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. The Crown's application and certain procedural questions 1. Mrs Lin has now given evidence in chief in the trial. She has also been cross-examined by the Crown with leave under s 38 of the Evidence Act, having given evidence that I was satisfied was unfavourable to the Crown in a number of critical respects (s 38(1)(a)). To a lesser extent, I was also satisfied that she had not made a genuine attempt to give evidence about material matters (s 38(1)(b)) and had made a number of prior inconsistent statements (s 38(1)(c)) (R v Xie (No 16), Fullerton J, 23 July 2015). She was also cross-examined upon some matters going to the credibility of her answers to each of the matters encompassed by my ruling under s 38(1), and to her credibility generally, it being put to her by the Crown that she had deliberately tailored her evidence to assist her husband's defence in certain critical respects. 2. At the point at which the Crown now applies for an order or a direction under s 42, Mrs Lin has been cross-examined by Mr Turnbull about matters either not the subject of controversy in the trial or by leading questions not relied upon by the Crown as warranting making an application under s 42. 3. Mr Turnbull opposed any restrictions being placed on the form of the questions he proposes to ask in his further cross-examination of Mrs Lin, whether referable to the specific power in s 42 of the Evidence Act or the general power in s 26 of the Act. 4. In his submission, the Crown has not laid any, or any sufficient, foundation to restrict his questioning to non-leading questions referable to the criteria in ss 42(2)(a)-(c), and that the occasion for the exercise of the power under s 42(3) has not arisen when the manner, style and content of such leading questions as he might utilise in his testing of Mrs Lin's evidence "as to the facts concerned" has not been ventilated such as would allow me to make a judgment that they would be "better ascertained if leading questions were not used". 5. Strictly construed, the power in s 42(1) to direct that a leading question not be asked by the cross-examiner, and the discretionary considerations in s 42(2) that inform its exercise, is to be exercised on a question by question basis, as distinct from questions of a leading kind being disallowed about a subject matter or a series of subject matters. However, when applying the mandatory language of s 42(3), the question is whether I am satisfied that the facts the subject of the proposed areas of cross-examination would be better ascertained (which I take to mean adduced) by non-leading questions. 6. In some circumstances (and this case is clearly one of them) it is open to a party, in reliance upon s 192A, to invite the Court to give a direction of the kind contemplated in s 42(1) in advance of cross-examination commencing or, if cross-examination has commenced, in advance of questioning upon areas or issues that are said by the party seeking the order to either invoke the considerations in ss 42(2)(a)-(c) justifying a direction under s 42(1) or mandating that questions be disallowed under s 42(3). 7. Where an advance ruling under s 192A of the Evidence Act is sought, it seems to me that it is neither practical nor desirable that the strict terms in which ss 42(1) and 42(2) are expressed (that is, by a reference to disallowing a question) should limit the Court's determination of the way in which the witness is questioned in cross-examination, particularly where on the same application the Court will be invariably asked to disallow leading questions under s 42(3). For avoidance of doubt, I consider that the general power in s 26(a) to regulate the way in which witnesses are questioned allows for that approach. That is particularly the case in circumstances where (as here) there are a number of contentious subject areas that are likely to be the subject of questioning by the cross-examiner with a view to eliciting evidence favourable to the accused, in circumstances where the Crown has called that witness in discharge of its obligation to call relevant and reliable evidence bearing upon the facts in issue in the trial, but where the Crown does not embrace all of that witness' evidence as truthful and/or reliable. That the Crown may have made an application under s 38 for leave to cross-examine that witness which was granted provides a further and in my view a proper basis for the Crown seeking an advance ruling, since the partiality of the witness will be likely to have already been exposed in cross-examination by the Crown with leave. 8. That said, it also seems to me that an advance ruling under either s 42(2) or s 42(3), and the terms in which it is expressed, taking into account the criteria in s 192(2), will, as a practical matter, only be possible where the areas that are expected to be the subject of cross-examination can be identified with reasonable particularity. 