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Supreme Court 12 December 2013

R v Xie (No 3)

[2013] NSWSC 1840

Public order & justice offences
CRIMINAL LAW PRETRIAL HEARING CLIENT LEGAL PRIVILEGE WAIVER

Citation: R v Xie (No 3) [2013] NSWSC 1840
Court: Supreme Court of New South Wales
Date: 12 December 2013
Judge: Johnson J

Background

The accused faced five counts of murder arising from an incident at North Epping in July 2009. His trial was listed to commence in March 2014. Prior to trial, a number of pre-trial hearings took place, including several Basha inquiries (a Basha inquiry is a pre-trial process that allows parties to assess the evidence of a proposed Crown witness before trial).

One proposed Crown witness was the accused's former solicitor, Daniel Sheen. In May 2010, before the accused was charged, Sheen had acted for both the accused and his wife. On 6 May 2010, Sheen attended a private hearing before the NSW Crime Commission at which the wife was questioned about the accused's shoe size. Following that hearing, the wife, the accused, and Sheen met at Sheen's office.

At committal proceedings in August 2012, senior counsel for the accused cross-examined the wife about what had been said at that post-hearing meeting in Sheen's office, including what Sheen had told her and the accused about the Crime Commission's interest in the accused's shoes. The Crown then sought to question Sheen about those same communications in the Basha inquiry. The accused's current counsel objected, asserting that client legal privilege had not been waived.

  • Whether client legal privilege attached to communications between the accused, his wife, and their then-solicitor at the meeting on 6 May 2010.
  • Whether the accused had waived that privilege, either by his own conduct or through his counsel's cross-examination of the wife at committal proceedings.
  • Whether the Crown could therefore question Sheen about those communications in the Basha inquiry.

Decision

Johnson J confirmed that client legal privilege applied to the communications at Sheen's office on 6 May 2010. Both the accused and his wife were clients of Sheen at the time, meaning the communications were protected under sections 118 and 119 of the Evidence Act 1995. Kathy Lin had separately waived her own privilege over the communications, but that alone did not resolve whether the accused had also waived his.

The central question was whether cross-examination conducted by the accused's own senior counsel at committal had brought about a waiver. During that cross-examination, counsel had drawn out evidence from the wife about the contents of the privileged meeting, including what Sheen had told them about the Crime Commission's focus on the accused's shoes and the couple's subsequent conversation about this. Johnson J found that this questioning involved the knowing and voluntary disclosure of the substance of privileged communications, satisfying the test under section 122(3)(a) of the Evidence Act 1995.

Johnson J also applied the common law rationale underlying waiver, noting that an inconsistency would arise if the accused could rely on disclosures obtained through his counsel's own cross-examination while simultaneously maintaining privilege to block Sheen from being asked about the same communications. Permitting that outcome would, in the court's view, be inconsistent with the principle that privilege should not be used as both a shield and a sword.

Accordingly, the court ruled that the accused had waived client legal privilege as a result of the committal cross-examination, and the Crown could proceed to question Sheen about the relevant discussions. By way of postscript, the court noted that Sheen ultimately gave evidence denying that any discussion about the accused's shoes or shoe size had taken place in his presence.

Orders Made

• 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.

• 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.

Key Takeaways

  • Client legal privilege can be waived by an accused where their own counsel, acting on their behalf, cross-examines a witness at committal proceedings in a manner that voluntarily discloses the substance of otherwise privileged communications.
  • Under section 122(3)(a) of the Evidence Act 1995, waiver requires a knowing and voluntary disclosure of the substance of a privileged communication. The questioning conducted by defence senior counsel at committal met that threshold.
  • Where two clients share the same solicitor, each client holds their own privilege over joint communications. One client's waiver does not automatically constitute waiver by the other; each must be assessed separately.
  • A finding of waiver can arise from conduct that would produce an inconsistency if privilege were maintained: here, it would have been inconsistent to permit disclosure of privileged content through cross-examination while blocking the solicitor from being asked about the same subject matter.
  • The Basha inquiry mechanism allows the court to assess proposed Crown evidence before trial, and privilege disputes arising in that context are resolved by the trial judge as a pre-trial matter.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 118, 119, 122
- Crime Commission Act 2012 (NSW)
- New South Wales Crime Commission Act 1985 (NSW), s 13

Cases
- R v Basha (1989) 39 A Crim R 337
- Mann v Carnell [1999] HCA 66; 201 CLR 1
- Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; 250 CLR 303
- Chen v City Convenience Leasing Pty Limited [2005] NSWCA 297
- R v Birks (1990) 19 NSWLR 677
- R (Cth) v Petroulias (No 24) [2007] NSWSC 783
- Aouad v R; El-Zayet v R [2013] NSWSC 760
- Hannaford v Royal Society for the Prevention of Cruelty to Animals, NSW [2013] NSWSC 1708