Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Adanguidi v The King [2023] NSWCCA 91 Hearing dates: 05 April 2023 06 April 2023 17 April 2023 Date of orders: 17 April 2023 Decision date: 20 April 2023 Before: Weinstein J Decision: (1) The Crown application dated 23 March 2023 is dismissed. (2) The 65-page document in Mr Adanguidi's handwriting, undated, found in his Corrective Services NSW psychology file is a confidential communication attracting legal professional privilege and is not to be produced to the Crown. (3) The 65-page document is to remain on the court file in a sealed envelope marked "Privileged document. Not to be opened by any person other than a Supreme Court judge." Catchwords: LEGAL PROFESSIONAL PRIVILEGE – whether document contained in Corrective Services Psychology file attracts legal professional privilege – whether legal professional privilege has been waived Legislation Cited: Criminal Appeal Act 1912 Evidence Act 1995 Supreme Court (Criminal Appeal) Rules 2021 Cases Cited: Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404 Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 442 Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 Lazar v R [2021] NSWCCA 132 R v Crespin Adanguidi [2005] NSWSC 519 Category: Procedural rulings Parties: Crespin Adanguidi (Appellant) Rex (Respondent) Representation: Counsel: T D Anderson SC (Appellant) G Newton SC (Respondent) Solicitors: Hal Ginges & Co (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2003/6089 Publication restriction: None JUDGMENT 1. This judgment concerns an application by the Crown to access a 65-page document in Mr Adanguidi's psychology file produced by Corrective Services NSW in response to a Witness Order made pursuant to rule 4.3 of the Supreme Court (Criminal Appeal) Rules 2021, over which Mr Adanguidi has claimed legal professional privilege. Documents have also been produced by the Justice Health and Forensic Health Network. Access has been granted to both parties with respect to all documents produced, save for the 65-page document. 2. Section 12(1)(a) of the Criminal Appeal Act 1912 (the Criminal Appeal Act) confers on the "court" power to order the production of any document connected with the proceeding, that being a proceeding in the Court of Criminal Appeal. As will soon become apparent, they are pending proceedings in the Court of Criminal Appeal in which Mr Adanguidi is the appellant. The power to order "production" extends to the power to control access to the documents produced, and necessarily includes determining whether or not legal professional privilege at common law or client legal privilege pursuant to the Evidence Act 1995 (the Evidence Act) attaches to any document. 3. Section 22(1) of the Criminal Appeal Act provides that the power of the "court" to order production of such documents can be exercised by a "Judge of the Supreme Court designated by the Chief Justice in the same manner as they may be exercised by the court, and subject to same provisions". The Chief Justice has designated all judges of the Common Law Division with that power, and all other powers which are listed in s 22. 4. The issues that arise for determination in these proceedings are whether or not the 65-page document is subject to legal professional privilege, and if so, whether or not Mr Adanguidi has waived legal professional privilege (either expressly or impliedly) with respect to that 65-page document. 5. I made orders disposing of the application on 17 April 2023. What follows are my reasons for making those orders. Background 1. On 1 February 2003, Mr Adanguidi was arrested and charged with the murders of three persons: Shiquin Zhen, Pin Shen and Christy Bo Shen. 2. On 14 April 2005, Mr Adanguidi was found guilty by a jury of the murders of those three persons. At trial, Mr Adanguidi did not dispute that he had killed each of those three persons, but he pleaded not guilty based on 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. 3. On 3 June 2005, Mr Adanguidi was sentenced by Barr J to three sentences of life imprisonment, each to date from 1 February 2003, which was the date that he was taken into custody (R v Crespin Adanguidi [2005] NSWSC 519). 4. On 15 December 2006, Mr Adanguidi's appeal against his sentences was dismissed by the Court of Criminal Appeal (Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404). 5. On 14 April 2022, Dhanji J considered Mr Adanguidi's application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001. Pursuant to s 79(1)(b) of that Act, his Honour directed that the whole of his case be referred to the Court of Criminal Appeal to be dealt with as an appeal: see Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 442. In support of that application, Mr Adanguidi relied on further psychiatric evidence which was said to cast doubt on the psychiatric evidence given at trial. 