Problem scenario^[1]

On 1 February 2003, Mr Toast was arrested and charged with the murder of a person at Windsor, NSW. On 14 April 2005, Mr Toast was found guilty by a jury of the murder of that person. At trial, Mr Toast did not dispute that he had killed that person, but he pleaded not guilty based by using the defence of mental illness. In the alternative, he relied on the partial defence of substantial impairment, such that he was guilty of manslaughter rather than murder. The jury rejected both defences. On 3 June 2005, Mr Toast was sentenced by Pemberton J to life imprisonment, to date from 1 February 2003, which was the date that he was taken into custody.

On 15 December 2006, Mr Toast's appeal against his sentence was dismissed by the Court of Criminal Appeal.

On 14 April 2022, Mr Toast made an application for an enquiry into his conviction and sentence. The judge (your judge) directed that the whole of his case be referred to the Court of Criminal Appeal to be dealt with as an appeal. In support of his application, Mr Toast relied on further psychiatric evidence which was said to cast doubt on the psychiatric evidence given at trial.

The appeal is listed for hearing in the Court of Criminal Appeal on 10 May 2023.

The background

After his arrest on 1 February 2003, Mr Toast was taken to Blacktown police station. On 2 February 2003, he was admitted to Nepean Hospital under the care of Dr Latif, neurologist. He was discharged and taken to Long Bay Hospital on 4 February 2003.

Mr Toast's evidence

On 27 March 2023, Mr Toast told his current solicitor, Ms Fandango, that he (Mr Toast) had prepared a document for his former solicitor, Ms Bear, at the time of his arrest in 2003. Ms Bear had acted for him in AVO proceedings in 2002, and she had acted for him in the early stages of the matter for which he was charged with murder. Mr Toast told Ms Fandango that when Ms Bear came to the police station in 2003, that Ms Bear asked Mr Toast to write everything down and send it to her, and that he (Mr Toast) had prepared the document as requested by Ms Bear to assist Ms Bear in her representation of him. Mr Toast recalled that the document was long. When he was shown the document several weeks ago, on 6 April 2023, Mr Toast identified it as being the document he had prepared for Ms Bear, who had only acted for him for a short while after his arrest.That document had been discovered in the Justice Health file archive for Mr Toast. Mr Toast told Ms Fandango, on 27 March 2023,that someone in the gaol had told him, in February 2003, that the document, which he had prepared for Ms Bear in February 2003, had been located by a nurse and was destroyed. He had been very upset by this at the time. Mr Toast said that the only written instructions he had ever prepared for a lawyer prior to his trial was the document prepared for Ms Bear. After the document was confiscated, Mr Toast says that he never wrote another such document.

Ms Bear's evidence

On 27 March 2023, Ms Bear told Ms Fandango that after the AVO proceedings in late 2002, she next heard from Mr Toast when he was arrested and taken to Blacktown police station with respect to the murder charge in 2003. Ms Bear recalled going to see Mr Toast at the police station. She stated that she never received any documents or written instructions from Mr Toast.As the matter was 20 years ago, Ms Bear agreed that it was possible that she had suggested to Mr Toast to write down the background to his arrest for her. In her affidavit of 5 April 2023, Ms Bear confirmed that she acted for Mr Toast for approximately 2 to 3 weeks after his arrest on the charge to murder. She recalled visiting Mr Toast at Nepean Hospital.She remembered suggesting to Mr Toast that he write down what had happened with respect to the allegations so that she could understand the background. Ms Bear says that she never received a document from Mr Toast. Ms Bear later received a telephone call from Mr Toast's wife informing her that Mr Toast had found another lawyer. In her affidavit of 12 April 2023, Ms Bear annexes timesheets which confirm that she:

attended Blacktown police station on 1 February 2003,

that she attended Nepean Hospital on 3 February 2003,

that she had telephone calls with Mr Toast through mid-February 2003 and that she continued to act on his behalf during that month.

