R v Xie (No 13) [2015] NSWSC 2125

Supreme Court New South Wales

Medium Neutral Citation: R v Xie (No 13) [2015] NSWSC 2125 Decision date: 16 June 2015 Jurisdiction: Common Law - Criminal Before: Fullerton J Decision: Leading questions not to be asked in respect of some subject areas Catchwords: CRIMINAL LAW – application under s 42 of the Evidence Act Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: ASIC v Rich [2006] NSWSC 643; 201 FLR 207 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Lee v R [1998] HCA 60; 195 CLR 594 R v Xie (No 16), Fullerton J, 23 July 2015 Stack v Western Australia [2004] WASCA 300; 151 A Crim R 112 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 Crown applies under s 42 of the Evidence Act 1995 (NSW) for an order that what it anticipates will be the leading questions asked of Mrs Kathy Lin (the wife of the accused) in cross-examination by the accused's counsel be disallowed or, if they are asked in the form of a leading question or questions, that she be directed not to answer them.

The legislation and matters of principle 1. That section provides as follows: 42 Leading questions (1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it. (2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which: (a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and (b) the witness has an interest consistent with an interest of the cross-examiner, and (c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and (d) the witness's age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness's answers. (3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used. (4) This section does not limit the court's power to control leading questions. 1. A leading question is defined in the Dictionary to the Evidence Act as a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question, or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked. 1. Section 42 appears to derive from the general power of s 26, which provides as follows: 26 Court's control over questioning of witnesses The court may make such orders as it considers just in relation to: (a) the way in which witnesses are to be questioned, and (b) the production and use of documents and things in connection with the questioning of witnesses, and (c) the order in which parties may question a witness, and (d) the presence and behaviour of any person in connection with the questioning of witnesses. 1. Written submissions, prepared at an interlocutory stage of the proceedings before Johnson J in May 2014, supplemented the oral argument of the parties before me. The written submissions were, however, of only limited assistance in informing the matters in ss 42(2)(a)-(c), since the only evidence that Mrs Lin had given as at May 2014 was in the committal proceedings in August 2012. Her examination and cross-examination was limited by the order for her attendance in that forum. 2. The parties have addressed the operation of the various legislative provisions under the Evidence Act set out above and the principles that apply when the exercise of the Court's supervisory powers falls to be considered (see ASIC v Rich [2006] NSWSC 643; 201 FLR 207 at [19], where Austin J determined that the application of s 26 was subject to s 192 of the Evidence Act). 3. I was not referred to any authority in this Court, or from intermediate courts in other states where the Uniform Evidence Act applies, as to how the particular power in s 42 is to be interpreted. I am, however, assisted by the observations of the Court of Appeal in Stack v Western Australia [2004] WASCA 300; 151 A Crim R 112 and, in particular, the detailed analysis of the history of cross-examination and its role in a criminal trial in that judgment. Although Western Australia does not have a legislative provision equivalent to s 42 of the Evidence Act, the Court of Appeal overturned a conviction after the trial judge prevented the accused's counsel from asking leading questions of a Crown witness because he was Aboriginal, it being the view of the trial judge that the witness was likely to engage in gratuitous concurrence for cultural reasons. The Court was satisfied that was a wrong exercise of the Court's discretionary power to control proceedings under the general law. 4. I have also had regard to the observations of the High Court in Lee v R [1998] HCA 60; 195 CLR 594 where at [32] the Court observed that, traditionally, cross-examination provides an opportunity to confront a witness called by the opposing party. Although, as the Evidence Act makes clear, cross-examination is not an absolute right, it is usually exercised free of judicial restraint, in the interests of ensuring that the evidence is interrogated fully and fairly, including the use of leading questions amongst other forensic techniques, to ensure against any disinclination on the part of a witness who might be partisan to the calling party to accept propositions put by a cross-examiner in a non-leading way. 5. In Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 [at 117], Heydon J made the following observations which are, in my view, more apposite in the situation of a witness who is sympathetic to the cross-examiner or allied to the interests of the accused: The law grants considerable