CDPP v Leach (No 2) [2020] QDCPR 4

DISTRICT COURT OF QUEENSLAND CITATION: CDPP v Leach (No 2) [2020] QDCPR 4 PARTIES: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v PHILIP LEACH (Defendant) FILE NO/S: 1479/2013 DIVISION: Criminal PROCEEDING: Application pursuant to section 590AA of the Criminal Code 1899 (Qld) ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 20 February 2020 DELIVERED AT: Brisbane HEARING DATE: 17 February 2020 JUDGE: Smith DCJA ORDER: 1. I dismiss the defence application to inspect documents 1, 2, 4, 5, 6, 7, 8 and 9 referred to in Exhibit JC1 to the affidavit of James Carter. 2. I permit the defence to inspect document 3 referred to in Exhibit JC1 to the affidavit of James Carter. CATCHWORDS: EVIDENCE – LEGAL PROFESSIONAL PRIVILEGE – whether the prosecution is entitled to claim legal professional privilege over various documents – whether the privilege has been waived Commonwealth Criminal Code 1995 ss 134,2, 145.1 Criminal Code 1899 (Qld) ss 408C, 590AA, 590AB Director of Public Prosecutions Act 1983 (Cth) s 6 Director of Public Prosecution Regulations 2019 (Cth) r 9 Taxation Administration Act 1953 (Cth) s 355.10 Aouad v R; El-Zayet v R [2013] NSWSC 760, applied Attorney-General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475; [1986] HCA 80, cited Carter v Managing Partner Northmore Hale Davy and Leake (1995) 183 CLR 121; [1995] HCA 33, cited Daniels Corporation International v ACCC (2002) 213 CLR 543; [2002] HCA 49, cited -- 1 of 13 -- 2 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, cited Glencore International AG v Commissioner of Taxation (2019) 93 ALJR 967; [2019] HCA 26, cited Grofam Pty Ltd v ANZ Banking Group Limited (1993) 45 FCR 445; 117 ALR 669, cited Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66, applied Osland v Secretary Department of Justice (2008) 234 CLR 275; [2008] HCA 37, applied R v Bunting & Ors (2002) 136 A Crim R 539; [2002] SASC 412, applied R v Kinghorn (No 4) [2019] NSWSC 1420, cited R v Leach [2019] 1 Qd R 459; (2019) 334 FLR 224; [2018] QCA 131, cited R v Petroulias (No. 22) (2007) 213 FLR 293; (2007) 176 A Crim R 309; [2007] NSWSC 692, applied R v Seller (2015) 89 NSWLR 155; (2015) 249 A Crim R 549; [2015] NSWCCA 76, cited Sanrus Pty Ltd & Ors v Monto Coal Pty Ltd & Ors [2019] QSC 144, cited Secretary to the Department of Justice v Osland (2007) 26 VAR 425; [2007] VSCA 96, cited The Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500; [1985] HCA 60, cited Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25, cited COUNSEL: Ms A Freeman for the Commonwealth Director of Public Prosecutions Mr P Dunning QC for the defendant SOLICITORS: Commonwealth Director of Public Prosecutions for the prosecution Pharmacis Canning Lawyers for the defendant Introduction [1] This is an application by the Defence for the further disclosure of nine documents in the possession of the Commonwealth Director of Public Prosecutions (“CDPP”) pursuant to section 590AA of the Criminal Code 1899 (Qld). [2] The subpoena1 served by the defence requires disclosure of any written advice or notes of oral advice by the CDPP to the Australian Tax Office (“ATO”) making reference to the transcript or record of interview of Philip Leach dated 18 March 2010 for the period 16 September 2011 until 22 June 2018.2 1 Exhibit 26 - subpoena dated 12 December 2019. 2 This was narrowed in oral submissions. -- 2 of 13 -- 3 [3] The issues to be decided here are whether the CDPP is entitled to claim legal professional privilege, and whether it has waived the privilege. In answer to these questions, one must look at the context of the claim and see if there has been waiver. Background [4] The defendant is charged with the following charges: (a) 19 counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the Commonwealth Criminal Code; (b) 21 counts of using false documents contrary to s 145.1(1) of the Commonwealth Criminal Code; (c) Three counts of attempting to obtain a financial advantage by deception contrary to s 134.2(1) of the Commonwealth Criminal Code; and (d) One count of fraud contrary to s 408C of the Criminal Code 1899 (Qld). Background [5] The facts alleged by the Crown are contained in its submissions dated 17 April 2019.3 I note the defendant disputes these allegations. [6] At the time of the alleged offences, the defendant was a solicitor in private practice. It is alleged that over the relevant charge period he lodged numerous business activity statements (“BAS”) with