R v John Joseph Dainer; the Commissioner of Police; Director of Public Prosecutions; Ex Parte: Mervyn John Pullen [1988] ACTSC 7 (19 February 1988)

SUPREME COURT OF THE ACT

THE QUEEN v. JOHN JOSEPH DAINER; THE COMMISSIONER OF POLICE; DIRECTOR OF
PUBLIC PROSECUTIONS; Ex parte: MERVYN JOHN PULLEN
S.C. No. 82 of 1988
Committal Proceedings

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Committal Proceedings - Summons to Commissioner of Australian Federal Police to produce "police brief" - Statements in brief" prepared for submission to Director of Public Prosecutions (Cwlth) - Proceedings commenced by police informant before Director elected to carry them on - Claim for legal professional privilege in respect of statements - Whether statements brought into existence for sole purpose of submission to legal advisers for use in legal proceedings - Whether Director "legal adviser".

WORDS AND PHRASES - "Take over proceedings" - "Carry on proceedings".

Director of Public Prosecutions Act 1983 - ss.3, 6(1), 9(4) and (5), 12 and 14.

Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674

Raymond v. Attorney-General (1982) 2 All ER 487

R. v. Cahill & Anor. - Ex Parte McGregor (1985) 61 ACTR 7

Austin v. Attorney-General's Department (1986) 67 ALR 585

Adams v. Anthony Bryant & Co Pty Ltd (1986) 67 ALR 616

HEARING

CANBERRA
19:2:1988

DECISION

This is the return of orders nisi made by Miles CJ on 9 February 1988. The first respondent appeared only to submit to such orders as the Court might make.

The orders nisi called upon him to show cause why:-

(a) a writ of prohibition should not issue prohibiting
him from hearing or further hearing certain
committal proceedings against the prosecutor;

(b) a writ of mandamus should not issue commanding him
to order the production to the Court and if
appropriate to allow the prosecutor to inspect the
material listed below.

2. The prosecutor has been charged with wounding with intent to murder. On 19 January 1988 committal proceedings in respect of the charge began before the first respondent in the Magistrates Court, Canberra. By a summons to produce documents dated 23 December 1987, the Commissioner of the Australian Federal Police was required to produce at the committal hearing the following:-

"List A

all 1. notebook entries;

2. references in occurrence sheets, pads
or other records;

3. handwritten reports, statements of
police officers or civilians;

4. typed reports or statements of police
officers or civilians;

5. photographs;

6. sketch plans.

relating to allegations involving the
defendant in a physical attack purportedly
occurring on 5th, 6th or 7th November 1987
upon any of the following persons:-

(a) Johnathon Scaysbrook

(b) David John Paddison

(c) Peter James Reynolds

(d) Haidon Bruce Rendell

which came into existence prior to the arrest
of the defendant.

List B

All the like documents, records, photographs
and sketch plans which came into existence at
the time of or after the arrest of the
defendant.

or such of them as are in your possession or
control."

3. When the committal proceedings began learned senior counsel for the prosecutor called the Commissioner to produce the documents. Counsel was granted leave to appear on behalf of the Commissioner and objected to production of the documents listed in the summons. He indicated that he would not call anyone to produce the documents but would call the informant to give evidence to support a claim for legal professional privilege which would justify the non-production of the documents by the Commissioner.

4. Sergeant Cannon gave evidence the effect of which is summarised in the affidavit of the prosecutor. It is not suggested that the summary is inaccurate to any substantial, or indeed any, degree.

5. Sergeant Cannon's evidence so summarised was to the following effect:-

6. He was in charge of an investigation concerning the wounding of a young man which began on the morning of 6 November 1987. The investigation involved inquiries of witnesses, tracing the victim and speaking with people who were with him and who saw him. On 10 November 1987 the prosecutor was charged and was brought before a Magistrate on the morning of that day.

7. All statements except possibly those of Constables Thorpe and Morris, C.I.B. members first involved in the investigation, were taken at Sergeant Cannon's direction and all statements taken after the prosecutor was charged were taken to obtain further evidence in relation to his charging. The statements were to be used to corroborate what the prosecutor had told Sergeant Cannon and for production at court proceedings against the prosecutor.

8. Statements taken before the prosecutor was charged were taken for the same purpose in case any person should be charged and no statements were taken for any other purpose.

