R v Xie (No 3)

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.

On 18 November 2013, a pretrial hearing commenced before me which was intended to achieve a number of purposes. These purposes included:

The present judgment arises in the context of the Basha Inquiry with respect to Mr Sheen.

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.

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.

This judgment contains my reasons for ruling that client legal privilege had been waived.

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.

The Accused is married to Kathy Lin.

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.

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 That Act applied to the 2010 private hearings, although it has since been repealed and replaced by the Crime Commission Act 2012.

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.

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.

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).

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.

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).

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):

Mr Turnbull SC continued to cross-examine Kathy Lin (Exhibit PTN, Tab 4, T230-231):

A little later, Mr Turnbull SC asked Kathy Lin (Exhibit PTN, Tab 4, T235):

Soon after, Mr Turnbull SC asked Kathy Lin (Exhibit PTN, Tab 4, T235-236):

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.

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.

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).

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.

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].

For this purpose, attention must be given to s.122 Evidence Act 1995 which provides:

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].

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):

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.

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.

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.

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.

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.

It was for these reasons that I gave a ruling in the following terms on 25 November 2013 (PT400.22):

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).