6. The appeal is listed for hearing in the Court of Criminal Appeal on 10 and 11 May 2023. 7. I am indebted to Mr Newton SC who appeared on behalf of the Crown and Mr Anderson SC who appeared on behalf of Mr Adanguidi, for the manner in which the proceedings before me were conducted. Exhibits 1. Before me are several exhibits. They are as follows: 1. An affidavit of Michael Jones affirmed on 23 March 2023; 2. An affidavit of Michael Jones affirmed on 27 March 2023; 3. An affidavit of Michael Jones affirmed on 4 April 2023; 4. An affidavit of Hal Ginges affirmed on 28 March 2023; 5. A 65-page handwritten document extracted from Mr Aganguidi's Corrective Services NSW psychology file together with a transcription prepared by the Public Defenders' Office contained in a sealed envelope marked "Privilege Claimed"; 6. An affidavit of William Vahl affirmed on 5 April 2023; 7. An affidavit of Hal Ginges affirmed on 6 April 2023; and 8. An affidavit of William Vahl affirmed on 12 April 2023. 1. Neither Mr Jones, Mr Ginges nor Mr Vahl was required for cross-examination. 2. Mr Jones is the solicitor for the Crown, Mr Ginges is the solicitor for Mr Adanguidi, and Mr Vahl is Mr Adanguidi's former solicitor. Mr Jones's and Mr Ginges's affidavits annex various documents from Mr Adanguidi's Justice Health and Corrective Services psychology files. Mr Vahl's second affidavit annexes some time sheets with respect to his interactions with Mr Adanguidi in February 2003. Evidence 1. Relevantly, the evidence reveals the following:- 1. After his arrest on 1 February 2003, Mr Adanguidi was taken to Maroubra police station. On 2 February 2003, he was admitted to St Vincent's Hospital under the care of Dr J O'Neill, neurologist. He was discharged to Long Bay Hospital on 4 February 2003. 2. On 27 March 2023, Mr Adanguidi told both his counsel and his solicitor that he prepared the 65-page document for his (first) solicitor, Mr William Vahl. Mr Vahl had acted for him in AVO proceedings which preceded the February 2003 events, and he acted for him in the early stages of this matter after being charged. He told them that Mr Vahl came to the police station, that Mr Vahl "guided him" to write everything down and send it to him, and that he had prepared the document as requested by Mr Vahl to assist Mr Vahl in his representation of him. Mr Adanguidi recalled that the document was long, and when he was shown the document several weeks later on 6 April 2023, Mr Adanguidi identified it as being the document he prepared for Mr Vahl, who had only acted for him for a short while after his arrest. 3. Mr Adanguidi told his counsel and solicitor on 27 March 2023 that someone in the gaol had told him that the document which he had prepared for Mr Vahl had been located by a nurse and was destroyed. He had been very upset by this. Mr Adanguidi said that the only written instructions he had ever prepared for a lawyer prior to his trial was the document prepared for Mr Vahl. After the document was confiscated, Mr Adanguidi says that he never wrote another such document. 4. On 27 March 2023, Mr Vahl told Mr Ginges that after the AVO proceedings, he next heard from Mr Adanguidi when he was arrested and taken to Maroubra police station with respect to the instant proceedings. Mr Vahl recalled going to see Mr Adanguidi at the police station. He stated that he never received any documents or written instructions from Mr Adanguidi. He believed that it was possible that he had suggested to Mr Adanguidi to write down the background to his arrest for him. 5. In his affidavit of 5 April 2023, Mr Vahl confirmed that he acted for Mr Adanguidi for approximately 2 to 3 weeks after his arrest. He recalled visiting Mr Adanguidi at St Vincent's Hospital. He remembered suggesting to Mr Adanguidi that he write down what had happened with respect to the allegations so that he could understand the background. Mr Vahl says that he never received a document from Mr Adanguidi. He later received a telephone call from Mr Adanguidi's wife informing him that Mr Adanguidi had found another lawyer. 6. In his affidavit of 12 April 2023, Mr Vahl annexes timesheets which confirm that he attended Maroubra police station on 1 February 2003, that he attended St Vincent's Hospital on 3 February 2003, that he had telephone calls with Mr Adanguidi through mid-February 2003 and that he continued to act on his behalf during that month. 7. Mr Ginges confirms that the 65-page note refers to Mr Adanguidi having spoken to his wife "today" on Valentine's Day (14 February). 