R v Rogerson; R v McNamara (No 11)

Roger Caleb Rogerson (“Rogerson”) and Glen Patrick McNamara (“McNamara”) have previously pleaded not guilty to an indictment alleging:

On 5 June 2015 the Crown presented an amended indictment which, as against Rogerson, pleaded (as an alternative to the first count) a count alleging an offence of being an accessory after the fact to murder. Rogerson has pleaded not guilty to that alternative count.

On 28 July 2015 I made an order discharging the jury: R v Rogerson; R v McNamara (No 8) [2015] NSWSC 1036. The trial is now listed to commence on 18 August 2015.

A number of subpoenas have been issued on behalf of each of the accused. One such subpoena, issued on the application of the accused McNamara, was directed to Mr Charles Moschoudis, who was formerly a barrister and who now practices as a solicitor. Mr Moschoudis produced a large volume of material in response to the subpoena served on him, some of which was referable to his earlier representation of Lok Chun Lam (“Lam”). At the time of producing that material, Mr Moschoudis indicated to the Registrar that a claim for privilege was made in respect of (inter alia) the material pertaining to Lam. Counsel for McNamara foreshadowed a challenge to that claim. Ultimately however, the challenge made was limited to discreet aspects of a statement made by Lam to the police. I have, however, set out below a number of other circumstances which arose before that point was reached.

A Crown Case Statement has been filed in the proceedings, the terms of which have been set out in full in a number of previous judgments. Whilst I do not propose to repeat that statement in full, the following matters are relevant for present purposes.

As part of its case against the two accused, the Crown alleges that in January 2014 the deceased was an associate of Lam. At that time, Lam and his brother Chun Kit Lam (“Chun”) had been charged with offences against the Drug Misuse and Trafficking Act 1985 (NSW). A Mr Ly, solicitor, acted for Lam and Chun. Ms Diane Elston, also a solicitor, was employed by Mr Ly.

Mr Ly briefed Mr Moschoudis to advise, and appear for, Lam. In the course of preparing Lam’s case, McNamara was engaged (apparently by Mr Ly but seemingly on the recommendation of Mr Moschoudis) as a private investigator to assist with obtaining statements. Ultimately, Lam and Chun each pleaded guilty to various offences. Each was sentenced to a term of imprisonment. Subsequent appeals against the asserted severity of their respective sentences were dismissed: Lam v R; Lam v R [2015] NSWCCA 87.

On the Crown case, it was through these connections that the deceased came to meet McNamara. As I understand it, the Crown will lead evidence from both Lam and Chun for the purposes of establishing (inter alia) the association between the deceased and McNamara in the period leading up to the deceased’s death. The Crown will allege that after they were introduced to each other, the deceased and McNamara became involved in negotiations for the purchase, by McNamara, of a large quantity of methylamphetamine from the deceased. It is the Crown case that on 20 May 2014, the deceased was shot by one or other of the accused when delivering to them approximately 2.7 kilograms of methylamphetamine.

I should also note that when the issue of client legal privilege was first raised, counsel for McNamara was proceeding on the assumption that Mr Moschoudis had been retained to appear for both Lam and Chun. It is clear from the evidence given by Mr Moschoudis (T358 L45 - T359 L5) that this was not so, and that his retainer was only in respect of Lam. In these circumstances, and to the extent that counsel provided me with material relating to Chun, he accepted that such material was not relevant to the issue I have been asked to determine.

Finally, I note that Ms Jasmine Lau, solicitor, now acts for Lam and Chun. In April 2014 Ms Lau took instructions from the deceased in what she described in a statement to police as a “legal matter”. As detailed further below, Ms Lau was given the opportunity to make submissions to me in relation to the present issue on two occasions, firstly on 24 July 2015 (at which time Lam and Chun were present in Court via AVL) and again following final submissions on 3 August 2015. No substantive submissions were made by Ms Lau on either occasion.

On 9 July 2015, a subpoena was issued to Mr Moschoudis, attached to which was a schedule in the following terms:

Although the schedule to the Subpoena was, to say the least, drafted in wide terms (as evidenced by the repeated use of the phrase “relating to all matters involving…”) there was no application to set it aside.

