Supreme Court New South Wales Medium Neutral Citation: R v Xie (No 3) [2013] NSWSC 1840 Hearing dates: 25 November 2013 Decision date: 12 December 2013 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Client legal privilege waived Catchwords: CRIMINAL LAW - pretrial hearing - client legal privilege - waiver - where Accused and Accused's wife previously represented by the same solicitor - solicitor called by Crown on Basha inquiry - whether Accused waived client legal privilege in circumstances where his counsel cross-examined the Accused's wife at committal proceedings concerning discussions in conference between the Accused, the Accused's wife and the former solicitor - discussions subject to client legal privilege - held that privilege waived by Accused as a result of cross-examination by his counsel at committal proceedings Legislation Cited: Crime Commission Act 2012 Evidence Act 1995 New South Wales Crime Commission Act 1985 Cases Cited: Aouad v R; El-Zayet v R [2013] NSWSC 760 Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297 Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; 250 CLR 303 Hannaford v Royal Society for the Prevention of Cruelty to Animals, NSW [2013] NSWSC 1708 Mann v Carnell [1999] HCA 66; 201 CLR 1 R v Basha (1989) 39 A Crim R 337 R v Birks (1990) 19 NSWLR 677 R (Cth) v Petroulias (No. 24) [2007] NSWSC 783 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Lian Bin (Robert) Xie (Accused) Representation: Counsel: Mr M Tedeschi AM QC; Ms KN Shead (Crown) Mr MC Ramage QC (Accused) Mr TA Williams (Daniel Sheen) Solicitors: Office of the Director of Public Prosecutions (Crown) Burke & Mead Lawyers (Accused) TA Williams, Solicitor (Daniel Sheen) File Number(s): 2011/147183 Publication restriction: * Restricted - Pending Jury Trial. On 12 January 2017, a jury returned verdicts of guilty on all counts. Sentence was passed on 13 February 2017: R v Xie [2017] NSWSC 63. * Subject to the operation of s.15B of the Children (Criminal Proceedings) Act 1987, s.15A of that Act operates to prohibit publication of the name and picture of Ms AB or of anything that is likely to lead to her identification: - see R v Xie (No. 5) [2014] NSWSC 588.After 20 February 2017, the Court was informed that Ms Brenda Lin (Ms AB) had given her consent under s.15D(1)(b) and (3) of that Act to the publication or broadcasting of her identity. Judgment 1. JOHNSON J: The Accused, Lian Bin (Robert) Xie, is charged with five counts of murder. His trial is fixed to commence before a jury on 17 March 2014. 2. On 18 November 2013, a pretrial hearing commenced before me which was intended to achieve a number of purposes. These purposes included: 1. a Basha Inquiry (R v Basha (1989) 39 A Crim R 337) involving the evidence of Witness A; 2. adducing evidence bearing upon parts of the Accused's Notice of Motion filed 18 November 2013, seeking to exclude certain evidence; 3. a Basha Inquiry concerning Daniel Sheen. 1. The present judgment arises in the context of the Basha Inquiry with respect to Mr Sheen. 2. Mr Sheen had been the solicitor for the Accused in the past. The Crown sought to adduce evidence from Mr Sheen which gave rise to a claim of client legal privilege by the Accused, and a submission by the Crown that client legal privilege had been relevantly waived. 3. Having heard submissions on this issue on 25 November 2013, I ruled that client legal privilege had been waived in the area relevant to the proposed questioning by the Crown. I stated that I would publish my reasons for that ruling at a later time (PT400). In light of that ruling, evidence was then taken from Mr Sheen on the Basha Inquiry. 4. This judgment contains my reasons for ruling that client legal privilege had been waived. Factual Background 1. The Accused is charged that, on or about 18 July 2009 at North Epping, he did murder Min (Norman) Lin, Yun Li (Lily) Lin, Yun Bin (Irene) Lin, Henry Lin and Terry Lin. 2. The Accused is married to Kathy Lin. 3. In May 2010, Mr Sheen was acting as the solicitor for the Accused and Kathy Lin. The Accused had not been charged with the alleged offences of murder at that time. 4. On 3 and 6 May 2010, Mr Sheen accompanied Kathy Lin to, and represented her at, private hearings before the New South Wales Crime Commission ("the Commission") (Exhibit PTN, Tabs 1 and 2). Those hearings were held in camera. It is an offence to disclose anything said at a private hearing under s.13 New South Wales Crime Commission Act 1985. That Act applied to the 2010 private hearings, although it has since been repealed and replaced by the Crime Commission Act 2012. 5. During the course of the private hearing on 6 May 2010, Kathy Lin was examined by Counsel Assisting the Commission concerning the type, brand and size of shoes which the Accused ordinarily wore. That evidence was subject to the confidentiality provisions referred to above. 6. After the Accused was charged with the murders, committal proceedings took place before a Magistrate in connection with those charges. On 21 August 2012, Kathy Lin was called as a witness by the Crown. Mr Corish, of counsel, appeared for Kathy Lin on that occasion. Mr Turnbull SC appeared for the Accused. Mr Tedeschi QC, Senior Crown Prosecutor, appeared for the Crown at those proceedings. 7. It was the case that an audio-visual surveillance device had been placed by investigators in the home of the Accused and Kathy Lin at 4 Beck Street, North Epping prior to 6 May 2010. That surveillance device captured certain images, which the Crown says depict the Accused cutting up shoe boxes and disposing of them in the early hours of 7 May 2010 (Exhibits PTO and PTP). 