WASC – Evidence Law in Western Australia

An unfair trial occasioned by denial of linguistic distinctiveness and an appearance of prejudgment: Murray v Feast [2023] WASC 273

Background

This case relates to an appeal from the Magistrates Court. The Appellant, Mr Murray, was convicted of one charge of aggravated common assault in the Magistrates Court at Karratha in 2021. At trial, Mr Murray gave evidence that he is a Walmajarri man who mainly speaks Walmajarri, as well as Mardok, Manjaderra, and ‘mixed languages’. Mr Murray gave evidence with the assistance of an interpreter. However, at the beginning of Mr Murray’s evidence, the Magistrate instructed the interpreter not to interpret portions of Mr Murray’s evidence that appeared to the magistrate to be in English. Both the interpreter and Mr Murray’s counsel attempted to inform the Magistrate that whilst Mr Murray might appear to be speaking in English, he was actually speaking in Aboriginal English and Kriol, and that interpretation was necessary because the meaning of words and phrases can differ between the languages. Despite this, the magistrate reiterated his instructions:

If he says it in English, then I don’t need to hear it twice. Because what we have by way of interpretation was the same sentence. So let’s just say it means something else in [Kriol], he just said the same words twice. I don’t need any further submissions. If you want to tell us something in English, I don’t need someone else telling me what he said… if you do use a sentence that’s in English, then I can understand what you’re saying because I happen to speak English.

The Appeal

The appellant argued three grounds of appeal (at [32]):

Ground 1: The learned magistrate erred in law in failing to properly direct himself in accordance with the Mildren direction.
Ground 2: There was a miscarriage of justice because the learned magistrate’s direction to the interpreter to stop interpreting portions of the appellant’s evidence resulted in an unfair trial.
Ground 3: The learned magistrate erred in law and fact by finding that the appellant was speaking ordinary English during portions of the appellant’s evidence.
Particulars: The learned magistrate had no regard for the expert opinion of the interpreter that the appellant was speaking Aboriginal English and Kriol. The learned magistrate erred in assuming that words spoken in Aboriginal English and Kriol have the same meaning in ordinary English.

The State conceded the third ground of appeal. However, the State argued that this error did not lead to a substantial miscarriage of justice because Mr Murray’s counsel and the interpreter ‘ignored’ the magistrate and continued with Mr Murray’s evidence through the use of the interpreter (at [38]).

Ultimately, Solomon J of the Supreme Court upheld the appeal and set aside the appellant’s conviction.

Ground 1

As to the first Ground of appeal, Solomon J found that the magistrate did not err by failing to give himself a Mildren direction. The Mildren direction seeks to ‘ensure fairness by drawing attention to socio-linguistic features of [a First Nations] witness that may give rise to misunderstanding’ (at [123]). Mildren directions have gained ‘fairly wide acceptance’ and have been adopted in the Aboriginal Benchbook for Western Australian Courts (at [102]). However, Solomon J concluded that

Mildren directions do not have the force of law. They have particular (but not exclusive) application where, unlike in this case, there is no interpreter. Moreover, Mildren directions are suggested directions to a jury by a judicial officer. Where the arbiter of fact is the judicial officer him or herself it is far from clear that error is demonstrated by the failure of the judicial officer to articulate out loud the sentiments expressed in the Mildren directions in the reasons for decision. (at [135])

Further, the magistrate did in fact refer to some matters relevant to Mildren directions in his ex tempore reasons, including that English was not Mr Murray’s first language, that Mr Murray was from a ‘culturally traditional background from Halls Creek’, and noting that ‘particular leeway should be given in terms of the evidence of Mr Murray and I have done so’ (at [137]).

Grounds 2 and 3

Justice Solomon dealt with the other two grounds together, noting that both related to the issue of a miscarriage of justice, a fair trial, and the conduct of the magistrate in relation to Mr Murray’s socio-linguistic circumstances (at [144]).

In relation to the State’s assertion that no substantial miscarriage of justice occurred because Mr Murray continued to give evidence with the assistance of the interpreter, Solomon J said ‘does not of itself mean that the magistrate’s remarks and treatment of Mr Murray was consistent with a fair and just hearing’ (at [142]).

