R v Xie (No 3) - [2013] NSWSC 1840

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

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:

a Basha Inquiry (R v Basha (1989) 39 A Crim R 337) involving the evidence of Witness A;

adducing evidence bearing upon parts of the Accused’s Notice of Motion filed 18 November…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Xie (No 3)

Details

AGLC: R v Xie (No 3) [2013] NSWSC 1840
Case: [2013] NSWSC 1840
Decision Date: 12 December 2013

CaseChat Overview and Summary

In the matter of R v Xie (No 3), the accused, Mr Xie, was subject to a pretrial hearing in an Australian court, where the primary issue was whether he had waived his client legal privilege in relation to discussions that occurred during his representation by a particular solicitor, who also represented his wife. The Crown called the solicitor as a witness during a Basha inquiry, seeking to introduce evidence of the privileged discussions. The court had to determine if the privilege was waived by the accused when his counsel cross-examined his wife at committal proceedings about the discussions, which took place in the presence of the former solicitor.

The legal issues the court addressed included whether the accused had waived his privilege by virtue of his counsel's cross-examination of his wife, and if so, whether this waiver extended to the former solicitor's testimony. The court considered the principles of client legal privilege and the circumstances under which such privilege could be deemed waived. It also evaluated the impact of the accused's counsel cross-examining his wife on the admissibility of the former solicitor's evidence.

The court concluded that the accused had waived his client legal privilege. The reasoning was that by having his counsel cross-examine his wife concerning the privileged discussions, the accused effectively opened the door to the introduction of the former solicitor's evidence. The court found that the nature of the cross-examination and the subject matter thereof were closely related to the privileged discussions, thereby constituting a waiver of the privilege. Consequently, the court ruled that the evidence provided by the former solicitor was admissible.

The final orders of the court were that the client legal privilege was waived by the accused in the circumstances described. The evidence provided by the former solicitor regarding the discussions with Mr Xie and his wife was deemed admissible in the proceedings. This ruling was pivotal in allowing the Crown to utilise the evidence in question in their case against Mr Xie.

Orders