R v Rogerson; R v McNamara (No 11)

[2015] NSWSC 1066

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066
Hearing dates:	13 July 2015; 22 July 2015; 24 July 2015; 3 August 2015
Date of orders:	06 August 2015
Decision date:	06 August 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See paragraph [72]
Catchwords:	CRIMINAL LAW – Evidence – Claim for client legal privilege – Where witness made a statement to the police – Where contents of statement made reference to legal advice provided to the witness in association with criminal charges brought against him – Where contents of the statement made reference to the charges having been the subject of discussion between the witness and his lawyers - Whether privilege lost
Legislation Cited:	Evidence Act 1995 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) NSW Barristers Rules Supreme Court Act (NSW) 1970 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adelaide Steamship Co Limited v Spalvins (1998) 81 FCR 360 Akins v Abigroup Limited (1998) 43 NSWLR 539 Chen v City Convenience Leasing Pty Limited (formerly known as City Convenience Stores Pty Limited) [2005] NSWCA 297 Ensham Resources Pty Limited v AIOI Insurance Co Limited [2012] FCAFC 191 ESSO Australia Resources Limited V Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 Fenwick v Wambo Coal Pty Limited (No 2) [2011] NSWSC 353 Fort Dodge Australia Pty Limited v Nature Vet Pty Limited [2002] FCA 501 Garratt’s Limited v Thanga Thangathurai [2002] NSWSC 93 Lam v R; Lam v R [2015] NSWCCA 87 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 New South Wales v Betfair Pty Limited [2009] FCAFC 160; (2009) 261 ALR 311 Osland v Secretary Department of Justice [2008] HCA 37; (2008) 234 CLR 275 R v Rogerson; R v McNamara (No 8) [2015] NSWSC 1036 Telstra Corporation Limited v Australis Media Holdings (1997) 41 NSWLR 277
Category:	Procedural and other rulings
Parties:	Regina – Crown Roger Caleb Rogerson - Accused Glen Patrick McNamara – Accused
Representation:	Counsel: Mr C Maxwell QC - Crown Mr G Thomas – Accused Rogerson Mr C Waterstreet – Accused McNamara Ms J Lau (Solicitor) – Lok Chun Lam   Solicitors: Director of Public Prosecutions - Crown Katsoolis and Co – Accused Rogerson Kings Law Group – Accused McNamara Chess Legal – Lok Chun Lam
File Number(s):	2014/157408; 2014/156921
Publication restriction:	Nil

Judgment

INTRODUCTION

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

1. the murder of Jamie Gao (“the deceased”) on 20 May 2014; and

2. the supply, on the same day, of a prohibited drug, namely 2.78 kilograms of methylamphetamine, being an amount not less than the large commercial quantity applicable to that drug.

2. 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.

3. 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.

4. 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.

THE CROWN CASE

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

THE SUBPOENA TO MR MOSCHOUDIS

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

1.   A copy of all records, entries, references, documents, file notes (handwritten or typed), statements, reports and any other documentation (both audio/visual material) including all billing documents, payment files, cost agreements and invoices relating all matters involving Lok Chun Lam.

2.   A copy of all records, entries, references, documents, file notes (handwritten or typed), statements, reports and any other documentation (both audio/visual material) including all billing documents, payment files, cost agreements and invoices relating all matters involving Kit Chun Lam.

3.   A copy of all records, entries, references, documents, file notes (handwritten or typed), statements, reports and any other documentation (both audio/visual material) including all billing documents, payment files, cost agreements and invoices relating all matters involving Glen McNamara.

4.   A copy of all records, entries, references, documents, file notes (handwritten or typed), statements, reports and any other documentation (both audio/visual material) including all billing documents, payment files, cost agreements and invoices relating all matters involving Jamie Gao.

12. 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.