Justice Solomon provided a helpful summary of principles relevant to a fair trial (at [167]):

(a) a fair trial is a central pillar and fundamental element of the criminal justice system;
(b) although a fair trial is ordinarily achieved by compliance with applicable legal rules and principles, the notion of a fair trial is broader than, and transcends, prescribed legal norms. A trial may be unfair even though conducted strictly in accordance with law;
(c) it is neither possible nor desirable to formulate exhaustively the content or the attributes of a fair trial. Evaluating the fairness of a trial must proceed on a case-by-case basis and is essentially a matter of intuitive judgment;
(d) fairness in a trial is not to be equated with populist or idiosyncratic notions of what is fair and just but rather is to be determined by reference to legal reasoning and precedent;
(e) at the same time, the practical content of a fair trial will vary with changing social standards, societal sensitivities and evolving knowledge. In isolated cases of such a nature, established precedent and historic legal reasoning may not be wholly adequate to identify and remedy unfairness;
(f) a fair trial is necessary to avoid a miscarriage of justice. It may be said at a level of generality that a miscarriage of justice will arise whenever the accused has not had a fair trial;
(g) a miscarriage of justice is a standard, not a rule;
(h) a substantial miscarriage of justice will have occurred if the trial involved a departure from the essential requirements of a criminal trial that goes to the root of the proceedings, or there was a failure to observe the requirements of the criminal process in a fundamental respect. That is so even if the accused’s guilt has been established beyond reasonable doubt.

Applying those principles to the present case, Solomon J found that Mr Murray’s trial departed in a fundamental way from the requirements of a fair trial for two reasons. First (and most notably), because of the denial of Mr Murray’s language, and second, because the magistrate’s attitude towards Mr Murray ‘had all the hallmarks of at least the impression of an unfair prejudgment of Mr Murray’s character and the integrity of his testimony’ (at [175]).

Denial of linguistic distinctiveness

Justice Solomon’s first reason for finding that the trial was unfair is novel and represents some significant development of the law in relation to a fair trial – a point his Honour made himself in the judgment:

I am conscious that there is no clear precedent for the proposition that a trial in which a fulsome interpretation was provided was nevertheless fundamentally unfair in the way asserted in this case by Mr Murray. (at [162])

Indeed, as Solomon J noted in the summary of relevant principles, ‘established precedent and historic legal reasoning may not be wholly adequate to identify and remedy unfairness’ and it is necessary to consider each trial ‘on a case-by-case basis’(at [167]). Thus, in appropriate cases, novel developments are necessary. Ultimately, Solomon J was unequivocal in deciding that this was one such appropriate case – that the denial of an Aboriginal person’s linguistic distinctiveness, in the context of all the relevant circumstances and social realities, contributed to an unfairness which went to the root of the process

The stark reality is this: a criminal prosecution of a Walmajarri man proceeded in the face of the court’s express denial of the linguistic distinctiveness of the accused. Unintended though it was, this cannot be regarded as fair and just. The injustice is all the more troubling because the denial of linguistic identity relates to the language and culture that evolved from antiquity in our very own landscape… If the court is to keep apace with community standards, it must apply the community standard reflected in the sentiments of the [Supreme Court’s] Reconciliation Statement to the concrete reality of the justice system. (at [174])

Appearance of prejudgment

Whilst equally pertinent, Solomon J’s second reason for finding that the trial was unfair is not so novel – it relates to well-established principles about reasonable apprehension of bias and prejudgment. Justice Solomon found that the magistrate’s attitude was not consistent with requirements for an appearance of impartiality:

There seems to me to be no escape from the conclusion that magistrate was in substance expressing, in Mr Murray’s presence, an erroneous view about the genuineness of Mr Murray’s need for interpretation and therefore an erroneous view about the honesty of Mr Murray’s approach to the giving of evidence generally. (at [175])