the ATO claiming GST refunds on behalf of two trusts and dishonestly asserted that those trusts had incurred expenses that he knew in fact had not been incurred. [7] The total amount of GST refunds claimed was $1,572,181. $1,311,761 was actually received by the defendant into his firm’s trust account initially and then transferred into other accounts held or controlled by him. It is alleged also that he attempted to further obtain $260,420. [8] The ATO conducted an audit of the BAS statements. As part of that process, over a period of time prior to the compulsory interview, the defendant supplied invoices and other documents to the ATO in support of the GST refunds claim. It is the prosecution case that these invoices were false and the defendant knew them to be false. [9] The evidence called at the first trial and proposed to be relied on at the re-trial is that the invoices were not generated by the businesses nor did they represent legitimate payments received by the business from the trust in question so that the trusts were entitled to claim GST refunds for them. A template of one such invoice was discovered on the defendant’s computer when search warrants were executed at the defendant’s home and business premises on 7 July 2011.4 The prosecution contends the inference can be drawn that the defendant created these invoices. [10] During the course of the audit, the ATO issued notices under s 355-10 of Schedule 1 of the Taxation Administration Act 1953 (Cth) (“TAA”) to the defendant on 12 February 2010 requiring him to attend and give evidence under oath or affirmation 3 Exhibit 7 – CDPP submissions dated 17 April 2019. 4 Exhibit 5 pp 319-324; Statement of Michael Molyneaux. -- 3 of 13 -- 4 and produce documents on 18 March 2010. The ATO also sought reimbursement of the GST refunds paid to the defendant. [11] On 16 March 2010, the ATO received two cheques from the defendant’s firm’s trust account totalling $1,083,271. Further investigations revealed this money was being held in the trust account on account of the estate of Audrey de Graff. It is the prosecution case this money was fraudulently used by the defendant. [12] The audit process concluded in about August 2010 and the matter was referred to the serious non-compliance section of the ATO for investigation which commenced in November 2010. Ms Toni O’Bryan was the lead investigator. [13] On September 2011, a brief of evidence was forwarded to the CDPP which included a transcript of the compulsory interview which had been conducted on 18 March 2010. [14] The defendant was charged on 23 March 2012 and the indictment was presented on 10 October 2013. [15] The evidence relied on by the prosecution can broadly be categorised as follows: (a) The BAS statements lodged by the defendant with the ATO the subject of the charges; (b) Invoices and other documents supplied by the defendant following requests from the ATO auditors to substantiate the GST claims prior to the compulsory interview; (c) Evidence from the purported suppliers and developers as to the authenticity of the invoices and documents supplied by the defendant; (d) Evidence from a Mr Fu regarding his involvement in the trusts and the signing of the various documents; (e) Evidence from Mr de Graff and Mr Lincoln Smith regarding the unauthorised use of trust funds held on behalf of the estate of Mrs de Graff; (f) Documents seized under warrant from the defendant’s home and business premises including trust account documents; and (g) Documents obtained from various banks showing the movements of funds and other public records such as ASIC records and RP data records. [16] The matter came on for trial in the District Court of Brisbane on 24 April 2017. The defendant was convicted of all charges on 15 May 2017. He received an effective head sentence of eight years imprisonment, with a non-parole period of four years. [17] As noted above, the prosecution case included the use of a compulsory examination conducted under s 355 of the TAA. The defendant successfully appealed his conviction to the Court of Appeal.5 The basis of the majority decision was that the s 355 examination should not have been used at the trial. [18] The prosecution does not intend to rely upon the evidence of the compulsory interview in the re-trial. 