8. There is a note at 2130 hrs on 16 February 2003 in the Justice Health file, whilst Mr Adanguidi was at Long Bay Hospital. It reads: "Pt placed on a RIT @2130 PM staff informed me that he appeared withdrawn refusing meds + food. Isolating himself from other inmates. When I went in to observe him @ this time Pt was found writing, teary eyed + fearful. When asked if he felt like harming himself he did not answer me. I asked inmate if he would write a note telling me. I became suspicious + the officers + myself had placed him on a RIT, + in the observation cell. A suicide letter was found in his possession when his personal belongings were placed outside the observation cell. RIT to be reviewed 17/2." 1. A note on the psychology file dated 16 February 2003 and timed 2130 hrs confirms that a suicide note was found. 2. A progress note from the psychology file dated 17 February 2003 says:- "Inmate Mr Adanguidi placed on a R.I.T. after registered nurse removed personal pages from the inmate. Mr Adanguidi had not seen legal aid and was composing notes for the solicitor. The nurse believed that this may have been a suicide note, as Mr Adanguidi had been on a R.I.T. the previous week, Mr Adanguidi presented as upset, subdued, his moved was depressed and affect blunted. He stated that that his confidence in the officers and staff had been shattered and that these notes contained personal information." 1. A note on the psychology file dated 17 February 2003 timed at 1430 hrs reads:- Interviewed Mr Adanguidi. Presented as upset about his personal papers being taken & copied by the night nurse. His trust in the staff had been compromised. Is presently on a R.I.T. will continue to until he is sent to D ward. 1. There is reference in the Justice Health file to a progress note dated 19 February 2003 which reads: "NSG. Discussed many issues with Crespin today. Discussed his family, likes, dislikes, work etc. Spent time reading his writing by Crespin "His story". No obvious thought disorder but did make some reference to a friend, who is honorary consulate to China. " 1. There are several notes in the Justice Health file following 19 February 2003 which indicate that Mr Adanguidi continued to write. On 21 February 2003, a nurse had a discussion with Mr Adanguidi about whether or not he wanted to proceed with his current solicitor. On 22 February 2003, a nurse wrote in the Justice Health file: "Spoke about childhood at length with author, stated he did not have a good childhood because his family was so poor and he was always hungry." 1. There is a further note in the Justice Health file dated 13 March 2003, which in part reads: "He expects to see his lawyer after the brief is served – expected 24/3/03. Crespin has already prepared a written statement of events." 1. I observe that the Crown submits that the 13 March 2003 note can be read as establishing that Mr Adanguidi wrote another version of events, after the one that that had been taken by the nurse on 16 February 2003. Mr Anderson says that it is equally consistent with Mr Adanguidi having previously written a version of events, being the one that was taken by the nurse on 16 February 2003. In my opinion, for reasons that follow, nothing turns on this entry. Legal Professional Privilege or Client Legal Privilege 1. The onus of proof in establishing that the 65-page document is subject to legal professional privilege or client legal privilege rests upon Mr Adanguidi on the balance of probabilities. The onus of proof with respect to waiver, either express or implied, rests upon the Crown. 2. In Lazar v R [2021] NSWCCA 132 (Lazar), Beech-Jones J, as his Honour then was, said at [23]:- "Section 131A of the Evidence Act 1995 (NSW) operates to extend the operation of Division 1 of Part 3.10, which concerns client legal privilege, to various pre-trial disclosure requirements including to Witness Orders (s131A(2)). However, s 131A only applies where the person producing the documents is also the person that objects to access (Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 at [27]; State of NSW v Public Transport Ticketing Corporation [2011] NSWCA 60 at [32] per Allsop P). As Mr Lazar is the person making an objection to access to documents produced by others, it follows that this application is governed by common law principles of waiver. That said, at least so far as imputed or implied waiver is concerned, there is no relevant difference between the common law and s 122(2) of the Evidence Act (Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 at [32]; "Expense Reduction")." 