Supreme Court New South Wales Medium Neutral Citation: R v Xie (No. 11) [2014] NSWSC 1977 Hearing dates: 26 June 2014, 1 July 2014 Decision date: 01 July 2014 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Ms AB and Professor Patrick Parkinson are to attend Court to give evidence at a preliminary hearing to be held in advance of the trial. Catchwords: CRIMINAL LAW - murder trial - discharge of jury at first trial after significant new evidence came to light - defence application for Basha inquiry concerning two witnesses in advance of second trial - allegations by witness of sexual assault by Accused - Accused not charged with sexual assault - objection by Crown to Basha inquiry involving that witness - factors relevant to decision to order a Basha inquiry and the scope of the inquiry - orders made for Basha inquiry Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Justices Act 1902 Victims Rights Act 1996 Victims Rights and Support Act 2013 Cases Cited: Kant v Director of Public Prosecutions (1994) 34 NSWLR 21 R v Basha (1989) 39 A Crim R 337 R v Kennedy (1997) 94 A Crim R 341 R v Sam (No 16) [2009] NSWSC 544; 196 A Crim R 138 R v Sandford (1994) 33 NSWLR 172 R v Xie (No 4) [2014] NSWSC 500 R v Xie (No 10) [2014] NSWSC 1976 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 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 GW Turnbull SC; Mr L Fernandez (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Burke & Mead Lawyers (Accused) 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 1. JOHNSON J: The Accused, Lian Bin (Robert) Xie, is to stand trial before a jury commencing on 4 August 2014 upon five counts of murder. That trial is a second trial following the discharge of the jury at the first trial on 10 June 2014 in circumstances explained in my judgment of that date: R v Xie (No 10) [2014] NSWSC 1976. 2. By Notice of Motion dated 23 June 2014, the Accused seeks the following orders: (1) That Ms AB is directed to attend Court to give evidence at a preliminary hearing held in advance of the trial in relation to matters set out in her statements of 29 May 2014 and 18 June 2014. (2) That Professor Patrick Parkinson is directed to attend Court to give evidence at a preliminary hearing held in advance of the trial in relation to matters set out in his statement dated 13 June 2014 and his notes dated 25 May 2014. 1. Order 1 should now be read as extending to a further statement of Ms AB dated 27 June 2014. 2. Order 2 should be taken as extending to a further statement of Professor Parkinson dated 18 June 2014. 3. The defence application seeks a so-called Basha inquiry, so named as a result of the decision of the Court of Criminal Appeal in R v Basha (1989) 39 A Crim R 337. A Basha inquiry is sought with respect to each of Ms AB and Professor Parkinson. 4. The Crown does not oppose the calling of Professor Parkinson to give evidence at a preliminary hearing, subject to clarification of areas of questioning to be undertaken. I have been informed that it is not necessary for the Court to make a ruling with respect to the areas of questioning of Professor Parkinson, that topic being a matter of ongoing discussion between counsel. I will, in due course, make an order in terms of paragraph 2 of the Notice of Motion. 5. The Crown does oppose the calling of Ms AB at a Basha inquiry. Relevant Factual Background 1. The Accused was charged in 2011 with five counts of murder. The circumstances of the charges brought against him are outlined in detail in R v Xie (No 4) [2014] NSWSC 500 and again in R v Xie (No 10). 2. Committal proceedings took place in the Local Court and the Accused was committed for trial on 20 December 2012. 3. The committal proceedings were conducted in accordance with the Criminal Procedure Act 1986. Sections 91 and 93 of that Act regulate the circumstances in which witnesses are required to give evidence at committal proceedings. 4. A number of witnesses did give evidence at the committal proceedings. Ms AB and Professor Parkinson had made statements which form part of the Crown brief of evidence. No application was made that either of them give evidence at the committal proceedings, and they did not do so. The evidence available from Ms AB and Professor Parkinson at that time was significantly and materially different to that which is now available, which gives rise to the present application. 5. In the circumstances revealed in R v Xie (No 10), a statement of Ms AB dated 29 May 2014 and notes of Professor Parkinson dated 25 May 2014 were served by the Crown on the defence. Put shortly, Ms AB stated that the Accused had become physically affectionate to her in the period prior to the murders of her family members in July 2009. After the murders, Ms AB (then aged 15 years) came to live in the home of the Accused and his wife. Ms AB states that the Accused sexually assaulted her on many occasions in the period leading up to his arrest in 2011, when he was taken into custody. 6. After the discharge of the jury on 10 June 2014, the Crown has obtained further and more detailed statements from a number of persons. The statements include: (a) the statements of Ms AB dated 17-18 June 2014, 19 June 2014 and 27 June 2014; (b) the statements of Professor Parkinson dated 13 June 2014 and 18 June 2014; (c) a statement of Feng Qin Zhu dated 16 June 2014; (d) a statement of Yang Fei Lin dated 16 June 2014; (e) a statement of Jennifer James dated 16 June 2014; and (f) a statement of Ms CD dated 23 June 2014. 1. A statement was also obtained from Ms BC, dated 17 June 2014. This statement is noteworthy, as Ms BC, a school friend of Ms AB, states that at a time prior to the murders in July 2009, in the course of a conversation with Ms AB in which Ms BC said that she herself had been sexually abused, Ms AB said words to the effect, "Well you know what happened with your uncle, a similar thing has happened to me". Thus, the Crown case contains material indicative of, at least, a general complaint by Ms AB of sexual abuse made before the murders. 