13. 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:

A - BOX 1 OF 4

1.   Material pertaining to the “Bankrupt estate of Elliott”.

2.   Two envelopes marked “Tupou-privilege claimed” in relation to the prosecution of Lisiate Tupou containing:

i.   counsel’s brief;

ii.   notes of counsel’s address to the jury;

iii.   correspondence between counsel and his instructing solicitor regarding the conduct of the proceedings;

iv.   written submissions in respect of an application for a stay of the proceedings; and

v.   statements from the Police Brief of Evidence.

B - BOX 2 OF 4

1.   Material relating to the prosecution of Lam including email correspondence between counsel and solicitor, counsel’s costs disclosure and counsel’s advice;

2.   Material from the police brief in relation to the prosecution of Lam including statements of witnesses and transcripts of telephone intercepts relied upon by the prosecution;

3.   Psychological report in respect of Lam prepared by from Tim Watson-Munro; and

4.   Copies of defence exhibits on sentence and an accompanying schedule.

C - BOX 3 OF 4

1.   Correspondence between counsel and Lam and counsel and his instructing solicitor regarding the conduct of Lam’s trial;

2.   Submissions on sentence;

3.   Draft correspondence to the DPP;

4.   Draft statement of agreed facts;

5.   Correspondence with counsel for the co-accused; and

6.   Correspondence with the DPP.

D - BOX 4 OF 4

1.   An Envelope of Documents marked “Ellanora; Grahame Barry; Privilege Claimed” containing:

i.   extracts of legislation;

ii.   a copy of a shooting range approval issued to Grahame Barry in respect of the Condell Park Shooting Range;

iii.   a handbook entitled “Firearms Users Guide – Rights, Wrongs and Responsibilities”;

iv.   a statement from the Manager of the NSW Police Firearms Registry dated 24 April 2014 regarding an inquest into the death of Natasa Filipovre and Gabor Molnar;

v.   blank pro-forma documents from the NSW Firearms Registry;

vi.   news articles downloaded from the internet regarding shootings and firearms;

vii.   written instructions to counsel from Ellanora Meacham;

viii.   correspondence between counsel and client;

ix.   correspondence between counsel and solicitor;

x.   extracts from a Brief of Evidence;

xi.   a copy of a Subpoena;

xii.   a copy of exhibits tendered in sentence proceedings;

xiii.   pro forma letters in respect of applications for a firearms licence;

xiv.   a copy of the second reading speech regarding amendments to the Firearms Act;

xv.   extracts downloaded from “NSW Police on line” regarding usage of an approved firearms range;

xvi.   a copy of the Firearms Amendment Bill 2008;

xvii.   medical reports and medical records regarding a person named Gabor Molnar.

2.   An envelope marked “Ellanora Meacham, Grahame Barry, Privilege Claimed” containing:

i.   copies of legislation;

ii.   pro forma documents issued by the NSW Firearms Registry;

iii.   diary notes;

iv.   medical referrals and reports regarding Gabor Molnar;

v. a copy of a Court Attendance Notice issued to Ellanora Meacham and a copy of a Statement of Facts regarding an alleged offence contrary to s. 85(1)(b) of the Firearms Regulations 2006;

vi.   an envelope containing:

1.   CD marked “Condell Park Indoor Firearms Range;

2.   Photographs;

vii.   a copy of the Brief of Evidence in relation to the inquest into the death of Gabor Molnar

3.   An envelope marked “Clayton matter 1/2” containing:

i.   statements of police officer’s;

ii.   counsel’s instructions including a diary note and instructions as to images on CCTV footage;

iii.   photographs of injuries;

iv.   a CD and USB both unmarked;

v.   a copy of a Brief of Evidence, Charge Sheet and facts in respect of the. charges in (4)(ii) below;

vi.   extracts of legislation;

vii.   a handwritten document setting out views of solicitor;

viii.   correspondence between counsel and client;

ix.   a copy of counsel’s notes regarding the proposed cross examination of witnesses.

4.   An envelope marked “Clayton matter 2/2” containing:

i.   notes for the proposed cross examination of witnesses;

ii.   a Court Attendance Notice issued to Winona Clayton alleging offences of assault and the use of offensive language on an STA Bus, and an accompanying statement of facts;

iii.   extracts from a Brief of Evidence in respect of the charges in 4(ii) above;

iv.   extracts of legislation; and

v.   client’s instructions to counsel.

