MAGISTRATES COURTS OF QUEENSLAND

CITATION:	The Queen v Janouris [2015] QMC 14	
PARTIES:	Queen
(Applicant)

v

Emmanuel Janouris
(Defendant)
	
FILE NO/S:	MAG-00060827/14(1)	
DIVISION:	Magistrates Courts	
PROCEEDING:	Application for Professional Claim of Privilege	
ORIGINATING COURT:	Brisbane Magistrates Court	
DELIVERED ON:	16 July 2015	
DELIVERED AT:	Brisbane Magistrates Court	
HEARING DATE:	16 July 2015	
MAGISTRATE:	A Thacker	
ORDER:	Application is granted	
CATCHWORDS:		
SOLICITORS:	Mr MacKenzie	

Claim of Professional Privilege

[1]	The claim of professional privilege has been made by James Wallace (acting for Reece Brennan) whilst being questioned by defence counsel in committal proceedings in relation to charges against Emmanuel Janouris.
[2]	I have read and also heard the submissions of defence counsel opposing this claim.
[3]	Privilege attaches to confidential communications passing between a client and their legal advisor to protect the rights of a client to obtain full and frank legal advice. This system is protected because the community accepts the importance of enabling a person involved in legal contest to obtain truly full and frank legal advice about their legal position.
[4]	In criminal proceedings a “letter of comfort” and / or material that comes within the provisions of sections 13A and 13B Penalties and Sentences Act is usually communication between the prosecution and the defendant and readily attracts privilege. That is not the case here. Mr Wallace acted for the complainant in these committal proceedings. It was in separate proceedings where his client was the defendant he communicated about a “letter of comfort” or section 13A statement with employees of the DPP or QPS. This is the basis of Mr MacKenzie’s submission that there is no privilege in communications with the opposing party.
[5]	He refers to a number of civil cases including Sterling’s case - to support this position. However, civil jurisdiction process and rules is not identical to criminal jurisdiction. Firstly, matters heard in the civil jurisdiction are obviously not impacted by the provisions of the Penalties and Sentences Act s 13A and 13B. These provisions bring an extra dimension to a solicitor’s communications with an adverse witness. These co-operation sections would not be able to operate to their full and properly intended extent if principles taken from the civil law were applied to the criminal jurisdiction. Mr MacKenzie submits in essence that there is no or little difference between the jurisdictions when it comes to application of the privilege principles but I disagree.
[6]	I am supported in this view by both some concessions made by Mr MacKenzie when I raised the issue. Also, on my reading of the Meninga case which really raises circumstances very similar to those in this case in so far as the formation of the doctor’s opinion was made in similar vein as the formation of co-operation of Mr Wallace’s client. Logically, it would be unfair to use material obtained from the solicitor as a basis of defence case but yet assert that it was privileged from production due to section 13A elsewhere.
[7]	Now I recognise that Mr MacKenzie submits that what he is seeking – the timing and fact of communication only – is something less than the information covered by the protections of the Penalties and Sentences Act provisions. I’m not so sure about that in the absence of evidence on the point. 
[8]	That boundary line raised by Mr MacKenzie is not, in my view, a concrete one necessarily. I have no evidence as to where the boundary might lie. I do not know if in fact timing of communication is or is not an integral part of the matters protected by the Penalties and Sentences Act provisions.
[9]	The probative value of the evidence Mr MacKenzie seeks from Mr Wallace should be a consideration. That is difficult to weigh at this stage except to say it is not directly connected, it would seem, to the elements of the offences charged. Therefore, I see it as of a relatively low value.
[10]	Furthermore, I give consideration to the balance between the probative value of the evidence sought to be elicited from Mr Wallace and the need to avoid undermining the Penalties and Sentences Act provisions. 
[11]	Any balance should favour protection of the co-operation provisions in the Penalties and Sentences Act because when one looks at the penalties for breach of those provisions – imprisonment – it is readily apparent that a high degree of protection is intended to support co-operation with police. 
[12]	For these reasons, on balance, I find that I should err on the side of caution and support protection of the operation of the Penalties and Sentences Act sections. 
I ORDER –
[13]	The claim of privilege by Mr Wallace is granted.
[14]	Mr Wallace must not be asked and if asked is excused from answering questions related to time and fact of any discussions with employees of the Director of Public Prosecutions or Queensland police officers concerning any “letter of comfort” or section 13A Penalties and Sentences Act undertaking or statement to co-operate with law enforcement agencies or per section 13B Penalties and Sentences Act any co-operation given to co-operate with law enforcement agencies.

A C Thacker 
Magistrate