…it certainly cannot be said with any confidence that Mr Murray did not feel prejudged and denigrated by the magistrate’s comments. It hardly needs to be said that erroneous remarks from the Bench reflecting adversely on the evidence of an accused as they begin to give their evidence is inconsistent with a fair trial. It is not difficult to imagine that the impact on an accused’s capacity to give their evidence coherently in such circumstances might be severely compromised. (at [178])

Accordingly, Solomon J concluded that the trial represented ‘an unacceptable and fundamental departure from the required standard of a fair trial’ and that this unfairness ‘went to the root of the process’. The unfairness was not ameliorated by the interpreter continuing to interpret after the magistrate’s comments – Solomon J noted that it ‘could not redeem this trial from the consequences of the magistrate’s unintended but irretrievably unfair treatment of Mr Murray’ (at [180]). Justice Solomon set aside Mr Murray’s conviction and noted that submissions would be sought from the parties as to whether a retrial should be ordered (at [182]).

Other Matters

Appeals from the Magistrates Court

After finding that Mr Murray’s trial was unfair, Solomon J was careful not to lay blame or undue criticism on the particular magistrate or the Magistrates Court generally. As put eloquently in the judgment:

… the Magistrates Court is an extremely busy court in which some latitude must be given for the pressures that attend the administration of justice in a high-volume and necessarily fast-paced environment… the perch of appellate luxury makes for a comfortable and convenient position to make the sorts of observations contained in these reasons. The stark reality is that I have had some months to consider matters that the learned magistrate was required to deal with on the spot. I have no doubt at all that the Magistrates Court generally, and the learned magistrate in particular, do not lack for an appreciation of, or sensitivity to, the issues I have discussed in these reasons… It is important to appreciate that decisions of this court do not serve the function of admonition, and less still condemnation, of decisions the subject of appeal. Rather, they present the opportunity for the considered correction of error that will invariably occur from time to time in any environment, including the stressful and pressured atmosphere of the Magistrates Court. These reasons are therefore much less a criticism of the learned magistrate’s conduct than they are a manifestation of the system working as it should in the interests of justice. (at [181])

In the context of the particular issues raised by this trial, it is perhaps also relevant to note (although it was not noted in Solomon J’s judgment) that the learned Magistrate Gavin MacLean, who presided over Mr Murray’s trial in the Magistrates Court at Karratha, is himself an Aboriginal man.

Expert evidence

As a final point, a significant portion of the judgment concerned the admissibility of an expert report relating to socio-linguistics. Justice Solomon provided a handy summary of principles relevant to the admissibility of this kind of evidence at [123]. Whilst most of the report was admissible for various purposes, Solomon J found that the final part of the report was not admissible. As described in the judgment, that part

was where [the expert] set out his analysis of what he perceived to be the magistrate’s misunderstandings of Mr Murray’s evidence. [The expert] undertook a very detailed line-by-line and, in some instances, word-by-word analysis, of Mr Murray’s evidence. The report contains considered and insightful observations of potential difficulties that may have infected Mr Murray’s understanding of the questions being asked and the magistrate’s assessment of what was said in evidence. (at [60])

However, Solomon J found that the expert’s observations in the final part of the report were not particularly helpful in the appeal:

Rather than explanations as to how the failure to take account of Mr Murray’s traditional background led to an error in understanding his evidence, these observations are in substance well informed conjecture about potential problems that may have arisen in Mr Murray’s understanding of the question asked of him through the interpreter Mr Jenkins. The observations do not of themselves demonstrate that the learned magistrate assessed Mr Murray’s evidence in a manner that perpetrated an injustice. (at [61])

Ultimately, Solomon J decided that the final part of the report should not be admitted because it concerned an ‘ultimate issue’ – the assessment of Mr Murray’s credibility – which is for the Court itself to determine. Justice Solomon cited several leading authorities to arrive at this conclusion (including Farrell v The Queen (1998) 194 CLR 286, Jango v Northern Territory (No 4) [2004] FCA 1539, and Wotton v Queensland [2015] FCA 1075). These authorities (and other related cases) can be difficult to apply, creating a fine line between admissible and inadmissible expert opinion as to credibility (this matter has relevance beyond the specific context of First Nations witnesses, and has been an issue of particular interest for me for some time). In summary, these authorities establish that:

An ultimate conclusion about to the credibility or truthfulness of a particular witness is a matter for the fact finder and is, therefore, not a proper subject for expert opinion.
However, an expert may opine as to the existence of a condition, disability, or disorder which affects a witness’ capacity to give reliable evidence (so long as the opinion goes beyond matters of ordinary experience);
Similarly, an expert may give evidence on the language and communication difficulties and differences which are likely to be experienced by an Aboriginal witness.
Despite points 2 and 3, expert comments on particular parts or passages of evidence given by a witness at trial are likely to usurp the role of the fact finder. That is, those comments typically relate directly to the evaluation of testimony, which is an ultimate issue for the Court.

You can access Murray v Feast [2023] WASC 273, which was delivered on 27 July 2023, here.

Relevance: Western Australia v Glasfurd [No 7] [2023] WASC 49

Having just taught relevance to my current cohort of Evidence students, McGrath J’s decision in Glasfurd [No 7] stuck out to me as a straightforward application of relevance principles and the importance of temporal proximity in cases involving driving.

Relevantly, the State’s case in Glasfurd was that ‘at 6.30 [pm*] on 20 August 2021 the accused drove his vehicle at high speed, whilst intoxicated and in a reckless manner, causing a collision on Pier Street that resulted in the death of one pedestrian and injuring four other pedestrians’ (at [2]). The State proposed to bring evidence from five witnesses who each independently observed a black Range Rover (matching Glasfurd’s vehicle) driving dangerously between 6.30am and 9.30am that day. Some witnesses also identified features of the driver.

The State did not seek to characterise the witness accounts as propensity evidence pursuant to Evidence Act 1906 (WA) s 31A, instead arguing that the accounts were admissible as relevant circumstantial evidence which made it more likely that Glasfurd was driving dangerously at the time of the collision later in the day.

Ultimately, McGrath J found that each of the accounts were inadmissible on the basis of relevance as there was ‘insufficient temporal proximity between the alleged sighting of the accused allegedly driving his vehicle on the morning of the vehicle incident by each of the respective five witnesses and the time of the incident on Pier Street’ (at [22]).

Justice McGrath noted (at [23]): ‘If the driving formed part of a continuous driving episode, or was undertaken immediately prior to the vehicle incident, then the evidence has a basis of admissibility as relevant to a fact in issue, that is, the nature of the accused’s driving at the time of the incident. The accused’s driving in the years, months, weeks, day or on the day at another time is not relevant to a fact in issue, unless on the day the driving forms part of a continuous journey or is immediately before the vehicle incident. Therefore, I find the evidence the subject of the objection is inadmissible.’

Jamie Eric Glasfurd ultimately admitted guilt before the second day of his trial for Manslaughter. Prior to the trial, there were also several other pretrial decisions on admissibility of evidence. See Western Australia v Glasfurd [2022] WASC 403 relating to expert evidence and potentially prejudicial CCTV footage and images from the scene; Western Australia v Glasfurd [No 2] [2022] WASC 404 concerning the admissibility of a statement by a now deceased prosecution witness; Western Australia v Glasfurd [No 3] [2022] WASC 411 relating to the admissibility of an unrecorded admission; Western Australia v Glasfurd [No 4] [2022] WASC 443 and Western Australia v Glasfurd [No 6] [2023] WASC 26 both relating to propensity evidence; and, though technically not evidence under the Common Law, Western Australia v Glasfurd [No 5] [2023] WASC 25 in which McGrath J declined to exercise discretion to allow a view.

You can access Western Australia v Glasfurd [No 7] [2023] WASC 49, which was delivered on 10 February 2023, here.

* At the time of making this post, paragraph [2] apparently contains a typographical error, noting the time as 6:30am. Reference to the related judgments confirms that the relevant time of the Pier Street collision was actually 6:30pm, not 6:30am. This is material to note in a case where temporal proximity to the time of the collision is a key issue. I have corrected the time to read 6:30pm in my extract above.

