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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
DPP v Volkers  QDCPR 59
DIRECTOR OF PUBLIC PROSECUTIONS
SCOTT ALEXANDER VOLKERS
8 November 2019
31 October 2019
EVIDENCE – LEGAL PROFESSIONAL PRIVILEGE – whether prosecution is entitled to claim legal professional privilege with respect to advices it received - whether the privilege has been waived
Criminal Code 1899 (Qld) s 686
Director of Public Prosecutions Act 1984 (Qld) s 5, 10
Aouad v R; El-Zayet v R  NSWSC 760 applied
Attorney-General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475;  HCA 80 cited
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101;  FCAFC 237 cited
Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121;  HCA 33 cited
Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543;  HCA 49 cited
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303;  HCA 46 cited
Gilbert v Volkers  1 Qd R 359; (2004) 150 A Crim R 553;  QSC 436 cited
Glencore International AG v Commissioner of Taxation (2019) 93 ALJR 967;  HCA 26 cited
Grofam Pty Ltd v Australia New Zealand Banking Group Limited (1993) 45 FCR 445; 117 ALR 669 cited
Mann v Carnell (1999) 201 CLR 1;  HCA 66 cited
Osland v Secretary, Department of Justice (2008) 234 CLR 275;  HCA 37 cited
R v Bunting & Ors (2002) 136 A Crim R 539;  SASC 412 cited
R (Cth) v Petroulias (No. 22) (2007) 213 FLR 293;  NSWSC 692 cited
Secretary to the Department of Justice v Osland (2007) 26 VAR 425;  VSCA 96 cited
The Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500;  HCA 60 cited
Waterford v Commonwealth (1987) 163 CLR 54;  HCA 25 cited
Mr S. Thompson S-G, QC with Mr N. Needham for the Director of Public Prosecutions
Mr P. Boulten SC for the defendant
Office of the Director of Public Prosecutions for the applicant
Fisher Dore Lawyers for the defendant
- This is an application by the Director of Public Prosecutions (DPP) to set aside part of a subpoena served on him by the defence as it relates to legal advices he received which he considered when deciding to proceed with charges against the defendant.
- The issue to be decided here is whether the DPP has waived legal professional privilege.
- In order to answer this question, one must look at the context of the claim and see if there has been waiver.
- The defendant is charged on indictment 236 of 2019 with five counts of indecent treatment of a child under 16. Counts 1 to 4 deal with a complainant JG and count 5 deals with a complainant SB.
- The counts with respect to JG are alleged to have occurred between September 1984 and January 1985 at Aspley, Queensland. The count involving SB is alleged to have occurred between 1 December 1987 and 9 January 1988 at Bald Hills, Queensland.
- The defence has applied pursuant to s 590AA(2)(a) of the Criminal Code for the court to permanently stay the indictment. That application is listed for hearing between 22 and 24 January 2020.
- In the defence outline of submissions dated 24 September 2019 the defence notes that the defendant worked as a swimming coach from the 1980s onwards. It is alleged by the prosecution he inappropriately touched both complainants. JG was 13 at the time and SB was 12. The details of the allegations are summarised in the outline and I do not consider it necessary to repeat those.
- On 26 March 2002 the defendant was arrested and charged with offending against SB and on 16 June 2002 he was charged with offending against JG. He was committed for trial on seven counts of indecent treatment on 25 July 2002 and pleaded not guilty to each charge.
- On 18 September 2002 the then DPP, Mrs Clare (now Her Honour Judge Clare SC) entered a no true bill in relation to each of the charges.
- In December 2002 the Queensland Police Service conducted a further investigation into the defendant. The results of that investigation were provided to the Office of the Director of Public Prosecutions.
- On 19 December 2003 the DPP requested an advice from the then DPP for New South Wales, Mr Cowdery QC. He was asked to advise whether there was sufficient new evidence to justify re-charging the defendant on any of the original allegations and if so whether there were reasonable prospects of conviction for any of the new allegations.