9. Each person who was interviewed was spoken to generally about the matter before a statement was taken. Statements were typed and placed in a file and ultimately submitted, for the purpose of a brief, first to Sergeant Cannon, then to the Police Legal Branch and finally to the Director of Public Prosecutions.

10. There were also brought into existence occurrence sheets which contained a brief summary of the contents of statements. The purpose of the occurrence sheets was to ascertain easily what statements were taken and who had taken them. An identikit photograph was prepared to give police an idea of the description of a suspect. No use was made of it. A photograph of the prosecutor was taken when he was charged.

11. Internal minutes were prepared and sent to the Commander of the Criminal Investigation Branch detailing the progress of the investigation. Annotations to those minutes were made by hand by Detective Inspector Cooper.

12. The cross-examination of Sergeant Cannon was summarised as follows:-

"Notes were taken of a conversation with the
victim on 6 November 1987 which were
transferred to an occurrence sheet.

I do not know whether these notes are still
in existence and it would be unreasonable to
expect police to keep little notes which they
made. The formal record would be on the
occurrence sheet.

I didn't speak to the victim at the hospital
on the 6th of November but Constables Thorpe
and Morris did.

I cannot remember when the identikit
photograph came into existence. It was
prepared by the scientific section on
information obtained.

The occurrence sheets include descriptions of
the suspects. There was a photograph
identification procedure. Records of seven
to eight photo identifications were retained.

Some of the internal minutes contained
material in relation to identification."

13. During the course of his examination Sergeant Cannon produced a list of witnesses.

14. The learned Magistrate refused to order production of the documents sought on the ground that they were protected by legal professional privilege. In his affidavit sworn 19 January 1988 the prosecutor admitted that he was present in the early hours of the morning of 6 November 1987 when a person whom he believed to be the alleged victim was stabbed but he had consistently denied and continued to deny the allegations against him. He went on to say that all material relating to his identification as the person who stabbed the victim was vital for the proper cross-examination of witnesses and otherwise for the conduct of his defence of the current committal proceedings.

15. Counsel for the Commissioner of Police and counsel for the Director of Public Prosecutions to whom leave to appear was granted (they were not initially made respondents) submitted that most of the documents the subject of the summons were privileged from production as having been "brought into existence for the sole purpose of submission to legal advisers . . . for use in legal proceedings". Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 at p 688. It was submitted that the legal adviser to whom the documents were to be submitted for use in legal proceedings was the Director of Public Prosecutions.

16. Counsel for the prosecutor contended that in the events that had happened the documents in respect of which the claim against production on the ground of privilege was pressed were not prepared for the sole purpose of submission to legal advisers for, so it was said, the Director of Public Prosecutions could not be such an adviser and, in any event, even if in some cases he might be so considered, he could not be in the instant case because of the history of the matter.

17. Section 6(1) of the Director of Public Prosecutions Act 1983 (the Act) provides that among the functions of the Director of Public Prosecutions (the Director) are the following:-

"(c) to institute proceedings for the
commitment of persons for trial in
respect of indictable offences
against the laws of the Commonwealth;

(e) to carry on proceedings of a kind
(just referred to) (whether or not
instituted by the Director)."

18. By s.3 of the Act a law of the Commonwealth includes a law of the Australian Capital Territory.

19. Subsections 9(4) and (5) of the Act are as follows:-

"(4) Where -

(a) a person is under commitment, or has
been indicted, on a charge of an
indictable offence against a law of the
Commonwealth; and

(b) the prosecution for the offence was
instituted, has been taken over or is
being carried on by the Director,

the Director may decline to proceed further
further in the prosecution and may, if the
person is in custody, by warrant signed by
the Director, direct the discharge of the
person from custody, and where such a
direction is given, the person shall be
discharged accordingly.

(5) For the purposes of the performance of
his functions, the Director may take over a
proceeding that was instituted or is being
carried on by another person, being a
proceeding -

(a) for the commitment of a person for trial
in respect of an indictable offence
against a law of the Commonwealth; or

(b) for the summary conviction of a person
in respect of an offence against a law
of the Commonwealth,

and where the Director takes over such a
proceeding, he may decline to carry it on
further."