Proof of Subsidiary Legislation

Background:

There is a line of authority in Western Australia requiring that subsidiary legislation be proved in evidence. This was most clearly put in Norton v The Queen [2001] WASCA 207, in which Roberts-Smith J (with Wallwork J and Pidgeon AUJ agreeing) said:

‘…the authorities establish that in the absence of a statutory provision so directing, judicial notice cannot be taken of delegated legislation and such legislation must be formally proved’. ([162])

This was later accepted as a correct representation of the law in Western Australia by four members of the High Court in Ostrowski v Palmer [2004] HCA 30.

In Ireland v Jackson [2021] WASC 362 and Montalbano v Morris [2019] WASC 309 (both traffic conviction appeals from the Magistrates court brought by self-represented appellants), submissions from the respondent (represented by the State Solicitor’s Office) have suggested various legislative bases for notice or proof of subsidiary legislation.

Montalbano v Morris [2019] WASC 309:

In Montalbano, the respondent submitted that the magistrate should be taken to have had judicial notice of the relevant instrument in the Government Gazette because it formed part of the Road Traffic (Administration) Act 2008 (WA). The respondent argued that this was so because s 53(1) of the Evidence Act 1906 (WA) – which provides for judicial notice to be taken of Acts of various Parliaments – extends to the relevant instrument by virtue of s 46 of the Interpretation Act 1984 (WA), which sets out that ‘A reference in a written law to a written law shall be construed so as to include a reference to any subsidiary legislation made under that written law’.

Ultimately, Tottle J found that s 53(1) of the Evidence Act 1906 (WA) does not direct courts to take judicial notice of subsidiary legislation because it:

‘… does not contain a reference to a written law in the sense that that phrase is used in s 46 of the Interpretation Act 1984. It contains a generic reference to “Acts of the Parliament of the United Kingdom and of the Commonwealth, and of any State, and of any Australasian colony, passed before or after the commencement of this Act”. Further, the language used in s 53(1)(b) discloses an intention that is contrary to the expansive construction of “Acts of Parliament” contended for by the respondent. Section 53(1)(b) refers to “Acts of Parliament … passed …”. Acts are “passed” but subsidiary legislation is not. For these reasons s 46(1) of the Interpretation Act 1984 is not engaged by s 53(1)(b) of the Evidence Act 1906 and does not operate to oblige courts to take judicial notice of subsidiary legislation.’ ([42])

Ireland v Jackson [2021] WASC 362:

Montalbano was recently referred to by Allanson J in Ireland. In that case, the respondent submitted that Commonwealth evidence legislation operated to allow notice to be taken of Western Australian subsidiary legislation. The respondent pointed to s 143 of the Evidence Act 1995 (Cth), which relevantly sets out that proof is not required of an Act (including a State Act), nor of a regulation, rule, by-law, or other instrument of a legislative character which is made ‘under such an Act’. The respondent argued that s 143 applies because s 5 of the same Act names s 143 as one of a handful of provisions which apply to ‘all proceedings in an Australian court’, where the term ‘Australian court’ includes all State and Territory courts.

Justice Allanson set out a number of reasons which support an interpretation consistent with the respondent’s submissions, but noted the conclusion reached by Tottle J in Montalbano and previous authorities:

‘The question is whether, when s 143(1)(b) refers to a regulation “made … under such an Act or Ordinance”, it includes a State Act or is confined to an Act of the Australian Parliament or of a Territory. There are arguments for why it should not be so confined. First, the same expression should be given a consistent meaning throughout the section. Section 143(1)(c) refers to a proclamation or order of the Governor of a State made under ‘such an Act or Ordinance’. I am not aware of any circumstance in which the Governor of a State may make a proclamation or order under an Act of the Australian Parliament, or an Act or Ordinance of a Territory.

Second, s 143(1)(d) is also, on its face, of wide operation in referring to “any government or official gazette” rather than a gazette of the Commonwealth or a Territory.

