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High Court of New Zealand Decisions |
Last Updated: 27 September 2013
PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2013-463-51 [2013] NZHC 2177
GOWING & CO LAWYERS LTD Appellant
v
NEW ZEALAND POLICE Respondent
Hearing: 7 August 2013
Counsel: H Sheridan for Crown
R Gowing for Appellant
Judgment: 26 August 2013
JUDGMENT OF KATZ J
This judgment was delivered by me on 26 August 2013 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:
H Sheridan, Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga
R Gowing, Gowing & Co Lawyers Ltd, Whakatane
GOWING & CO LAWYERS LTD v NEW ZEALAND POLICE [2013] NZHC 2177 [26 AUGUST 2013]
Introduction
[1] The issue in this appeal is whether a letter written by Mr A1 to a girl he has been charged with indecently assaulting is privileged, on the basis that Mr A subsequently gave the letter to his lawyer.
[2] The 13 year old complainant is the granddaughter of Mr A’s (now former) de facto partner. Following his arrest, Mr A wrote the complainant a letter. He met with the complainant’s grandmother, and gave her the letter. He asked her to pass it on to the complainant. The grandmother read the letter and refused to pass it on. She returned it to Mr A. In a witness statement subsequently provided to the police, the grandmother stated that:
In the letter [Mr A] talked about all the games he and [the complainant] played, and the things he used to buy her. He also talked about how much he missed her and how sorry he was. He said he was sorry for what he did to her. He talked about how he wanted to see her, and when she turned sixteen he would be able to see her again. The wording was quite sickening really because there was a lot of mention about how much he loved and missed her. It was signed off by [Mr A].
[3] Mr A met with Mr Tomlinson, his lawyer, for the first time the day after he had met with the grandmother. Mr Tomlinson is a salaried director of Gowing & Co Lawyers Ltd (“Gowing & Co”). Mr A gave Mr Tomlinson the letter. The police subsequently obtained a search warrant to enable them to uplift the letter from Gowing & Co. They gave Gowing & Co notice of their intention to execute the search warrant.2
[4] Gowing & Co asserted privilege over the letter on behalf of Mr A and filed an application in the District Court to determine the privilege issue.3 That application was heard by Judge Bidois. He determined that legal privilege did not extend to the letter because it was not intended to be confidential, was not created for the purpose of obtaining legal services, and discovery of the letter would not disclose
Mr Tomlinson’s legal advice to Mr A.4
1 I have anonymised Mr A’s name to protect the identity of the complainant.
2 Pursuant to s 143 of the Search and Surveillance Act 2012.
3 Pursuant to section 142 of the Search and Surveillance Act 2012.
4 Gowing & Co Lawyers Ltd v Police DC Whakatane CRI-2013-087-000401, 13 June 2013.
[5] Gowing & Co now appeals the District Court decision to this Court. Gowing
& Co concedes (as it did in the District Court) that the letter was not privileged at the time of its creation. Nor was it privileged when Mr A gave it to the complainant’s grandmother or when she returned it to him. Gowing & Co submitted, however, that the letter is now privileged. The basis of that submission is that the letter was given to Mr Tomlinson by Mr A during the course of a privileged meeting. Mr A was seeking Mr Tomlinson’s legal advice regarding the charges he was facing.
[6] Against this background, the key issues I must determine are:
(a) Is the letter now privileged, due to the circumstances in which it was provided to Gowing & Co?
(b) Would disclosure of the letter reveal the content of privileged communications between Mr A and Mr Tomlinson?
(c) Can or should the authority relied on by the Judge (Simunovich Fisheries Ltd v TVNZ Ltd5) be distinguished on the basis that the privilege issues in that case arose in a civil context? In particular, are there sound policy reasons that legal advice privilege should be interpreted more broadly in a criminal context?
[7] I will consider the first and second issues together, before turning to consider the third issue.
Is the letter now privileged, due to the circumstances in which it was provided to Gowing & Co? Would disclosure of the letter reveal the content of privileged communications between Mr A and Mr Tomlinson?
[8] It is not in dispute that the letter was not initially privileged. Rather, the issue is whether it subsequently became cloaked in privilege because Mr A gave it to his lawyer, in the context of seeking legal advice regarding the criminal charges he is facing.