E - ENVELOPES

1.   4 Separate envelopes marked “Voldean P/L - privilege claimed”.

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

15. 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.

16. 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.

17. 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:

1. the entirety of that in (A) (Box 1 of 4); and

2. the entirety of that in (D) (Box 4 of 4).

18. 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.

19. 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:

1. B (Box 2 of 4) items (2)-(4)

2. C (Box 3 of 4) items (2)-(6)

20. 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.

21. 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.

THE EVIDENCE

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

1. a statement of Ms Lau dated 22 May 2014;

2. statement of Justin McLannen dated 16 January 2015;

3. a summary of a telephone conversation to which Chun Kit Lam was party when he was in custody;

4. a summary of recorded conversations to which Chun Lok Lam was party when he was in custody;

5. material produced by the Department of Corrective Services recording visits to each of Lam and his brother whilst in custody.

23. 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.

The email sent by Ms Lau on 4 June 2015

24. 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:

“Re: Waiver of client legal privilege by Chun Lok Lam and possibly Chun Kit Lam.”

25. 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:

“Dear Kate,

It was great talking to you yesterday.

The Lam brothers have advised me that they agree to waive their rights to legal privilege with Mr Charles Moschoudis of counsel only. This waiver is limited in that it would only allow Mr Charles Moschoudis of counsel to provide a statement to police for the investigation of the alleged murder of Jamie Gao on 20 May 2014 in particular to those meetings between the Lams and Mr Moschoudis where Glen McNamara, Jamie Gao or Roger Rogerson were present or discussed.

This is subject to the wordings of the actual waiver that the Lam brothers will be signing.

Please do not hesitate to contact us if we can be of any further assistance to you.

Kind regards,

Jasmine Lau

Solicitor and Notary Public”

(emphasis in original).

26. 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:

“HIS HONOUR: Notwithstanding what is in that email communication, your position, as you indicated it to me the other day and as you have indicated it to me now, is that your clients claim privilege, as it were, without qualification, over the entirety of the documents produced by Mr Moschoudis as might fall within the provisions of ss 118 and 119, is that right?

LAU: Yes. The claim is maintained if that is your Honour's question. The waiver was initially given on a conditional basis and with the understanding that an actual written waiver will be prepared. Also, that was with the intention of facilitating the police to obtain a statement from the previous legal representative, Charles Moschoudis. I understand Mr Moschoudis has said that he will not provide a statement, even if waiver was provided, and my instruction is that they would no longer agree to give that waiver.

HIS HONOUR: So your position is that irrespective of what that email might have said, events have overtaken us and your position is as you have articulated it to me today and on the previous occasion?

LAU: Yes.

HIS HONOUR: Do you wish to say anything further?

LAU: No, your Honour.”

The evidence of Mr Moschoudis

27. 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]):

“I represented an (sic) acted for Lok in these criminal proceedings. As a result I briefed Glen McNamara as an investigator to gather evidence (privilege) which may assist Lok during his court proceedings. During the ensuing months whilst acting for Lok I had him attend my chambers on a couple (sic) occasions to discuss his case.”

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

“I didn’t put “privilege” and I didn’t write those and some of the propositions there aren’t necessarily accurate. It was a police officer who did that.”

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

“Q. Could I go back to paragraph 8?

A. Yes, your Honour.

Q. You said, I think, that there was some contents of that paragraph which may or may not be accurate. I take it the first sentence that you represented and acted for Lok Lam in criminal proceedings is correct?

A. Yes, your Honour.

Q. Is it correct to say that as a consequence of being retained you briefed Mr McNamara as an investigator?

A. I didn't brief him per se. I recommended Mr McNamara as the investigator to the instructing solicitor. I didn't brief Mr McNamara directly. It was the instructing solicitor that I introduced, your Honour.