5 R v Leach [2019] 1 Qd R 459; (2019) 334 FLR 224; [2018] QCA 131. -- 4 of 13 -- 5 [19] On 23 April 2019, the defendant filed a writ in the High Court of Australia, seeking declarations that he cannot receive a fair trial and that the trial breaches Chapter 3 of the Commonwealth Constitution. The matter was remitted by Gageler J to the District Court of Queensland for determination. [20] The matter proceeded by way of pre-trial hearing for an order to quash and/or stay the indictment on 16, 17, 18 and 19 December 2019 and 31 January 2020. [21] This application arises out of documents that the defence have sought as being relevant to the primary application. [22] I have marked the relevant documents as exhibit 27, and ordered the envelope not be opened without the order of a Court or Judge. Prosecution evidence [23] James Carter has sworn an affidavit dated 14 February 2020.6 In that affidavit, he swears that he has been the Deputy Director of the CDPP since 2007. He makes the affidavit in response to the subpoena served on 12 December 2019. He claims legal professional privilege, specifically, litigation privilege over a number of documents which had been identified as potentially falling within the scope of the subpoena to which I have already referred. [24] He swears as to the composition and work of the office and notes that all staff in the office and all counsel in the office have duties of confidentiality (para 23). [25] He refers to the affidavit of Ms Murphy deposed to on 24 March 2014 which refers to the relevant dates. [26] An indictment was presented in the Court on 10 October 2013. On or about 10 March 2014, the CDPP was served with the defendant’s pre-trial application, seeking a permanent stay in respect of the proceedings. [27] The application was heard on 28 March 2014, 21 May 2014, and 28 May 2014 before Judge Shanahan. [28] On or about 12 June 2017, the defendant served a Notice of Appeal against his conviction. That appeal was heard on 7 February 2018. Further submissions were heard from the parties. [29] Exhibit JC1 is a schedule, listing documents which may fall within the scope of the subpoena, but over which the Director claims legal professional privilege. [30] Mr Carter swears at paras 31-33 the nature of the documents over which litigation privilege is claimed constitutes confidential communications between lawyers and the employee of the Director and officers of the ATO dated between 10 March 2014 and 9 February 2018. These communications occurred at a time when the Director was a party to proceedings against the defendant, and concerned and related to the conduct of such litigation, namely the pre-trial application filed on 10 March 2014 and the appeal heard in 2018. He stated: “Based on my review of the information in the schedules and the documents and taking into account my knowledge of the operation of the office and the history of this matter as set out above, I am of the view, 6 Exhibit 28. -- 5 of 13 -- 6 and as delegate and on behalf of the Director claim, that the documents identified in the schedules are subject to legal professional privilege, and ought not be required to be produced under subpoena on the basis that they are confidential communications and/or documents that were prepared for the dominant (if not sole) purpose of providing the Director with professional legal services in relation to legal proceedings in which the Director was a party, being the prosecution of the defendant generally but more specifically, the pre-trial hearing in 2014 and the appeal in 2018 which were as explained above on foot at the time of the confidential communication. The production of the documents identified in the schedule attached to this affidavit of JC1 is therefore opposed by the director on the basis that they are subject to a claim of legal professional privilege, and ought not to be produced.” CDPP submissions [31] In its written submissions,7 the CDPP submits that nine documents have been identified as potentially falling within the ambit of the subpoena. It is submitted that privilege applies to these documents. It is submitted that the CDPP may validly claim legal professional privilege over the documents identified, if they contain confidential communications about the conduct of litigation, or they contain legal advice given by the CDPP by her lawyers. [32] With respect to the documents identified as potentially falling within the ambit of the subpoena, they can be described broadly as: (a) Emails from Dominique Murphy of the CDPP to officers of the ATO in March 2014; (b) File note of conversations between Dominique Murphy and officers of the ATO in March and May 2014; and (c) An email from Laura-Leigh Manville of the CDPP to officers of the ATO in February 2018. [33] It is pointed out at all material times, Ms Murphy and Ms Manville were lawyers employed by the CDPP and bound by a duty of confidentiality. As to the issue of waiver, it is submitted it is a matter for the defendant to establish that waiver has occurred in this case. It is submitted the documents here relate to communications surrounding the conduct of separate and discrete proceedings, namely the 2014 stay application and the 2018 appeal. It is submitted there is nothing about the conduct of these proceedings relevant to the gathering of evidence or the framing of the charges for the trial proper. [34] In oral submissions, Ms Freeman fairly much repeated that which was in the written submissions. She argued that the relevant documents were created in response to the defence application before the stay and/or appeal. Defence submissions [35] Mr Dunning QC, on behalf of the defendant, submitted that there had been waiver in this case. He heavily relied on the decision of R v Kinghorn (No 4).8 [36] He submitted that it was inconsistent for the CDPP to claim privilege when the circumstances are that the compulsory interview was unlawfully disseminated and 7 Exhibit 29- CDPP written submissions dated 17 February 2020. 8 [2019] NSWSC 1420 particularly at [148], [154] and [168]. -- 6 of 13 -- 7 the emails may well be relevant to a line of enquiry about the use of the interview in the prosecution. In all of the circumstances on the authorities, waiver had occurred. Discussion Legal professional privilege and the CDPP [37] The CDPP has express functions which are conferred by statute. This includes the power to institute prosecutions on indictment against the laws of the Commonwealth and to carry on such prosecutions including doing anything incidental or conducive to the performance of any stated functions.9 [38] In addition, the CDPP has the function of giving an authority of the Commonwealth legal advice on law enforcement or a matter relating to law enforcement whether or not the advice is for the purposes of a particular investigation.10 In my view, this would include the ATO. [39] It has been previously noted that it is necessary to the function of the Director’s role for the provision and receipt of legal advice.11 [40] It has been previously said that legal professional privilege is not a rule of evidence but a substantive rule of law.12 [41] It must be remembered that the purpose of legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is a principle of great importance: “to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and the tribunals of the land.”13 [42] The rule which protects confidentiality between lawyers and clients also includes corporations and government entities.14 There is no doubt that rule applies to communications between a public authority and its salaried legal advisers.15 9 Section 6 of the Director of Public Prosecutions Act 1983 (Cth). 10 Regulation 6 of the Director of Public Prosecutions Regulations 2019 (Cth). 11 Grofam Pty Ltd v Australia & New Zealand Banking Group Limited (1993) 45 FCR 445; 117 ALR 669. 12 Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121 at pp 159-160; [1995] HCA 33; Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 at pp 552- 553; [2002] HCA 49; Glencore International AG v Commissioner of Taxation (2019) 93 ALJR 967; [2019] HCA 26 at [21]-[25]. 13 Attorney-General v Maurice (1986) 161 CLR 475 at p 490.5 per Deane J; [1986] HCA 80. 14 The Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500 at p 510; [1985] HCA 60; Waterford v Commonwealth (1987) 163 CLR 54 at p 62; [1987] HCA 25; R v Bunting & Ors (2002) 136 A Crim R 539 at pp 544-546; [2002] SASC 412. 15 Waterford v The Commonwealth (1986) 163 CLR 54; [1987] HCA 25. -- 7 of 13 -- 8 [43] In Aouad v R; El-Zayet v R,16 Price J of the New South Wales Supreme Court noted that legal professional privilege is capable of applying to communications between a Director of Public Prosecutions and DPP practitioners. [44] Also in R (Cth) v Petroulias (No. 22),17 Johnson J accepted that the Commonwealth Director of Public Prosecutions was a client, and lawyers within the office of the CDPP were persons providing legal services to the CDPP as the client. [45] I conclude there is no doubt the CDPP can claim legal professional privilege. [46] Having perused the nine documents, I am of the opinion that they are discussions or