Relevant law
[9] Gowing & Co’s privilege application is made in reliance on ss 136, 142,6
1437 and 1478 of the Search and Surveillance Act 2012 (“SSA”), and ss 53 and 54 of the Evidence Act 2006. Of most relevance is s 136(1)(b) of the SSA which recognises the privilege for communications with legal advisers that is provided for under s 54 of the Evidence Act:
54 Privilege for communications with legal advisers
(1) A person who obtains professional legal services from a legal adviser has a privilege in respect of any communication9 between the person and the legal adviser if the communication was—
(a) intended to be confidential; and
(b) made in the course of and for the purpose of—
(i) the person obtaining professional legal services from the legal adviser; or
(ii) the legal adviser giving such services to the person.
[10] Legal advice privilege enables the free exchange of information between lawyer and client, for the purposes of obtaining and providing legal advice. The classic statement of the rationale for legal professional privilege is that of Lord Taylor of Gosforth CJ (with whom the rest of their Lordships agreed) in R v Derby
Magistrates Court ex p B:10
The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.
7 Section 143(4) required the police to give Gowing & Co an opportunity to claim privilege on
Mr A’s behalf.
9 Pursuant to s 51, the reference to “any communication” in s 54 includes a reference to a
communication or information contained in a document.
Gowing & Co’s submissions
[11] The letter itself was not a communication between a legal advisor and his or her client, made for the purposes of obtaining or giving legal advice or services. Gowing & Co submitted, however, that the relevant “communication” is not simply the letter. When Mr A visited his lawyer he handed the letter over to him during the course of a privileged meeting. Gowing & Co submitted that in such circumstances:
The communication ought to be seen as a total package and the letter not separated from the communication and treated differently. Mr A’s purpose was to meet with his lawyer, seek advice about the charge he was facing, hand to him a letter he had written, seek advice about that letter and as a consequence of the advice, give his counsel instructions. His intent was that in meeting with Mr Tomlinson and handing the letter to him for the purposes of seeking legal advice the whole communication was to be confidential and was made in the course of and for the purpose of seeking advice from his lawyer....by handing the letter to Mr Tomlinson, Mr A could not have intended anything other than it would be on a confidential basis and retained by him until he gave instructions to the contrary.
The District Court decision
[12] Such arguments gained little traction with Judge Bidois. His Honour noted11 that “taking a non-privileged document to one’s legal adviser for legal advice does not change the status of the document”. He considered that, as a non-privileged document, the letter must be discovered unless its discovery would disclose legal advice given, in accordance with the principles set out in Simunovich Fisheries Ltd v TVNZ Ltd.12
[13] In Simunovich Fisheries the issue was whether TVNZ had to produce for inspection, as part of the discovery process, a series of 15 draft scripts of an investigative reporting programme. Each of the 15 scripts was sent to TVNZ’s legal advisers seeking advice and the subsequent version of the script reflected the advice given. The Court of Appeal made the following observations:
[165] ... The privilege should be as narrow as its principle necessitates, meaning that copies of non-privileged documents sent to a lawyer are privileged only if their disclosure would reveal a privileged communication.
...
11 At [26].
[169] We readily accept that the draft scripts were sent to Simpson Grierson on a privileged occasion. TVNZ sought advice about them. But where a client’s document was not prepared for the purpose of seeking advice, it does not attract privilege merely because it was sent to the lawyer as an adjunct to a communication in which advice was sought or given. It is privileged only if in the circumstances its disclosure would reveal the content of the privileged communication.
[14] The key issue in Simunovich Fisheries was whether disclosure of the draft scripts would reveal the legal advice sought or given about their content. TVNZ successfully argued that the drafts became privileged not because they were intended to be confidential, nor because they were created for the purpose of obtaining legal advice, but because their disclosure would tend to reveal the content of privileged legal communications. That is because each successive version of the script would reflect the legal advice given on the previous version, so that disclosure would reveal the solicitor’s line of reasoning. On this basis, the Court held that disclosure of the successive draft scripts would reveal legal advice and the drafts accordingly were
privileged from disclosure.13
[15] Judge Bidois distinguished Simunovich Fisheries, on the basis that Mr A’s letter is a static document and not part of a chain of documents edited in accordance with legal advice. Although Gowing & Co had submitted that discovery of the letter could disclose privileged legal communications between Mr A and Mr Tomlinson it had not explained how this could be so. The Judge could see no basis for the Simunovich Fisheries principles to apply and ruled that the letter was not privileged.