1. Here, as Mr Adanguidi is the person taking the objection to documents produced by others, the common law with respect to legal professional privilege applies (rather than that of client legal privilege pursuant to the Evidence Act), including the common law principles of waiver. I observe that it is agreed that nothing turns on any perceived distinction between the tests of client and legal professional privilege and waiver at common law of pursuant to the Evidence Act. 2. The common law test with respect to legal professional privilege is materially identical to that contained in the Evidence Act, i.e. it is the dominant purpose test. The dominant purpose test was adopted by a majority of the High Court as the preferred test for legal professional privilege at common law in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67. As I have said, this is uncontroversial in these proceedings. 3. In Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278, Moshinsky J said of the privilege at [143]:- "In order for privilege to arise, it is not sufficient that giving or obtaining legal advice or providing legal services was in part the purpose; it must be the dominant purpose of the relevant communication. In Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 (Pratt Holdings (on remitter)), on remitter from the Full Court (discussed below), Kenny J said (at [30]): (7) The dominant purpose is not the same as the "primary" or the "substantial" purpose: see Grant v Downs at CLR 678; ALR 580–1 per Barwick CJ. The "dominant" purpose may be described as the ruling, prevailing, paramount or most influential purpose: see Mitsubishi Electric at [10], citing Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at 416; [1996] HCA 34; 141 ALR 92 at 97–8 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ. The "dominant purpose" brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time ...'" 1. As to the common law with respect to the waiver of legal professional privilege, in Lazar, Beech Jones J said at [24] – [25]:- "At common law, the courts will impute an intention to a party to waive privilege where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect (Expense Reduction at [30]). Such a consequence will follow "even though that consequence was not intended by the party losing the privilege" ([id]). To the extent that implied or imputed waiver involves notions of "fairness", those notions are only an aspect of considering whether there is an inconsistency between the conduct of the privilege holder and the maintenance of the privilege. Hence, in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66, Gleeson CJ, Gaudron, Gummow and Callinan JJ stated (at 13): "What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality; not some overriding principle of fairness operating at large." (emphasis added) In Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48 at [154], this Court observed: "One commonly cited statement concerning the circumstances that will bring about an imputed waiver is that of Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 ("DSE"), to the effect that where a "party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication" waiver of the privilege will be imputed (at [58]). Hence, a client who gives evidence about the instructions they gave to their lawyer's waives privilege over that communication (Benecke v National Australia Bank (1993) 35 NSWLR 110; ….). However, such a waiver does not arise from a party simply denying in a pleading an assertion about their state of mind, including that it was influenced by legal advice (DSE at [115] to [122]). A party cannot be forced to waive privilege by simply denying, or not admitting, accusations made against them [id]." (emphasis added)" Is the 65-page document subject to legal professional privilege? 1. It was initially submitted (in writing) that Mr Adanguidi's objection could be determined without review of the 65-page document. However, at the commencement of the hearing, however Mr Anderson suggested that a review of the document would be a good place to start. I spent several hours reading the document and a typed transcription prepared by the Public Defenders' Office, the latter of which I used only as an aide memoire. 2. Several matters point to the document attracting legal professional privilege. I express the following at high level of generality so as not to disclose the contents of the document. 3. First, it appears that the document, which I accept is in Mr Adanguidi's handwriting, tells a version of events commencing at a time shortly before the deaths of the three deceased. It does not set out some generalised history of Mr Adanguidi'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 many 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 written to a person, who it can be easily inferred is Mr Adanguidi's legal advisor Mr Vahl, 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 Adanguidi gives the person to whom the document has been prepared some specific instructions about what are strictly legal matters. 