- On 29 March 2004 Mr Cowdery QC provided a written advice to Mrs Clare in which he stated that in his opinion there was not sufficient new evidence of such a quality as to justify the recharging of Mr Volkers in respect of any of the original allegations and no reasonable prosects of a conviction in respect of any of the new allegations.
- On 4 November 2004 JG sought leave under s 686 of the Criminal Code 1899 (Q) to present an indictment in respect of three of the offences she alleged against the defendant.
- On 16 December 2004 in Gilbert v Volkers Holmes J (as Her Honour then was) dismissed the application. At paragraph 48 Her Honour stated:
“Weighing the public interest in a resolution of the applicant’s allegations by jury trial against the public interest in not permitting a trial flawed by delay, publicity and the risk of misperception of its purpose, I consider, on balance, that I ought not give leave for the prosecution to proceed.”
- There was extensive press coverage in about March 2004 in the ABC program Australian Story and also in the ABC program Four Corners on 5 July 2004. The latter show detailed the allegations, the subsequent investigations, the decision to enter a no true bill, subsequent events and the effect on the complainants. Since that time the defendant alleges that further adverse publicity continued . This is confirmed by use of the Google search engine.
- The complainants gave evidence in open hearings in July 2014 at the Royal Commission into institutional responses to child sexual abuse. Their evidence was the subject of extensive media coverage.
- On 9 June 2016 the DPP advised the defendant that he was in possession of a submission on behalf of JG, SB and KR which in effect requested the prosecution of the defendant in respect of charges he previously faced.
- On 13 November 2017 the present proceedings were reinstituted.
- On 9 November 2018 the defendant was again committed to stand trial in respect of those allegations.
- The defence in its submissions seeking a stay alleges that there are a number of reasons relevant to whether one should be granted, namely the length of the delay; the reasons given by the prosecution; prejudice to the defendant; the public interest in the disposition of charges; the principle of finality; and the contribution to risk of wrongful conviction.
- In oral submissions before me, Mr Boulten SC added that the institution and continuation of the proceedings amounts to oppression.
Background to this application
- On 11 October 2019 the now DPP Mr M Byrne QC swore an affidavit addressing the history of the prosecution. In his affidavit he states that on 17 October 2016 he wrote to the Queensland Police Service indicating amongst other things that he considered it was in the public interest and there existed reasonable prospects of success on the charges on which the defendant had been committed for trial in July 2002 concerning the complainants JG and SB.
- He swears that on 14 July 2014 he was present when his predecessor DPP (now His Honour Judge Moynihan QC) was questioned at the Royal Commission into matters grouped under the heading of “Case Study 15”. Broadly speaking Case Study 15 included consideration of the conduct of Mr Volkers and the three complainants and related issues as well as issues related to the discontinuance of the prosecution against him. Mr Byrne QC refers to the effect of the Director’s Guidelines 20(v).
- After Mr Moynihan had testified, the guideline was amended in the following terms:
“The decision to discontinue a prosecution is final unless:
- (a)There is fresh evidence that was not available at the time the decision was made; or
- (b)The decision was affected by fraud; or
- (c)There is a material error of law or fact that would lead to a substantial miscarriage of justice:
And it is in all the circumstances in the interests of justice to review the decision.”
- After the amendment to the guideline a law firm, Boe Williams Anderson (now Anderson Fredericks Turner) wrote a letter dated 19 September 2014 requesting that the charges against the defendant relating to complainants JG, SB and KR be reinstituted.
- After the receipt of that submission Mr Moynihan QC tasked certain staff members to go through material held and, in consultation with an allocated member of the Queensland Police Service (who had not been previously involved in the investigation), to compile a detailed brief of evidence and provide advice on the prospects of success. That advice was delivered on 23 April 2015 from Ms Jodie Wooldridge then a principal crown prosecutor.
- On 12 May 2015 Mr Moynihan QC and Mr Byrne QC met with the Honourable J B Thomas AM QC to ascertain if he was prepared to provide an advice on the response to the submission and the prospects of success on any prosecution. That advice was received but was unfortunately undated. It is suspected it was received in about August or September 2015.
