Supreme Court New South Wales Medium Neutral Citation: R v Xie (No 2) [2015] NSWSC 2116 Decision date: 03 February 2015 Jurisdiction: Common Law - Criminal Before: Fullerton J Decision: The notice of motion is dismissed. Catchwords: CRIMINAL LAW – pre-trial hearing – application by accused for previous evidence of certain witnesses to be read out and tendered in pending trial as entirety of those witnesses evidence – where witnesses competent and available to give evidence in pending trial Cases Cited: BUSB v R [2011] NSWCCA 39; 209 A Crim R 390 Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180 Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435 R v Xie (No 10) [2014] NSWSC 1976 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 Lin 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 by Johnson J on 10 June 2014 in circumstances detailed in his Honour'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 led evidence from Yang Fei Lin (Mr Lin) and Feng Qin Zhu (Mrs Zhu), respectively the father and mother of the deceased Min Lin. They had each given their evidence before the discharge of the jury. 9. The Crown intends to call Mr Lin and Mrs Zhu in the pending trial. I accept that their evidence is important in the presentation of the Crown case. This is reflected in the comprehensive Crown case statement extensively referred to in a number of interlocutory judgments published in the course of the first and second trials and in the Crown's opening address in both trials. 10. By an amended notice of motion filed on 2 February 2015, the accused seeks orders that the transcripts of the evidence of Mr Lin and Mrs Zhu, and the evidence tendered through them in the second trial, be tendered as constituting the entirety of their evidence in the pending trial and that their evidence be read to the jury. A further order is sought that there be no further evidence adduced from either witness. 11. The accused relied upon an affidavit from his solicitor, Ms Greiner, in support of the orders sought. She annexes to her affidavit the edited transcripts of the evidence of each of Mr Lin and Mrs Zhu in the second trial together with a schedule of all of the exhibits tendered in the course of their evidence, including a list of the documents marked for identification. The exhibits include excerpts from audiovisually recorded police interviews with both witnesses conducted during the investigative phase prior to the accused being charged. 12. The evidence of both witnesses was given with the assistance of interpreters (as were their police interviews). In the second trial Mr Lin gave evidence over nine days comprising 307 pages of transcript. Mrs Zhu gave evidence over nine days comprising 208 pages of transcript. 13. In her affidavit, Ms Greiner proposes that actors be retained at the accused's expense to personify what each of four people are recorded as saying on the written transcript. Those people include Johnson J (the presiding judge); the interpreter (who provides the English translation of the answers given by each of the witnesses to questions asked of them either by counsel or the presiding judge); and the Crown prosecutor and defence counsel. It is anticipated that the "re-enactment" would occupy seven hearing days in the pending trial. 14. The Crown opposes the orders sought. 15. Without objection, the Crown tendered statements from each of Mr Lin and Mrs Zhu dated 30 January 2015. Each expressed a preference for giving their evidence in the pending trial in person, again with the assistance of an interpreter. Neither witness suggests that they were overwhelmed at that prospect or that they experienced any stress in the preceding trials despite the time taken for their evidence to be adduced. Neither suggested that they suffered any negative impact on their mental or physical health. 16. In the Crown submission no legitimate basis has been made out for depriving the Crown of the opportunity to invite the jury to consider the demeanour of each of the witnesses in the assessment they will need to make of their credibility and reliability generally and, in particular, where the accused, through his counsel, has put to both witnesses that they have lied in material respects in their account of conversations with the accused after the murders. In the Crown's submission, both of the witnesses are competent and available to give evidence in the ordinary way. In addition, the Crown submitted that the proposal that there be a "re-enactment" of the witnesses giving their evidence is unnecessary and for the Court to allow a "re-enactment" (whether of the entirety of their evidence or some parts of it) constitutes an unjustified interference with the Crown's entitlement to present its evidence in the way it considers will best advance proof of the Crown case. 17. Counsel for the accused invited the Court to exercise its inherent power to make the orders sought as being reasonably necessary to secure the proper administration of criminal justice and to promote and protect due process and the provision of a fair trial. Counsel emphasised in submissions the ambit of the Court's inherent power to control its own processes to prevent an abuse of process, to develop rules to regulate and protect its procedures and processes and that the categories for the invocation of its exercise are not closed but may be exercised where the Court is satisfied it is necessary to do so. The existence of the Court's inherent power and the principles underpinning its exercise are not in doubt (see Jago v District Court of NSW [1989] HCA 46; 168 CLR 23). The question raised by the accused's notice of motion is whether the facts and matters pertinent to the exercise of the discretion are present in this case. 18. Accepting that a test of necessity qualifies the exercise of the Court's inherent power to control its own processes and proceedings (see Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435 at [51]), and that it is applied with varying degrees of strictness, with a higher level of strictness where its exercise impinges upon a fundamental principle of the administration of criminal justice (see BUSB v R [2011] NSWCCA 39; 209 A Crim R 390 at [33]), the application of the test in this case is whether I am satisfied that the orders sought are "reasonably required or legally ancillary to" ensuring a fair trial of the accused so as to prevent injustice (see Pelechowski at [51]). 19. The accused relies upon a number of separate grounds of necessity. In summary, they are as follows: 1. The witnesses will not be called to give lengthy evidence when, in the accused's submission, there is no need for them to do so. 2. The re-enactment will allow the jury to focus its attention upon the "important matters" in the trial and not be required to sit through weeks of evidence that is not in any "real dispute". 3. The re-enactment will substantially reduce the length of a third trial in circumstances where the accused is privately funded. 4. As the presiding judge, I will not be faced with the prospect of trying to control the witnesses who have, in the accused's submission, demonstrated themselves to be belligerent and defiant in the past by persistently giving non-responsive and discursive answers. Both counsel will also be relieved of having to control the witnesses. 1. I am not persuaded that either individually or in combination any of these so-called grounds of necessity have been made out sufficient to require the Crown, by order, to submit to a forensic procedure for the adducing of admissible evidence of Mr Lin and Mrs Zhu. I am not persuaded that there is any erosion to the accused's fundamental right to a fair trial fairly conducted by them giving evidence in the ordinary way. It is not to the point that the accused submits that there is either no unfairness to the Crown in the proposed re-enactment or that any unfairness is minimal (a matter about which I am not persuaded in any event), or even that there may be a saving of both time and costs by the proposed re-enactment. Against the Crown's opposition to the orders sought, it is for the accused to persuade me that the orders should be made. I am not so persuaded. 2. In Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180 at 189-190 the majority made the following observation which, subject to recognition of statutory exceptions, is of continuing application in the administration of criminal justice in this State: The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct. A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury's discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence. 1. In advance of the witnesses being called in the pending trial in circumstances where they have both been extensively examined and cross-examined in two previous trials, counsel will no doubt make their own forensic judgment as to the matters to be adduced in both examination in chief and cross-examination, informed by the age and situation of both witnesses and by the concession made by counsel for the accused in submissions that much of their evidence is not in contest. 2. Accordingly, the notice of motion is dismissed. ********** 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