Bobette Smalling v Dawn Satterswaite and Others

• Jurisdiction: Jamaica
• Judge: Straw J.
• Judgment Date: 17 September 2015
• Neutral Citation: [2015] JMSC Civ 183
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013HCV 06888
• Date: 17 September 2015

Between

Bobette Smalling

Applicant

and

Dawn Satterswaite

1 ^th Respondent

and

Annmarie Cleary

2 ^nd Respondent

and

Paulette Higgins

3 ^rd Respondent

and

Janet Ramsay

4 ^th Respondent

and

Dorothy Hamilton

5 ^th Respondent

[2015] JMSC Civ. 183

CLAIM NO. 2013HCV 06888

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Legal Professional Privilege — Common Law fraud exception — Inspection by court.

Mrs. Caroline Hay and Mr. Nigel Parke for Applicant.

Mrs. Jacqueline Samuels-Brown , QC. Instructed by Knight Junor and Samuels for 1 ^st Respondent

Ms. Akuna Noble instructed by Wilkinson & Co. watching proceedings for 3rd and 4th Respondents.

In Chambers

Straw J.

THE APPLICATION

1 The applicant, Bobette Smalling, is an Authorized Financial Investigator and Detective Sergeant of Police and an appropriate officer within the meaning of Part VI of the Proceeds of Crime Act 2007 [POCA] who is stationed at the Major Organized Crime and Anti-Corruption Task Force [MOCA.]

The 1st respondent, Dawn Satterswaite is an attorney-at-law of 20 ¹/₂ Duke Street on whom search and seizure warrants were executed which resulted in the removal of various files, transactions and documentations including electronic material from her law offices by MOCA. The 1 ^st respondent has claimed that legal professional privilege applies to the above material which is presently sealed.

2 The applicant is seeking orders in as set out in paragraphs, 1, 4, 5 and 6 of a relisted notice of application filed on 28 ^th October 2014, a summary of which is set out below:

‘1. A determination of what material is relevant to and included in Table A [The Listed Material] described in Search and Seizure Warrant issued in these proceedings by Mrs. Justice Marva McDonald-Bishop, as she then was, on 16 December 2013.

4. That all the said files, transactions, communications, dealings of whatever kind as manifested in the physical and electronic documents, records, articles contained in the respective containers and computer which were removed from the law offices of the 1st respondent which were ordered by the court to be retained sealed by MOCA be examined by this court for a determination of what material attracts legal professional privilege.

5. That all the files, transactions, communications etal, as described in # 4 above which have been examined by this court and found to attract legal professional privilege be returned within 3 working days to the possession, custody and control of the 1st respondent.

6. That the said files, transactions etal which have been examined and found not to attract legal professional privilege be retained and unsealed by MOCA for examination, consideration and use by MOCA in the furtherance of its investigation and/or in the determination of what is relevant for disclosure and use in the criminal trial of the 1st, 2nd, 3rd and 4th respondents, who have been charged with breaches of the Proceeds of Crime Act, 2007 [POCA].

THE ISSUES

There are 3 basic issues for determination by the court in these proceedings.

3 i. Whether the applicant has satisfied the court that legal provisional privilege ought not to apply to the sifted material [Listed Material] and should therefore be examined by the court for such a determination to be made.

ii. Whether the repeal of the Money Laundering Act and its replacement with POCA in May 2007 has any effect on the sifted material that may be ordered unsealed.

iii. What is a suitable process for examination by this court of the sifted material in order to determine what, if any, may be ordered unsealed.

ISSUE 1

Does legal professional privilege cover the sifted material?

4 Both parties agree in general on the applicable law as it relates to the above. The Jamaican Bar Association v The Attorney General & The Director of Public Prosecutions, consolidated with Ernest Smith & Company [a firm] et al v The Attorney General and The Director of Public Prosecutions, SCCA Nos. 96,102 & 108/2003, is the seminal case out of the Court of Appeal examining the issue of legal professional privilege in relation to documents seized from the offices of an attorney. Panton JA, who delivered the judgment of the court reiterated the general common law principle as expressed by the High Court of Australia in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, delivered on November 7, 2002. At para. 47 of his judgment, Panton JA made reference to following aspect of the judgment in that case:

“At para.9, Gleeson, CJ, Gaudron, Gummow and Hayne JJ expressed themselves thus:

“It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.”

5 That being said, Panton JA also went on to reiterate the basic common law principle at para. 52 that legal professional privilege would not be breached if there was an allegation of criminal conduct by the attorneys or their clients in the relationship as the privilege cannot be used to mask or permit criminal conduct.

6 In R v Cox and Railton [1884] 14 QBD,153 it was established that communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure. Stephen J, in delivering the judgment of the court gave expression to the rationale as follows at pages 167,168 and 171 respectively:

“A communication in furtherance of a criminal purpose does not ‘come into the ordinary scope of professional employment’”

“In order that the rule may apply there must be both professional confidence and professional employment, but if the client has a criminal object in view in his communications with his solicitor one of these elements must necessarily be absent. The client must either conspire with his solicitor or deceive him. If his criminal object is avowed, the client does not consult his adviser professionally, because it cannot be the solicitor's business to further any criminal object.”

“…..If the client had a dishonest purpose in view in the communication he makes to his attorney with the view of making the attorney the innocent instrument of carrying out the fraud, it deprives the communication of privilege.”

7 This then is the gist and substance of the common law fraud exception to legal professional privilege. This general principle is expressed also in R v Central Criminal Court Ex Parte Francis & Francis [1989] 1 AC 346; The Queen v Bullivant and Others [1900] 2QB 168; Regina v Gibbins [2004] EWCA Crim, 311; The Queen on the Application of Hallinan, Blacburn-Gittings & Nott [a Firm] v Middlesex Guildhall Crown Court [2004] EWHC 2726 [Admin]. In relation to Ex Parte Francis, Gibbins as well as Hallinan , Queens Counsel, Mrs. Jacqueline Samuels— Brown, counsel for the 1 ^st respondent, has asked that I tread with some caution in relation to the judgments expressed as they are based on an English statutory regime which could be said, in particular, Ex Parte Francis, to have restricted the common law principle as expressed in The Jamaica Bar Association case. However, counsel for the applicant, Mrs. Caroline Hay, has submitted that there has been no restriction on the common law in Ex Parte Francis as the decision by the majority judges is to the effect that the statute merely embraces the common law principle.

8 The court in Ex Parte Francis examined section10 of the [English] Police & Criminal Evidence Act, 1984. The section provides as follows:

‘[1] Subject to subsection [2] below, in this Act “items subject to legal privelege” means — [a] communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client; [b] communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and [c] items enclosed with or referred to in such communications and made —[i] in connection with the giving of legal advice; or [ii] in connection with or in contemplation of legal proceedings and for the purposes of such proceedings, when they are in the possession of a person who is entitled to possession of them.[2]Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.’

9 Lord Griffiths, one of the majority judges, was of the view that the definition in section 10 corresponded closely with the established common law principles that govern the existence of legal privilege. He expressed that on his first reading of section 10 [2], he was in no doubt that it was setting out the exception to legal privilege established in Cox and Railton [page 382, paras. g-h]. The majority decision held that the issue of the relevant intention required by section 10 [2] did not merely apply to the holder of the items, but to any other person. Lord Griffiths stated that if this were not so, then it would mean that almost all applications to have access to documentation held in a solicitor's office would likely be unsuccessful as it would only be in the rarest of cases that the solicitors will be party to the crime [page 383, para. d].

10 On the other hand, Lord Oliver, one of 2 dissenting judges, was of the view that the ordinary, natural meaning of the words meant...