8. At the committal proceedings on 21 August 2012, the Senior Crown Prosecutor asked questions of Kathy Lin concerning what she had been asked at the private hearing on 6 May 2010 concerning her husband's shoes, and whether the Accused had destroyed shoe boxes in her presence in the early hours of 7 May 2010. The surveillance device footage was played to Kathy Lin during her evidence. 9. It is fair to say that Kathy Lin's responses to the Crown involved uncertainty as to her recollection, followed by an indication that the images in question were not clear (see, for example, Exhibit PTN, Tab 3, pages 31, 34-35, 41-42, 45-48, 53-54, 56-57). 10. Under cross-examination by Mr Turnbull SC, Kathy Lin was asked about questioning by Counsel Assisting the Commission on 6 May 2010 (Exhibit PTN, Tab 4, T229.24): "Q. I understand that but what about the detail, do you remember being told on that day by Mr O'Connor [Counsel Assisting] that investigations showed that the size of the shoes, the Asics sneaker that was apparently identified as being left by the killer or killers, was the same size as your husband? A. WITNESS: Yes. Q. Do you remember being told that? A. WITNESS: Yes." 1. Mr Turnbull SC continued to cross-examine Kathy Lin (Exhibit PTN, Tab 4, T230-231): "Q. Did you, when you answered those questions and the question that followed, did you think that the Crime Commission were suggesting somebody to you? A. WITNESS: Yes. Q. Who were they suggesting to you? A. WITNESS: My husband. Q. You didn't accept that he had done anything wrong when you were asked those questions did you? A. WITNESS: Yes. Q. You know as far as you are concerned for a fact that he is not the killer, isn't that right? A. WITNESS: Yes. Q. After you left there you went home, isn't that right, to Beck Street? A. WITNESS: We went to solicitor office. Q. At the solicitor's office was it just you and the solicitor? A. WlTNESS: And then my husband. Q. Back at the solicitor's office was there any discussion about what had occurred at the Crime Commission? A. WITNESS: The solicitor say my husband's suspect. Q. The solicitor said that? A. WITNESS: Yes. Q. Who was present when he said that? A. WITNESS: Me and my husband. Q. Was there any mention of the propositions that had been put to you in those questions that I have just read out? A. WITNESS: Only say the shoes is similar as my husband wear, the Asics. Q. Did he put - did he say to you that the shoes, it was being asserted, being said were the same size as your husband's shoes? A. WITNESS: Yes. Q. Did you know whether or not it was allowed for the solicitor to speak to your husband about these things? A. WITNESS: I don't know. Q. Were you feeling upset and under stress at the time that you went back to the solicitor's office for this? A. WITNESS: Yes. Q. Did you remember any of the detail personally - the detail of what had been put to you that day about all sorts of things, the key and that kind of thing or not? A. WITNESS: That times I'm extremely upset. Q. What happened then after you had this conversation? A. WITNESS: Then my husband took me home. I'm still shocking and feel upset, angry." 1. A little later, Mr Turnbull SC asked Kathy Lin (Exhibit PTN, Tab 4, T235): "Q. You see, you've come here and you've been asked questions about a video which was shown to you by Mr Tedeschi, remember that, about activities in your house? A. WITNESS: Yes. Q. Remember you were asked questions about what you could see on that video? A. WITNESS: Yes. Q. You were asked questions about whether or not you accepted that it was a box or looked like a box? A. WITNESS: Yes. Q. Remember that? A. WITNESS: Yes. Q. After your solicitor told you and Robert, what you told us he told you before lunch, remember, about the proceedings that ... (not transcribable)… A. WITNESS: Yes. Q. You and Robert drove home together, isn't that right? A. WITNESS: Yes. Q. You and Robert talked about what the solicitor had said to you, isn't that right? A. WITNESS: Yes. Q. Would it be fair to say that you and Robert together expressed to each other real fear about what the Crime Commission had said about the shoe? A. WITNESS: Yes. Q. Robert used to work in a shoe factory, didn't he? A. WITNESS: Yes." 1. Soon after, Mr Turnbull SC asked Kathy Lin (Exhibit PTN, Tab 4, T235-236): "Q. You're aware, because you've seen the video and you've had some time to review some of the evidence before you were called back into court, that that video shows a variety of activities, potentially? A. WITNESS: Yes. Q. You saw Robert cutting up some boxes that night, didn't you? A. WITNESS: Yes." Client Legal Privilege and Waiver 1. In light of the evidence given by Kathy Lin during the committal proceedings, the Crown sought to ask Mr Sheen questions concerning any discussion with the Accused and Kathy Lin following the private hearing on 6 May 2010, in which the topic of shoes was discussed. 2. It was common ground that, as both the Accused and Kathy Lin were clients of Mr Sheen at the time, client legal privilege would apply to any such communications by way of ss.118 and 119 Evidence Act 1995. 3. Mr Ramage QC, for the Accused, informed the Court that the Accused did not waive any client legal privilege which existed in this respect. Mr Williams, solicitor, who appeared for Mr Sheen, informed the Court that Kathy Lin had waived privilege on this topic (PT398-399, 404). 4. The issue for determination was whether the Accused had waived privilege in circumstances where his senior counsel had cross-examined Kathy Lin at committal proceedings concerning communications which had transpired during a meeting in Mr Sheen's office on 6 May 2010, at which both the Accused and Kathy Lin were present. 