advices of a legal nature between the CDPP and ATO and legal professional privilege attaches to them. Waiver [47] The next question is whether there has been waiver of that privilege. [48] In Attorney-General for the Northern Territory v Maurice & Ors,18 it was held by the High Court that in a case where there is no intentional waiver of privilege, the question whether waiver should be imputed depends on whether it would be unfair or misleading to allow a party to refer to or use the material and yet assert it is privileged.19 However as Gibbs CJ noted, the mere reference to a document in pleadings does not mean there is waiver.20 [49] As Mason and Brennan JJ noted “the implied waiver inquiry is at bottom focussed on the fairness of imputing such a waiver”.21 [50] Deane J noted that: “[Waiver] occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage”.22 [51] His Honour noted that if in a document a party asserts reliance upon a particular identified document or communication, it may be that considerations of fairness might lead to a conclusion of waiver.23 [52] In Mann v Carnell,24 the High Court was concerned with a matter where the ACT government compromised an action brought by a member of the public. The litigant complained to a member of the Legislative Assembly about the conduct of the litigation. The complaint was passed onto the Chief Minister. In confidence, the Chief 16 [2013] NSWSC 760 at [31]. 17 (2007) 213 FLR 293; (2007) 176 A Crim R 309; [2007] NSWSC 692 at [56]. 18 (1986) 161 CLR 475; [1986] HCA 60. 19 (1986) 161 CLR 475 at p 481.5 per Gibbs CJ; p 487.9 per Mason and Brennan JJ; p 493.3 per Deane J; Dawson J at p 498.1. 20 (1986) 161 CLR 475 at p 481.6; Dawson J at 497.1. 21 (1986) 161 CLR 475 at p 488.5. 22 (1986) 161 CLR 475 at p 493.1. 23 (1986) 161 CLR 475 at p 493.5. 24 (1999) 201 CLR 1; [1999] HCA 66. -- 8 of 13 -- 9 Minister sent documents to the member including legal advice. The litigant sought production of the documents claiming privilege had been waived when they were provided to the member. The High Court by majority held there was no waiver. [53] Gleeson CJ, Gaudron, Gummow and Callinan JJ noted at [28] that it is inconsistency between the conduct of the client and the maintenance of confidentiality which effects a waiver of privilege. [54] Crucial to the Mann decision was the fact that the disclosure was in the context of a response being given to a member of the Parliament.25 There was nothing inconsistent with the claim for privilege and providing the information to the member on a confidential basis.26 [55] In Osland v Secretary, Department of Justice,27 the High Court was concerned with a situation where Ms Osland had petitioned the Governor of Victoria for mercy after her conviction for murder. The Attorney-General issued a press release stating that she had obtained a joint advice from three Queen’s Counsel which recommended the petition be denied and that the Governor had denied the petition. Ms Osland claimed that privilege with respect to the advice had been waived. The court held that the claim for privilege was valid. [56] Gleeson CJ, Gummow, Heydon and Kiefel JJ referred at length to the reasons of Maxwell P in the Victorian Court of Appeal.28 Their Honours accepted that the disclosure of a conclusion expressed in a legal advice without disclosing the reasons may or may not result in waiver. It depends upon a consideration of the whole of the context of the matter.29 [57] Their Honours noted at [35] that Maxwell P said the purpose for which the privilege holder made the disclosure is highly relevant. The question was whether the use made by the Minister of the disclosed portion was inconsistent with the maintenance of confidentiality of the content in the advice. [58] The disclosure was to inform the public that the Governor’s decision was based on independent legal advice and to justify and explain the Attorney-General’s actions.30 [59] At [35] it was noted that: “This was not a case of a party to litigation deploying a partial disclosure for forensic advantage, while seeking unfairly to deny the other party an opportunity to see the full text of the privileged communication.” [60] The plurality noted at [45] that imputed waiver reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of confidentiality. Such a judgment is to be made in the context and the circumstances of the case. 25 (1999) 201 CLR 1; [1999] HCA 66 per Kirby J at [153]-[154]. 26 (1999) 201 CLR 1; [1999] HCA 66 at [35]. 