R v Ryan - Appeal Against Conviction Dismissed

R v Ryan [2026] QCA 72 (24 April 2026)

Last Updated: 24 April 2026

SUPREME COURT OF QUEENSLAND

| CITATION: | R v Ryan [2026] QCA 72 |
| PARTIES: | R v

RYAN, Eric Barry

(appellant) |
| FILE NO/S: | CA No 138 of 2025 DC No 448 of 2024 |
| DIVISION: | Court of Appeal |
| PROCEEDING: | Appeal against Conviction |
| ORIGINATING COURT: | District Court at Southport – Date of Conviction: 16 May 2025
(Balic DCJ) |
| DELIVERED ON: | 24 April 2026 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | 2 April 2026 |
| JUDGES: | Mullins P, Bond JA, Bradley JA |
| ORDER: | Appeal dismissed. |
| CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR
INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL
DISMISSED –
where the appellant was charged with possessing dangerous drugs found in a car
driven by him and in which another
person was the passenger – where the
appellant instructed his solicitor that the passenger would provide an affidavit
deposing
that the drugs were hers – where an affidavit to that effect
purporting to have been sworn by the passenger was provided to
the
appellant’s solicitor and then provided to the Crown in support of a
submission that the case against the appellant should
be discontinued –
where the Crown investigated and found that the affidavit was a forgery –
where the appellant was charged
with and found guilty of attempting to pervert
the course of justice – where the Crown ran a circumstantial case that the
appellant
knowingly caused the forged affidavit to be provided to his solicitor
but the Crown did not seek to prove the contents of the forged
affidavit were false – where it was open to the jury to find that the
appellant’s conduct had the requisite tendency
to pervert the course of
justice EVIDENCE – ADMISSIBILITY – INTERFERENCE EXCLUSIONS: PRIVILEGES
– CLIENT LEGAL PRIVILEGES – LOSS OF PRIVILEGE
– PARTICULAR
CASES – where the Crown sought to establish at a pre-trial hearing a prima
facie case that the appellant
had knowingly caused a forged affidavit to be
provided to his solicitor so that it could be used in support of a submission to
the
Crown that criminal proceedings against the appellant should be discontinued
– whether sufficient evidence had been produced
by the Crown that legal
professional privilege did not attach to communications between solicitor and
client in relation to the affidavit
to justify the conclusion that an
evidentiary onus was cast on the appellant to show that the privilege did attach
– where
the judge made no appealable error in determining that the
appellant had failed to discharge his onus and accordingly in concluding
that
privilege did not attach Alessawi and Snowball v The King [2025] VSCA 23,
cited Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3 cited

Foord v
Whiddett (1985) 6 FCR 475; (1985) 60 ALR 269; [1985] FCA 179; cited

R
v Murray [1982] 1 WLR 475; (1982) 75 Cr App R 58, cited |
| COUNSEL: | G M Elmore for the appellant D Kovac for the respondent |
| SOLICITORS: | Legal Aid Queensland for the appellant Director of Public Prosecutions
(Queensland) for the respondent |
[1] MULLINS P: I have undertaken my own independent assessment of the
evidence and have concluded for the same reasons given by Bond JA that the
verdict of guilty was not unreasonable. I also agree with Bond JA that the
appellant fails on ground 2 and the appeal must be dismissed.

[2] BOND JA: The appellant was charged on indictment with a single
count of attempting to pervert the course of justice. The prosecution
particularised
the offence in this way:

“Attempting to pervert justice: on a date or dates unknown between the
twenty-sixth day of September, 2019 and the fourteenth
day of February, 2020 at
Southport or elsewhere in the State of Queensland, Eric Barry Ryan attempted by
causing a forged affidavit
to be relied on by his legal representative, to
pervert the course of justice.

Particulars:

Eric Ryan caused his legal representative, ..., to rely on a forged affidavit
by providing her with legal instructions to provide
the affidavit to Police
Prosecutions in support of a submission to discontinue criminal charges against
him. Eric Ryan knew the affidavit
was forged.

Acting on those instructions, his legal representative sent such a submission
to Police Prosecutions, attaching the affidavit.

Eric Ryan intended to pervert the course of justice by his
actions.”

[3] On 16 May 2025 the appellant was convicted of that offence after a jury
trial in the District Court. He was sentenced to 15-months’
imprisonment
to be suspended after serving a period of 4-months’ imprisonment.

[4] The appellant appealed against his conviction.

[5] He advanced two appeal grounds:

(a) Ground One: The verdict of the jury was unsafe and unsatisfactory having
regard to the whole of the evidence. (b) Ground Two: Her Honour Judge Prskalo KC erred as a matter of fact that the
Crown had discharged the evidential onus in determining
whether an improper
purpose arose in communication between the appellant and his solicitor.
[6] For reasons which follow the appeal should be dismissed.

Evidence and submissions at trial

[7] Detective Senior Constable Bristow gave evidence that on 31 October 2018
he intercepted a car being driven by the appellant.
A French citizen, Ms
Livolsi, was in the car with him at the time of the intercept. DSC Bristow
found in the car a small amount
of methylamphetamine, and some drug
paraphernalia (in the form of drug using utensils). He then charged the
appellant with possessing
dangerous drugs and another drug offence.

[8] The appellant instructed a solicitor to represent him in relation to the
two charges. Consequent upon the pre-trial ruling which
will be discussed in
relation to the second appeal ground, the solicitor was called to give evidence
at trial. The solicitor gave
evidence that the appellant told her that a female
who was in the vehicle with him when he was charged with the offences was
responsible
for the possession of the relevant items and the solicitor advised
him that a statutory declaration should be obtained from that
female so that a
submission could be sent to the prosecution requesting discontinuance of the
charges against him.

[9] Some documents were identified and tendered through the solicitor.
Relevantly:

(a) There was a letter from the solicitor’s firm to the appellant dated 27
September 2019 referring to his having told the
solicitor that he would provide
to her a “statutory declaration” and noting that the document
had not yet been provided.
She confirmed the accuracy of what she had
written. (b) There was a text exchange in November 2019 in which the solicitor sought an
update from the appellant and he texted in reply
that he would get the
declaration from Ms Livolsi who would “fess to the charges of the
miniscule bit of drug & related
stuff that was under/behind her
seat”.

(c) There was a text from the appellant to the solicitor on 17 January 2020
suggesting that Ms Livolsi was getting on a plane so
she could give evidence in
person that “all the drug stuff was hers”.

(d) There was a text from the solicitor to the appellant on 29 January 2020
stating the appellant would need to provide her with
a statutory declaration or
affidavit under Ms Livolsi’s hand claiming ownership of the drugs and
utensils.

(e) There was a text from the appellant to the solicitor on 5 February 2020
stating that Ms Livolsi had sent the solicitor a “stat
dec” and
asking whether she had got it. The solicitor replied that she had.

(f) There was a letter from the solicitor’s
firm to the appellant dated 6 February 2020 which confirmed details of what had
occurred in the Southport Magistrates’ Court that day:
“We further confirm our Patricija Nedeljko appeared with you in the
Southport Magistrates Court before Her Honour White, Magistrate,
on 6 February
2020 in relation to your matters...

At that point you told the Court that [the solicitor] had apparently
forwarded a statement from a person, who claims that she was
in possession of
the drugs. The Prosecutor advised the Court that their office has not received a
submission, and Ms Nedeljko advised
the Court that she is not the solicitor
with the carriage of the matters, and does not hold those specific instructions.
As such,
Her Honour stood the matter down, to allow the time for Ms Nedeljko to
get in contact with [the solicitor].

Ms Nedeljko then got in contact with [the solicitor], who confirmed that she
has received a statement yesterday afternoon, however
has not yet forwarded a
submission to the Prosecution.

Ms Nedeljko re-mentioned the matter, and advised the Court of above. Ms
Nedeljko sought an adjournment of your matters back to Court
8, for case
conferencing, however this was opposed by the Prosecution.”

[10] The solicitor confirmed that she had received the affidavit purporting
to have been sworn by Ms Livolsi. She recalled that she
received it as an
attachment to an email but she could not recall who the email was from or when
she had received it. She had deleted
the email once she had received what she
needed for the purposes of doing what she had been instructed to do, namely make
a submission
to the prosecution.

[11] These observations may be observed about the impugned affidavit:

(a) The opening line of the affidavit was a pro-forma statement which contained
space for the name and address of a deponent to be
inserted followed by the
words “make oath and say as follows.” It had Ms Livolsi’s
name inserted in handwriting
in the space for the name and a Surfers Paradise
addressed inserted in typescript in the space for the address. (b) Beneath the words “make oath and say as follows” the
identification of Ms Livolsi as the deponent was substantially
repeated by
the typescript insertion of Ms Livolsi’s name, date of birth, French
address and the recording that she was “currently
staying at the Buds in
Surfer’s Backpacker Hostel” followed by the repetition of the words
“say as follows”.

(c) The body of the affidavit then recorded:
“1. On Halloween night Wednesday 31 October 2018, when we got pulled
over by the Australian Police I had with me meth &
Ritalin & a pipe
inside a banana case to put it in & other related things. I have struggled
with meth & Ritalin addiction
most of my life. On that night I had only
a fragment left of meth left so I started using the Ritalin I had with
me in my bag.

1. My friend who was driving me around in the Jeep had no knowledge that I was using or had the drugs with me.
2. I am happy to come to the Court & explain what happened to the Judge & to anyone that’s interested & to the Court
3. I was very nervous when the police stopped our car in the dark road on Halloween & I didn't know what to say to Police. Im very sorry for all the trouble i casued (sic).”

(d) The affidavit contained a jurat which recorded that the affidavit was
“signed and sworn” by “the above named
deponent” at
Australia Fair on 3 February 2020 before Ms Stewart, a justice of the peace
(who had signed) and also contained
a handwritten signature above the
“named deponent” line before the words “Australia Fair”.
The date had been
inserted by a date stamp and the signature of the JP had been
inserted next to an official JP stamp.
[12] The JP, Ms Stewart, gave the following unchallenged evidence:

(a) She conducts her work at Australia Fair. (b) She keeps a log of all the people she sees and the date she sees them.

(c) When someone comes in to get her to witness an affidavit or statutory
declarations the first step in her process is to obtain
a photographic ID from
the person so that she can cross-reference the person who is before her with the
ID. She then records that
information in her log, together with detail of the
type of ID it is. Then she goes through the process of affirmation or swearing
of the deponent and then gets the person to sign the document which she then
signs and stamps.

(d) The two page extract from her log for 3 February 2020 was identified and
tendered through her. The relevant line in the log
contained in her handwriting
the words “Affidavit. RYAN Eric. D/L. 4217.” She explained that
the entry indicated
that on 3 February 2020 she saw someone by the name of Eric
Ryan for an affidavit and that she reviewed his driver’s licence.
The
driver’s licence matched up with the person she saw in front of her and
contained a reference to the postcode 4217. There
was no record of Ms Livolsi
having sworn an affidavit before her on that day.

(e) She was shown the purported affidavit of Ms Livolsi. In relation to the
jurat, she identified that the detail “Australia
Fair” was in her
handwriting; the date 3 February 2020 had been inserted by her stamp and
that she had signed next to her official
justice of the peace stamp.

(f) However, she said that she did not think that the affidavit in full was a
document she had seen before the police had shown it
to her. She pointed out
some details on the document which she found to be unusual, namely the affidavit
was “a typed affidavit
but the name on the top [namely the identification
of the deponent] is scribbled”; someone had placed a
“squiggle”
before the words “Australia Fair”; the
document did not look like an “original document”. She also said
that the contents of the affidavit was such an interesting story that she
believed that she would have remembered it had she seen
it before.
[13] The appellant’s solicitor also gave evidence that she provided the
affidavit to the prosecution for the purpose of a submission
that the charges
against the appellant be discontinued, as she had been instructed to do by the
appellant. She had not sent a copy
of the affidavit to the appellant
before sending it to the prosecution.

[14] It was formally admitted that on 13 February 2020, the solicitor sent
the impugned affidavit and a case conference request to
the prosecution which
amongst other things stated:

“Possessing dangerous drugs & possess property suspected of
having been acquired for the purpose of committing a drug offence

On the night that police intercepted Mr Ryan and charged him with the
offences, he had a passenger with him, named Juliette Livolsi.

Ms Livolsi has provided an affidavit claiming ownership of the
methylamphetamine and the drug related paraphernalia the subject of
another
charge. Kindly find enclosed herewith a copy of the affidavit confirming that Ms
Livolsi is the true owner of the items subject
to the two charges.

It is respectfully submitted that the two charges should be discontinued
against Mr Ryan in the circumstances.”

[15] DSC Bristow gave evidence that he was asked to review the submission.
He conducted investigations with Border Force and found
that Ms Livolsi had left
the country on 6 January 2019 and had not returned by 24 March 2020. He took no
steps to speak with Ms
Livolsi. As a result of his investigations, he advised
the prosecution not to accept the submission which had been made on the
appellant’s
behalf. The prosecutor who received the submission and
affidavit and who had requested DSC Bristow was called and identified the
relevant documents. He explained that based on DSC Bristow’s advice the
appellant’s submission was not accepted.

[16] Sometime between when the solicitor sent the submission and affidavit to
the prosecution and 29 June 2020, she had become aware
that police had conducted
some investigations into the affidavit. Further text exchanges between she and
the appellant were identified
and tendered through her. Relevantly those texts
and her evidence revealed:

(a) On 29 June 2020 she asked him to urgently call because she had received a
statement from the JP who signed the statutory declaration
saying that when she
signed it, the appellant’s name was at the top, not Ms Livolsi. She wrote
that the prosecution opposed
her giving evidence by phone in those
circumstances. She wrote there was some force to that submission in light of
the statement
provided by the JP. (b) The reference to evidence by phone concerned a proposed application by her
that Ms Livolsi could give evidence by phone at the
appellant’s trial,
because she was not in the country. She could not recall whether he had called
her as requested.

(c) On 30 June 2020, the appellant texted her stating “Btw, if they
suggest I had something to do with juliete’s forgery.
Note Juliete did all
unilaterally & sent to u directly via her email. I was not privy to any part
of it...”

(d) On 2 July 2020 she texted him “My concerns remain the same with her
giving evidence in light of the fraudulent statutory
declaration. Any
credibility would be affected negatively.” He responded
“Yes, received & understood.

Im prepared to put aside the risks of fallout from Julz forgery.If we said we
need to brief counsel wouldnt they adjourn it to late
july or more. I
couldn’t deposit that much until 20 July... (sic) I understand
& am prepared to wear the risk of the Julz done forgery as I had no
involvement whatsoever... (sic) I assume delaying it another month would
give me all these extra options before I throw in the towel. Arguments like

wasnt
mine, was julz or >> no one can have possession of a minute
unusual amount.

if one of Julz friends who lives locally fesses to ownership &
is prepared to appear in court to say so.”

(e) There was then an exchange in which the appellant sought to be provided with
the correspondence the solicitor had had with Ms
Livolsi. The solicitor
provided him with a copy of the affidavit but nothing else because the email
which had provided it to her
had been deleted.
[17] On 7 August 2020, DSC Bristow charged the appellant with attempting to
pervert the course of justice.

[18] DSC Bristow’s evidence concerning Ms Bristow was supported by a
further formal admission to the effect that Ms Livolsi
had left Australia on 6
January 2019 and had not returned to Australia at any time between 6 January
2019 and 24 March 2020. Accordingly
the affidavit could not have been sworn and
signed by Ms Livolsi as it purported to have been.

[19] At trial, counsel for the appellant accepted that the affidavit was a
forged affidavit but advanced a no case submission the
essence of which was (1)
in order to succeed on the prosecution the Crown was required to prove that the
contents of the forged affidavit
were actually false and (2) the Crown had not
sought to do so and accordingly the case must fail. The trial judge rejected
the application.
The appellant neither gave nor called evidence.

[20] The Crown case before the jury was that the
prosecution was required to prove beyond reasonable doubt the three requisite
elements
of the charge, namely:

(a) the appellant engaged in the conduct alleged in the indictment; (b) that conduct had the requisite tendency (namely the tendency to pervert the
course of justice); and

(c) the appellant intended by that conduct to pervert the course of justice.
[21] There was no direct evidence of the state of knowledge of the appellant
concerning the affidavit. Rather the Crown advanced
a circumstantial case that
the appellant must have been the person who caused the forged affidavit to be
provided to his solicitor,
and he must have known that it was forged and he must
have intended that his solicitor would provide it to the prosecution for the
purposes they had discussed. Amongst the relevant circumstances said to justify
that inference were these:

(a) Before 3 February 2020 the appellant had told his solicitor that Ms Livolsi,
the other person in the car, would confess to being
the owner of the drugs and
drug paraphernalia and he would provide his solicitor with a statutory
declaration from Ms Livolsi to
that effect. (b) On 29 January 2020 the appellant’s solicitor texted him that he would
need to provide her with a statutory declaration
or affidavit under Ms
Livolsi’s hand claiming ownership of the drugs and utensils.

(c) The appellant must have been the person who attended before Ms Stewart to
have an affidavit witnessed on 3 February 2020, but
the document he swore before
her could not have been the impugned affidavit.

(d) The impugned affidavit contained a jurat which
conveyed that on 3 February 2020 Ms Livolsi had sworn the affidavit at Australia
Fair before Ms Stewart but that was contrary to Ms Stewart’s
evidence, to Ms Stewart’s log and to the evidence that Ms
Livolsi could
not have done so as she was not in the country. The impugned affidavit was a
forged affidavit, and it had been forged
using a jurat which had been
signed and witnessed before Ms Stewart on 3 February 2020.

(e) Someone provided the forged affidavit to the appellant’s solicitor.
The contents of the impugned affidavit were consistent
with what the appellant
had told the solicitor to expect and were to his benefit. The appellant’s
text to his solicitor of
5 February 2020 revealed that he had expected that a
“stat dec” containing that information must have just been provided
to the solicitor.

(f) There was no reasonable or rational innocent explanation available.
[22] The appellant’s case before the jury accepted that the affidavit
was a forged affidavit but –

(a) challenged whether the appellant had engaged in the conduct alleged in the
indictment as it might have been Ms Livolsi who had
sent the forged affidavit to
the appellant’s solicitor and there was no real evidence that the
appellant knew of the nature
of the document; (b) suggested that the Crown had not proved that the substantive contents of the
document were not correct and that without such
proof the jury should not
conclude that the Crown had proved the requisite tendency;

(c) suggested that the Crown had not demonstrated that there was ever an
intention to pervert the course of justice as opposed to
an intention to do
something else entirely.
Appeal ground 1

[23] When the appellant was charged with possessing dangerous drugs and other
drug offences following an intercept of the car he was
driving on 31 October
2018, the jurisdiction of the Court to deal with the question whether he was
guilty of those offences was invoked.
The course of justice thereby
commenced.

[24] The appellant’s argument on the first ground of appeal was a
narrow one. The appellant accepted that the Crown was required
to prove beyond
reasonable doubt the three elements referred to at [20] above. The argument challenged only
whether it was open for the jury to find that the Crown had proved beyond
reasonable doubt the
second of those elements, namely that the appellant’s
conduct had the requisite tendency to pervert the course of justice.
And in
that regard, the appellant contended the reason it was not open to the jury to
reach that conclusion was that the Crown had
not proved that the contents of the
forged affidavit were false. Absent such proof, so the argument went, the
prosecution had not
demonstrated and the jury could not find that the provision
of the forged affidavit had the relevant tendency.

[25] This argument must be rejected.

[26] It may be accepted that the prosecution did not prove the contents of
the impugned affidavit were false in the sense that the
prosecution made no
attempt to prove the falsity of the story told in the body of the impugned
affidavit. But that did not matter.
It was plainly open to the jury to
conclude that the Crown had proved beyond reasonable doubt that (1) Ms Livolsi
could not have
sworn to the truth of the contents of the impugned affidavit in
the manner the jurat had suggested she had done for the reasons referred
to at 21 above; (2) accordingly the
jurat of the affidavit was false and the affidavit was a forgery. On that
basis, it was open to the jury
to conclude that the Crown had sought to and had
in fact proved the falsity of an important part of the affidavit.

[27] The result was that the appellant’s conduct in causing the
provision of the impugned affidavit to the prosecution amounted
to a false
representation that Ms Livolsi had in fact sworn to the truth of the contents of
the affidavit, as the jurat suggested
she had. This was an act which was
calculated to mislead the prosecution into concluding, based on that
falsehood, that the charges against the appellant should be discontinued.
It was that falsehood which gave the document the weight which it
was intended
to have as part of the submission. It was that falsehood which gave rise to the
tendency to pervert the course of justice.

[28] In order to prove the tendency to pervert the course of justice, the
Crown did not have to prove that the appellant’s act
succeeded in
perverting the course of justice. Nor did the Crown have to prove that the
appellant’s act was likely to succeed
in achieving that outcome. All the
Crown had to prove was that the appellant had done enough for there to be a risk
that injustice
might result. [1] The
risk which had to be demonstrated was the risk of adverse interference to
justice in the ordinary course. [2] The provision of a forged affidavit in the demonstrated circumstances obviously
created a risk of adverse interference to the ordinary
course of justice. The
existence of that risk was not negated by the proposition that the prosecution
might have been expected to
carry out some form of investigation into the
affidavit. Nor was it negated by the absence of proof of the falsity of the
story
told in the body of the affidavit.

[29] I find that it was open to the jury to conclude that the Crown had
proved beyond reasonable doubt that the impugned conduct had
the tendency to
pervert the course of justice. Accordingly appeal ground 1 must fail.

Appeal ground 2

[30] The Crown had sought a pre-trial ruling pursuant to s 590AA of the Criminal Code that legal professional privilege did not attach to
communications between the appellant and his solicitor relating to the purported
affidavit of Ms Livolsi and the submission made to the prosecution in relation
to the appellant’s charges.

[31] The Crown argument was that the legal professional privilege which might
otherwise exist in such communications had been displaced
by prima facie
evidence of fraud, crime or illegal purpose. Judge Prskalo KC accepted the
Crown argument and made these orders:

“1. Legal professional privilege does not attach to the original
affidavit purportedly sworn by Ms Livolsi or a copy of it,
nor to the
circumstances in which the affidavit came to be in the possession of the
previous lawyer, nor to any instruction provided
to the previous lawyer by the
respondent as to the use to be made of the affidavit.

1. [The solicitor] produce to the court all documents, communications or records to which legal professional privilege does not attach as specified in order 1.
2. The parties are given leave to inspect and copy the documents which are produced to the court pursuant to order 2.” [32] Her Honour explained the legal approach she had taken to the critical question in these terms:

“Communications in furtherance of a fraud or crime are not protected by
legal professional privilege because the privilege never
attaches to them in the
first place. While such communications are often described as
‘exceptions’ to legal professional
privilege, they are not
exceptions at all. Their illegal object prevents them becoming the subject of
the privilege: see Commissioner of Australian Federal Police v Propend
Finance Pty Ltd (1997) 188 CLR 501 at 556 per McHugh J.

Communications made in furtherance of future wrongdoing fall outside legal
professional privilege, although there is no particularly
precise statement as
to the nature of the wrongdoing that produces that result. However, legal
professional privilege clearly extends
to the situation in which a person seeks
advice with respect to past misdeeds: see Commissioner of Australian Federal
Police v Propend Finance Pty Ltd at 545 per Gaudron J.

In Commissioner of Australian Federal Police v Propend Finance Pty Ltd at 546, Gaudron J stated:

‘... Because legal professional privilege attaches to communications
contained in documents (including copy documents) brought
into existence and
provided to a lawyer solely for the purpose of obtaining legal advice or solely
for use in legal proceedings,
the privilege does not attach to documents which
are brought into existence or which are provided to a lawyer for the
purpose of
furthering some illegal object. Thus, as McHugh J pointed out in
C arter v Northmore Hale Davy & Leake, the so-called
‘exceptions’ to legal professional privilege, namely, communications
to further illegal purposes, communications
made for the purpose of frustrating
the processes of the law and communications made to further an abuse of public
power ‘are
in truth not exceptions at all’. Rather, legal
professional privilege never attaches to them. This has some significance in
relation to the nature of the evidence necessary to raise a question of
illegality.

If illegality were a true exception to legal professional privilege, it would
be arguable that the person challenging the existence
of the privilege should
establish that the communication in question was made in furtherance of some
illegal purpose. However, it
is not a true exception and, thus, it is not
necessary that illegality be established positively. On the other hand,
a mere allegation
of illegal purpose is not, itself, sufficient. There must
be ‘not merely an allegation ... of a fraud, but ... something to
give
colour to the charge”, “some prima facie evidence that it has some
foundation in fact’. The reason for this
is obvious. Persons are presumed
innocent, not guilty. And, thus, there must be evidence to raise a sufficient
doubt as to a claim
of privilege to cast a further evidentiary onus on the
person making the claim to show that, in truth, the privilege attaches.

Inevitably, what will be sufficient to cast a further evidentiary burden on a
person claiming legal professional privilege will vary
according to the facts of
each case.’” (Footnotes omitted)

[33] Her Honour’s reasons went on to note that the Crown did not
suggest that the appellant’s solicitor knew that the
affidavit was a
forgery. Rather the Crown application was premised on the basis that the forged
affidavit was provided to the solicitor
with instructions for it to be provided
to the prosecution. The improper purpose alleged by the Crown was the attempt
to pervert
the course of justice by having the charges against him withdrawn
based on the forged affidavit.

[34] Her Honour concluded that sufficient evidence had been produced by the
Crown that legal professional privilege did not attach,
to justify the
conclusion that an evidentiary onus was cast on the appellant to show that the
privilege did attach. The appellant
had not gone into evidence before her
Honour and, accordingly, she was not persuaded to conclude that privilege had
been shown to
attach to the documents described in order 1. Her Honour
expressed her ultimate conclusion in these terms:

“In my view, the Crown have demonstrated prima facie evidence of
illegality in so far as the material establishes that a forged
affidavit was
provided to police prosecutions and was accompanied by a submission for the
charges against the respondent to be discontinued.
Such facts raise a sufficient
doubt as to the claim of privilege such that a further evidentiary onus is cast
on [the appellant]
to show that the privilege attaches. The arguments advanced
by [the appellant] do not persuade me that privilege attaches to communications
regarding the (allegedly) forged affidavit, irrespectively of when those
communications were made.”

[35] The appellant’s argument before this Court challenged the
correctness of her Honour’s finding that the Crown had
placed sufficient
evidence of illegal purpose before her to cast the further evidentiary onus on
the appellant.

[36] That argument must fail.

[37] The relevant part of the evidence at the pre-trial hearing was as
follows.

[38] First, there was evidence in the form of a witness statement from Ms
Stewart which made all the points which she eventually made
at trial concerning
the impugned affidavit.

[39] Second, there was evidence in the form of a witness statement from an
officer with the Australian Border Force which established
that Ms Livolsi had
not been in Australia at the time the impugned affidavit was purportedly sworn
before Ms Stewart.