There is, however, a clear line of authority, discussed by Tottle J in Montalbano v Morris, that in Western Australia regulations must be proved in evidence. His Honour was referred to the Commonwealth Evidence Act, but it did not affect his conclusion.’ ([68]–[70])

The respondent also put an alternative argument based on s 8 of the Reprints Act 1984 (WA), which provides that a reprint of any written law under the Act shall be judicially noted. Justice Allanson described that submission as follows:

‘The argument is attractively simple. By s 5 of the Interpretation Act 1984 (WA), a written law means all Acts for the time being in force, and all subsidiary legislation for the time being in force. The Road Traffic Code is subsidiary legislation, and has been reprinted. Section 8 of the Reprints Act provides for judicial notice of that reprint.

Given the extent to which a reprint may alter the text of a written law, under s 7 of the Reprints Act, it would be an odd result were the court to take judicial notice of those changes but not the original underlying text.’ ([71]–[72])

However, Allanson J noted that it was difficult to determine the relevant ground of appeal because the appellant was unrepresented and the issues relating to the Evidence Act 1995 (Cth) and the Reprints Act 1984 (WA) were thus ‘only argued on one side.’ As the appeal was successful on a separate ground, Justice Allanson ultimately found that it was unnecessary to determine this ground of appeal, noting that ‘It should be left to be fully argued on another occasion.’ ([73])

Comment:

It remains unclear whether s 143 of the Evidence Act 1995 (Cth) or s 8 of the Reprints Act 1984 (WA) – which were not the basis of substantial consideration in the cases forming the ‘clear line of authority’ – could provide an exemption from the requirement to formally prove subsidiary legislation in Western Australia. On the basis of that uncertainty and the ‘clear line of authority’, it would presently appear prudent for a party relying on subsidiary legislation to formally prove it in court.

Waiver of Legal Professional Privilege and Associated Material

Background:

The principle in Mann v Carnell (1999) 201 CLR 1 (‘Mann’) is that legal professional privilege over a communication is impliedly waived where disclosure and use of the communication is inconsistent with maintaining the confidentiality provided by the privilege. However, in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 (‘AWB’) – another leading case on implied waiver – Young J devoted several paragraphs to discussing waiver of ‘associated material’ relating to other waived communications (at [164]–[176]).

In both Zantran Pty Ltd v Crown Resorts Ltd [No 2] [2020] FCA 1024 (‘Zantran’) and Perth Airport Pty Ltd v Qantas Airways Ltd [No 2] [2021] WASC 342 (‘Perth Airport’), it was argued that there was a waiver of associated material as described by Young J in AWB. Together, these decisions are helpful in understanding whether there exists an ‘associated material waiver’, and the relationship between the inconsistency principle and associated material. This case note first discusses O’Callaghan J’s decision on a point of law in Zantran, before considering its application by Le Miere J in Perth Airport.

Zantran Pty Ltd v Crown Resorts Ltd [No 2] [2020] FCA 1024:

In Zantran, O’Callaghan J was required to determine whether there exists a recognised species of waiver called ‘associated material waiver’. Counsel for Zantran argued that passages from Young J’s judgment in AWB stood for the proposition that ‘a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material’ and that ‘[t]he test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject-matter’. As put by O’Callaghan J in Zantran, it was submitted that ‘the voluntary provision of one privileged communication gives rise to a waiver of legal professional privilege over all other privileged communications relevant to the same issue or subject matter as the communication voluntarily provided’ (at [31]).

Counsel for Zantran relied on the following passage from AWB (inter alia): ‘Turning to the scope of any imputed waiver, it is well established that a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material. The test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter’ (at [164] of AWB). Counsel for Crown argued that the only guiding principle for the waiver of legal professional privilege at common law is the inconsistency principle stated in Mann.

Justice O’Callaghan noted that the difference between the two submissions might be ‘more apparent than real’, but that ‘[i]n either case, the critical anterior question is to identify the relevant issue or subject matter’ (at [41]).

His Honour said that when there is an express waiver, ‘an issue arises about whether and to what extent privilege has also been waived with respect to “related” non-disclosed documents’, which might be described as ‘associated material’. However, O’Callaghan J rejected the submission that Young J’s judgment in AWB establishes a separate species of waiver relating to ‘associated material’ which expands the Mann principles (at [42]–[45]).