Mr Moschoudis produced a large volume of material in response to the Subpoena. In a covering letter which accompanied the material, he advised the Registrar (inter alia) that a claim for privilege was made in respect of material which was so marked. The documents over which such a claim was made may be generally described as follows:

Before proceeding further, a number of matters should be noted.

Firstly, it will be evident from the description of the material set out above that I have inspected it. That course is permitted by s. 133 of the Evidence Act 1995 (NSW) (“the Act”). In taking that course I was mindful of those authorities which stress the importance of evidence being put before the Court, in a proper form, disclosing the basis of the claim for privilege. Those same authorities caution against the Court being asked to fill gaps in such evidence by inspecting documents, the contents of which are not disclosed to the other parties: Ensham Resources Pty Limited v AIOI Insurance Co. Limited [2012] FCAFC 191 at [111] per Buchanan J; Bailey v Director-General, Dept. of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100 at [57] per Tobias JA (Allsop P and Hodgson JA agreeing). Regrettably, and to put it bluntly, I was given no alternative in the present case other than to take the course that I did. Beyond asserting a claim for privilege on behalf of both of her clients over the entirety of the material (as it related to them) which was produced by Mr Moschoudis , Ms Lau placed no evidence whatsoever before the Court to substantiate that claim. Moreover, and despite being given two opportunities to do so, Ms Lau made no substantive submissions in support of the claim which was made. In any event, it should be noted that no party submitted to me that I should not inspect the documents.

Secondly, in respect of the material produced pertaining to Voldean Pty Limited (“Voldean”) (Item E at [13] above) I was informed by Mr Moschoudis when he appeared before me on 21 July 2015 that Mr Lu, Solicitor, acted for that company. Mr Lu previously acted for McNamara in these proceedings. In these circumstances, upon his confirmation that he acted for Voldean, Mr Lu was given the opportunity to obtain instructions as to whether any claim for privilege was made. He subsequently informed the court that no claim was made and upon being so informed, I made an order granting the parties access to that material.

Thirdly, having examined the material I formed the view that a great deal of it appeared to emanate from completely unrelated proceedings and, as such, was irrelevant to any issue in McNamara’s trial. The material in this category comprised:

When I initially raised this matter with counsel for McNamara, I was informed that the relevance of the material stemmed from the fact that it related to the prosecution of other persons where McNamara had been retained by those persons as a private investigator. Even on that basis, its relevance seemed tenuous but as no objection had been taken to its production, I did not pursue the matter further at that point. However, in circumstances where no reference was made to this material at any stage of the hearing of the present matter, I again raised with counsel for McNamara the question of its relevance. On that occasion, counsel conceded that the material had no relevance to the present proceedings. Access to that material has therefore not been granted.

Fourthly, I formed the view that there was also a great deal of material produced which was not capable of attracting a claim for client legal privilege. The following material fell into that category:

I made my preliminary views in this regard known to Ms Lau, and I explained to her why it was that material of that kind, at least at a prima facie level, would not attract a claim for privilege. In the absence of any submission being made by Ms Lau to the contrary, I made an order granting the parties access to that material.

Fifthly, and as a consequence of my examination of the material, I formed the view that the documents in B (Box 2 of 4) Item 1 and C (Box 3 of 4) Item 1 was material of a kind which was at least capable of attracting the claim for privilege which was made. The basis on which I formed that view will be evident from my shorthand description of the material. The parties have not been given access to that material. The challenge which was ultimately made by counsel for McNamara to the claim for privilege did not extend beyond particular extracts of a statement made by Lam to the police.

Counsel for McNamara tendered a folder of documents which became Ex. 1. Besides the statements of Lam and Chun, that folder contained:

As a consequence of the matter to which I referred at [9], much of the material contained in Ex. 1 was ultimately of little or no relevance. In the course of the evidence of Mr Moschoudis (to which I have referred in more detail below) counsel for McNamara tendered various emails which also became part of Ex. 1. Documents relating to assistance provided to Lam by the police also formed part of Ex. 1.