9. The Crown has identified eight areas in respect of which an order is sought that non-leading questions not be asked of Mrs Lin. They are as follows: 1. Dropping Henry and Terry home at Boundary Road on the evening of 17 July and the circumstances relating to Mrs Lin closing the door (including the appearance of the house – for example, whether the lights were on or off); 2. What occurred at Beck Street between 10pm on 17 July and 9am on 18 July; 3. Entry into the premises, specifically, entry into Bedroom 1 on 18 July; 4. The fact that nobody checked the bodies to confirm they were deceased; 5. Circumstances surrounding the making of the triple-0 calls, including the accused taking his son back to Beck Street; 6. The "roadside" conversations after the accused returned to Boundary Road from collecting the grandparents; 7. The period at Hornsby Hospital, including communications regarding finding Min's body; and 8. Other matters, including storing shoes and shoe boxes at Boundary Road (including the surveillance device transcripts of 6 May 2010). 1. I made it clear in the course of argument that I was not persuaded that there was any legitimate basis for a direction that no leading questions on any of the eight subject areas be asked. Even were I persuaded (and I am not) that either the power to disallow leading questions in s 42(3) or to direct that they not be asked under s 42(2) has been made out in respect of each of the eight areas, consideration of the criteria in ss 192(2)(a) and (b) would auger against leave being granted to prohibit any leading questions that may be framed by Mr Turnbull as the cross-examiner in respect of each subject area. Some leading questions will invariably need to be put to focus Mrs Lin's attention on matters that are sought to be tested by him or that are introductory to questions he intends to ask. 2. The question that remains is whether the Crown has made out a case for an order or a direction that non-leading questions not be put in respect of any of the eight subject areas, in particular, because of the capacity of the answers to mislead the jury by answering or addressing the exposed deficiencies in Mrs Lin's evidence in a way that is productive of unfairness in the presentation of the Crown case (s 192(2)(b)) and, if so, the terms upon which such an order or direction might be expressed. 3. The Crown has conceded that in respect of some aspects of some of the eight subject areas where Mrs Lin's evidence is adverse to the accused, there should be no restriction on cross-examination, including by Mr Turnbull asking leading questions. This would seem to me to include the account Mrs Lin gave to police when she was interviewed on 22 March 2010, to the effect that she did not know whether the accused got out of bed after she and he retired for the night in the early hours of 18 July 2009 and before she woke later that morning. While there may be other areas or issues about which Mrs Lin has given evidence which may be considered "adverse" to the accused, they have not been identified in submissions to date. 4. Before turning to consider whether I am satisfied that the facts the subject of any of the eight separate subject areas would be better ascertained if leading questions were not used (the test under s 42(3)) or whether, again in respect of any of the eight areas, I should direct that non-leading questions not be asked because of Mrs Lin's expected gratuitous concurrence with Mr Turnbull as the cross-examiner (the issue to which ss 42(2)(b) and (c) is directed), it is necessary to review the evidence Mrs Lin has already given concerning each of the eight areas. It seems to me that it is only by undertaking that enquiry that the question whether there should be either a prohibition on leading questions, in whole or in part, can be addressed. Subject area 1: Dropping Henry and Terry at Boundary Road on the evening of 17 July and the circumstances relating to Mrs Lin closing the door (including the appearance of the house – for example, whether the lights were on or off) 1. In her interview with police on 20 July 2009, Mrs Lin said there were no lights on in the upstairs area of the house when she arrived with the accused and her son to drop off the children. In her evidence, Mrs Lin was unable to remember whether, at any time after they had arrived at Boundary Road to drop off the children, there were lights on upstairs. She did say there was a light on in the room next to the kitchen, an account she had also given to police. She was not asked whether she turned the light off as she left through the front door, locking it behind her. 2. There is no issue between the parties that Mrs Lin locked the front door to the house before leaving through that door and that the accused and her son were outside at that time waiting for her, having both left through the garage. Ruling on subject area 1 1. I am not satisfied that any basis has been made out under s 42(2) or s 42(3) to limit any questions Mr Turnbull may wish to put on this subject area to questions in a non-leading form, principally because I am not aware as to what her further evidence might be such as to allow for an assessment of the kind required under ss 42(2) and (3). To the extent that Mrs Lin recovers a memory of lights being on upstairs, where she has consistently said there were either no lights on upstairs or she could not recall whether there were any lights on, either by a leading question or a non-leading question being put, there is no prohibition on the Crown making a submission to the jury in closing address that her evidence should be regarded as having been motivated by a desire to assist her husband by giving answers to questions asked by his counsel that are diametrically different from answers to questions asked by the police and by the Crown. Subject area 2: What occurred at Beck Street between 10pm on 17 July and 9am on 18 