27 (2008) 234 CLR 275; [2008] HCA 37. 28 Secretary to the Department of Justice v Osland (2007) 26 VAR 425; [2007] VSCA 96. 29 (2008) 234 CLR 275; [2008] HCA 37 at [34]. 30 (2008) 234 CLR 275; [2008] HCA 37 at [35]. -- 9 of 13 -- 10 [61] At [48] it was noted that the evident purpose of the press release was to satisfy the public that due process was followed and the decision was not based on political considerations. [62] Kirby J at [97] noted that two of the main considerations in finding there was no waiver was: “The press release revealed very little about the actual content of the joint advice… [and] the purpose of issuing the press release was not as such to secure some advantage for the State in legal proceedings affecting the appellant.” [63] It is to be also noted that the common law does not recognise an exception to legal profession privilege in favour of an accused person in criminal proceedings which would compel production even if such documents might assist to establish the accused innocence or materially assist in their defence.31 [64] In my respectful view, the prosecution duty of disclosure at Common Law and pursuant to s 590AB of the Criminal Code 1899 (Qld) is subject to the principles of legal professional privilege. [65] In R v Petroulias,32 Johnson J held that the existence of a prosecutorial duty does not bear upon the issue of waiver of legal professional privilege and it is not for the court in the context of a subpoena to supervise compliance with prosecutorial duty. [66] In Sanrus Pty Ltd & Ors v Monto Coal Pty Ltd & Ors,33 Flanagan at [27] identified the relevant legal principles to determine whether a person has waived privilege in a document noting: “[27] The applicable legal principles, with one exception which I discuss below, are not in dispute. Waiver is an intentional act done with knowledge whereby a person abandons a right or privilege by acting in a manner inconsistent with that right or privilege. In determining whether legal professional privilege has been waived, the question is whether the conduct by the person entitled to the benefit of the privilege said to amount to waiver is inconsistent with the maintenance of the privilege.[24] The Court will impute an intention to waive privilege where the actions of the party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Whether there is such plain inconsistency is to be determined in “the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances.” In this sense questions of waiver are matters of fact and degree. Considerations of fairness will inform the Court’s view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, but it is not a principle of fairness operating at large. As observed in Mann v Carnell: 31 Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121; [1995] HCA 33. 32 (2007) 213 FLR 293; [2007] NSWSC 692 at [63]. 33 [2019] QSC 144 at [27]-[28]. -- 10 of 13 -- 11 ‘What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of confidentiality; not some overriding principle of fairness operating at large.’ [28] The party asserting that privilege has been waived bears the onus of establishing the waiver of privilege.” [67] The parties also referred me to R v Kinghorn (No.4).34 I note that this matter is the subject of an appeal by the CDPP. [68] In Kinghorn, the defendant was originally charged on an indictment the particulars of which included answers given by him in compulsory examinations conducted under s 264 of the Income Tax Assessment Act. On 15 April 2019, the accused applied for a stay on similar grounds to Mr Leach. He contended that the CDPP had not disclosed all relevant documents. Privilege motions were listed for hearing. On 8 October 2019, the CDPP sought leave to substitute two new indictments. The CDPP accepted the information obtained from the s 264 examinations was not admissible. Leave was granted by the court for the issue of the two new indictments. Adamson J ordered the production of the documents sought by the accused. At [148] her Honour held that in order to address the question of inconsistency, it was necessary to consider the way in which the Crown case is put. This requires a consideration of the use to which the information has been put and the investigation, framing of charges and the prosecution. At [154] it was noted that the defence required the documents to prove how and by whom the examination product had been used to build the prosecution case. At [156] her Honour noted that the