Within the material produced by Mr Moschoudis was an email of 4 June 2015 sent by Ms Lau to Mr Prince and Ms Gauld, both of whom are solicitors instructing the Crown Prosecutor. That email also became part of Ex. 1. I had previously been made aware by the Crown of the existence and content of this document, which was headed:

Although the email was one in respect of which a claim for privilege was asserted, it will be evident from its contents that no such claim could possibly be established. The email is in the following terms:

Ms Lau was not called to give evidence on the present application. However, she did appear before me on 24 July 2015 at which time the following exchange took place concerning the content of that email:

Also tendered as part of Ex. 1 was an unsigned statement prepared in the name of Mr Moschoudis dated 25 June 2014. In the course of giving evidence before me on 3 August 2015 Mr Moschoudis explained (commencing at T357 L25) that this statement was prepared by the police and not by him. Under the heading “Introduction to Chun Lok Lam” the statement records the following (at [8]):

When asked what he intended by the insertion of the word “privilege” in that paragraph Mr Moschoudis responded (at T360 L5-6):

I then asked Mr Moschoudis (commencing at T360 L32) which part(s) of the contents of paragraph 8 may not be accurate:

Mr Moschoudis confirmed that he sent the Brief of Evidence in relation to Lam’s prosecution to McNamara. He also confirmed (at T361 L8-10) that there were various email exchanges between he and McNamara concerning investigations that McNamara would carry out. Mr Moschoudis (at T361 L14-15) could not recall proposing that McNamara conduct interviews with co-accused. He did recall “a particular individual” who had not been charged (T361 L14-19) but was unable to recall his name (T361 L25-26).

Mr Moschoudis was taken to a number of emails, to some of which he was a party, and which now form part of Ex 1. On 27 January 2014, Mr Moschoudis wrote to McNamara and said:

McNamara responded on the same day:

On 28 January 2014 Mr Moschoudis again wrote to McNamara:

On 29 January 2014, Ms Elston wrote to McNamara in the following terms:

On 30 January 2014 McNamara wrote to Bryan Wrench, a solicitor who acted for a Justin McLannen from whom McNamara was apparently trying to obtain a statement to assist Lam’s case. The email from McNamara to Mr Wrench was in the following terms:

On 31 January 2014 Mr Moschoudis again wrote to McNamara:

Mr Moschoudis was unable to recall (at T362 L20-26) whether it was he or his instructing solicitor, Mr Ly, who in fact retained McNamara. It would appear from McNamara’s email of 30 January 2014 that it was Mr Ly. Mr Moschoudis recalled receiving a statement from McNamara in the name of Mr McLannen but could not recall whether it was signed or unsigned (T363 L16-25). He had no recollection of being aware that Mr Wrench had been approached to assist.

In terms of his own statement, Mr Moschoudis confirmed (at T367 L38) that he was provided with a draft. He then gave the following evidence (commencing at T367 L41):

It would appear that Mr Moschoudis had in mind Rules (108) and (109) of the NSW Barristers Rules. As at January 2014 those rules were in the following terms:

Mr Moschoudis confirmed (commencing at T368 L32) that when asked by the police to provide a statement he did not consider that he still acted for Lam. However, he made it clear that he continued to consider himself bound to observe the confidentiality of communications which had passed between them (T368 L39-42).

Finally, in relation to McNamara’s retention to assist in Lam’s case, Mr Moschoudis gave the following evidence (commencing at T373 L49):

Two statements of Lam dated 20 June 2014 and 10 February 2015 form part of Ex. A although only the first of those statement is relevant. Ultimately, counsel limited his argument to four separate paragraphs of Lam’s first statement, the contents of which, it was submitted, established a waiver of privilege by Lam. The first was paragraph (15):

Although reliance was initially placed on this paragraph, no submissions were ultimately made in respect of its contents. In my view there is nothing contained in that paragraph which amounts to a waiver of privilege.