5. In circumstances where I am satisfied that client legal privilege existed with respect to communications between the Accused and Mr Sheen on this occasion, the Crown bears the onus of persuading the Court that client legal privilege has been lost: R (Cth) v Petroulias (No. 24) [2007] NSWSC 783 at [9]; Aouad v R; El-Zayet v R [2013] NSWSC 760 at [35]; Hannaford v Royal Society for the Prevention of Cruelty to Animals, NSW [2013] NSWSC 1708 at [90]. 6. For this purpose, attention must be given to s.122 Evidence Act 1995 which provides: "122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law, or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers)." 1. Waiver of the privilege may be express or implied: Mann v Carnell [1999] HCA 66; 201 CLR 1 at 13 [28]-[29]. Consent under s.122(1) includes consent that will be imputed to the client on the same principle where, at common law, a client will be taken to have waived privilege, even though the client did not subjectively intend to do so: Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297 at [29]-[33]; R (Cth) v Petroulias (No. 24) at [37]. 2. Common law principles concerning waiver have application in considering whether client legal privilege has been lost for the purpose of s.122. In Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ (in a joint judgment) said at 315-316 [30]-[32] (footnotes excluded): "30. According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. 31. In Craine v Colonial Mutual Fire Insurance Co Ltd, it was explained that ''[w]aiver' is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions ... It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has 'approbated' so as to prevent him from 'reprobating''. In Mann v Carnell, it was said that it is considerations of fairness which inform the court's view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though 'not some overriding principle of fairness operating at large.' 32. Those considerations, articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act, and made applicable by s 131A of that Act to the determination of a question of waiver of client legal privilege arising in the context of pre-trial discovery. That question is whether the client or party concerned 'has acted in a way that is inconsistent with the client or party objecting to' the production of a document." 1. I am satisfied that client legal privilege may be lost, as a result of questions asked in cross-examination of a witness, which disclose communications said to have been made in the course of a meeting with the person's solicitor. In the present case, the Accused was represented by most experienced senior counsel at the committal proceedings. As it happens, Kathy Lin was separately represented by counsel at that hearing as well. 2. In cross-examining Kathy Lin in this way at committal proceedings, it should be taken that senior counsel for the Accused was acting on instructions: R v Birks (1990) 19 NSWLR 677 at 683-684. Questions were asked in cross-examination concerning what had been discussed at the meeting with Mr Sheen on 6 May 2010, at which both the Accused and Kathy Lin were present. 3. I am satisfied that this process of questioning involved the knowing and voluntary disclosure of the substance of what would otherwise have been a privileged communication, for the purpose of s.122(3)(a) Evidence Act 1995. 4. Further, the common law rationale underlying the concept of waiver, and as maintained by s.122, would mean that relevant inconsistency would arise if the Accused was able to bring about disclosure of alleged communications through cross-examination of Kathy Lin at the committal proceedings, but could maintain privilege so as to prevent Mr Sheen being asked questions about communications on the same topic which took place at that time. 5. Accordingly, I was satisfied that the Crown had demonstrated that client legal privilege had been lost for the purpose of s.122 Evidence Act 1995, as a result of the process of cross-examination of Kathy Lin at committal proceedings. 6. It was for these reasons that I gave a ruling in the following terms on 25 November 2013 (PT400.22): "I am satisfied that client legal privilege existed in May 2010 with respect to confidential communications between Daniel Sheen, solicitor, and his then clients, Lian Bin Robert Xie and Kathy Lin. I am satisfied that the cross examination of Kathy Lin by Senior Counsel for the accused during committal proceedings on 28 August 2012 constituted waiver of client legal privilege by the accused for the purpose of s.122 of the Evidence Act 1995 with respect to questions proposed to be asked of Mr Sheen concerning discussions at a meeting in Mr Sheen's office with the accused and Miss Lin following a New South Wales Crime Commission private hearing on 6 May 2010 with respect to the topics of shoes, or shoeboxes which had been the subject of questioning of Miss Lin before the New South Wales Crime Commission that day." 1. By way of postscript, I note that Mr Sheen proceeded to give evidence at the Basha Inquiry, in which he stated that there had been no discussion at all in his presence with the Accused or Kathy Lin concerning the Accused's shoes or shoe size (PT405-407). He denied that he had conveyed to the Accused any information that he had been given in the New South Wales Crime Commission about the investigation of the matter (PT407). ********** Amendments 28 February 2017 - Publication restriction on coversheet amended. 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: 28 February 2017