SUPREME COURT OF QUEENSLAND

1. DAVIES JA: I agree with the reasons for judgment of White J and with the orders she proposes.

2. WILLIAMS JA: I have read the reasons for judgment of White J and agree with the orders that she proposes.

3. WHITE J: There are two applications before the court arising out of the appeal and the judgment on the appeal in this matter.  The respondent has brought an application filed 14 September 2001 concerning the non-disclosure of certain documents which were before the court.  The other application is brought by the Director of Public Prosecutions who filed an affidavit seeking an order that she be given leave to intervene for the limited purpose of having access to the documents relied on below and in the appeal. 

4. The issues in the appeal and reasons for its dismissal are to be found in the judgment of the court delivered on 14 September 2001 in Le Grand v Criminal Justice Commission [2001] QCA 383.

5. At the conclusion of the hearing of the appeal on 29 August 2001 Mr Boe for the appellant was concerned to maintain the appellant’s legal professional privilege in respect of certain documents which had been given to the respondent prior to filing the application and placed before the court below and this court. The Chief Justice, who constituted the court at first instance, had, at the request of the parties, ordered that the court file in relation to the application before him, including the originating application, affidavits, exhibits, submissions and his judgment be placed in a sealed envelope marked with the court file number and marked “not to be opened without the order of the court”. That hearing had been conducted at the request of the parties in closed court ostensibly pursuant to s 119 of the Criminal Justice Act 1989 (Qld) (“Criminal Justice Act”).  The directions about the sealing up of the file were made pursuant to r 367 of the Uniform Civil Procedure Rules (Qld) (“UCPR”).

6. On 29 August 2001 there was general agreement between the parties that the documents for which the appellant claimed legal professional privilege should continue to be protected. It was also agreed that all other documents would no longer be subject to a suppression order. It was, moreover, expected that some annexures and some parts of the written submissions would not be subject to privilege but that some further time was needed to identify them and that the parties would probably reach agreement and notify the court.

7. The following orders reflecting those intentions were made by the court on 29 August:

“1. That the following documents be placed in a sealed envelope marked with the court file number and marked ‘not to be opened without an order of the court’ and that such envelope be opened only if the court orders it to be opened.

1. memorandum dated 10 August 2001 from Boe and Callaghan to the Chairman of the Criminal Justice Commission and all annexures to that memorandum, exhibited to the Affidavit of Andrew Boe sworn 15 August 2001 and marked respectively “A” and “B1” to “B12”;

2. letter dated 14 August 2001 from the Criminal Justice Commission to Boe & Callaghan, exhibited to the Affidavit of Brendan John Butler sworn 16 August 2001 and marked “BJB1” and also exhibited to the Affidavit of Andrew Boe sworn 15 August 2001 and marked “H”;

3. the appellant’s written outline of submissions to the Court below; and

4. the appellant’s written outline of submissions; and

2. That the parties identify those annexures to the memorandum dated 10 August 2001 that do not remain subject to privilege so that they be excluded from the non-disclosure order.

3. That the parties identify those parts of the appellant’s written outline of submissions that relate to matters which deal with privilege so that only those parts be subject to the non-disclosure order.

4. That the parties agree upon the matters referred to in 2 and 3 above and upon a form of order, in consequence of that agreement, in lieu of the orders stated in par 1(a) and 1(c), to be initialled and placed with the documents on the file upon which the Court will make an order in that form.”

8. When judgment was delivered on 14 September 2001 Mr Dunphy who appeared for the respondent indicated that a wider category of documents than those for which a claim of legal professional privilege was made by the appellant was sought to be included in the non-disclosure order by the respondent. The hearing of that application was adjourned to 25 September 2001 when the court re-convened but in the meantime a protection order was made in respect of the additional documents until the court could rule on the application. The further documents which the respondent contended in its application ought to be governed by the non-disclosure order fell broadly into three categories – documents which consistently with the claim for legal professional privilege by the appellant ought also to be included; documents which concerned the interests of a third party in respect of criminal proceedings or potential criminal proceedings and other third parties; and some miscellaneous documents.             