4. Whilst it is true that small parts of several pages of the document contain what may be construed as (imminent) threats of suicide, that in my view is not the document's dominant purpose. Its paramount or prevailing purpose, (i.e the purpose for bringing into existence the confidential document), in my opinion, is to apprise the lawyer for whom it was written (who I find to be Mr William Vahl), the background of events and instructions for his upcoming legal case so that Mr Adanguidi could obtain legal advice. It is therefore a confidential communication between Mr Adanguidi and his then lawyer Mr Vahl. I observe that one can imagine that if a nurse had read discrete parts of the later pages of the document (identified by page number by Mr Ginges in his affidavit of 28 March 2023 and by Mr Anderson in argument), she may well have thought the document was a "suicide letter" and taken it away from Mr Adanguidi without his consent. 5. I am able to draw an inference from the document itself that it is a confidential document created by Mr Adanguidi for the dominant purpose of obtaining legal advice and/or for the purpose of being provided legal services from Mr Vahl. I am supported in this conclusion by the psychology file note dated 17 February 2003, where it states that Mr Adanguidi had been composing notes for his solicitor at the time his notes were taken away. 6. As to the timing of the 65-page document, it is clear from the text of the document itself that it was written by Mr Adanguidi after his delivery into custody at Long Bay from St Vincent's Hospital where he was taken on 2 February 2003. On the balance of probabilities, I find that he wrote it sporadically from about 4 February 2003 to 16 February 2003 and including 14 February 2003. I find that the 65-page document was taken from Mr Adanguidi without his consent on about 16 February 2003 at about 2130 hrs, based on the Justice Health note of that day. I find that Mr Adanguidi was told and believed that the 65-page document had been destroyed and that he did not consent to it being archived on his psychology file. 7. To the extent that it is necessary to make any such finding, I accept that the 65-page document was the only confidential document in which Mr Adanguidi wrote setting out his instructions prior to his trial, although I observe that any other such document would attract the privilege in any event, subject to waiver. Has privilege been waived? 1. At the hearing of the matter, and after Mr Adanguidi had filed the substance of his evidence, Mr Newton abandoned any reliance on implied waiver. He did not, however, abandon express waiver based on the four cover sheets on the Corrective Services psychology file which noted, inter alia, "Conditions of psychological contact & consent to assessment report" which appear to be personally signed by Mr Adanguidi on each of 10 February 2003, 6 January 2006, 30 October 2006 and 13 March 2008. Each of those documents indicates that Mr Adanguidi consented to and agreed to certain conditions, including that he understood that his psychology file might be accessed by subpoena from a civil or criminal court or tribunal. 2. However, Mr Newton conceded that if I made a finding on the balance of probabilities that the 65-page document was taken from Mr Adanguidi and that he believed that it had been destroyed, Mr Adanguidi could never have waived privilege over that document as his understanding was that it was no longer in existence. As I have made that finding, I find also that there was never any express waiver of legal professional privilege by Mr Adanguidi. Disposition 1. As I have said, I infer from all the evidence that the 65-page document is a confidential communication created by Mr Adanguidi, at the request of his then lawyer Mr Vahl in about February 2003, for the dominant purpose of obtaining legal advice and/or for the purpose of being provided legal services from Mr Vahl with respect to the pending proceedings. I infer that it was the document that was taken from him by a nurse on 16 February 2003, that Mr Adanguidi believed that it was destroyed, and that it was put on his psychology file without his knowledge or consent. 2. In the premises, I dismiss the Crown's application. Orders 1. I make the following orders:- 1. The Crown application dated 23 March 2023 is dismissed. 2. The 65-page document in Mr Adanguidi's handwriting, undated, found in his Corrective Services NSW psychology file is a confidential communication attracting legal professional privilege and is not to be produced to the Crown. 3. The 65-page document is to remain on the court file in a sealed envelope marked "Privileged document. Not to be opened by any person other than a Supreme Court judge." ********** Amendments 20 April 2023 - amendment to details of representation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2023