R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066

R v Rogerson; R v McNamara (No 11) [2015] NSWSC 1066

Lam waived client legal privilege only to the extent of paragraph 16 of his 20 June 2014 police statement because that paragraph voluntarily disclosed the substance and detail of advice from Mr Moschoudis about obtaining statements from other persons to assist his case. Paragraphs 17 and 32 disclosed only the fact of discussions about Lam's case, and paragraph 32 did not expressly or impliedly link Lam's decision to plead guilty to any legal advice received. The conditional email from Ms Lau did not waive privilege because the contemplated written waiver was never settled or signed, and the mere retention of McNamara as an investigator was not inconsistent with maintaining privilege.

Jurisdiction
Australia
Judgment Date
06 August 2015
Procedural Posture
Criminal Proceedings; Procedural Ruling on Client Legal Privilege Claim in Relation to Subpoenaed Material / Pre Trial Ruling After Jury Discharged and Before Trial Listed to Commence on 18 August 2015
Outcome
Client legal privilege claim rejected only in respect of matters disclosed by Lam in paragraph 16 of his statement of 20 June 2014.
Legal Topics
['waiver of Client Legal Privilege' 'subpoenaed Material' 'disclosure of Substance of Legal Advice' 'evidence Act 1995 (nsw) Ss 118, 119 and 122']
['criminal Law' 'evidence' 'client Legal Privilege'] ['waiver of Client Legal Privilege' 'subpoenaed Material' 'disclosure of Substance of Legal Advice' 'evidence Act 1995 (nsw) Ss 118, 119 and 122']

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Procedural Posture

Criminal Proceedings; Procedural Ruling on Client Legal Privilege Claim in Relation to Subpoenaed Material / Pre Trial Ruling After Jury Discharged and Before Trial Listed to Commence on 18 August 2015

Legal Issues

  1. 1 ['Whether Lam lost client legal privilege over parts of communications with his former lawyers by referring to those communications in a police statement.' "Whether paragraphs 16, 17 and 32 of Lam's statement disclosed merely the fact of communications or the substance of legal advice or communications." 'Whether the conditional email from Ms Lau to Crown solicitors amounted to a waiver of client legal privilege.' 'Whether the retention of McNamara as a private investigator was conduct inconsistent with maintaining client legal privilege.']

Ratio Decidendi

Lam waived client legal privilege only to the extent of paragraph 16 of his 20 June 2014 police statement because that paragraph voluntarily disclosed the substance and detail of advice from Mr Moschoudis about obtaining statements from other persons to assist his case. Paragraphs 17 and 32 disclosed only the fact of discussions about Lam's case, and paragraph 32 did not expressly or impliedly link Lam's decision to plead guilty to any legal advice received. The conditional email from Ms Lau did not waive privilege because the contemplated written waiver was never settled or signed, and the mere retention of McNamara as an investigator was not inconsistent with maintaining privilege.

Court Disposition

Client legal privilege claim rejected only in respect of matters disclosed by Lam in paragraph 16 of his statement of 20 June 2014.

Orders

  • ['No privilege attaches to those matters disclosed by Lam in paragraph 16 of his statement of 20 June 2014.']