9. By further written submissions after the hearing on 25 September the parties have agreed on the documents which are to be protected from disclosure by the appellant’s claim to legal professional privilege. There remains outstanding the respondent’s application for non-disclosure orders in respect of documents concerning third parties and some miscellaneous documents.

The Director’s Application

10. It is convenient to consider the Director’s application for leave to intervene first. That application arises out of what appears in paragraphs 28 and 29 of the reasons for judgment of Davies J.A with which Williams J.A and White J expressly associated themselves. For convenience they are reproduced here:

“[28] There is nevertheless cause for concern that the Director of Public Prosecutions should recommend prosecuting the appellant for an offence pursuant to s 127(2) of the Act substantially on the basis of evidence by Nicholls as appears from Mr Martin SC’s recollection of his conversation with the Director on 4 June 2001.  In the first place Nicholls is plainly a witness of dubious credibility.  In his reasons for prohibiting the Commission of Inquiry from proceeding on 5 August 1997, Thomas J (as his Honour then was) referred to Nicholls’ “propensity to resort to the use of lies, false identities and false allegations to secure his ends” (Carruthers v Connolly [1998] 1 Qd R 339, 369).  Secondly and more specifically, any evidence by Nicholls that it was the appellant who disclosed confidential information to him is likely to be met by evidence from other, apparently more reliable witnesses, that Nicholls had made statements to the contrary.  Thirdly there appear to be at least two other persons, either of whom may have disclosed this confidential information to Nicholls.  According to Mr Boe, his inquiries indicate that investigations so far conducted by police have concentrated solely on obtaining evidence to support a case that it was the appellant who disclosed the information rather than, as should have been done, seeking evidence to prove who disclosed such information.  And finally none of the evidence put before this Court suggests any benefit or advantage which would accrue to the appellant from the disclosure of this information.

[29] Nothing which I have said in the preceding paragraph is intended, in any way, to inhibit any power or discretion of the Director of Public Prosecutions or the Commissioner of Police.  On the contrary it is intended merely to point out the apparent inadequacy, on the material before this Court, of any case against the  appellant under s 127(2) and of the investigation which has so far been conducted by police in this matter.”

11. Mr Keane QC for the Director submitted that, as a matter of fairness, she should be given access to the material on which the court acted since there was an implicit criticism of the way in which she had exercised her discretion in recommending the prosecution of the appellant. Further, Mr Keane submitted, the Director should have made available to her this further material to consider whether it is reasonable for her to take a different view.

12. The observations made at paragraphs 28 and 29 do not reveal any relevant interest in the Director to intervene in these proceedings even for the limited purpose of having access to the restrained material. The parties, however, are content that she should be provided with copies of all documents save, so far as the appellant is concerned, those communications which are subject to the claim of legal professional privilege. The question then is whether the appellant has lost his right to claim privilege in documents which, but for their disclosure to the respondent and, more importantly, the court, they would have.

13. The Director indicated to the respondent on 1 June 2001 that in her view there was sufficient credible evidence to warrant the appellant being charged with an offence under s 127(2) of the Criminal Justice Act.  Boe & Callaghan commenced to act for the appellant shortly after 1 June 2001.  Another firm of solicitors and Mr T Martin SC had acted for both the appellant and the respondent and other officers of the respondent throughout the Connolly-Ryan Inquiry.  Mr Martin  remained briefed for the appellant after 1 June 2001.

14. Mr A Boe, a principal of the appellant’s solicitors, prepared a memorandum with exhibits for the Chairman of the respondent, which was received by him on a confidential basis. The memorandum and its exhibits were prepared to persuade the respondent that in the light of recent evidentiary developments particularly those resulting from work undertaken by the appellant’s new solicitors it should undertake investigative steps itself to ascertain if there was any credible body of evidence of misconduct. The respondent was not persuaded.

15. When the likelihood of an application to the court became apparent, Mr Boe approached the associate to the Chief Justice who was the Senior Judge sitting in the applications court, to arrange the hearing of an urgent in camera application. Both parties then approached the ensuing application on that basis and all steps were taken to preserve the confidentiality of the material.