- Shortly after receipt of the submission it was agreed between Mr Moynihan QC and Mr Byrne QC that it could not be properly answered until the Royal Commission had delivered its report into Case Study 15. This happened in November 2015 but Mr Byrne QC was not informed about that event until December 2015 and did not have the opportunity to consider it until January 2016. The report made observations which were critical of relevant processes. The report did not touch on the merits of any prosecution of the defendant.
- After this Mr Byrne QC requested an advice from Mr Fuller QC the then Acting Deputy Director of Public Prosecutions as to the prospects of success on any prosecution. That advice was dated 11 May 2016.
- Mr Byrne QC makes it clear that he does not waive legal professional privilege with respect to the advices of Ms Wooldridge, the Honourable J B Thomas AM QC, and Mr Fuller QC.
- On or shortly before 9 June 2016 Mr Byrne QC discovered that the legal representative for the defendant had not been notified of the submission nor had he
been invited to make a submission in response. A submission after invitation was received on 6 July 2016.
- Mr Byrne QC arranged to meet with the three complainants on 23 June 2016 to personally assess their respective views on the matter. This was arranged at their joint request through the agency of Bravehearts. The meeting was cancelled and reorganised. On the day Mr Byrne QC met with JG and SB but KR was too unwell to attend.
- Ultimately, Mr Byrne QC reached the conclusion that the proceedings should be reinstituted based on:
- (a)each of the three legal advices received;
- (b)the submissions received;
- (c)the report into Case Study 15;
- (d)the brief of evidence compiled by Ms Wooldridge and her assistant;
- (e)his meeting with, and the assessment of, the complainants on 31 August 2016;
- (f)the UK Crown Prosecution Service Legal Guidance “reconsidering a prosecution decision”; and
- (g)the decision in Gilbert v Volkers.
- Mr Byrne QC swears that he considered that Mr Rutledge (the prosecutor who had previously been involved in the matter in 2002) had erroneously concluded there were no reasonable prospects of success on the charges involving JG and SB. Mr Byrne QC considers these errors were compounded by an advice from Ms M Cunneen which in his opinion took into account irrelevant and possibly wrong evidential considerations which was compounded by the incomplete communication by Mr Cowdery QC to Mrs Clare SC of what parts of Ms Cunneen’s advice he agreed with. This led to an erroneous understanding of the advice by Mrs Clare SC and affected her final decision.
- Mr Byrne QC states that given the history of what he considers to be a flawed decision-making process in the matter, he considered this was a further basis upon which the earlier decisions could be reconsidered.
- As a result of the affidavit sworn by Mr Byrne QC, the defence has sought by subpoena the advices of Ms Wooldridge, the Honourable J B Thomas AM QC, and Mr Fuller QC.
- On 29 October 2019 the DPP applied to the District Court for the setting aside of the subpoena insofar as those documents are concerned.
- By submissions dated 28 October 2019 the Solicitor-General for Queensland has submitted that legal professional privilege is properly claimed over the advices. It is submitted that the rule applies to communications between a public authority and it’s salaried legal advisers. It is submitted that the High Court has previously held that legal professional privilege properly claimed would prevail over a subpoena issued by an accused in a criminal trial even if the communication may establish the innocence of the accused or materially assist the accused in the furtherance of that person’s defence. The only exception arises where it is established to a sufficient degree that the communications were made for an improper purpose to facilitate the commission of a crime or fraud, to frustrate the processes of the court, or to further deliberate abuse of statutory power.
- It is submitted this case does not fall within the exception. It is further submitted that there is no suggestion that the Director has waived privilege and mere reference to privileged material does not amount to waiver. It is therefore submitted that the subpoena insofar as the advices are concerned should be set aside.
- Prior to the hearing the issue was confined to whether or not Mr Byrne QC had waived privilege.
- In oral submissions the Solicitor-General heavily relied on Osland v Secretary, Department of Justice and Mann v Carnell. The Solicitor-General submitted that it cannot be determined that the advices advised there were good prospects of success, but even if it could be, that was insufficient to amount to waiver in light of the decided cases.