July 1. Mrs Lin gave evidence that she and the accused went to bed at about 2am, after arriving home having dropped the children at Boundary Road at about 10.30 the night before. She said that the accused showered and went to bed and that she showered after him and also went to bed. She could not recall how long it took for her to fall asleep. Mrs Lin said that she and the accused slept in the same bed and that she slept on the side of the bed against the wall. When asked whether she felt in any way "sedated" before she fell asleep, Mrs Lin said she felt "normal" and was not taking any medication at that time. 2. Mrs Lin also gave evidence that the accused would, on occasion, get up in the night to use the bathroom and, if he did, that she would know because she is not a deep sleeper and would hear the lavatory flush. When asked whether the accused got out of bed during the early hours of 18 July after they had gone to bed, she said "As I know, no". She also said he did not leave the house that night. 3. In the course of cross-examination by the Crown with leave, Mrs Lin was reminded of what she told police during her interview on 22 March 2010, namely that she could not recall what time she fell asleep on the night of 17 July, or whether she woke up at all during the night, and that she did not know whether the accused got out of bed that night. 4. When the Crown asked Mrs Lin to confirm, as at the date of that interview, that she did not know whether or not the accused got out of bed that night, the following exchange occurred: Q: Is that right? A: But, as I know, that night my husband didn't get out of the bed? Q: No, please listen to my question, please. As at 22 March 2010 you had no idea whether or not your husband had got out of bed that night, correct? A: (No verbal response). Q: Is that right? A: (No verbal response). Q: Is that right? A: Sorry, I just thinking the Chinese meaning, yeah. That day I can give the answer, I don't know. … Q: You knew then that your husband was a suspect for the murders, right? A: Yes. Q: You knew that the police were asking you whether he had got up that night, right, and you told the police that you didn't know, right? A: As I say, that days I not want to go to give the interview and that's the‑‑. 1. The Crown again put to Mrs Lin that she had no idea whether or not the accused got up that night and left the house, to which she said, "As I know, he didn't get up. If he get up I know him". When it was put to her that she was lying about her state of knowledge in order to protect the accused, she answered, "No. In my first record of interview I already told the police my husband didn't get out and didn't get out of bed". 2. Mrs Lin gave evidence in chief that she and the accused got out of bed at the same time on 18 July 2009, namely at about 8am. She said she spent some time with her son in his bed, before having a shower and then she went looking for the accused. She said he was not inside the house when she got out of the shower. She said that she found him in the garage where he told her that he had been doing some gardening. When Mrs Lin was asked questions as to whether she had seen the accused cleaning the garage floor at any time, the following exchange took place: Q: Had you ever seen Robert cleaning the floor of his garage? A: You mean that day? Q: No, no, at any time at all? Have you ever seen Robert cleaning the floor of his garage? A: You mean generally?. Q: Generally? A: Generally sweep because dust and the leaves, something, yeah. I will clean, my husband will clean. Yeah, my husband clean most of the time. Q: You have seen him cleaning the floor? A: Just normally‑‑ Q: Sweeping? A: Sweeping, yes. Q: Have you ever seen him cleaning the floor in any other way, the floor of the garage? A: I can't recall. Q: Was there any particular time of the week that Robert would sweep his garage floor? A: I don't have idea because garden and garage he look after. Q: Was it unusual for him to clean his garage on a Saturday morning? A: No. Q: Early in the morning, before 9 o'clock or around 9 o'clock on a winter's morning, would it be usual or unusual to find Robert in the garage? A: No. Q: Were you aware of any reason why the garage floor may have needed cleaning that Saturday morning, 18 July? A: He do the gardening. After gardening he will ‑ yeah, he will clean. 1. When asked if she knew whether the accused went out in the car on the morning of 18 July before she got up, Mrs Lin said "We same times get up. He didn't go out". 2. In the course of cross-examination by the Crown under s 38, Mrs Lin was referred to the answers she gave to the Crime Commission on 6 May 2010. On that occasion, she said that the accused was still in bed when she got up, and when asked by the Commissioner if she was sure about that, she said "I can't be that sure". The Crown then asked the following questions: Q: I suggest to you that you have no idea what time Robert got up on the morning of 18 July 2009? A: That day the same time with me. Q: I suggest to you that you just don't know and that you're lying about that? A: No, I give the time ‑ time to the police in my first interview. Ruling on subject area 2 1. The Crown has proved (or will prove) as a prior inconsistent statement what Mrs Lin told police as to her lack of awareness of the accused's movements after they went to bed and, as I anticipate, seek the admission of that statement as evidence of the fact. 2. I do not propose to make an advance ruling that all questions Mrs Lin may be asked with a view to explaining that inconsistency be asked in a non-leading form. I will, however, disallow any leading questions that suggest, directly or indirectly, that she believed or suspected that police were motivated to "frame" or otherwise falsely implicate the accused, or questions directed to suggesting, directly or indirectly, that she asked for, or was given, any particular legal advice as to how she should answer police questions on the issue. In all the circumstances, I am satisfied that any explanation she may wish to give as to the position she took under police questioning in March 2010 is, to use the test in s 42(3), better ascertained if non-leading questions are asked. 