16. When the appeal came before the court, after discussion, only documents in which the appellant maintained the right to confidentiality based on legal professional privilege were sought to be subjected to a non-disclosure order. As mentioned, the respondent now seeks to include a wider category of documents not then envisaged which will be considered in due course.

17. The circumstances here are not of the usual kind when issues of loss of legal professional privilege arise because the respondent, being the opposite party into whose possession the documents have come, does not seek to make use of the communications imparted in confidence. It is a stranger to the proceedings who desires access to those documents. As Hobhouse J said in Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756 at 770:

“There is no conceptual difficulty about the reservations of rights of confidentiality or privilege notwithstanding that a document or piece of information has been communicated to another.”

18. The issue is whether, because the documents have been deployed in litigation, that confidentiality may no longer be maintained. It is a fundamental principle that court proceedings are open to the public and able to be reported on and discussed publicly subject to any legislative restriction, R v His Honour Judge Noud ex parte MacNamara [1991] 2 Qd R 86; and J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10.  In both of those cases the authorities are extensively discussed and there is no need to do so again here.  But this general principle is subject to the interests of the administration of justice.  In certain circumstances it may be necessary for certain aspects of the evidence not to be available to the public generally.  Evidence about secret processes in commercial litigation comes to mind and evidence of the disreputable secret in blackmail prosecutions is another.  This may be achieved by maintaining the public’s right of presence during the proceedings whilst maintaining any necessary confidentiality in information conveyed to the court by sealing up written material handed up and perused by the court, R v Tait (1979) 46 FLR 386 at 405 per Brennan, Deane and Gallop JJ.  Reasons for the ensuing order of the court can be formulated in general terms which would give a sufficient public account of the matter and the reasons underlying the orders, David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294.

19. There may have been some understanding below that s 119 of the Criminal Justice Act which  provides that applications to the Supreme Court “be heard in chambers” means that the application was to be heard in secret.  That is no so.  Section 261 of the Supreme Court Act 1995 (Qld) provides that when an opposed application comes on for hearing before a judge in chambers and either party appears by counsel or solicitor, the matter is to be adjourned into court and heard in open court unless all parties consent to it being heard in chambers.  The procedural distinction between court and chambers is not maintained in the Uniform Civil Procedure Rules, cf Orders 64, 65 of the previous Rules of the Supreme Court (Qld).  The reference to applications being heard in chambers in s 119 suggests that the more informal procedure which generally governs applications made under the UCPR is envisaged.  This seems so rather than that the proceedings are to be heard in secret because s 120 of the Criminal Justice Act provides for certain evidence, not here relevant, to be taken or received in closed court.

20. In Brisbane, it has been the practice of the Supreme Court for at least a decade to hear all matters in open court whether designated, prior to the advent of the UCPR, as within chambers jurisdiction or not, which members of the public are free to attend subject to any legislative restrictions.  It is a matter of great importance, subject to the overriding requirements of the justice of the case, that all matters be heard in open court without restriction, see the discussion by Lord Woolf in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 at 1068 et seq.

21. The appellant sought by the provision of the material given in confidence to the Chairman of the respondent, who, it should be mentioned, had been appointed well after the subject events and the Connolly-Ryan Inquiry, to persuade him to investigate further the allegations of official misconduct against him. Those documents were not intended for general scrutiny. That that information was used in an application to the court does not, in the particular circumstances, entail the loss of confidentiality in those communications. The interests of justice require that the appellant’s entitlement to privilege be maintained. The appellant no longer claims privilege in respect of some documents or in those which, on examination, were in the public domain. Confidentiality continues to repose in the documents set out in the order which will be made.

22. The respondent accepts that if the appellant’s privilege is maintained an order safeguarding confidentiality in the documents or copies of them which have come into the hands of the respondents and its officers and legal advisers ought to be made.

