICAC investigator or otherwise used in the course of the investigation’.4 Common ground 5 There is no suggestion by the defence that the warrant was not validly issued, nor any suggestion that the recording of conversations within the terms of the warrant would be inadmissible. 6 There is no suggestion by the prosecution that recording conversations that attracted legal professional privilege would have been authorized by the warrant, nor that conversations that attract legal professional privilege would be admissible at trial. 7 In neither case did the accused speak to a qualified practicing lawyer, nor in either case did the person with whom the accused spoke purport to give legal advice.5 It is common ground that X was a parliamentary colleague who had ceased to practice law some years earlier. Y is alleged to be the accused’s wife. Grounds 8 The defence observes that in each case the Telecommunications Service Warrant was issued subject to the express condition that: ‘Any communications involving apparently legally privileged material will not, after they have been identified, be transcribed or provided to any ICAC investigator or otherwise used in the course of the investigation’. 6 9 The defence submits that the inclusion by the authority who issued the warrant of the word ‘apparently’ before ‘legally privileged material’ evidences an intention by the issuer of the warrant to preclude the ICAC from having access to and thereafter deploying a broad range of material that either is, was or might apparently be ‘legally privileged’. 10 The defence argues that the use of the phrase ‘apparently legally privileged material’ as opposed to, for example, ‘material subject to legal professional privilege’, evinces an intention by the authority to capture a broad category of communications that comprised, related to, or touched upon any legal matters. 11 The defence argues that to the extent that the intercepted telephone communications between the accused and X and Y contained ‘apparently legally privileged material’ (however that term is interpreted), the transcription of that communication, its provision to the ICAC and its subsequent use was also unlawful and contrary to the conditions of the warrant, and on that basis ought to be excluded. 4 FDN 280, para 6. 5 Esso Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. 6 Warrant SAIC-0013-00. -- 4 of 11 -- [2024] SADC 6 3 12 On those bases, the defence puts the evidence ought to be excluded.7 The evidence – conversation with X 13 The Court was asked to have regard to the two statements given by X, and the recorded conversation alleged between the accused and X. 14 The conversation was played to the court8 and a transcript was made available.9 It is unnecessary to set the conversation out in full. 15 Mr Joyce indicated that it was not in dispute that the accused was elected to the SA Parliament in March 2014, and that in that same month an initial complaint was made to the ICAC, which complaint led to an investigation, which in turn led to the matters now before the court.10 The allegations in this matter are unrelated to the accused’s election or subsequent parliamentary career. 16 The phone call in question is alleged to have occurred at 11.21 am on 12 May 2016, and is prior to the accused being charged.11 17 Mr Joyce explained that X was a former lawyer, now parliamentary colleague, whose long experience meant that parliamentary colleagues such as the accused would speak to X; not to get legal advice, but to seek X’s views on policy and legal matters. These and other background matters are set out in X’s two statements. 18 X’s statements explain that she had not held a practicing certificate since 2001, and that she made it clear to all her parliamentary colleagues including the accused that she could not provide legal advice. 19 The conversation starts with the accused indicating that he needed the name of a good lawyer. X responds by asking for some detail as to what the matter is about, and the accused responds with some brief discussion about the facts of the matter, ostensibly relevant and applicable to the facts of the case. At that, X responds with ‘well, lets see if we can find you some reasonable legal advice’. Then the two discuss possible political ramifications, and the personal stress such situations can cause, with X repeatedly saying that the accused will need to get legal advice. The conversation concludes with X saying she will talk to someone and get back to the accused, the obvious inference being that that will be to help the accused to get ‘some reasonable legal advice’.12 7 FDN 280 paras 5 and 6. 8 T 2656. 9 Appendix MAOTI 01 to the declaration of Orford, declaration dated 12 April 2017. 10 T 2642-2643. 11 T 2650. 12 Appendix MAOTI 01 to the declaration of Orford, declaration dated 12 April 2017. -- 5 of 11 -- [2024] SADC 6 4 20 It is common ground that in the recorded call with X, the accused frankly discusses factual details relevant to the matter now before the court, and what his stance is or might be in relation to some of those matters.13 21 Given that X was plainly not a qualified practicing lawyer, and per the content of the call she overtly limits her responses to sympathy, personal support, political advice, and emphasizing that the accused needed to seek and receive good legal advice, the defence very properly conceded that the conversation was not legal advice and did not attract legal professional privilege.14 22 The defence however maintain that the conversation contained ‘apparently legally privileged material’, and hence could not be ‘transcribed or provided to any ICAC investigator or otherwise used in the course of the investigation’ without breaching the terms of the warrant.15 Further, that the conversation is more prejudicial than probative because seeking legal advice could infer guilt, the conversation includes matters to do with the Mount Shank project which is only being led as uncharged discreditable conduct evidence, and that phrases in regard to monetary transfers that the accused would ‘cop that one’ are not fair as by the accused’s plea of not guilty he is not ‘copping that one’. 23 The threshold question is whether the conversation contained ‘apparently legally privileged material’. If it did not, then no term of the warrant has been breached. 