3. I am also satisfied that any questioning of Mrs Lin on the question whether she was sedated, or might have been sedated without her knowledge, also be asked in a non-leading form. On this issue (bearing as it does on both whether she was aware if the accused left the house in the early morning and whether she can truthfully or reliably account for his movements on her waking) I am also satisfied that any evidence Mr Turnbull intends to adduce in cross-examination is better ascertained in the form of non-leading questions. This will allow the jury to consider Mrs Lin's evidence without the questions asked of her suggesting, either directly or indirectly, the answer she should give concerning her sleepiness or wakefulness on the morning of 18 July 2009. Subject area 3: Entry into the premises, specifically, entry into Bedroom 1 on 18 July 1. Mrs Lin has given evidence of the circumstances in which she and the accused entered Bedroom 1 both in answer to questions asked in chief, by leading questions asked by the Crown to which no objection was taken, and then leading questions asked by leave under s 38 of the Evidence Act. 2. In her evidence in chief she said she went up the stairs to the first floor with the accused following directly behind her. She said that the curtains in the room were closed and that she did not pay attention to whether or not the lights were on, but that she could "see the things" because it was "daytime". 3. As to the circumstances in which she saw the deceased Lily Lin, she said: Q. Would you tell us what happened when you entered your brother's bedroom? A. Yeah, during that time we call, yeah, we call "brother, brother", and we straight away into his room and my husband behind me and asked me, "Not look" and he hug me, but I already turn…turned around and I…I…I…I saw…I saw blood. I saw my sister in law. 1. Her further evidence in chief is exemplified in the following exchange: Q. Mrs Lin, as you entered your brother's bedroom, before your husband put his arms around you, what were you able to see in the bedroom? A. You mean before we went to his room? Q: No, as you were entering the room, before your husband put his arms around you, were you looking straight ahead? Did you see something on the wall? A: I turning – I was – yeah, I'm turning, turning, so I just saw the blood, the red mess. Q: Before you saw the blood? A: Then I saw my sister-in-law. Q: Before that, did your husband put his arms around you before you saw your sister-in-law? A: I can't recall, but just he said – hug me, but I already saw everything. Q: Before you saw the blood? A: Then I saw my sister-in-law. Q: Did he tell you not to look and did you then look and see your sister-in-law? A: But as he said, I already look. My husband – my sister-in-law, I saw them first. 1. Mrs Lin was asked by the Crown to mark on a plan (Exhibit BBB-N) the position in which both she and the accused were standing when the accused told her not to look. Mrs Lin said that they were "already in in (sic) my brother's bedroom … around the end of the bed". In answers given to questions in relation to those markings, she explained: A: We are in the same position. He just next to me-- Q: Could you mark where your husband was, please? A: He just next to me – I can't remember. ... A: Just closer than interpreter with me, the position. … Q: You have marked with a red pen where your husband was standing at that time? A: We are together. He just next to me. Q: Was he next to you or was he behind you? A: We are at the same, just next to. Q: Next to each other or was he behind you? A: At the time just suddenly thought that what if – I can't even think but he hug me. We're – it's closer than the interpreter with me. Q: Did he put his arms around you from behind you? A: I can't remember – he hug me. I know he didn't want me to see the blood. He didn't want me to see the horrible scene. 