2. In addition to these further statements, the Crown has served a report dated 25 June 2014 from Dr Susan Hayes, forensic psychologist, upon which the Crown will seek to rely for the purposes of s.79 Evidence Act 1995. 3. The Crown has indicated that the indictment will not be amended to include counts of sexual assault against Ms AB. The further trial of the Accused will, once again, be upon five counts of murder. 4. The Crown has furnished a revised Crown Case Statement, which indicates that the sexual abuse alleged by Ms AB against the Accused will be relied upon, in particular, as evidence of motive. It will be said that the Accused was motivated by a sexual passion for Ms AB to commit these murders, and that he had acted upon that sexual passion with grooming conduct prior to the murders, and more overt and intrusive sexual abuse after the murders. The Present Application 1. The parties have furnished written submissions, and spoken to them, with respect to the application concerning Ms AB. It is not necessary to repeat those submissions in any detail in this judgment. Relevant Legal Principles 1. It is appropriate to set out the legal framework relevant to the present application. 2. The statutory tests in ss.91 and 93 Criminal Procedure Act 1986 applicable to committal proceedings have no direct bearing upon this application. The present application relates to the question whether Ms AB should be examined in advance of trial in this Court. 3. To the extent that ss.91 and 93 Criminal Procedure Act 1986 may assist at all by analogous reasoning, a number of observations should be made. 4. The Accused is not charged with an "offence of violence" as defined in s.94 Criminal Procedure Act 1986, so as to engage s.93 of that Act. The Accused is not charged with sexual offences against Ms AB. He is not charged with a "child sexual assault offence", as defined in s.91 of that Act. He is charged with five counts of murder. 5. If Ms AB had made the statements alleging sexual abuse prior to the committal proceedings, unless the Accused was charged with sexual offences so as to activate s.93 of the Act, the "substantial reasons … in the interests of justice" test would have applied to the question of whether she be called at committal proceedings, and not the "special reasons … in the interests of justice" test. 6. The relevant principles to apply in this application are those emerging from R v Basha and later cases, including R v Sandford (1994) 33 NSWLR 172 and R v Kennedy (1997) 94 A Crim R 341. 7. It is true, as the Crown submits, that substantial reforms have been made to committal proceedings in New South Wales in the last 20-odd years. However, s.48EA Justices Act 1902, which introduced the "special reasons" test, was in operation in the early 1990s, and certainly by the time of decisions such as R v Sandford and R v Kennedy. In this respect, see the general discussion concerning s.48EA Justices Act 1902, and the policy factors which underpinned that legislation, in the judgment of Gleeson CJ in Kant v Director of Public Prosecutions (1994) 34 NSWLR 216. 8. In X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at 139-140 [115], Hayne and Bell JJ adverted to the powers of the trial court in circumstances where the prosecution seeks to call at trial a witness whom the defence could not have sought to cross-examine at committal proceedings. Their Honours observed that the court trying an accused person may allow the witness to be cross-examined, on a voir dire, before the witness is called at trial by way of what had become known as a Basha inquiry. 9. The Basha inquiry procedure is utilised from time to time in this Court and the District Court, in circumstances where a witness was not called at committal proceedings, or where there may be significant new evidence emerging from a witness who had made a statement included in the original Crown brief. This process has arisen in these very proceedings, when Witness A was called at a Basha inquiry in November 2013. 10. The Crown has referred to provisions in the Victims Rights and Support Act 2013 as bearing upon the present application. Section 6 of that Act provides for a Charter of Victims Rights. Section 6.9 of that Act relates to attendance at preliminary hearings and provides: "A victim will be relieved from appearing at preliminary hearings or committal hearings unless the court otherwise directs." 1. Clearly a victim for this purpose includes a person who has alleged a crime has been committed, and where the accused person denies the allegation. 2. Section 7(1) Victims Rights and Support Act 2013 provides that the Charter of Victims Rights is, as far as practicable and appropriate, to govern the treatment of victims in the administration of the affairs of the State. 3. Section 7(2) provides that: "Any agency or person exercising official functions in the administration of the affairs of the State (other than judicial functions) must, to the extent that it is relevant and practicable to do so, have regard to the Charter of Victims Rights in addition to any other relevant matter." 1. Section 7(3) defines the term "administration of the affairs of the State" as including: "(a) the administration of justice, (b) the provision of police services, (c) the administration of any department of the Government, and (d) the provision of services to victims of crime by any person or non-government agency funded by the State to provide those services." It will be noted that s.7(2) appears to exclude persons exercising judicial functions from the obligation to have regard to the Charter. 