24 The second question is whether, either in conjunction with a breached condition, or in any event, the conversation is more prejudicial than probative. The evidence – conversations with Y 25 There was no statement by Y, however the court was asked to have regard to the three recorded statements alleged to have occurred between the accused and Y. There has been no formal concession that Y is the accused’s wife. 26 The first conversation with Y is alleged to have occurred at 3.02pm on 12 May 2016, on the same day as the conversation with X, several hours later. The conversation references the conversation with X earlier in that day, makes brief reference to the allegations and matters they had ‘got him on’ and to his earlier comments as whether he had any defence to those allegations (which comments need not be set out herein), and that the accused is just about to ring the lawyer that had subsequently been recommended to him. It is clear that the accused’s conversation is not with a lawyer, nor is legal advice being sought, given, referenced, or referred to. 27 The second conversation with Y is alleged to have occurred at 7.38pm on 19 May 2016. The conversation indicates that the accused has now spoken to a lawyer, 13 T 2654. 14 T 2654-5. 15 T 2656. -- 6 of 11 -- [2024] SADC 6 5 and the accused references his overall stance in relation to the allegations, with some further detail as to his stance in relation to LCETA the first organisation through which it is alleged he offended, matters relating to the alleged outstanding funds and Millicent High School, and actions in relation to the Mount Shank Hall project that also now forms part of the case against the accused. The conversation does contain reference to the issue of an interview, and relates the lawyer’s view about that, which has no relevance to the matter and could lead to prejudice in the eyes of a jury. 28 The third conversation with Y is alleged to have occurred later that evening, at 9.34pm on 19 May 2016. The initial and the final portions of the conversation are about personal matters irrelevant to the charges, although would be relevant to establish that Y is the accused’s wife if that aspect of the case remains to be proven.16 Between lines 116 and 252 the accused discusses his position in relation to the matter in general terms. Much of it is exculpatory. That portion of the conversation does also however contain brief reference to the lawyer’s view about whether the accused should talk to anyone about the matter, which has no relevance to the matter and could lead to prejudice in the eyes of a jury.17 Analysis – breach of warrant 29 None of these conversations are with a lawyer for the purposes of obtaining and receiving legal advice. Accordingly, they do not directly attract legal professional privilege. 30 Further, there is no indirect or derivative protection attaching to communications in circumstances where a person who has received legal device decides to subsequently discuss or disclose their otherwise privileged communications to a third party. 31 The whole idea of privilege is so that people can seek and receive legal advice with impunity, safe in the knowledge that the act of seeking out legal advice, discussing their legal problem and the advice they receive directly from their lawyer cannot be used against them. There are many long-understood reasons for that principle, but they all centre around enabling and encouraging persons to seek and receive advice in confidence. 32 It is equally clear that the person is free to subsequently tell others the advice they have received, but if they choose to do that, those subsequent discussions with others will not attract privilege and indeed embarking on such subsequent discussions will ordinarily waive privilege.18 33 It is also a long-accepted investigational practice to surveille persons under investigation for suspected crimes in the very hope that they will discuss the 16 Lines 1-115, lines 253-371, Transcript of conversation 9.34pm on 19 May 2016. 17 Lines 181-184. Transcript of conversation 9.34pm on 19 May 2016. 18 R v King [2002] SASC 140. -- 7 of 11 -- [2024] SADC 6 6 matters they are under investigation for and possibly make admissions. It is trite law that there is no unfairness in doing so.19 34 The accused’s primary argument is that the term of the warrant providing that ‘communications involving apparently legally privileged material will not, after they have been identified, be transcribed or provided to any ICAC investigator or otherwise used in the course of the investigation’ is intended to prohibit the transcription or use in the investigation of a wider class of material than just legally privileged material. In short, the accused puts that the term of the warrant prohibits the use by the investigators of recorded discussions describing privileged material, i.e., subsequent non-privileged discussions of earlier privileged discussions. 35 The court has closely considered the warrant and the recorded conversations, against the full backdrop of both the case and the investigation as set out in this and the numerous other r 39 applications that have been made and dealt with to date. As a result, with reference all relevant matter, the court has a detailed understanding of the case alleged against the accused and the nature and extent of the evidence to be called. 36 All of counsel’s submissions have been carefully considered, but in some attempt at brevity are not repeated in any greater detail herein. 37 The warrant was issued to investigators. In this instance, it is clear from its wording that the warrant issuer was not primarily concerned with the subsequent admissibility of material at trial, as privilege can always be claimed at trial to prevent the tender at trial of privileged material. The prohibition was against transcription or further use by investigators. Therefore, the warrant issuer was likely to have been primarily concerned to ensure that if privileged material was recorded inadvertently or automatically (if, for example, all calls to the accused’s phone were being automatically recorded but the recordings were only being checked at periodic intervals), then it should not be used for the purposes of the investigation. 38 Viewed in that context, the phrase apparently legally privileged material will not, after they have been identified, can be much better understood. 