Supreme Court New South Wales Medium Neutral Citation: R v Xie (No 1) [2015] NSWSC 2115 Decision date: 03 February 2015 Jurisdiction: Common Law - Criminal Before: Fullerton J Decision: 1. The evidence of Yang Fei Lin, Feng Qin Zhu and Brenda Lin at the trial of the accused (Lian Bin (Robert) Xie) be audiovisually recorded. 2. That a copy of the audiovisual record of the evidence of each of the witnesses the subject of Order 1 be provided to the Court, the office of the Director of Public Prosecutions and to Kara Greiner (solicitor for the accused). Catchwords: CRIMINAL LAW – pretrial hearing – application for audiovisual recording of evidence – where recording of evidence precautionary in case of further trial or retrial Legislation Cited: Criminal Procedure Act 1986 (NSW), s 39 Supreme Court Rules 1970 (NSW), Rule 3L of Division 1 of Part 75 Cases Cited: R v Xie (No 10) [2014] NSWSC 1976 R v Xie (No 11) [2014] NSWSC 1977 R v Xie (No 12) (Supreme Court (NSW), Johnson J, 21 July 2014, unrep) R v Xie (No 13) [2014] NSWSC 1978 R v Xie (No 25) (Supreme Court (NSW), Johnson J, 11 September 2014, unrep) Category: Procedural and other rulings Parties: The Crown Lian Bin (Robert) Xie (Accused) Representation: Counsel: M Tedeschi QC / K Ratcliffe (Crown) G Turnbull SC / L Fernandez (Accused) Solicitors: Director of Public Prosecutions (Crown) Kidman Legal (Accused) File Number(s): 2011/147183 Judgment 1. HER HONOUR: The trial of the accused Lian Bin (Robert) Xie on five counts of murder is scheduled to commence on 4 February 2015. 2. The deceased were members of the accused's family by marriage. 3. Min (Norman) Lin was his brother-in-law, Yun Li (Lily) Lin, his sister-in-law, and Henry Lin and Terry Lin his nephews. Yun Bin (Irene) Lin was Lily's sister. The deceased were murdered on or about 18 July 2009 in their family home at Boundary Road, North Epping. 4. Brenda Lin, the daughter of Min and Lily Lin and sister of Henry and Terry, was overseas at the time of the murders. 5. Two previous trials, convened in May 2014 and August 2014, did not result in verdicts. 6. The first jury was discharged on 10 June 2014 in circumstances detailed in Johnson J's judgment of that date (R v Xie (No 10) [2014] NSWSC 1976). 7. The second jury was discharged on 23 September 2014 due to his Honour's ill health. 8. In the first and second trials the Crown called evidence from Yang Fei Lin (Mr Lin) and Feng Qin Zhu (Mrs Zhu), respectively the father and mother of the deceased, Min Lin. Both witnesses had given their evidence before the jury was discharged. Ms Lin gave evidence at the second trial. Her evidence had not concluded at the time the jury was discharged. 9. The Crown intends to call Mr Lin, Mrs Zhu and Ms Lin in the pending trial. I accept that their evidence is important in the presentation of the Crown case, albeit in different respects, as reflected in the comprehensive Crown case statement referred to extensively in a number of interlocutory judgments published in the first and second trials and in the Crown's opening address in both trials. 10. Ms Lin's evidence has been the subject of a number of interlocutory judgments delivered in advance of the second trial consequent upon additional statements from her being served by the Crown in the course of the first trial and in advance of the second trial (R v Xie (No 10) [2014] NSWSC 1976; R v Xie (No 11) [2014] NSWSC 1977; R v Xie (No 12) (Supreme Court (NSW), Johnson J, 21 July 2014, unrep); R v Xie (No 13) [2014] NSWSC 1978; R v Xie (No 25) (Supreme Court (NSW), Johnson J, 11 September 2014, unrep). 11. By notice of motion dated 19 December 2014 the Crown seeks orders that the evidence of Mr Lin, Mrs Zhu and Ms Lin be audio visually recorded pursuant to s 39 of Criminal Procedure Act 1986 (NSW) and Rule 3L of Division 1 of Part 75 of the Supreme Court Rules 1970 (NSW). 12. Mr Turnbull, Senior Counsel for the accused, does not oppose the orders sought. 13. Section 39 of the Criminal Procedure Act provides that: 39 Recording of evidence (1) The evidence of each witness in criminal proceedings must be recorded. (2) Rules may be made for or with respect to the manner in which the evidence may be recorded and the authentication of evidence or of transcripts of evidence given in proceedings. 1. Rule 3L of Division 1 of Part 75 of the Rules provides: 3L Recording of evidence (1) This rule applies to all criminal proceedings in the Court (including those specified in the Third Schedule to the Act). (2) Evidence given by a witness may be recorded by video or by any other audio-visual method as directed by the Court. 1. Neither the Act nor the Rules prescribe the matters the Court is to take into account in the exercise of the power to order that the evidence of a witness be audiovisually recorded. 2. In respect of the evidence of Mr Lin and Mrs Zhu the orders are sought principally as a precautionary measure in the event that this trial does not proceed to verdict for some unseen reason and a further trial is convened, or in the event of a retrial. Both witnesses are elderly and despite their competence and good health, I accept that there is a risk that by reason of their age they may become unavailable to be called at some future date, were that to be necessary. The production of audiovisual recordings of their evidence in the pending trial will ensure that their evidence is available to both the Crown and the accused in that event. 3. The orders sought in respect of Ms Lin's evidence are also to an extent precautionary, in the sense that an audiovisual record of her evidence would enable consideration to be given to tendering her evidence in that form in the event of a further trial or a retrial. 4. It is anticipated that Ms Lin will give evidence (as she did in the second trial) that she was repeatedly sexually assaulted by the accused over a period of months after her parents and brothers were murdered in July 2009 and before his arrest in May 2011. Because the accused has not been charged with those assaults her evidence does not attract the operation of s 306B of the Criminal Procedure Act, which makes express provision for the Crown to tender an audiovisual record of a complainant's evidence in a retrial of prescribed sexual offence. Although the Crown accepts that the accused's consent would need to be obtained were the audiovisual record of Ms Lin's evidence to be tendered in any subsequent trial or retrial of the accused on the charges of murder, the order is sought to allow for consideration to be given to that question were that to become necessary. 5. I am satisfied that a proper basis has been made out for the orders sought by the Crown and that appropriate arrangements can be made to facilitate the making of an audiovisual record of the evidence of each of the three named Crown witnesses without impacting adversely upon the accused in his trial. 6. Accordingly, I make orders in the following terms: 1. The evidence of Yang Fei Lin, Feng Qin Zhu and Ms Lin at the trial of the accused (Lian Bin Xie) is to be audiovisually recorded. 2. That a copy of the audiovisual record of the evidence of each of the witnesses the subject of Order 1 be provided to the Court, the office of the Director of Public Prosecutions and to Kara Greiner (solicitor for the accused). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2017