R v Xie (No 4) [2015] NSWSC 2117

Supreme Court New South Wales

Medium Neutral Citation: R v Xie (No 4) [2015] NSWSC 2117 Decision date: 19 March 2015 Jurisdiction: Common Law - Criminal Before: Fullerton J Decision: Application for leave is granted Catchwords: CRIMINAL LAW - application for leave under s 39 of the Evidence Act Legislation Cited: Evidence Act 1995 (NSW) 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: At the conclusion of the re-examination of Brenda Lin, the Crown sought leave to ask a question about a matter that had not been the subject of examination in chief. 2. In order to determine whether the question would be objected to, and the related question as to whether (assuming its admissibly) leave should be granted to ask it, the Crown Prosecutor framed the question he proposed to ask as follows: Q: During the time that you were living at Beck Street with the accused, that is, between August 2009 and the date of his arrest in May 2011, at any time did you see him cleaning the floor of his garage? 1. He also advised the Court, and defence counsel, that he expected the answer to the question would be "No". 2. Mr Turnbull SC submitted that the question was inadmissible on a number of independent grounds. 3. His primary submission was that the question (and the anticipated answer) failed to satisfy the test of relevance in s 55 of the Evidence Act 1995 (NSW). He submitted that because Ms Lin had given evidence that whilst she was living at Beck Street she attended school each weekday during the school term and participated in extra-curricular activities after school and on weekends, for the Crown to seek to establish as a further fact, and by leave, that she had not seen the accused sweep or clean the garage floor whilst she was living there was to ignore, what the Crown should be taken to accept, were the occasions when the accused might have done so when she was not at the house. In those circumstances, Mr Turnbull submitted that her further evidence that she had not seen the accused sweep or clean the garage floor could not rationally affect an assessment of the probability of the fact in issue in the trial to which the evidence is directed, that is, whether the accused's account to police that he did clean and/or sweep the garage floor on the morning of 18 July 2009 was available to the Crown as an admission (that is, a statement against the accused's interest). 4. By seeking a grant of leave, the Crown accepted that the question could not properly be asked of Ms Lin in re-examination, there having been no cross-examination on the issue. At least implicit in the application for leave is the Crown's further acknowledgment that it was a question that should have been asked of Ms Lin in evidence in chief but it was overlooked or forgotten. Viewed in that way, the question is not deprived of the capacity to rationally affect proof of whether the accused's account to police was an admission because Ms Lin had given general evidence as to her activities whilst she was living at Beck Street, any more than the relevance of any evidence under challenge is to be assessed referable to other evidence that may contradict or undermine the weight or reliability of the evidence. The weight of evidence and its admissibility are distinct questions, the former is a matter for the tribunal of fact and the latter a question of law. 5. I am satisfied that the fact that Ms Lin did not see the accused ever sweep or clean the garage floor on the occasions she was at Beck Street, being the 20 or so months she was living there, is capable of rationally affecting the jury's assessment of the question whether what the accused said he did on the morning of 18 July 2009 was a routine or unexceptional aspect of his home maintenance or an admission against interest, it being the Crown case that the accused cleaned and/or swept the floor of the garage on 18 July for the purpose of ensuring that the deceased's blood, transferred or dropped on the floor from bloodstained items he had in the garage, was removed. 6. No submissions were directed to the application of s 192 of the Evidence Act. It was accepted that Mr Turnbull would be entitled to cross-examine Ms Lin if leave were granted and, I note, he did so. 7. Even were Ms Lin's evidence relevant, Mr Turnbull submitted that because the evidence is directed to proving some aspect of the accused's conduct (in this instance that he did not customarily or routinely clean or sweep the garage floor), the tendency rule in s 97 of the Evidence Act was invoked, and because the evidence failed the significant probative value prerequisite to admissibility in s 97(1)(b), the question should not be allowed to be asked. 8. The Crown submitted that Ms Lin's observations were not led to prove that the accused had "a tendency" or a propensity not to routinely clean or sweep the garage floor, but for a non-tendency purpose and, accordingly, s 97 had no application. The non-tendency purpose relied upon by the Crown is to prove the fact that the accused did not clean or sweep the garage floor on any occasion of which Ms Lin was aware, after 18 July 2009 up to and including his arrest in May 2011, whether habitually, routinely, occasionally or at all. The Crown submitted that it was entitled to prove that fact to demonstrate that what the accused told police of his cleaning or sweeping the garage floor on the morning of 18 July 2009, before the bodies of the deceased were found at approximately 9.40am, should be interpreted by the jury as inconsistent with any genuine effort on his part to innocently account for his movements at Beck Street, but as evidencing the steps he took (albeit imperfectly) on his return to Beck Street after murdering the deceased to ensure that any evidence implicating him in their murder would be removed. 9. I am satisfied that Ms Lin's further evidence is neither led for a tendency purpose nor that it invites the jury to employ tendency or propensity reasoning. For that reason, the tendency rule in s 97 is not invoked. 10. Mr Turnbull sought to invoke the coincidence rule in s 98 of the Evidence Act and the application of the significant probative value test in s 98(1)(b) as an alternate basis for the evidence being ruled inadmissible. That submission was not developed. I am unable to see how the coincidence rule has any application to Ms Lin's further evidence.