1. In the course of cross-examination with leave, the Crown invited Mrs Lin to consider the content of a conversation that was recorded on a surveillance device on 29 April 2010, after she and her husband had been interviewed by police and after she had received the summons to attend the Crime Commission. It was put to her that she and her husband were endeavouring to co-ordinate their evidence as to the circumstances in which Lily's body was found. She denied that was the case. She was then asked the following questions: Q. See, Mrs Lin, do you agree that the time that your husband put his arms around you you had not yet seen your sister in law's body? A. I already…I say when he hold me and say "not look" I already turned around and saw the body. Q. At the time he first put his arms around you you had not yet seen your sister in law's body, had you? A. I saw that. Q. And I suggest to you you were just inside the door of that bedroom? A. We are already in the room. Q. And I suggest to you that from the position where your husband was behind you he would not have been able to see anybody on the bed? A. We saw that. What we saw I told. … Q. I suggest to you, Mrs Lin, that from the position where your husband was behind you when he put his arms around you, that he would not have been able to see anybody on the bed? A. No. We are position already in the room. What I saw I already tell. Q. And I suggest that you are deliberately lying to this court when you say that you saw your sister in law's body before he put his arms around you? A. As I say, I didn't lie. When he hold me and tell me not look, my body already turn and I already saw the horrible sight. Q. And I suggest that you're deliberately lying in an attempt to protect your husband? A. No, I tell the truth. I tell what I saw in that…that moment. 1. In the course of further cross-examination with leave, the Crown played Mrs Lin an extract of her interview with police on 20 July 2009 where she described entering the bedroom and first observing Lily's body. The Crown suggested to Mrs Lin that the description she gave to police at that time was a more accurate version than that which she had given in evidence. She agreed that she told police that she only turned around and saw Lily after the accused had hugged her from behind and told her not to look and, ultimately, that that was what had in fact occurred. 2. Mrs Lin was also reminded of the answers she had given to police in her second interview on 22 March 2010. In that interview, she was unable to pinpoint on a diagram of the bedroom drawn by her where she and the accused were standing when he hugged her. She could only say that she "just walking a little bit" into the bedroom. When directed to those answers, and asked whether she agreed that was what she had said (and that that was what occurred), Mrs Lin said she could not recall. Ruling on subject area 3 1. Mrs Lin's evidence on this issue has been the subject of extensive questioning. I am well satisfied that any questions of Mrs Lin that suggest that she was, or was not, standing in one position in the bedroom over another, or that, from a given position in the room she did, or did not, have the same line of sight as the accused (whether before or after she was "hugged" by him) should be disallowed under s 42(3). In coming to that view I have taken into account the fact that Mrs Lin and the accused have discussed this aspect of their account to police in a conversation recorded on a surveillance device, and the jury will be invited to consider that evidence when assessing the accuracy and reliability of her account of how she entered Bedroom 1 and where the accused was positioned when he told her "not to look". 2. I do not propose to make an advance ruling that all questions Mrs Lin may be asked with a view to explaining what she and her husband were doing when discussing how they entered the bedroom (as recorded on the surveillance device) be asked in a non-leading form. I will, however, disallow any leading questions directed to suggesting, directly or indirectly, that she believed or suspected that police were motivated to "frame" or otherwise falsely implicate the accused; or that police were intent on tricking her and her husband into implicating themselves in some way; or that she and her husband believed they had been misunderstood or had not clearly enough explained their actions when originally questioned by police. I am satisfied, in all the circumstances, that any explanation she may wish to give as to why she and the accused seemed to rehearse the circumstances in which the bodies of Min and Lily Lin were found is better ascertained if non-leading questions are used. Subject area 4: The fact that nobody checked the bodies to confirm they were deceased 1. Mrs Lin gave evidence that neither she nor the accused checked Lily Lin to confirm whether or not she was still alive when they discovered her body. In respect of Irene Lin, Mrs Lin said that the accused attempted to check to confirm whether or not Irene was deceased but that she stopped him, and she said she could not remember whether she or the accused checked the bodies of the two deceased children. 2. In cross-examination with leave, the Crown asked Mrs Lin what action she took to stop the accused from checking Irene's body, to which she said: I can't recall, but I just ‑ probably say he want to go in ‑ I can't recall. Maybe he want to go in to check, so I drag him back, but I can't recall. 