1. The proper construction and application of the predecessor provision, then contained in the Victims Rights Act 1996, was considered by me in R v Sam (No 16) [2009] NSWSC 544; 196 A Crim R 138 at 141-142 [17]-[26]. The context of that application was quite different to this, the question there being the making available to the media for publication certain photographic exhibits. Although noting the exclusion of judicial functions from the equivalent provision to that now in s.7(2), I took the view that the existence of the Charter of Victims Rights was, nevertheless, part of the contemporary statutory landscape which the Court should keep in mind. 2. I adopt a similar approach to the present application. Section 6.9 provides, in effect, that the victim will be relieved from appearing (relevantly) at a preliminary hearing, unless the Court otherwise directs. The question here, of course, is whether the Court should otherwise direct. 3. The relevant test is whether in accordance, in particular, with the statements in R v Sandford, there is a serious risk of an unfair trial if the Accused is not given the opportunity to cross-examine Ms AB before the commencement of the trial on 4 August 2014. 4. I do not accept that a "special reasons" test is imported by analogy. The "special reasons" test would not apply to the present circumstances, even if committal proceedings were on foot now. It is not appropriate to limit the appropriate discretion in that respect. The "substantial reasons" in the interests of justice test is of greater utility, by way of analogy, to the extent that analogous reasoning is of any assistance at all. 5. However, it is preferable to focus upon the applicable test itself, which is a stringent one, and which requires the Court to consider whether there is a serious risk of an unfair trial if the Accused is not given the opportunity to cross-examine Ms AB before trial. 6. It may be taken that the circumstances of Ms AB render her a vulnerable person. She is a secondary victim of crime, as her entire direct family have been murdered, including her parents and her two brothers. Her statement that the Accused sexually abused her is to be taken into account, as well, in assessing her vulnerability, making due allowance for the fact that these matters are allegations contested by the Accused. 7. To the extent that the Court may have regard to s.6.9 Victims Rights and Support Act 2013, I will do so. I do not think that District Court Practice Note 6, referred to by the Crown, bears in any material way on the present application. 8. The circumstances of the present case, and the relationship between the Accused and Ms AB, would bear upon any assessment of questions for the purpose of s.41 Evidence Act 1995 and may be relevant, as well, in an indirect way at least, to the extent of any questioning allowed on a Basha inquiry. 9. I return to the test to be applied. In R v Sandford at 180-181, it was said by Hunt CJ at CL that it was for the accused person to demonstrate, in advance, the particular issue which he intends to pursue, and it is necessary that the Judge be satisfied that there is, at least, a serious risk of an unfair trial if the accused person is not given that opportunity to do so; that is, to do what otherwise would have been done at committal proceedings. 10. It was emphasised, as well, in R v Sandford that the procedure is not to be "used inappropriately in order to try out risky questions which may otherwise prove to be embarrassing in the presence of the jury". That aspect should be borne in mind, not only on the threshold question as to whether a Basha inquiry is to be directed at all, but also in considering the scope and content of questions should a Basha inquiry take place. 11. The onus is on the Accused to demonstrate that the disadvantage or prejudice which he would otherwise suffer during the course of the trial is unacceptable. Determination of Application 1. A number of aspects should be emphasised at this point. I bear in mind that the Accused is to stand trial upon five counts of murder, the most serious crime under our law. I bear in mind, as well, that Ms AB made statements in May and June 2014 which the Crown seeks to rely upon. The matters alleged against the Accused in those statements are most serious, and are said to form an important part of the Crown case, particularly in the area of motive. 2. The Accused has nominated issues or areas upon which Ms AB is sought to be cross-examined at a Basha inquiry. The Crown says that most of these areas are addressed in the statements made by Ms AB, so that any further pretrial questioning of her is not necessary. The Crown says, as well, that what the defence proposes to do is in the nature of a fishing expedition which does not satisfy the R v Basha and R v Sandford tests. 3. I do not think that the provision of statements by the Crown answers the defence submission completely. Those statements, of course, deal with the matters contained in them. However, there are areas of questioning under some of these topics which I am satisfied that the Accused is entitled to explore at a pretrial hearing, applying the test in R v Sandford. I emphasise that Ms AB is now a key Crown witness, in circumstances where that was not the position prior to May 2014. 4. By reference to paragraph 20 of the Defence Written Submissions (MFI5) the following topics are identified. Topics (a) to (f) all relate, in one way or another, to the association between Ms AB and Professor Parkinson. These topics are: (a) Ms AB's relationship with Professor Parkinson generally; (b) her discussions with Professor Parkinson about the Crown case; (c) her discussions with Professor Parkinson about her role in the Crown case; (d) her discussions with Professor Parkinson about her witness statements and how they could be used in the evidence; (e) her discussions with Professor Parkinson about her legal position, including relevant advice given to her; and (f) her discussions with Professor Parkinson about legal professional privilege. 