Ms Fandango's evidence

Ms Fandango confirms that the document refers to Mr Toast having spoken to his wife "today" on Valentine's Day (14 February 2003).

Notes on the Justice Health file (from Long Bay Hospital)

The following is a note from the Justice Health file for Mr Toast at Long Bay Hospital. It reads:

16 February 2003 at 2130 hours

"Risk Intervention Team (RIT) called in. Inmate T appeared withdrawn refusing medicine and food. T isolating himself from other inmates.

When I went in to observe T he was found writing, teary eyed and fearful. When I asked if he felt like harming himself he did not answer me. I asked inmate if he would wrote a note telling me. I became suspicious and called in RIT and placed T in the observation cell.

A suicide note was found in his possession when his personal belongings were placed outside the observation cell. Suicide status to be reviewed 17/2/2003."

A progress note from the psychology file reads:

17 February 2003 at 1000 hours

"Inmate T still in observation cell. Registered nurse removed personal notes from the inmate. T had not seen legal aid and was composing notes for the solicitor.

The nurse believed that this may have been a suicide note, as T had been on suicide watch the previous week. T presented as upset, subdued, his mood was depressed and affect blunted. T stated that that his confidence in the officers and staff had been shattered and that his notes contained personal information."

The present situation

A judge of the Supreme Court (your judge) has been asked to make a pre-hearing ruling on the Crown's intention to use the document created by Mr Toast in 2003 in the enquiry proceedings to take place before the Court of Criminal Appeal on 10 May 2023. Your judge will not be part of the Court of Criminal Appeal hearing.Mr Toast has lodged an application to stop the potential use of the document by the Crown.Your judge's ruling on this application will determine whether the Crown can use that document in the hearing of the Court of Criminal Appeal on 10 May 2023.

Your judge explains that thecommon law with respect to privilegeapplies.

Your judge read the document and made the following observations.

"I spent several hours reading the document and a typed transcription prepared by the Public Defenders' Office. I express the following at high level of generality so as not to disclose the contents of the document.

First, it appears that the document, which I accept is in Mr Toast's handwriting, tells a version of events commencing at a time shortly before the death of the deceased. It does not set out some generalised history of Mr Toast's life and is not titled "My Story".

Second, it appears to be a document that is written over a period of time, likely over several days. By that I mean that it appears not to have been written on one occasion, but rather over days and possibly weeks.

Third, the document is writtentoa person, who it can be easily inferred is Mr Toast's legal advisor Ms Bear, who was his only solicitor at that time. Taking into account both the content and theme of the narrative, it follows that it was written in confidence.

Fourth, Mr Toast gives the person to whom the document has been prepared some specific instructions about what are strictly legal matters.

Small parts of several pages of the document contain what may be construed as (imminent) threats of suicide. One can imagine that if a nurse had read discrete parts of the later pages of the document, the nurse may well have thought the document was a "suicide letter" and taken it away from Mr Toast without his consent.

At one point the document includes a note that Mr Toast had spoken to his wife on 14 February 2003 and told her that he loved her.

At another point Mr Toast makes a reference to the conditions of the gaol and the food he had eaten that day.

It is clear from the text of the document itself that it was written by Mr Toast after his delivery into custody at Long Bay. I find that Mr Toast wrote it sporadically from about 4 February 2003 to 16 February 2003, including 14 February 2003.

The document was taken from Mr Toast without his consent on or about 16 February 2003. Mr Toast was told and believed that the document had been destroyed.

^[1] You should assume that all the facts in this problem are true. That is, you should not debate the truthfulness of the background facts.

You are the Judge's Associate. You have been asked toexamine all the facts thoroughly and provide your view on the application above. Specifically, you have been asked to advise your judge about what and how the law of privilege applies here including whether and how it could be lost. You are required to provideyour considered thoughts on this to your judge at your meeting with him about this case next week.