- In written submissions the defence submits that waiver should be implied here. The defence relies in particular on Mann v Carnell and submits that the DPP in his affidavit has revealed that the advices were to the effect there were reasonable prospects of success. The defence relies on the Federal Court decision of Bennett v Chief Executive Officer of the Australian Customs Service.
- In oral submissions the defence submits that it would be unfair to leave things as they are. The effect of the DPP’s affidavit is that a perfectly proper decision was made but the defence cannot look to see if that is correct because of the claim.
- The defence submits that when one reads all of the affidavit there has been sufficient disclosure such that there has been waiver. The advices were central to the decision to continue. To allow the claim to continue would give the DPP an unfair advantage in the stay proceedings.
- There is no doubt the DPP can claim legal professional privilege.
- The Director of Public Prosecutions, Queensland is a position established by State law under s 5(1) of the Director of Public Prosecutions Act 1984 (Qld). The role of the Director includes preparing, instituting and conducting criminal proceedings on behalf of and in the name of Her Majesty. 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.
- It has been previously said that legal professional privilege is not a rule of evidence but a substantive rule of law.
- 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.”
- In Aouad v R; El-Zayet v R, 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.
- Also in R (Cth) v Petroulias (No. 22), 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.
- In my opinion therefore there is no doubt that the three advices are advices of a legal nature prepared for the purpose of these proceedings and therefore legal professional privilege applies.
- The next question is whether there has been waiver by Mr Byrne QC. This leads to an examination of the cases relied on by the parties.
- In Attorney-General for the Northern Territory v Maurice & Ors, 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. However as Gibbs CJ noted the mere reference to a document in pleadings does not mean there is waiver.
- As Mason and Brennan JJ noted “the implied waiver inquiry is at bottom focussed on the fairness of imputing such a waiver”.
- 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”.
- 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.
- In Mann v Carnell, 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 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.
- Gleeson CJ, Gaudron, Gummow and Callinan JJ noted at  that it is inconsistency between the conduct of the client and the maintenance of confidentiality which effects a waiver of privilege.
- In Osland v Secretary, Department of Justice, 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.
- Gleeson CJ, Gummow, Heydon and Kiefel JJ referred at length to the reasons of Maxwell P in the Victorian Court of Appeal. 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.
- Their Honours noted at  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 of the advice.
- 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.
- At  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.”
- The plurality noted at  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.
- At  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.
- Kirby J at  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.”
- I consider Osland supports the DPP’s position here. In Osland there was specific disclosure of the ultimate advice but yet no waiver. As in the present case there was very little disclosure of the actual content of the advice.
- In Bennett, Mr Bennett had brought proceedings against Customs concerning disciplinary action taken against him. Customs made a written proposal as to settlement setting out the gist of the advice it had received from the Australian Government Solicitor which supported Customs’ position in the litigation. By majority the court ruled that privilege had been waived. Tamberlin J held that the substance of the advice was used to emphasise and promote the strength of the case against Bennett and Customs was seeking an advantage in the litigation thereby. Tamberlin J held that it would be inconsistent and unfair to allow Customs to maintain the privilege.
- It is clear that far more was disclosed of the advice in Bennett than has been in the present case. I consider Bennett is distinguishable from the present case.
- As noted above, the mere reference to the existence of an advice in a pleading or affidavit does not amount to waiver.
- It is my view upon a reading of Mr Byrne’s affidavit as a whole there has been no partial disclosure of the contents of the advices. Mr Byrne simply refers to having taken them into account amongst other factors. It could be that one or two of the advices advised there were prospects of a successful stay application – one does not know. It is to speculate that all advices advised there were good prospects of success. Mr Byrne was careful not to disclose the ultimate conclusion in his affidavit.
- As discussed with counsel I consider there is an evidential onus on the defence to establish there has been at least partial disclosure. I do not consider this onus has been discharged. As Price J noted in Aouad, the applicant bore the onus of proving the client legal privilege has been lost.
- It may seem unfair for the defence not to have access to the 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.
- I find the claim for legal professional privilege is a valid one which has not been expressly or impliedly waived.
- In the circumstances my order is as follows:
- The subpoena should be set aside insofar as it seeks production of the documents contained in the sealed envelope to be produced to the court by the Director.