1. I accept that the statements provided by the Crown do address, at least, a number of these topics but I am also satisfied that the Accused is entitled, by way of cross-examination, to ask questions about these matters prior to the trial, given the great importance of this evidence to the trial and the circumstances in which it emerged in May 2014. 2. At the same time, I will maintain a close eye on the cross-examination, which must comply carefully with the approach laid down in R v Sandford. I note that Senior Counsel for the Accused emphasised, in oral submissions, an intention to comply strictly with those limits and not to move beyond areas of permissible questioning. I will keep in mind that the further statements of Professor Parkinson and Ms AB do cover many of these topics already. Repetition of matters contained in those statements will not be allowed in the exercise of discretion. However, as I have said, given the importance of these matters, the Accused ought be given the opportunity, in the unusual circumstances of this case, to ask questions on these topics. 3. I emphasise in this respect that my ruling relates, in particular, to events in 2014, although some historical explanation has been provided in the statements as to how Ms AB came to meet Professor Parkinson, and what her dealings were with him in the past. This ruling is not intended to allow an open-ended examination of all matters occurring in 2009. I make these further observations so that the practical limits of this ruling will be apparent. 4. Paragraph 21 of the Defence Written Submissions refers to other topics. These include: (a) Ms AB's meetings with the Crown; (b) what she was told by the Crown about the Crown case, its strengths and its weaknesses; (c) what she was told by the Crown about her role in the Crown case; and (d) her conversations with Lin family members, including her grandparents and relatives overseas about her allegations, that being her allegations of sexual impropriety by the Accused. 1. Those matters are covered, to a significant extent, in the most recent statement of Ms AB (dated 27 June 2014). If there are said to be other areas of questioning which ought be permitted on a Basha inquiry, I will hear submissions upon those at the time of the inquiry. I am not shutting out questions on those topics, but there is a practical need for identification of areas of questioning which ought be permitted within the proper limits of a Basha inquiry, bearing in mind what has already been said by Ms AB in her most recent statement. 2. Paragraph 21(d) of the Defence Written Submissions seeks times, dates and context of improper acts alleged to have been committed by the Accused. The statements made by Ms AB provide an indication of what is said to have been repeated and regular acts of sexual abuse before and after the murders occurred in 2009. The Crown says that asking questions of the type identified in paragraph 21(d) will serve no purpose, given the statement of Ms AB which indicates repeated conduct and its location. 3. It has been submitted for the Accused that there is a particular feature which is important, namely that for a period, surveillance devices were contained in the house of the Accused so that conversations, at least which may have occurred at particular times, may have some bearing upon the abuse alleged by Ms AB against the Accused, and that some questioning of Ms AB to seek to better particularise what is said to have happened will assist the Accused, in an appropriate way, in preparation for trial. 4. Given the significance of Ms AB's evidence of sexual abuse in this trial, I do propose to allow questioning on this topic. However, once again, consistent with the indication of Senior Counsel for the Accused, I will keep a close eye upon the course of questioning to seek to ensure that it is achieving the permitted purpose of a Basha inquiry. The appropriate course is to permit the process to be undertaken, but with the Court maintaining control over the process. 5. I am not presently persuaded that paragraph 21(f) of the Defence Written Submissions arises as an issue for a Basha inquiry. That topic is: What discussions Ms AB had with the relatives, being members of the Lin family, including her grandparents and relatives overseas, about whether the Accused was the murderer of her family. 6. It may be that a submission can be advanced which identifies a permissible forensic purpose within the limits of a Basha inquiry for that line of question, but I am not presently persuaded that the test is satisfied. 7. I propose to make an order in terms of paragraph 1 of the Notice of Motion. This judgment will, I hope, provide some guidance on the scope of questioning which I will permit at any pretrial hearing, the extent of which, as I have said, will remain under the control of the Court as the questioning proceeds. 8. As already stated, I propose to make an order with respect to Professor Parkinson, in accordance with paragraph 2 of the Notice of Motion. 9. Accordingly, I make an order that Ms AB is to attend Court to give evidence at the preliminary hearing held in advance of the trial. 10. I make an order that Professor Patrick Parkinson is to attend Court to give evidence at the preliminary hearing to be held in advance of the trial. 11. Those examinations are to be conducted in accordance with the terms of the judgment I have just delivered. ********** Amendments 28 February 2017 - Publication restriction on coversheet amended. 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