23. The respondent seeks an order that it be permitted to disclose the documents to the Director at the request of the Director and with the concurrence of the appellant. That is not opposed although the order will be more broadly expressed. The respondent seeks a further order that it be permitted to disclose the documents to the Parliamentary Criminal Justice Committee in discharge of its duties under the Criminal Justice Act.  The respondent has obligations under the Criminal Justice Act to report to that Committee.  However that duty does not require it to disregard obligations to maintain the confidentiality of the information obtained from the documents which are the subject of the appellant’s legal professional privilege.  The respondent made no such reservation when receiving the documents and it would require very plain words in the statute to displace that obligation.

24. Since the appellant retains legal professional privilege in the documents in respect of which he claims privilege there should be no order giving the Director access to those documents.

The Respondent’s Application

25. The respondent wishes to extend the non-disclosure order to certain material to protect the interests of third parties. This is not material which would attract a claim of legal professional privilege. One such person is facing a number of criminal charges unrelated, it would seem, to the subject of the leaked documents. There is, as well, conduct associated with the subject incident which may well lead to him being charged. The underlying assumption is that a fair trial of that person would be compromised by the availability for perusal of this material. The proper venue for ventilating that concern is to the court which will hear those charges, not to this court, which is in no position to balance the competing interests of a fair trial and freedom of information and discussion.

26. There are two other third parties mentioned in respect of which a different result should obtain. Officers of the respondent are mentioned in paragraph 19 of the appellant’s affidavit. In respect of one evidence was heard in closed hearing. The information is offered merely as an example and the name of the officer has no relevance to any aspect of the present matter. There is no relevant public interest which requires the release of his name. To do so, may do irreparable harm to his reputation. His name should be erased from the affidavit.

27. The other third party is mentioned in passages appearing from pages 45 to 47 of exhibit “B” to Mr Martin’s affidavit. Although the relevance of the material is to demonstrate Nicholls’ unreliability, indeed the falsity of things which he has said, nonetheless those passages repeat scurrilous stories told by Nicholls about a third party in respect of whom he gave evidence at the Connolly-Ryan Inquiry. This evidence was given in closed session. It is of no particular relevance to this appeal being merely an example of Nicholls’ unreliability. On the other hand, the material about the third party may be taken out of context to the great detriment of the person concerned.  The interests of justice dictate that it should not be disclosed and those passages should be excluded.

28. No other third parties mentioned in the material require to be protected.

29. There are two final documents which the respondent wishes to have protected from disclosure – exhibits “D” and “G” to the appellant’s affidavit – on the grounds of parliamentary privilege and legal professional privilege respectively.

30. The first is a letter to which parliamentary privilege appears to attach, s 3 Parliamentary Papers Act 1992 (Qld).  It should be protected.

31. The second is a letter from the respondent’s then solicitors to the Chairman of the respondent at a time when those solicitors also acted also for the appellant. It is arguably a document which attracts legal professional privilege. Such jointly held privilege can only be waived jointly, The “Sagheera” [1997] 1 Lloyd’s Rep 160 at 165 per Rix J.

Costs

32. Mr Boe seeks the costs of the further application and hearing on the basis that the appellant has been consistent since the hearing of the appeal that he has been concerned to protect only his legal professional privilege in identified documents. The re-listing was to allow the respondent to make application to restrain a much wider category of documents. It was envisaged that the parties would otherwise agree as to the identification of those documents which attracted legal professional privilege. The extent to which the respondent has been successful has been in respect of a very small number of documents and had they been the only ones it is likely that there would have been agreement about them. Section 34 of the Criminal Justice Act provides that unless otherwise mentioned the rules of court govern costs.  It is appropriate that there should be no order as to costs of and incidental to the hearing on 25 September.