Section 12 of the Act reads:-

"Where a prosecution for an offence against a
law of the Commonwealth has been instituted,
or is being carried on, by a person other
than the Director and -

(a) the Director informs the person that the
Director is considering taking over the
prosecution or directing that the matter
be referred to the Director for the
carrying on of the prosecution;

(b) the Director takes over the prosecution
or directs that the matter be referred
to the Director for the carrying on of
the prosecution; on

(c) the person considers that the Director
should take over the prosecution or that
the matter should be referred to the
Director for the carrying on of the
prosecution,

the person shall furnish to the Director -

(d) a full report of the circumstances of
the matter;

(e) a copy of the statements of any
witnesses;

(f) each material document in the possession
of the person; and

(g) such other information or material as
the Director requires."

Section 14 of the Act is as follows:-

"(1) Where -

(a) pursuant to sub-section 9(3) or (5), the
Director takes over a prosecution or
proceeding; or

(b) the Director decides to carry on -

(i) a prosecution for an offence
against a law of the Commonwealth;
or

(ii) a proceeding for the recovery of a
pecuniary penalty under a law of
the Commonwealth,

being a prosecution or proceeding that
was instituted or is being carried on by
another person,

the Director shall, as soon as practicable -

(c) by notice in writing, inform the
registrar or other proper officer of the
court in which the prosecution or
proceeding is to be heard; or

(d) if the prosecution or proceeding is
being heard by a judge or magistrate -
in such manner as the Director thinks
fit, inform the judge or magistrate,

that the Director has taken over, or is
carrying on, as the case may be, the
prosecution or proceeding, but failure of the
Director to do so does not affect any of the
Director's powers in relation to the
prosecution or proceeding.

(2) The Director shall, as from the time when
he complies with sub-section (1) in relation
to a prosecution or proceeding that he has
taken over pursuant to sub-section 9(3) or
(5), be deemed for all purposes to be the
prosecutor, informant or complainant, as the
case requires, in that prosecution or
proceeding."

20. Section 9(3) relates to the power of the Director to take over a prosecution on indictment for an offence against a law of the Commonwealth, being a prosecution instituted by another person (other than the Attorney-General or a Special Prosecutor). It need not be further considered in this matter.

21. It is accepted, and I find, that the Director elected, pursuant to sub-para.(e) of s.6(1) of the Act, to carry on the proceedings for the committal of the prosecutor for trial in respect of the offence with which he is charged.

22. Counsel for the prosecutor contended that on its true construction s.14(2) of the Act meant that when the Director complied with s.14(1) in relation to a prosecution or proceeding that he had taken over pursuant to s.9(3) or (5) he was to be seen merely as a prosecutor, informant or complainant and not as a person having the status of a legal adviser or representative to whom documents of the kind sought to be produced on the summons in this case might be referred either for legal advice or for the purposes of litigation.

23. In my opinion the submission fails. The Act makes a clear distinction between the Director's taking over a prosecution and his carrying on a prosecution and is careful, by s.14(2), to limit the occasions when the Director is deemed to be a prosecutor, informant or complainant to those when he has taken over a prosecution or proceeding. In my opinion the expression "take over" or its derivatives as used in the Act is intended to relate to those occasions when, under s.9(5), he takes over a proceeding referred to in that sub-section with a view to declining to carry it on further.

24. The expression "to carry on", where used in the Act, in relation to proceedings or prosecutions is intended, I think, to relate to the general conduct of such proceedings except their being "taken over" by the Director so that he may decline to carry them on further. This approach seems to me to accord with that of the Court of Appeal in Raymond v. Attorney-General (1982) 2 All ER 487, where, however, the expression construed was "the conduct of any criminal proceedings". The Court held that that expression was wide enough to include not only the "carrying on" of proceedings but also their discontinuance.

25. Since I take that view, it is unnecessary in this case to decide whether the fact that the Director is deemed in the circumstances set out in s. 14(2) to be a prosecutor, informant or complainant as the case may be, renders it impossible that he should have the character of a legal adviser communication to whom for the purposes of obtaining legal advice or for legal proceedings attracts legal professional privilege.

26. The principal question for decision, therefore, is whether legal professional privilege attaches to documents brought into existence solely for the purpose of a "brief" to be delivered first to the chief investigating police officer, then to the Police Legal Branch and finally to the Director of Public Prosecutions in respect of a crime the information for which has been laid by a police informant before the delivery of the "brief" to the Director and before he has elected to "carry on" the proceedings. As I understood his submissions, senior counsel for the prosecutor contended that the privilege could not, on two grounds, the first that the Director of Public Prosecutions was not in the relevant sense a legal adviser, the second that, even if he were, the documents were not brought into existence solely for submission to him as legal adviser for use in legal proceedings.

27. In R. v. Cahill & Another, ex parte McGregor (1985) 61 ACTR 7, a decision of Gallop J, the informant had laid a series of charges against a defendant alleging indecent assault upon a number of females. A summons apparently similar to that which I am considering was issued and served upon the Commissioner of Police. It required him to produce statements made to the police by the complainant. The informant and the Commissioner objected to the production of the statements, claiming that they were the subject of legal professional privilege. The necessary legal relationship between the informant and the Crown Law authorities was not disputed. The Magistrate rejected the claim and ordered that the statements be produced to the defence.

28. Gallop J made absolute an order nisi. The evidence before him showed that the informant after conversations had made up his mind to charge the defendant with a number of offences. It was only then that statements in writing were taken from witnesses. There was evidence that the practice which then existed was for officers of the Legal Services Branch of the Australian Federal Police to receive briefs of evidence from police informants and forward them to the office of the Crown Solicitor. Officers of the Crown Solicitor conducted all prosecutions instituted in the then Court of Petty Sessions by members of the Australian Federal Police, gave advice to the Australian Federal Police, attended all requests for particulars of charges by an informant, examined the brief prepared by and received from the informant and appeared on behalf of the informant at every hearing including interlocutory hearings.

At pp. 13 and 14, his Honour said:-

"Having heard and considered the evidence of
how the statements were obtained and for what
purpose, the magistrate was not satisfied
that the claim of legal professional
privilege had been made out because he was in
considerable doubt whether the sole purpose
of getting the statements was for the
purposes set out and required under the
authority of Grant v. Downs (supra). . . .
Apparently he was satisfied that the
relationship of independent legal adviser and
client had been established. He referred to
the fact that the office of Director of
Public Prosecutions did not exist when the
statements came into existence and apparently
regarded that matter as irrelevant. The
evidence before this court on the return of
the order nisi clearly established the
involvement of the Crown Law authorities and
that the statements were obtained to lay
before the Crown Law authorities; cf.
Maddison v. Goldrick (1976) 1 NSWLR 651
and the application to the High Court for
special leave in the same case reported sub
nom; Attorney-General for New South Wales v.
Findlay (1976) 9 ALR 521. . . .

Constable Lawler had made up his mind to
charge the prosecutor before the statements
were taken from the complainants. Obviously
they came into existence for the sole purpose
of being referred to the informant's legal
adviser, the Director of Public Prosecutions,
or his predecessor, for use in the
proceedings to be instituted against the
prosecutor. No other purpose was suggested
nor could it have been. The unity of purpose
of the party who brought the documents into
existence . . . was established. There was no
evidence of any duality of purpose such as
arose in Choo Cheng Kui's Case, ((1986) 67
ALR 231)."

29. It will be seen that Gallop J appears to have taken for granted that the Director of Public Prosecutions is and that his predecessor was a legal adviser of a police informant. The same view seems to have been effectively taken by the Full Court of the Federal Court of Australia (Fisher, Sheppard and Burchett JJ) in Austin v. Attorney-General's Department (1986) 67 ALR 585. In that case an information was laid against the appellant alleging that he had committed the offence of sending an explosive substance through the mail. He sought access to the file of the Australian Government Solicitor in respect of the court proceedings against him. A number of documents in the file were made available to him but others were withheld. He made an application to the Administrative Appeals Tribunal under the Freedom of Information Act 1982. Evidence was placed before the Tribunal to show that the Australian Government Solicitor was, by virtue of an arrangement under s.32 of the Act, performing the functions and exercising the powers of the Director of Public Prosecutions in relation to the prosecution of the appellant. At pp 586-7, their Honours said:-

"There does not appear to have been any
challenge, in the Tribunal, to the
proposition that the prosecution was being
conducted on instructions from the
(Australian Postal) Commission. On this
basis, the contention which the Tribunal
accepted was that, for the purposes of
consideration of the claim of legal
professional privilege, it could be accepted
that the solicitors and counsel employed by
the Australian Government Solicitor were in
the position of legal advisers acting for the
Commission as a client. Given the basic
assumption, this conclusion seems clearly to
have been open.