- The sealed envelope containing the privileged documents is not to be opened without the order of a court.
  1 Qd R 359; (2004) 150 A Crim R 553;  QSC 436.
 Paragraph 5 of the affidavit of Mr Byrne QC.
 Paragraph 8 of the affidavit of Mr Byrne QC.
 Paragraph 11 of the affidavit of Mr Byrne QC
 Paragraph 12 of the affidavit of Mr Byrne QC.
 Paragraph 13 of the affidavit of Mr Byrne QC.
 Paragraph 14 of the affidavit of Mr Byrne QC.
 Paragraph 15 of the affidavit of Mr Byrne QC.
 Paragraph 16 of the affidavit of Mr Byrne QC
 Paragraph 17 of the affidavit of Mr Byrne QC.
 Paragraph 19 of the affidavit of Mr Byrne QC.
 Paragraph 20 of the affidavit of Mr Byrne QC
  1 Qd R 359; (2002) 150 A Crim R 553;  QSC 436.
 Paragraph 22 of the affidavit of Mr Byrne QC.
 Paragraph 25 of the affidavit of Mr Byrne QC.
 Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121;  HCA 33.
 (2008) 234 CLR 275;  HCA 37. Victorian Court of Appeal Secretary to the Department of Justice v Osland (2007) 26 VAR 425;  VSCA 96.
 (1999) 201 CLR 1;  HCA 66.
 (1999) 201 CLR 1;  HCA 66.
 (2004) 140 FCR 101;  FCAFC 237.
 Section 10(a)(i) of the Director of Public Prosecutions Act 1984 (Qld).
 Grofam Pty Ltd v Australia & New Zealand Banking Group Limited (1993) 45 FCR 445; 117 ALR 669.
 Carter v Managing Partner, Northmore Hale Davy and Leake (1995) 183 CLR 121 at pp 159-160;  HCA 33; Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 at pp 552-553;  HCA 49; Glencore International AG v Commissioner of Taxation (2019) 93 ALJR 967;  HCA 26 at -.
 Attorney-General v Maurice (1986) 161 CLR 475 at p 490.5 per Deane J;  HCA 80.
 The Attorney-General for the Northern Territory of Australia v Kearney (1985) 158 CLR 500 at p 510;  HCA 60; Waterford v Commonwealth (1987) 163 CLR 54 at p 62;  HCA 25; Rv Bunting & Ors (2002) 136 A Crim R 539 at pp 544-546;  SASC 412.
 Waterford v The Commonwealth (1986) 163 CLR 54;  HCA 25.
  NSWSC 760 at .
 (2007) 213 FLR 293;  NSWSC 692 at .
 (1986) 161 CLR 475;  HCA 60.
 (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.
 (1986) 161 CLR 475 at p 481.6; Dawson J at 497.1.
 (1986) 161 CLR 475 at p 488.5.
 (1986) 161 CLR 475 at p 493.1.
 (1986) 161 CLR 475 at p 493.5.
 (1999) 201 CLR 1;  HCA 66.
 (1999) 201 CLR 1;  HCA 66 per Kirby J at -.
 (1999) 201 CLR 1;  HCA 66 at .
 (2008) 234 CLR 275;  HCA 37.
 Secretary to the Department of Justice v Osland (2007) 26 VAR 425;  VSCA 96.
 (2008) 234 CLR 275;  HCA 37 at .
 (2008) 234 CLR 275;  HCA 37 at .
 Secretary to the Department of Justice v Osland (2007) 26 VAR 425;  VSCA 96.
 (2004) 140 FCR 101;  FCAFC 237.
  NSWSC 760 at .
 Mann v Carnell (1999) 201 CLR 1 at ;  HCA 66. Applied in Expense Reduction AnalystsGroup Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303;  HCA 46 at  per French CJ, Kiefel, Bell, Gageler and Keane JJ.
- Published Case Name:
Director of Public Prosecutions v Scott Alexander Volkers
- Shortened Case Name:
Director of Public Prosecutions v Scott Alexander Volkers
 QDCPR 59
08 Nov 2019