Q. Is the last sentence correct, that Mr McNamara attended your chambers on a couple of occasions to discuss the case?

A. Yes, your Honour. I don't remember how many occasions but there were a number of occasions, yes.”

30. 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).

31. 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:

“Dear Glen,

I hope you had a great weekend.

I am emailing to you eleven emails containing the entire brief, including fact sheet and intercepts.

Thanks mate.”

32. McNamara responded on the same day:

“Hi Charles.

Thanks. I’ll send a draft statement to you soon. Please review.

Regards

Glen”

33. On 28 January 2014 Mr Moschoudis again wrote to McNamara:

“Dear Glen,

I hope this email finds you well.

A couple of things:

1. Thank you for the statement you emailed to me;

2. It appears the email I sent through yesterday were not successful, so I am re-sending them again now;

1.   I am preparing two affidavits this morning that have to be sent out ASAP;

2.   Could you please confirm once you have received all 11 emails please in above matter.

3.   I shall ring you later today.

4.   I am seeing Mr Lam later this morning taking instructions in relation to his matter.

Kind regards

Charles Moschoudis”

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

“Dear Glen,

Could you please take a statement from Brian Wrench from Murphy Lawyers. They are situated at 185 Elisabeth Street Sydney.

The statement will be in relation to and confirming the facts in the statement of Justin McLennan’s surrounding his attendance at the AFP on 14 January 2013.

Regards,

Diane Elston”

(amendment in original)

35. 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:

“Bryan, thank you for calling me back. I apologise about the lack of notice.

Andrew Li (sic) solicitor instructs me regarding Chun Lok Lam and Chun Kit Lam. The Lam brothers are charged with “supply commercial quantity” x 2 – Amphetamine Heroin.

The Lam brothers identified Justin McLennen (sic) as one of their associates. They say that Justin was requested to present himself for questioning at the AFP on or about 14 January 2014. The Lam brothers were unable to specify to me the nature of Justin’s interview with the AFP.

I interviewed Justin this week, he provided a statement to me. The features of his statement are his denial to AFP of the Lam brothers being engaged in any illegal drug supply activity. Justin alleges the AFP officer – Amy Knox threatened him with imprisonment if he did not change his version and/or write out a statement implicating the Lam brothers as drug suppliers.

Justin advised at this point a Lawyer came in (you ??). Justin says that soon after he was allowed to leave without the AFP preferring any criminal charges against him.

Justin alleged as he left Ms Knox is alleged to have threatened him with words to the effect of “I am going to arrest you soon”.

My instructions from Andrew Li (sic) are to approach you and ask for your comments in relation to the allegations in Justin’s statement. I appreciate your assistance. I am happy to chat over phone if it is suitable to you.”

36. On 31 January 2014 Mr Moschoudis again wrote to McNamara:

“Dear Glen,

I hope this email finds you well.

My computer has died so I have had to get another one, and it has taken a little bit of time to get up and running again.

Could you please advise:

1. Whether Justin has signed his statement, if so could you please email me a copy of same please;

2. Could you also please advise whether a statement has been taken from Bryan Wrench, as I may need to use it on Monday.

Thanks mate.

Kind regards,

Charles”

37. 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.

38. 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):

“Q. After you were provided with the draft, what happened next as far as you were concerned?

A. I was asked to complete the statement.

Q. What did you say?

A. And I rejected that.

Q. On what basis?

A. On the basis that there were issues of privilege in my mind and there is a rule which escapes me at the moment, it is a bar rule, that refers to matters that may not assist one's client or former client and that was the basis of not making the statement.”

39. 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:

CONFIDENTIALITY & CONFLICTS

108. A barrister must not disclose (except as compelled by law) or use in any way confidential information obtained by the barrister in the course of practice

concerning any person to whom the barrister owes some duty or obligation to keep such information confidential unless or until:

(a) the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or

(b) the person has consented to the barrister disclosing or using the information generally or on specific terms.

