The disclosure of a defendant’s solicitor’s police station notes waived privilege for the whole of the document.
The appellant, and her five other co-accused, had been indicted for the murder, and related offences, against the victim, Luke Harwood. The victim had moved in and he was recognised by the appellant's sister, Alice Hall, as someone who she had previously accused of rape. He was subsequently killed. Each co-defendant was running a cut-throat defence over the murder. The appellant denied knowledge of the rape allegation and any personal involvement in violent actions against Mr Harwood. Alice Hall stated that the appellant had mentioned that she was going to kill Mr Harwood. The appellant denied using that language.
One of the co-defendants, Mr O'Toole, gave evidence that the appellant had used those words at the outset. During cross-examination, it was suggested to Mr O'Toole that this aspect of his evidence was a late invention. His response was that he had mentioned it, on an earlier occasion, to his solicitor. His solicitor's police station attendance notes were disclosed and the appellant's counsel, and others, sought to argue legal privelige was waived on the whole document. The trial judge ruled that the notes had been disclosed for the purpose of establishing the consistency of Mr O'Toole account and ruled against the other parties, including the appellant, cross examining on the notes more generally.
Emma Hall was convicted of murder and she appealed that conviction. The issues were:
Whether the judge had been right to conclude that the waiver of legal professional privilege had been limited to a small part of the document relating to consistency.
If not, whether the appellant's inability to cross-examine more widely affected the safety of the conviction.
Held: The attendance note containing a comprehensive account of Mr O'Toole's explanation had been disclosed. Privilege had been waived in respect of the entire contents of the attendance note. The trial judge had erred by deciding that the waiver of privilege only related to the evidence that had been challenged. Nevertheless, the way in which the trial judge had limited the cross-examination of the solicitor did not undermine Emma Hall's conviction. Emma Hall wanted to rely on a limited number of phrases as supporting her account. This would have required hearsay evidence to be admitted as the appellant was seeking to admit it as truth. This was not possible both because an application was not made to recall Mr O'Toole and no application had been made to admit the evidence as hearsay evidence. A more in-depth cross-examination would have identified minimal inconsistencies in the early accounts given by Mr O'Toole in any event. The appeal was dismissed.
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