1. The following exchanged ensued: Q. Do you think you might have dragged him back? A. I can't recall. The things happen too, yeah, just suddenly, yeah, found the bodies. Q. Why did you try and stop your husband checking to see if Irene was still alive? A. Same, like before I said, before we found them we didn't expect we found the bodies, so when we found the bodies from my ‑ the first things we need to call the police and ambulance and let the police and the ambulance officer tell us what happen. Q. But your husband had been a doctor in China, hadn't he? A. Yes, long time ago he was. Q. Why did you try and stop him seeing whether he was able to help Irene if she was still alive? A. I think probably protect the crime scene, let the police or ambulance officer tell us what happen. Q. So, were you more concerned about protecting the crime scene than you were about providing any assistance to Irene? A. Because that time no time thinking. Just I want to call the police and, yeah, ambulance officer. Ruling on subject area 4 1. I am not able to anticipate what leading questions (if any) may be put in cross-examination on this issue such as to call for the question or questions being disallowed or a direction that Mrs Lin not answer them. The cross-examination by the Crown, as extracted above, seemed to be more concerned with Mrs Lin's actions, or her failure to take action, upon finding the bodies of the deceased, rather than those of the accused. I will, however, consider any application by the Crown for a direction under ss 42(2) or (3) in the absence of the jury in the event that questions are put which, in the Crown's submission, properly ground an application of that kind. Subject area 5: Circumstances surrounding the making of the triple-0 calls, including the accused taking his son back to Beck Street 1. In evidence in chief, Mrs Lin said that she suggested to the accused that he take their son to Beck Street to quarantine him from the events at Boundary Road, and that she asked the accused to then drive to Merrylands and pick up her parents. She said that she did not ask the accused to return to Boundary Road after dropping their son at home, and that after the accused left in the car with their son she telephoned emergency services. She rejected the suggestion put by the Crown that it was the accused's idea to collect her parents from Merrylands, or that she became scared because of what had happened at Boundary Road and did not want him to leave. She said she became scared while talking to the operator because she did not understand what was being asked of her and that it was for that reason she asked the accused to telephone her parents and have them travel to Boundary Road on their own, but that she then changed her mind and asked the accused to pick them up. Mrs Lin maintained that she was not begging the accused to stay with her, as illustrated in the following question and answer: Q: What do you say to the suggestion that you were begging Robert not to go away from where you were? A: I am not begging to him. I ‑ before I said I ask my husband, "Send my son to the home", and ask my husband to go to my parents' home and pick up. When the operator, yeah, ask me question, I don't know how to answer, I stop him and I want to call my parents, ask my parents and take train, come to my brother's house. I ‑ yeah, because weekend, so I change mind. I ask my husband, "Go to my parents' home to pick up them, quickly to back", and my husband, yeah, left. 1. Mrs Lin agreed that, either while she was speaking to the operator or waiting to be connected with police, the accused drove past her and she asked him to stop, but she denied that she had an argument with him because he would not stay with her: Q: See, I suggest to you that, during that call, you were having a loud argument with Robert in which you were asking him not to go, but to stay with you until the police arrived and he refused and he left you there? A: I don't have argument with my husband. Just operator make me upset. He can't help me. I just want the police, the ambulance came to tell me what happened in the house. 1. Mrs Lin also agreed that she telephoned the accused during the time that he was absent from Boundary Road, but denied that she did so because she was scared by what she had witnessed at Boundary Road. She explained: Q: Would it be true to say that you called him because you were scared? A: No. Q: Do you remember telling the police, in your first police interview, "Because I'm scared I call my husband"? Do you remember saying that to the police? A: The scare is I don't know how to answer the police question. I don't know how to answer the operator's questions. Q: Please answer my question: Do you remember saying to the police, "Because I'm scared I call my husband"? A: Yes. Q: And was that the truth? A: The truth, I don't know how to answer the operator's question. He put the question too much. I don't know‑‑ Q: I suggest to you that you called your husband because you were scared because of what had happened inside the house at Boundary Road? A: As I say, the operator make me very upset. I don't know how to answer the questions. 1. Mrs Lin maintained that position when asked questions by the Crown with leave: Q: Do you remember me asking you whether you had an argument with Robert when you were begging him to stay at Boundary Road? A: No. No, I didn't beg him. Q: You said there was no argument, no begging. That's what you said? A: Yes, no argument, no begging. Q: And you also denied saying to Robert that you were more scared than he was? A: As I say, my scared because operator put the question, I don't know how to answer. Q: You denied saying to Robert that you were more scared than he was. Do you remember saying that? A: That's like ‑ as I say, the operator made me frustrate. I don't know how to answer. I needed the operator ‑ the police and ambulance to came. Q: Do you remember telling this court that you had not said to Robert that you were more scared than he was? A: This operator made me frustrate. 