Perth Airport Pty Ltd v Qantas Airways Ltd [No 2] [2021] WASC 342:

Zantran was recently applied by Le Miere J in Perth Airport. In that case, Qantas sought production for inspection certain documents which record analysis and advice by Houston Kemp (an economic consulting firm) and Dr Mundy. Perth Airport claimed legal professional privilege on the grounds that the documents were communications between the advisers and Perth Airport or their solicitor that were prepared for the dominant purpose of giving or obtaining legal advice (at [9]). Justice Le Miere ultimately found that Perth Airport had, during negotiations with Qantas and other airlines, waived legal professional privilege in respect of certain advice from Houston Kemp, and that production of documents communicating that relevant analysis was necessary for disposing fairly of the proceeding (at [19], [27], [33]–[34]).

In relation to the scope of the order for production, Qantas also sought production of any material necessary to understand that analysis or which underpinned or influenced it, and any documents referred to in particular documents containing the analysis (at [28]). That is, Qantas submitted that the waiver extended to ‘associated material’ as discussed by Young J in AWB.

Justice Le Miere applied O’Callaghan J’s decision in Zantran, stating that ‘[t]he extent of any waiver is to be determined in accordance with the principles expounded in Mann v Carnell’ (at [32]). Accordingly, whilst Le Miere J noted that Perth Airport might be required to produce documents which are necessary to understand certain advice it received, this did not extend beyond the principles in Mann. For example, if Perth Airport had documents evidencing the knowledge and experience of Mr Houston (of Houston Kemp), it would not be inconsistent for Perth Airport to maintain confidentiality over those documents even though that knowledge and experience would no doubt underpin and influence the analysis he provided (at [33]–[35]).

In relation to any documents recording analysis undertaken by Dr Mundy, Le Miere J found that Perth Airport had not waived its privilege as it was not inconsistent for Perth Airport to state the Houston Kemp advice yet maintain confidentiality over the separate analysis by Dr Mundy (at [36]).

Comment:

Together, Zantran and Perth Airport make it clear that the inconsistency principle from Mann is the sole principle relevant to determining whether legal professional privilege has been impliedly waived at common law. Whilst it may, in some instances, be inconsistent to retain confidentiality over certain documents associated with other waived communications, this will not always be so. Accordingly, Young J’s decision in AWB cannot be regarded as establishing a separate ‘associated material waiver’.

Some s 79C(2a) cases…

Find below a few short excerpts from (fairly) recent cases which considered issues relevant to s 79C(2a) Evidence Act 1906 (WA):

Zerjavic v Chevron [2020] WASCA 40 (in which a letter was found not to be a business record because it was a one-off document prepared by the business, rather than a document prepared in the ordinary course of that business):

‘The letter was a one-off piece of correspondence sent to the District Court in answer to a subpoena rather than a document prepared or used in the ordinary course of business for the purpose of recording any matter relating to the business. The primary judge was correct to reject the tender of the Sonic Health letter on the basis that it was not a business record.’ (at [146])

Collopy v CBA [2019] WASCA 97 (in which the point was made that s 79C(2a) allows for ‘a statement in a document that has been derived from a business record’ to be admitted, and that this description included screenshots of banking records):

‘… trial counsel objected to the admission of the screenshots on the basis that they were not admissible as business records because they had been prepared for the purposes of the litigation.

The screenshots themselves were not a ‘business record’ for the purposes of s 79C of the Evidence Act. They were, as Ms Lavater’s trial counsel observed, created in about October 2017 for the purposes of the trial. However, the information shown in the screenshots was derived from the Bank’s electronic business records in the manner described by Mr Kent. That is sufficient for the purposes of s 79C(2a)(a), which enables a statement in a document that has been derived from a business record to be admitted.’ (at [4]–[5])

Presilski v Shepherd [2021] WASC 100 (in which screenshots of Google Maps Timeline information fell under the s 79C(2a) business records exception):

‘… the Google Maps Timeline should be considered to have been generated by Google, from the underlying data recorded and stored by Google in its Google Maps system, in the ordinary course of its business of Google Maps, which, in the Google Maps Timeline functionality, tracks and registers the time and location of a user of a mobile telephone on a particular day. The appellant did not prepare the Google Maps Timeline, but rather accessed it…’ (at [143])

The State of Western Australia v Quartermaine [2020] WASC 458

Background:
This decision relates to a trial by judge alone before Hall J. The accused was charged with murder, and prior to the trial, admitted that he had unlawfully killed the victim. However, the defence argued that intent could not be proved beyond reasonable doubt (‘having regard to all the circumstances, including the intoxicated state of the accused’), and that therefore the accused could only be found guilty of a lesser offence ([4]).