material was highly relevant to show the manner and extent of the use of the material in deciding the stay question. [69] In R v Seller,35 the respondents had been charged with conspiring to defraud a Commonwealth official contrary to s 135.4(7) of the Commonwealth Criminal Code. Examinations were conducted under the Australian Crime Commission Act 2002 (Cth). An officer of the ATO was present during the examination and provided a consequent financial analysis. The Crown sought to lead this financial analysis at trial. The primary judge held that the evidence should be excluded. The Crown appealed this ruling. However, the primary judge had declined to order disclosure of various documents. The respondent argued on appeal that the trial judge had erred in failing to require the Crown to produce relevant documents and upholding the claim for legal professional privilege. At [162] Bathurst CJ held: “However, in determining if there was such an inconsistency, it is important to consider the manner in which the Crown put its case. First, it is asserted that the evidence it would seek to adduce at the trial was not in any way dependant on the evidence adduced at the examinations or on the compulsorily acquired material. Second, it emphasised that no present member of the prosecution team had seen that material. … [164] An imputed waiver of the nature raised in the present case will arise when conduct is inconsistent with the maintenance of the 34 [2019] NSWSC 1420. 35 (2015) 89 NSWLR 155; (2015) 249 A Crim R 549; [2015] NSWCCA 76. -- 11 of 13 -- 12 confidentiality, the privilege it is intended to protect. What brings about the waiver is the inconsistency which the courts, informed by considerations of fairness, perceive between the conduct of the client and maintenance of the confidentiality, not some overriding principle of fairness operating at large. …This is a question of fact and agree. [165] Applying these principles, it does not seem to me that the assertion of indirect disclosure by the respondents and its rejection by the Crown, in the manner to which I have referred, compels the conclusion the privilege in the documents has been waived… Nor having regard to the manner in which the case was conducted by the Crown is there any unfairness in the maintenance of privilege.” Disposition [70] Applying the principles to the present case, it is my respectful opinion that the bulk of the documents contained in exhibit 27 relate to advices and discussions between the CDPP and the ATO as to the fact there had been an application for a stay and/or an appeal in the case of the latter document. [71] Having considered the material with respect to documents 1, 2, 4, 5, 6, 7 and 9, I do not think there is any inconsistency between the prosecution maintaining privilege and their conduct of the matter before me. I do not find imputed waiver with respect to those documents. [72] It may seem unfair for the Defence not to have access to these documents. However it must be remembered that “unfairness” in the context of legal professional privilege is not unfairness at large. It is the inconsistency to which the court must have regard informed by considerations of fairness as to the conduct of the client and maintenance of the confidentiality.36 [73] I consider though that document 3 is in a different position. Clear issues arise in the present application by the Defence as to: (a) The extent of the dissemination of the interview; (b) How the interview was used to obtain information; (c) How the interview was used in the investigation; (d) How the interview was used in framing the charges; and (e) How the interview was used in the prosecution. [74] On my perusal of exhibit 3, Ms Murphy was specifically raising issues with the ATO on these particular issues. I think in light of the conduct of the CDPP in opposing the application for quashing and/or stay, I find it is inconsistent for the CDPP to claim privilege over that document. Conclusion [75] In conclusion, I make the following orders: 1. I dismiss the defence application to inspect documents 1, 2, 4, 5, 6, 7, 8 and 9 referred to in exhibit JC1 to the affidavit of James Carter. 36 Mann v Carnell (1999) 201 CLR 1 at [29]; [1999] HCA 66. Applied in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 at [31] per French CJ, Kiefel, Bell, Gageler and Keane JJ. -- 12 of 13 -- 13 2. I permit the Defence to inspect document 3 referred to in exhibit JC1 to the affidavit of James Carter. -- 13 of 13 --