109. A barrister must not disclose (except as compelled by law) or use confidential information under Rule 108(b) in any way other than as permitted by the specific terms of the person’s consent.”

40. 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).

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

Q. Can I take you back to the original introduction of Mr McNamara into the investigation part of the defence. As I understand your statement, you had conversations with Mr Lam about the advisability of having Glen, a private investigator, do researches for the defence?

A. There was ‑ I had a conversation with Mr Lam in relation to utilising Mr McNamara's services to advance his case, yes.

Q. Did you tell Mr Lam anything about his privilege vis‑à‑vis legal professional privilege as a result of having an investigator act according to instructions?

HIS HONOUR

Q. If you did, don't tell us what you said but did you have any conversation within those terms?

A. Not that I recall at this stage.”

The statements of Lam

42. 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):

“15. Around December 2013, our solicitor, Adam LY, had received all the paperwork from the police in relation to our matter and I decided that we should go to trial. As a result of this, Adam organised Charles MOSCHOUDIS as our barrister, however I was having some difficulties in understanding all the paperwork and what Adam was talking about so 1 spoke with Jamie GAO about helping to translate for me as I was aware he could speak both Cantonese and English very well.”

43. 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.

44. Secondly, counsel relied upon paragraph 16:

16.1 recall on the first occasion when I met Charles it was in his chambers. Jamie and a guy named Jonathon were also there and we all spoke about my case. I think Jonathon worked with Charles as his assistant. I recall that Charles said to me that we should get some statements from the co-accused, which would then help the case against Kit and I. However, I remember that Charles explained that it would not be good for these statements to be taken by a solicitor so he recommended a guy named Glen to do this for us. Charles told me that Glen was a good friend of his and was also an ex-cop (my emphasis).

45. Thirdly, counsel relied upon paragraph 17:

17. While I don't recall the exact date, I believe sometime around the beginning of January 2014,1 had another meeting with Charles at his chambers. On this occasion Jamie came with me and I think Jonathon may have also been there with Charles. This is when I first met Glen. I recall that Charles initially spoke with Glen about my case, after which Glen introduced himself to me and told me that he was willing to help in my case. Jamie was interpreting this into Cantonese so I could understand more easily what was being said (my emphasis).

46. Finally, counsel relied upon paragraph 32:

32. About a week after this meeting I met Glen, Jamie, Charles and Adam at the Meridian Hotel Hurstville. I remember that day was a Saturday morning. That day we spoke about my case and I decided that I wanted to plead guilty to my charges. Glen didn't speak to me on this day. I was talking to Charles and Adam while Glen and Jamie were talking to each other. After this day I didn't see or speak to Glen again (my emphasis).

47. 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.

THE RELEVANT LEGISLATIVE PROVISIONS

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

"confidential communication" means a communication made in such circumstances that, when it was made:

(a) the person who made it, or

(b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. 

"confidential document" means a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. 

49. Section 118 of the Act is in the following terms:

118 Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer, or

(b) a confidential communication made between 2 or more lawyers acting for the client, or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

50. Section 119 is in the following terms:

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

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

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).

SUBMISSIONS OF THE PARTIES

Submissions on behalf of McNamara

52. 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.

53. 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.

Submissions of the Crown

54. 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.

54. 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.

THE RELVANT PRINCIPLES

56. 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.

57. 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).

58. 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.

59. 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):

“[28] At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.

[29] Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … 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 maintenance of the confidentiality; not some overriding principle of fairness operating at large.”

60. 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):

[49] Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. … questions of waiver are matters of fact and degree. It should be added that we are here concerned with the common law principle of waiver, not with the application of s. 122 of the Evidence Act 1995 (Cth) which, … has the effect that privilege may be lost in circumstances which are not identical to the circumstances in which privilege may be lost at common law.”

61. 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].

62. 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.

CONSIDERATION

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

64. 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.

65. 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.

66. 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.

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

68. 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.

69. 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.

70. 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.

71. 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.

CONCLUSION

72. 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.

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Decision last updated: 15 June 2016