R v McNicol

The substantive issue arising in this matter was whether the circumstances justified a withdrawal of a plea. However, the noteworthy issue in this case concerns the way in which the applicant’s former solicitors liaised with the prosecution regarding the notes of their conversations with the applicant as to whether his plea of guilty had been voluntary, particularly in relation to the privilege owed to their former client.

Davis J

29 April 2022

The applicant contended that he had been coerced into entering the plea by his solicitors and counsel and that he was especially vulnerable in that regard due to mental health issues. [50]. The Crown opposed his application to set aside the plea and approached his former representatives as to how the plea came about. After seeking advice from counsel, the applicant’s former solicitors then swore an affidavit and provided it to the Commonwealth. [31]. At issue was whether that was the appropriate course to take. The judgment sets out what should be done in these circumstances by those in this position.

The disclosure to the Crown by the applicant’s former solicitors

His Honour was critical of the solicitors’ liaison with the Crown and handling of the privilege issue. Indeed, he commented that, aside from the fact they had not disclosed the applicant’s “trial instructions”:

“[w]hether careful consideration was given at any stage by anyone to privilege issues is doubtful”. [31].

The fault did not rest solely with the solicitors, his Honour noting that the Crown was also obliged to give due consideration to any issues concerning legal professional privilege in circumstances such as these: see R v Paddon [1999] 2 Qd R 387, [62].

His Honour observed that it is becoming commonplace for lawyers who have formerly represented a client in criminal proceedings to form the belief that privilege has been entirely waived at the time at which their client swears an affidavit which is uncomplimentary of their representation. The inevitable result is that lawyers then cooperate with the prosecution, subsequently swearing affidavits which prima facie breach the privilege they assume has been waived (yet potentially continues to attach). [32]. He described that approach as “fraught with risk” since:

“If the lawyer’s judgment is wrong and privilege continues to enure for the benefit of the client, then the delivery of the affidavit to the prosecution in breach of the privilege constitutes a serious breach of professional obligation owed to the client”. [33].

Best practice

In order to avoid this scenario, his Honour recommended that the following approach be adopted by lawyers in similar circumstances once they are approached by the prosecution:

1. prepare an affidavit addressing the assertions made by the client;
2. provide the affidavit to the former client’s current solicitors seeking instructions as to whether the client accepts that the privilege has been waived;
3. inform the prosecution that an affidavit has been prepared which contains privileged information and that accordingly instructions have been sought as to the status of the privilege;
4. if the former client accepts that the privilege has been waived, then the affidavit may be delivered to the prosecution. In the event a dispute arises regarding privilege, then the prosecution must be advised and informed that the lawyer will attend court on the hearing of the application with the affidavit and will be ready to give evidence and will abide any ruling on the issue of privilege. [35].

That approach is beneficial since it offers the protection of the court’s ruling in relation to any disclosure that is subsequently made, in the case of any dispute. [36].

Disposition

Here, as matters transpired, there was no dispute concerning privilege. His Honour attributed that to “good luck [rather] than good management”. [37]. Whilst finding that the applicant had entered his plea unenthusiastically, it had not been demonstrated that it was involuntary. [108]. Accordingly, the application was dismissed. [109].

A Jarro