Secondly, counsel relied upon paragraph 16:

Thirdly, counsel relied upon paragraph 17:

Finally, counsel relied upon paragraph 32:

In each case, counsel placed particular reliance upon the emphasised passages. Ultimately, counsel did not address me in relation to the balance of any of the material contained in Ex 1.

Division 1 of Part 3.10 of the Act deals with client legal privilege. Section 117 relevantly defines (inter alia) the following:

Section 118 of the Act is in the following terms:

Section 119 is in the following terms:

Of particular relevance for present purposes are the provisions of s. 122:

Counsel for the accused McNamara made it clear that in asserting that privilege had been waived in each of the instances relied upon he was not (to use his words) “pressing for a complete tearing apart of legal professional privilege”. In other words counsel did not suggest that if I found that there was some evidence of waiver in any of the specific instances relied upon, I should conclude that there had been a complete waiver of privilege in respect of what would otherwise be communications between Lam and his lawyers.

Counsel submitted that it was not open to Lam to seek to maintain privilege over communications with his lawyers in circumstances where he had specifically referred to such communications when making a statement to the police. In each of the instances upon which he relied, counsel submitted that Lam had divulged the substance of the relevant communications, and that in doing so he had acted in a manner inconsistent with raising an objection to such evidence being adduced. Counsel submitted that it was relevant that in providing a statement to the police, Lam had acted deliberately as opposed to inadvertently, and had been motivated by the promise of assistance which was held out to him by the police.

The Crown submitted that the real issue was whether or not there was any conduct on the part of Lam which amounted to a waiver of privilege. It was submitted, in effect, that the high water mark in this regard was that part of paragraph (16) of Lam’s statement upon which counsel for McNamara relied. The Crown submitted that if I concluded that this part of the statement amounted to a waiver of privilege, then any waiver would be restricted to the matters disclosed.

However, the Crown submitted that none of the parts of Lam’s statement relied upon by counsel for McNamara satisfied the applicable test. It was submitted that although, in each case, Lam had disclosed the fact of communications with Mr Moschoudis, he had not disclosed their substance. The Crown further submitted that the fact that McNamara had been engaged as part of Lam’s “legal team” had little or no bearing on the question of waiver.

Sections 118 and 119 of the Act operate to preclude the admission of confidential communications and confidential documents into evidence in certain defined circumstances. In Telstra Corporation Limited v Australis Media Holdings (1997) 41 NSWLR 277 McLelland CJ in Eq concluded (at 280) that the provisions of the Act applied derivatively to claims for privilege in ancillary process. A similar approach was adopted in Adelaide Steamship Co Limited v Spalvins (1998) 81 FCR 360, as well as in Akins v Abigroup Limited (1998) 43 NSWLR 539 (both cited by Gzell J in Chen v City Convenience Leasing Pty Limited (formerly known as City Convenience Stores Pty Limited) [2005] NSWCA 297 at [26]). Although that approach was rejected by the High Court in ESSO Australia Resources Limited V Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [23], the position in NSW, as a consequence of the combined operation of Part 75 Rule 3 of the Supreme Court Rules, Schedule 3 to the Supreme Court Act 1970 and Part 1 of the Uniform Civil Procedure Rules 2005, is that the Act (as opposed to the common law) applies in circumstances such as the present.

The onus of proving that privilege has been lost lies on the party who makes that assertion: New South Wales v Betfair Pty Limited [2009] FCAFC 160; (2009) 261 ALR 311 at [54] per the Court (Kenny, Stone and Middleton JJ).

The submissions of counsel for McNamara centered upon the provisions of s. 122 of the Act. As a consequence, the real issue in the present case, arising from the provisions of s. 122(2) and (3), is whether in making his statement and disclosing those matters upon which counsel relied, Lam acted in a way which was inconsistent with an objection to the evidence being adduced on the basis that it would result in the disclosure of a confidential communication.