39 In the court’s opinion, it is phrased in this way to signal to the investigators that if something is ‘apparently legally privileged’, i.e., on its surface appears to be a privileged conversation, then it should not be transcribed or used. In the court’s opinion therefore, ‘apparently’ means ‘appears to the investigator to be’ a privileged conversation. 40 The phrase is not intended to impose a prohibition on non-privileged conversations that reference earlier privileged conversations. In any event, in the court’s view, a literal reading of the words does not connote the concept of non- privileged conversations that reference earlier privileged conversations. But more 19 R v TB & Anor (No 3) [2023] SASC 61; R v Swaffield (1998) 192 CLR 159. -- 8 of 11 -- [2024] SADC 6 7 significantly, plainly such conversations do not attract privilege, and such conversations have long been recognized as admissible, so there would be no ostensible reason for an unusual prohibition of this nature. 41 Accordingly, none of the recorded conversations breach the term of the warrant because none of the conversations constituted ‘apparently legally privileged material’. In short, none had the appearance of privileged conversations. Analysis – relevance and prejudice 42 In relation to the recorded call with X, the accused frankly discusses some factual details relevant to the matter now before the court, and what his stance is or might be in relation to some of those matters.20 Inasmuch, it has probative value concerning those events. There is nothing prejudicial addressed on any other topic. Nothing adverse to the accused is either put to, or discussed by, the accused, except insofar as the accused’s responses address or respond to matters relevant to the evidence that comprises aspects of the case to be led against the accused. Having regard to the alleged conversation in the context of the case against the accused, the probative value far exceeds any prejudice. 43 In relation to the first conversation with Y, the accused had not yet sought legal advice, and he is plainly not speaking to a lawyer. The accused references the recent conversation with X, makes brief reference to the allegations and matters they had ‘got him on’ and to his earlier comments as whether he had any defence to those allegations. The comments whilst potentially probative have a generality to them, so it is most appropriate to assess their probative weight in the context of the other two conversations with Y. 44 In relation to the second conversation with Y, the accused discusses his overall stance in relation to the allegations and gives further detail as to his stance in relation to LCETA (the first organisation through which it is alleged he offended). The accused discusses matters relating to the alleged outstanding funds and Millicent High School, and actions in relation to the Mount Shank Hall project that forms part of the case against the accused. These topics are all central issues in the trial and any discussion of them by the accused is highly probative. 45 The discussion in this second conversation as to the lawyer’s views about an interview, whilst uncontroversially reflective both of an accused’s person’s rights and straightforward advice on the topic, have no probative weight but the potential for prejudice if misunderstood by a lay jury. That portion will be excluded. 46 In relation to the third conversation with Y, the initial third of the conversation21 and the final third of the conversation22 are about personal, family, 20 T 2654. 21 Lines 1-115. 22 Lines 253-371. -- 9 of 11 -- [2024] SADC 6 8 and unrelated matters. Those portions of the conversation would be relevant and admissible to prove that Y is the accused’s wife. Given the accused’s wife’s role in some of the actual transactions, the fact that Y is the accused’s wife is relevant in the case. There is little or no prejudice to the accused in those conversations. If the relationship remains in dispute, those portions of the conversation will be mildly relevant to prove that matter. If that fact is agreed, those portions will have no relevance and will be excluded. 47 Between lines 116 and 252 of the third conversation with Y, wherein the accused discusses his position in relation to the matter in general terms, the conversation is plainly probative. Much of it is indeed ostensibly exculpatory. There is little, if any, prejudice. The portion of the conversation containing brief reference to the lawyer’s view about whether the accused should talk to anyone about the matter, has no probative value and has the potential for prejudice if misunderstood. That portion will be excluded. 48 The first conversation with Y, when its generality is read in conjunction with and in light of the second and third conversations with Y, is probative and admissible. Conclusions 1. None of the conversations were recorded or transcribed in breach of any condition in the warrant. 2. The conversation between the accused and X at 11.21am on 12 May 2016 does not attract legal professional privilege, was lawfully recorded and transcribed, is relevant and will be admitted. 3. The first conversation between the accused and Y at 3.02pm on 12 May 2016 does not attract legal professional privilege, was lawfully recorded and transcribed, and is when read together with the second and third conversations with Y, relevant and will be admitted. 4. The second conversation between the accused and Y at 7.38pm on 19 May 2016 does not attract legal professional privilege, was lawfully recorded and transcribed, and except for one portion is relevant and will be admitted. The portion of the conversation wherein the accused recounts his lawyer’s views about an interview has no probative weight but has the potential for prejudice so will be excluded. 5. The third conversation between the accused and Y, at 9.34pm on 19 May 2016 does not attract legal professional privilege, was lawfully recorded and transcribed. The initial and the final portions of the conversation are about personal matters relevant to establish that Y is the accused’s wife, if that aspect of the case remains in dispute. Between lines 116 and 252 the accused discusses his position in relation to the matter in general terms, which is plainly relevant and admissible. -- 10 of 11 -- [2024] SADC 6 9 The brief reference therein to the lawyer’s view about whether the accused should talk to anyone about the matter has no relevance to the matter but has the potential for prejudice, so that brief reference will be excluded. -- 11 of 11 --