Discussion
[16] It is well established that where a document is not initially privileged, providing a copy of that document to a solicitor for the purpose of either legal advice or contemplated proceedings will not cause the document to become privileged. The principle is a longstanding one. For example, in Pearce v Foster Brett MR said:14
I do not think that, where documents are already in existence aliunde, the mere fact of their being handed to a solicitor for the purposes of the conduct of the action can create a privilege; but, where documents are brought into existence by a solicitor or through a solicitor for the purposes of consultation
13 At [170] – [171].
with such solicitor, with a view to his giving professional advice or to the conduct of an action, these are in the nature of professional communications, and are as such privileged.
[17] Numerous subsequent cases have applied these principles. For example, in Dubai Bank Ltd v Galadari & Ors15 the English Court of Appeal refused to uphold a claim to privilege in respect of an affidavit sworn by a former employee of the respondents, in support of a claim for wrongful dismissal. The affidavit had never been filed in Court because the claim had been settled. However, a photocopy of the affidavit had been served on the respondents by the former employee. The respondents had passed a copy of the affidavit on to their solicitors, so they could advise on the wrongful dismissal claim.
[18] Dubai Bank subsequently brought an unrelated claim against the respondents and sought discovery of the affidavit. The respondents claimed privilege on the basis that the affidavit had been provided to their solicitors for the purposes of legal advice. The Court of Appeal held that as the document was not privileged when originally given to the respondents, it did not subsequently acquire that status when it was passed on to their solicitors.
[19] Drafts of documents may be privileged if it can be established that they were prepared for the purposes of obtaining legal advice.16 However, where non-privileged documents are already in existence, the mere fact of their being provided to a person’s solicitor, in the context of seeking legal advice, will not render them subsequently privileged. Some limited exceptions to this general principle have emerged from the case law.17 In addition to the exception referred to in Simunovich Fisheries they include, for example, where a particular collation or selection of a group of documents might disclose legal advice. The exceptions have,
however, been narrowly applied.
15 Dubai Bank Ltd v Galadari & Ors [1990] Ch 98, [1989] 3 All ER 769 (CA).
16 Kupe Group Ltd v Seamar Holdings Limited [1993] 3 NZLR 209 and Dubai Bank Ltd v
Galadari (No. 7) [1992] 1 All ER 658.
17 Lyell v Kennedy (No 3) (1884) 27 ChD1; Sumitomo Corporation v Credit Lyonnais Rouse Ltd [2001] EWCA Civ 1152 [2002] 1 WLR 479; Ventouris v Mountain [1991] 1 WLR 607 (CA); Dubai Bank Ltd v Galadari (No 7) [1992] 1 WLR 106, [1992] 1 All ER 658 (Ch); Nickmar Pty Ltd v Preservatrice Skandia Insurance Pty Ltd (1985) 3 NSWLR 44 (SC).
[20] Mr Gowing submitted that the exception referred to in Simunovich Fisheries applies in this case. In my view, however, Judge Bidois was clearly correct to conclude that it does not. Mr Gowing was unable to explain, even in the abstract, how disclosure of a solitary non-privileged document such as the letter in this case could tend to reveal the content of legal advice. The complainant’s grandmother has already read the letter in question and given evidence as to its contents. It was drafted prior to Mr A even meeting with his lawyer. I see no basis on which disclosure of its contents might reveal legal advice. The present situation is far removed from Simunovich Fisheries.
[21] The letter was not prepared as a draft, for the purposes of seeking Mr Tomlinson’s advice regarding it. Nor are there a series of draft letters to the complainant from which the content of Mr Tomlinson’s legal advice could possibly be inferred. Rather, Mr A drafted the letter for the purposes of giving it to the complainant, through her grandmother. He attempted to do so. It was only after Mr A had attempted to give the letter to the grandmother (who read it and gave it back to him) that he then gave it to Mr Tomlinson. The letter does not acquire privileged status simply because Mr A subsequently gave it to his lawyer.
[22] I do not find the appellant’s submission that the communication between Mr A and Mr Tomlinson should be seen as a “total package” separate from the letter to be persuasive. The letter is separable from the “total package” of the meeting and any advice given at that meeting. Disclosure of the letter would not tend to reveal the content of any legal advice given.
Should the scope of legal advice privilege be interpreted more broadly in a criminal context?