It would not in every case be possible to
regard some government department or
instrumentality as a client of the Director
of Public Prosecutions, or of the Australian
Government Solicitor acting pursuant to an
arrangement with the Director made under s.32
of the Director's Act. However, even if the
Director or the Australian Government
Solicitor were acting in pursuance of an
independent authority to prosecute, in the
due discharge of his duties, it would not
follow that a claim to privilege would be
defeated. One view is that the Director
prosecutes as a legal representative of the
Crown. But if, alternatively, he should be
regarded as prosecuting on his own behalf, he
would then be an authority of the government
employing salaried legal advisers."

At p. 588, they said:-

"In the result, even if the unchallenged
assumption upon which the Tribunal proceeded
was not justified, its conclusion that the
officers of the Australian Government
Solicitor were acting in a capacity which
attracted the operation of the doctrine of
legal professional privilege did not involve
error."

30. The same view as to the general nature of privilege attaching to such documents when the Director of Public Prosecutions is involved seems to be implicit in the views expressed by Wilcox J in Adams v. Anthony Bryant & Co Pty Ltd (1986) 67 ALR 616 at pp 620-1.

31. While it is possible to classify some, if not all, of the dicta just referred to as obiter, it seems to me, nevertheless, that the weight of authority is in favour of the view that the Director of Public Prosecutions may be taken to be a statutory officer communications to whom, if brought into existence solely for the purpose of obtaining advice or for use in litigation, will be the subject of legal professional privilege. This can be on either, or, more probably, both of two bases. The first is that the Director is the legal adviser of the Australian Federal proceedings which it may expect the Director to carry on in due course in the exercise of his powers and functions under the Act. The second is that the Director is acting in the exercise of his functions as a prosecutor and as a statutory officer of the Crown who is required to be legally qualified and is therefore necessarily the legal adviser of the Crown in connection with proceedings such as that with which I am concerned.

32. This view of the powers and functions of the Director of Public Prosecutions seems to me to accord with the general tenor of the legislation and in particular of the provisions set out above where a clear distinction is made between the occasions when the Director is deemed to be a prosecutor, informant or complainant under s.14(2) and those when he carries on proceedings under the Act. That is not to deny the power of the Director to initiate proceedings appropriately under sub-paras. (c) and (d) of s.6(1) as a prosecutor, informant or complainant in circumstances where he is engaged, in the general course of his duties, in carrying out his functions and exercising his powers.

33. I think, too, that the second ground put forward on behalf of the prosecutor failed. It seems to me that there must in ordinary circumstances be a chain of communication between police officers conducting an investigation and the Director of Public Prosecutions. As a matter of common sense it must, I think, be the case that any statements prepared during the course of such an investigation would eventually come into the hands of the officer responsible for the conduct of the investigation, that the "brief" should, when that officer passes it on, be checked by a legal section within the Australian Federal Police and that finally it should come into the hands of the Director. This does not, in my opinion, in any way make necessary a finding that the material making up the brief was not brought into existence for the sole purpose of obtaining legal advice or for the use in legal proceedings, as the case may be.

34. In my opinion, therefore, the orders nisi should be discharged so far as they relate to statements taken from witnesses or potential witnesses.

35. However, there are some materials which fall within the description of the items set out in the summons which are not the subject of legal privilege. During the course of my preparation of these reasons the office of the Director of Public Prosecutions has produced to me what I understand to be all the material the production of which was sought in the summons.

36. It seems to me to be plain that the occurrence sheets referred to by Sergeant Cannon were not brought into existence for the sole purpose of use in legal proceedings. The same applies to documents described as job cards. In addition there are some administrative materials of the same character. There may be more but it may be appropriate to hear submissions as to this.

37. The learned Magistrate seems not to have given any attention to other considerations which may have arisen upon the return of the summons and the production of documents not properly the subject of legal professional privilege. Even though he may and probably ought to have required the production of those documents the question of whether he should then have made them available to the prosecutor remains unanswered for the moment. It was a matter for the exercise of the learned Magistrate's discretion and, on the material before me, he did not have occasion to consider that exercise.

38. What I propose, therefore, is to discharge the orders nisi in respect of the material for which legal professional privilege is properly claimed. Thereafter I would propose, subject to any submissions by the parties, to remit the matter to the learned Magistrate for further consideration in the light of these reasons. No doubt he will then decide, if an appropriate application be made, whether he should grant it in the exercise of his discretion.

39. In the circumstances it is unnecessary to consider any questions raised by the form of the orders sought in the orders nisi.