power to a cross-examiner to employ leading questions and otherwise to operate free from some of the constraints on an advocate examining in chief. It does so for particular reasons. In New South Wales at least, normally in a criminal case an advocate cross-examining an accused person will have had no contact with the witness being cross-examined before the trial, and will have no instructions about what that witness will say, apart from whatever the witness said to investigating officials acting on behalf of the State or to other persons to be called as witnesses in the prosecution case or in documents to be tendered in that case. But a cross-examiner's ordinary powers are, in a practical sense, much diminished when the witness being cross-examined is the client of the advocate conducting the cross-examination. The cross-examiner who persistently asks leading questions of a witness in total sympathy with the interests of the cross-examiner's client is employing a radically flawed technique. The technique is the more flawed when the witness is not merely in total sympathy with the client, but actually is the client. For an inevitable appearance of collusion between an advocate and a client who had many opportunities for pre-trial conferences is suggested by the persistent use of leading questions in these circumstances. It is an appearance which is likely to be ineradicable, and which is likely to cause the value of the evidence to be severely discounted. This risk is avoided if the client is giving the evidence in chief rather than under cross-examination, for the client's advocate is severely restricted in the capacity to ask leading questions in chief. 1. Although I am informed by Mr Turnbull that he has not conferred with Mrs Lin, there is, at the very least, an appearance of some collusion between Mrs Lin and the accused before he was charged concerning their account of various of their actions on and after 17 July 2009 which Mr Turnbull may exploit, even if unwittingly, by asking leading questions, consistent with his client's instructions, by which he is bound. 2. It is not the potential for that approach to devalue Mrs Lin's evidence in the jury's assessment which grounds the Crown's application under s 42. The structure and style of a cross-examination on behalf of an accused, and what is sought to be achieved from it in meeting or challenging the Crown case, is essentially a matter for the forensic judgment of the cross-examiner. What the Crown's application under s 42 is concerned with in this trial is the potential for leading questions asked in cross-examination to extend to counsel putting to Mrs Lin propositions she is invited to simply assent to in respect of a range of matters in issue in the trial in circumstances where she is the only witness available to the Crown as to those matters and where she is unquestionably a witness who has a clear interest to support her husband's defence (s 42(2)(b)) and who has shown herself sympathetic to the cross-examiner as her husband's counsel (s 42(2)(c)) in questions asked of her in committal proceedings. 3. The Crown submitted that the considerations in s 42(2)(d) were irrelevant to the exercise of the discretion under s 42(2) to direct that non-leading questions not be asked or to disallow leading questions that might be asked. To the extent that the accused relied upon what Mr Turnbull submitted was Mrs Lin's psychological condition, discussed in the report from Pranjal More, psychologist, dated 18 March 2015, in support of the submission that he should be permitted to ask leading questions of her, the Crown submitted that was to misconstrue the intended operation of s 42(2)(d). In the Crown's submission, application of the canons of statutory construction to the terms in which s 42(2)(d) is expressed, and its inclusion in s 42(2) as a criterion against which to consider whether leading questions should be disallowed, compels the conclusion that the subsection is concerned with witnesses who are susceptible to suggestion by reason of their age, or because they suffer from a "mental, physical or intellectual disability" and, for that reason, that leading questions, which would be likely to affect the reliability of any answers, should not be asked. In my view, that is a correct interpretation. 4. Assuming that s 42(2)(d) might be capable of being construed in the way contended for by the accused, after having seen Mrs Lin give evidence over many days, I am not satisfied that her current psychological condition has affected her ability to answer questions, or that it has "affected her answers" such as to entitle cross-examining counsel to put leading questions to her. Despite Mrs Lin's obvious distress at times during the course of her evidence, she seems to me to have been able to bring the necessary focus to the questions asked of her in chief and under cross-examination by the Crown with leave (even if on occasions she seemed determined to avoid answering them). She also seemed to me to be readily able to appreciate the importance of her evidence to the matters she must be taken to know are in issue in the trial and, in crucial respects, to know the importance of her evidence to the case the Crown brings against her husband.