[23] Simunovich Fisheries, together with many of the other cases on legal professional privilege, arose in the context of discovery in civil proceedings. Mr Gowing submitted that such cases should be treated with caution. He submitted that privilege is applied narrowly in civil litigation, because the underlying philosophy and rules dictate that all relevant documents are to be accessed and
available to the opposing party. In Simunovich Fisheries 18 the Court referred to the comments of Bingham LJ in Ventouris v Mountain19 to the effect that the English system of civil procedure was founded on the rule that the interests of justice are served by full disclosure. The Court then went on to note that there are exceptions,
including legal professional privilege, “but because disclosure is generally regarded as beneficial, any exception has to be justified as serving the public interest that gave rise to the exception”.
[24] Similarly, Richardson P in Crisford v Haszard20 approached a privilege issue on the basis that the High Court Rules expressed the social philosophy that, except where there is a valid claim to privilege, a party needs access to all documents relating to the case in order for justice to be done.
[25] Mr Gowing submitted that such a situation ought properly to be distinguished from the situation where a defendant meets with his lawyer and seeks counsel in respect of criminal charges he is facing. Mr Gowing said that:
Civil litigation can be seen in stark contrast to the criminal process where the onus is on the Crown to prove its case from beginning to end. The accused person has a presumption of innocence until proven guilty beyond reasonable doubt and she or he has the right not to say or do anything that might incriminate them. The onus on disclosure of documents, communications and evidence rests solely on the Crown.
[26] Given this context, Mr Gowing said there is a “special relationship” between an accused person and his counsel and the communications that occur between them. Privilege issues in a criminal context should be determined with this “special relationship” in mind.
[27] Mr Gowing further submitted that it is common for an accused person to present their lawyer with various documents, reports, letters and the like “in circumstances of confidence and with the expectation they will not be provided to other persons”. On Mr Gowing’s argument, such documents will become cloaked in
privilege once they are provided to an accused person’s legal adviser, regardless of
18 At [162].
19 Ventouris v Mountain[1991] 1 WLR 607 (CA).
20 Crisford v Haszard [2000] 2 NZLR 729 (CA).
whether they were originally privileged or not. Indeed, in oral argument, Mr Gowing went so far as to say this protection would also extend to non-documentary evidence including, by way of example, an alleged murder weapon.
[28] The Crown, on the other hand, submitted that the “special relationship” between lawyer and client already underpins the law of privilege. Accordingly any “special relationship” between an accused person and his or her counsel is appropriately recognised by applying the accepted legal principles relating to privilege. It does not give rise to separate and distinct criteria in a criminal context.
[29] I accept the Crown’s submission on this issue. I find it a startling proposition that an accused person could bring any manner of potentially incriminating non- privileged evidence (documentary or physical) under the cloak of privilege merely by providing it to their lawyer. I know of no authority that supports such a proposition.
[30] In B v Auckland District Law Society21 Lord Millett (delivering the judgment of their Lordships) observed that “the privilege is the same, whether the documents are sought for the purpose of civil or criminal proceedings and whether by the prosecution or the defence”.22 That case was cited in R v King, where it was stated that:23
It is quite clear that legal privilege can be claimed in criminal proceedings in the same way as it can be claimed in civil proceedings.
[31] The criminal process of course carries with it a different onus and standard of proof, together with the right to silence. These distinguishing features are reflected in the different regime for disclosure in criminal proceedings. Under the criminal disclosure regime, the obligations rest on the prosecution. The flow of information is one sided. A defendant is not required to voluntarily disclose incriminating documents. However, if the prosecution becomes aware of such evidence and
obtains a search warrant in order to seize it, the normal principles of privilege will
21 B v Auckland District Law Society [2004] 1 NZLR 326 (PC).
22 Citing R v Derby Magistrates Court [1996] 1 AC 487 (HL) at 503.
23 R v King [2007] 2 NZLR 137 at [27].
apply. There is no basis for applying a different approach to privilege in a criminal context. The justification for legal professional privilege is the same regardless of whether the proceedings are criminal or civil. This is reflected in the fact that s 54 of the Evidence Act draws no distinction between criminal and civil proceedings.
[32] In any event, even if privilege were applied more broadly in a criminal context, that would not assist on the facts of this case. Even on the most liberal interpretation of s 54, the letter would not be privileged. It was not intended to be confidential. Nor was it written in the course of and for the purposes of obtaining legal advice. The fact that it was handed to a lawyer during the course of a privileged meeting does not change the essential characteristics of the document.
Result
[33] Judge Bidois applied the correct legal principles and did not err in holding that the claim to privilege in respect of the letter could not be sustained.
[34] The appeal is dismissed. The letter, which is in a sealed envelope on the
Court file, is to be delivered up to counsel for the respondent 10 working days after the delivery of this judgment.
Katz J
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