1. Mrs Lin was provided with the recordings of the triple-0 calls and a copy of the transcript of those calls, and given the opportunity to listen to the recordings prior to being cross-examined by the Crown with leave. Mrs Lin gave evidence that the translator had incorrectly translated some words and some whole sentences, and that she would need to refer to notes that she had made of what she believed the correct translation to be. 2. The relevant extract of the triple-0 call was played in Court, after which further questions from the Crown were asked with leave: Q: Mrs Lin, going back to page 6 [of the transcript], did you hear yourself say, "You stay here, you stay here, wait, wait a bit." A: No, I can't hear. Q: Did you hear yourself say the words that are represented by the Chinese characters in your copy above the English? A: Yes, I saw that, but that times I'm struggle to answer the operator's questions. Q: But did you hear yourself say those words in Chinese that are written there in the copy in front of you? A: No, no, no. Q: Do you agree that they have been correctly translated? A: I'm not agree because it's ‑ I ‑ I ‑ I didn't say that. I'm struggle to answer the operator's question. … Q: And in the next entry for yourself, ignoring the first few words which I don't really understand, did you say: "Wait for the police to come. No, no way, I am not allowing it. Wait for the ‑ wait for a while for the police to come first. I don't know how to talk. Be quick. Move." Q: Did you hear yourself saying those things on the recording? A: No, it's not clear because talk too fast. … Q: Did you say to your husband, "I am not allowing it." A: No, I didn't say that. Q: Did you say, "Wait for a while for the police to come here first." Did you hear that? A: No, I can't hear. Q: You can't hear that? A: Yeah, talking too fast. 1. After informing the Court that she needed to refer to her own notes of the translation in order to give a proper answer, and after having referred to her notes (without producing them), Mrs Lin maintained the position (for the most part) that she could not hear the words in the recording; that what was being said was unclear; that the "talking" was too fast; and/or that she "didn't say" what was attributed to her. Ruling on subject area 5 1. To the extent that it is intended that Mrs Lin be invited to offer an alternate interpretation to the words attributed to her or the accused in the English translation of the triple-0 calls, I am satisfied this should be done other than by way of leading questions. In addition, she should not be asked, in the form of a leading question or questions, whether she can discern or hear particular words said in Cantonese (either said by her or by the accused) although, of course, that may be explored with her by questioning that does not assume that any particular words can or cannot be heard. In circumstances where, in her evidence in chief and under cross-examination with leave, Mrs Lin was given an opportunity to volunteer an alternate translation of some particular words and phrases relied upon by the Crown as evidencing fear on her part and a pressing wish that the accused not leave (including the opportunity to listen to the recording privately), and that no alternate version was proffered by her, I am satisfied that to use leading questions in cross-examination that suggest that particular words are either not discernible, that other words were said, or that the words used in Cantonese convey a different meaning than the meaning attributed by Mr Au, the translator, (being facts in dispute in the trial), should be disallowed under s 42(3) having regard to the range of considerations I have already noted as relevant to the tests posed by ss 42(2) and (3). Subject area 6: The "roadside/guardianship" conversation after the accused returned to Boundary Road from collecting the grandparents 1. Mrs Lin was asked whether there was an occasion outside 55A Boundary Road, on the street or the grass, where she and her husband were speaking to her parents. She denied that there was any such occasion. She denied that her mother said words to the effect that they would need to rely upon Mrs Lin and the accused "from now on", or that she said anything to her parents to the effect that they should not worry because they would be cared for (this was the effect of evidence given by the grandparents). She also denied that the accused made any offer to "take [Ms AB] as [their] adopted daughter", or words to that effect. She also denied saying herself that she would treat Ms AB "as if she was our own". In short, she said there was no discussion concerning Ms AB outside Boundary Road that morning. Ruling on subject area 6 1. I am unable to see what facts concerning this issue might be better ascertained if leading questions were not used, or that leading questions on this subject area would reflect anything additional in terms of the matters specified in ss 42(2)(a)-(c) that might attract a direction that leading questions not be put. Mrs Lin has already given evidence, in emphatic terms, that there was no occasion when she and her husband had any opportunity to speak with her parents in the terms in which her parents have given evidence. However, to the extent that the issue is explored by Mr Turnbull in cross-examination by leading questions in a way that I cannot predict, I will allow the Crown to make a further application under s 42 for a direction of the kind contemplated by the section in the absence of the jury. