A decade after claiming that legal privilege prevented him from releasing his client notes, Martin Bryant’s lawyer, John Avery, has spoken extensively to Seven’s Sunday Night. But whether publicly revealing the notes now constitutes a breach of legal privilege — and Avery’s motivations — remains unclear.
Seven’s gripping doco, reported by TV veteran Mike Willesee, and also relying on interviews with Bryant’s psychologist and a former girlfriend, featured the documents previously mentioned by Avery as being part of his case notes, and thus legally privileged. These included the police tape of Bryant’s interviews, a handwritten confession by Bryant, and a sketch the mass-murderer drew of his movements through Port Arthur on April 28, 1996, when he killed 35 people. Avery is seen on camera handing over the confession (“Avery has kept it for all these years. This is the first time it has ever been shown,” Willesee said) and discussing the sketch (which Avery says was given to him by Bryant), but the source of the police tape is not made explicit.
Crikey asked Sunday Night how it, and Avery, got around the legal privilege issue. We also asked if Avery, who is no longer a lawyer, had been paid for the interview or the materials he gave to the program. “I don’t propose to comment about our program. Nor am I presumptuous enough to talk on behalf of John [Avery],” said Sunday Night executive producer Steve Taylor. Attempts to contact Avery were unsuccessful.
In a 2006 interview with then-Sydney Morning Herald reporter Robert Wainwright (who would go on to write a book about Bryant), Avery described the sketch, as well as the 20 hours of police tapes of Bryant in his case files, as crucial parts of the puzzle to understanding Bryant:
“There just isn’t anything out in the public domain beyond bits and pieces and rumour. I think there is a case where the rights of the community may have to be considered more important than the rights of an individual. That could well be argued in the case of Martin Bryant.
“If I wasn’t bound by client confidentiality then I would, even if only as a historical record, release the files. I’m not suggesting there is any big secret … but it is evident that the whole story hasn’t been told.”
Avery was Bryant’s court-appointed lawyer and is seen as instrumental in having convinced Bryant to change his plea to guilty, a mercy that spared the families of his victims having to give testimony in court. In 2009, Avery was jailed for stealing $500,000 from his clients and former law firm. He spent three years in jail. In 2010, while in jail, he flogged off his art collection to pay debts. He told Sunday Night of his personal struggles representing Bryant, which he believes partly led to his later crimes.
It’s not the first time privileged material about the Bryant case has ended up in the public domain. In 2006, The Bulletin published on its website transcripts of interviews between Bryant and Avery. Avery denied being the source of the interviews, and then-Bulletin editor Garry Linnell defended the newsworthiness of the transcripts in Crikey.
Tasmanian lawyer Greg Barns, who is the spokesman of the Australian Lawyers Alliance, says a client usually has to waive his or her right to legal privilege for it to be broken. It is not illegal to violate attorney-client privilege, but it could lead to civil action.
“I don’t think it’s very desirable,” he said. “Simply because someone has committed an extremely high-profile crime, it does not mean that their rights to confidentiality in relation to what they tell their lawyers and materials can be easily breached.
“We’ve all had high-profile cases. We’ve all had cases where if all the information was in public arena, it would titillate the public. But your duty is to the client and to the court, and your duty is to make sure you respect your client’s privilege. That’s an essential part of our system.”
Breaching attorney-client privilege is a disciplinary offence that generally results in a tribunal of legal professionals and could lead to a lawyer being struck off the legal register. But because Avery has already been struck off the the Tasmanian role of practising lawyers, Barns says the consequences of a breach are “probably not many”.
“But I don’t think that changes the fundamental point, which is that it’s highly undesirable for ex-lawyers to release to the media communications their clients have had with them.”
The program rated through the roof for Seven, up 25% on last week’s audience. The show had nearly 2 million viewers nationwide — 1.2 million metro and 600,000 in regional Australia.