33. There should be no costs orders in respect of the Director’s appearance.

34. The orders of the court are:

1. The order made 14 September 2001 be vacated.

2. The following documents in the Appeal Record and in the court file relating to proceedings CA 7658 of 2001 and the antecedent proceedings in the Trial Division commenced by Originating Application filed on 16 August 2001 be placed in a sealed envelope or envelopes marked with the relevant court file number or numbers and marked “Not To Be Opened Without An Order Of The Court” and that such envelope be opened only if the Court orders it to be opened:-

1. Exhibits “B6”,  “B7”,  “B8”,  “B9”,  “B10”,  “B11” and “B12” to the affidavit of Andrew Boe affirmed on 15 August 2001;

2. Exhibits “A”,  “B1”,  “B2”,  “C1”,  “C2”,  “D” and “G” to the affidavit of Pierre Mark Le Grand;

3. The pages containing paragraphs 4(a),  4(b) and 4(c) of the Originating Application (pages 2 and 3);

4. The pages containing paragraphs 18 and 20 to 22 of the affidavit of Andrew Boe affirmed 15 August 2001 (pages 6 and 7);

5. The pages containing the following parts of the Boe & Callaghan memorandum dated 10 August 2001 (Exhibit “A” to the affidavit of Andrew Boe):

1. paragraphs 32.2 and 32.3 on page 7;

2. the heading immediately above paragraph 39 on page 9;

3. paragraph 39 on page 9 to paragraph 45 on page 10, including footnotes contained therein;

4. paragraph 47 on page 11 to paragraph 64 on page 14, including footnotes contained therein

5. the second and third lines in paragraph 65 on page 14;

6. paragraphs 67 and 70 and footnote 48 on page 15;

7. the third line of paragraph 72.6 on page 16;

8. paragraph 73 on page 16;

9. paragraphs 77.2.1 and 77.2.2 on page 17; and

10. footnote 54 on page 17;

6. the pages containing the following parts of exhibit “H” to the affidavit of Andrew Boe, which also comprises exhibit “BJB1” to the affidavit of Brendan Butler sworn 16 August 2001:

1. the third line in paragraph 6 on page 2; and

2. the first line of the paragraph numbered “2” on page 2;

7. the pages containing  the following parts of the affidavit of Pierre Mark Le Grand sworn 15 August 2001:

1. paragraphs 8.1 and 8.2 on page 3;

2. paragraphs 8.3 on page 4;

3. the third line of paragraph 28.6 on page 13;

4. the last four lines of paragraph 28.6 on page 14;

5. the last line on page 14 in paragraph 28.8; and

6. the first four lines on page 15 in paragraph 28.8;

8. the pages containing the following passages in the appellant’s outline below:

1. paragraphs 19.1,  19.2 and 19.3 on page 6;

2. the third and fourth lines in paragraph 38 on page 9;

3. footnotes 29,  30 and 31 on page 9;

4. the fourth line in paragraph 44 on page 11; and

5. footnote 38 on page 11;

1. page 2 of the judgment of de Jersey CJ in respect of the last five lines of paragraph 4;

10. the page containing line 3 of paragraph 21 of the respondent’s outline before this court (page 7);

11. the pages containing the following passages in the appellant’s outline before this court:

1. paragraph 33.2.4 (page 10); and

2. footnote 29 (page 11);

12. the page containing the first line of paragraph 19.1 of the affidavit of Pierre Mark Le Grand;
13. pages 45 to 47 of exhibit B to the affidavit of Terence Douglas Martin containing the text in the section headed “The Grenning Allegations”’ and
14. the documents tendered as exhibit 1 in the Court of Appeal on 29 August 2001.

3. The appellant lodge in the Registry forthwith an amended copy of the pages of the documents listed at 2(c) to 2(m) above duly amended by deleting the paragraphs, lines and footnotes set out in 2(c) to 2(m) to replace the pages subject to this order.

4. The respondent is prohibited from publishing or disclosing the contents of the documents and parts of the documents listed at 2(a) to 2(n) above to any person other than with the express written consent of the appellant.

5. The respondent is to take steps to ensure that all copies of the documents and parts of documents listed at 2(a) to 2(n) above that are held by the respondent and its lawyers, including those provided to counsel, are placed in sealed envelopes on their own files with a copy of this order attached to each envelope, and held in a place that will reasonably protect confidentiality in the documents.

6. There be no order as to costs.

7. Liberty to apply.