During the trial, Hall J was required to determine whether the defence’s expert psychiatric evidence was admissible. This issue arose because the expert opinion was partially based on information which was not supported by sworn evidence. The issue is set out at [145]-[146]:

‘The accused elected not to give evidence. That was his right and no adverse inference can be drawn from that fact. However he did call expert evidence from Dr Victoria Pascu, a forensic psychiatrist.

Dr Pascu interviewed the accused at Hakea Prison and relied on information provided by him for the purpose of forming her conclusions. Some of the information provided by the accused reflected evidence that was otherwise available. However, the accused also provided Dr Pascu with some information, including in regard to his drug and alcohol usage generally and on the night in question, that was either not supported by the evidence or was inconsistent with it. This created an issue as to the extent to which Dr Pascu’s opinions were based upon information that was not supported by sworn evidence. An objection by the prosecution was taken to Dr Pascu’s evidence on this basis.’ (emphasis added)

In essence, the accused’s choice not to give evidence meant that he did not confirm on oath what he had said to Dr Pascu. This meant that some of the foundation of Dr Pascu’s opinion was not supported by any admissible evidence at trial, in that what the accused said to Dr Pascu was hearsay.

During the trial, Hall J decided that the evidence could be led, subject to any findings about weight, because Dr Pascu confirmed that it would be possible for her ‘to exclude the information that had been provided by the accused and to only rely upon the evidence before the court, including the accused’s interview with the police’ ([147]).

Reasons:
Justice Hall provided detailed reasons for his decision in the judgment, concluding that:

‘In this case prior to Dr Pascu being called she was asked whether it would be possible for her to put aside the information that was provided to her by the accused and whether she would still be able to give an opinion as to [the fact in issue]. She advised that she could do this. In these circumstances I concluded that Dr Pascu’s evidence would not be based entirely on inadmissible material and that insofar as she had partly relied upon any information from the accused which had not been confirmed on oath then that would reduce the weight to be accorded to her opinion.’ ([159])

As the opinion did not wholly rely on hearsay, it was still admissible. The extent of reliance on inadmissible hearsay ‘was able to be explored in cross‑examination and is relevant to the weight to be given to her opinion’ ([152]).

Comment:
This decision is of interest for the practical application of the (sometimes unclear) ‘factual foundation’ or ‘factual basis’ rule – even the nature of which is still subject to some disagreement, as some regard it as a formal rule for admissibility and others regard it as more of a practical requirement in that an opinion without an admissible factual basis cannot be of any weight. The common law authorities relating to this rule are contradictory, so Hall J’s discussion of the principle is helpful to understand which authorities are to be preferred.

In this regard, his Honour cites at [158] (inter alia, and apparently with some approval) the following passage from Ipp J’s judgment in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370:

‘[E]xpert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it. I form this view as to admit such an opinion would be to admit, indirectly, the inadmissible evidence itself. If an opinion, based solely on evidence that the court by law is required to exclude, is itself admitted, the inadmissible evidence would have some influence over the court’s decision. Such a result would defeat the purpose of the law that excludes the inadmissible evidence. If the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant and, in my opinion, should be excluded... It is only when the primary facts upon which the opinion has been based are established that the opinion should be admitted into evidence.

On the other hand, where the expert opinion is based only partly on inadmissible testimony and that inadmissible testimony can readily be ascertained and discarded, the opinion should be admitted subject to weight.’ (emphasis added)

The judgment:
The judgment was delivered on 11 December 2020 and can be accessed here. See especially paragraphs [145]–[159] for discussion relating to admissibility of the evidence.