[40] Third, there was a statement from the police prosecutor which attached a
copy of the submission which he received from the appellant’s
solicitor
together with a copy of the impugned affidavit.

[41] Fourth, there was a transcript of proceedings before Magistrate White on
6 February 2020. That was the proceeding referred to
in the letter
produced at trial and referred to at 9 above. The transcript recorded
that the appellant had personally appeared before the Magistrate and had
requested an extension of
the time of his trial on the drugs charges. The
relevant parts of the transcript were:

(a) Having asked for the extension and been told that the proceeding had been
“around for a long time”, the transcript
recorded these exchanges:
“DEFENDANT: It’s my understanding that there was further
documentation that was only obtained a few days ago to be given
to the police,
and do the police need time to consider that documentation?

MS MEDELJKO: Your Honour, I don’t have - I’m not a solicitor with
the carriage of this file. I don’t have any instructions
with respect of
that.

MR FORTH: Perhaps the only document he is referring to is the update to his
medical certificate. That’s what the court was unsatisfied
with.

MS MEDELJKO: That is also all I have on the file, your Honour.

HER HONOUR: Is there something else, Mr Ryan?

DEFENDANT: There is, your Honour. It’s a substantial document from
another person that was - well, without getting into the
detail of the charge,
that was present with me at the time of arrest. I don’t know why the
police haven’t mentioned that.
They definitely - it’s my
understanding they already have it.

MR FORTH: Well, obviously I don’t have carriage of the case
conferencing file.

HER HONOUR: Well - - -

MR FORTH: It left case conferencing months ago.

DEFENDANT: Denny - - -

MR FORTH: So the matter is listed for trial, your Honour. That’s all
we’re seeking.

DEFENDANT: Denny mentioned that it was sent to them yesterday. Haven’t
they received it? It’s my understanding it was
sent to them
yesterday.”

(b) After a brief adjournment was permitted to enable the facts to be
ascertained, Ms Medeljko returned to advise the Court that
she had been in
contact with the solicitor with the carriage of this matter and she did confirm
that late afternoon yesterday she
did receive a statement which has not yet been
sent to the prosecution; that a submission has not yet been made; but that she
intended
on making that submission.
[42] The evidence before the judge on the application was not the same as
that which was ultimately placed before the jury but it
was well and truly
sufficient to meet the standard described by Gaudron J in the passage from Commissioner of Australian Federal Police v Propend Finance Pty Ltd quoted above. It established a prima facie case that the affidavit had been
forged and the circumstances supported a prima facie
inference that the
appellant must have been the person who caused the forged affidavit to be
provided to his solicitor, and he must
have known that it was forged and he must
have intended that his solicitor would provide it to the prosecution for the
purposes they
had discussed.

[43] Before this Court the appellant sought to rely on a similar argument as
that advanced in relation to the first appeal ground,
namely that the absence of
a prima facie case that the contents of the body of the affidavit were false was
fatal to the conclusion
reached by Judge Prskalo KC. That argument fails for
the same reasons as those expressed in relation to the first appeal ground.

Conclusion

[44] Both appeal grounds having failed, the appeal should be dismissed.

[45] BRADLEY JA: I agree with the analysis of the evidence by Bond JA
and with his Honour’s conclusion that it was open to the jury to be
satisfied
beyond reasonable doubt that the appellant’s conduct had the
tendency to pervert the course of justice.

[46] I also agree with the conclusions of Bond JA with respect to the second
ground of appeal raised by the appellant.

[47] It follows that I concur with his Honour’s conclusion that the
appeal should be dismissed.

[1] R v Murray (1982) 75 Cr
App R 58 at 59 per Lord Lane CJ; Foord v Whiddett [1985] FCA 158; (1985) 60 ALR 269 at
278 and 281 per Sheppard J.

[2] Alessawi and Snowball v The King [2025] VSCA 23 at [43] per Emerton P, Taylor JA and
Kidd AJA.