The fact that the circumstances in which privilege may be lost under the Act are not identical to the position at common law necessitates adherence to the language of s. 122. In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 the plurality (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said (at [28]-[29], citations omitted):

Similarly, in Osland v Secretary Department of Justice [2008] HCA 37; (2008) 234 CLR 275 the plurality (Gleeson CJ, Gummow, Heydon and Kiefel JJ) said (at [49], citations omitted):

That said, it has also been observed that there is little difference between the position at common law and the position under s. 122: Fort Dodge Australia Pty Limited v Nature Vet Pty Limited [2002] FCA 501 at [10] per Hely J, citing Garratt’s Limited v Thanga Thangathurai [2002] NSWSC 93 per Bergin J (as her Honour then was) at [51].

Whether there has been a disclosure of the substance of the evidence within the meaning of s. 122(3) will involve a question of degree. A distinction is to be drawn between a reference to the fact of advice given (or a communication made) and the disclosure of the content or substance of that advice or communication, although the balance of authority favours the view that an express or implied summary of legal advice received amounts to a disclosure of the substance of that advice: Fenwick v Wambo Coal Pty Limited (No 2) [2011] NSWSC 353 at [12] per White J.

Before considering the competing submissions of the parties it is necessary for me to make three preliminary observations.

The first concerns the email forwarded by Ms Lau to the Crown’s instructing solicitor (set out at [25] above). Ultimately, counsel for McNamara made no specific submission in relation to what conclusions I should reach in respect of that document but I should record the fact that in my view, the document does not amount to a waiver of privilege attaching to confidential communications between Mr Moschoudis and Lam. Although the terms of the email are somewhat oblique, it is apparent that any waiver was expressed to be conditional upon its terms being reduced to writing and signed by Lam. Those terms were never determined, and no document was ever signed.

Secondly, and although counsel for McNamara ultimately stepped away from the proposition, the mere retention of McNamara could not of itself, in my view, constitute conduct which was inconsistent with the maintenance of client legal privilege. There is no evidence of precisely what McNamara was told about Lam’s case.

Thirdly, the evidence of Ms Moschoudis has, in my view, limited bearing upon the present issue. In particular in my view, nothing emerged from the evidence given by Mr Moschoudis which has any bearing upon those parts of the statement of Lam which were said to amount to a waiver.

I turn then to consider the particular aspects of Lam’s statement upon which counsel relied.

Firstly, I am satisfied that the terms of paragraph (16) of Lam’s statement amount to a disclosure of the substance of advice given to him by Mr Moschoudis regarding the issue of obtaining statements from other persons which would assist his case. Lam did not merely make reference to the fact that advice was received. He voluntarily disclosed, to a police officer, the substance and detail of the advice that he was given. That disclosure is inconsistent with seeking to maintain privilege over such communications.

However, I am not satisfied that this is the position in respect of the contents of paragraph 17. The reference to having a discussion “about my case” discloses nothing more than the fact of a discussion. It does not disclose the substance of the discussion, nor does it amount to an implied summary of what was discussed.

In respect of the contents of paragraph (32), the effect of counsel’s submission was that in disclosing the fact that he had decided to enter a plea of guilty to the charges against him, Lam had disclosed the “end result” of the advice he had received, and had therefore waived privilege in relation to it. Relevantly, in Fenwick (supra) White J observed (at [13]) that there have been instances in which disclosure of the conclusion of legal advice has been treated as the disclosure of its substance, even though the reasoning itself is not disclosed. In the present case however Lam made no reference to the advice that he received. He merely referred to the fact that there had been a discussion about his case, and then stated that he had decided to plead guilty.

For the reasons I have already expressed, Lam’s various references to speaking about his case do not disclose the substance of any advice he received. Further, in disclosing his decision to plead guilty, Lam did not, expressly or impliedly, link that decision to any advice he had received in a way which might support a conclusion that the disclosure of his decision should be treated as the disclosure of the advice. Lam disclosed no more than the fact of his decision to plead guilty. In doing so, he made no reference to any advice he had been given in that respect.

For the forgoing reasons, I am satisfied that no privilege attaches to those matters disclosed by Lam in paragraph (16) of his statement of 20 June 2014.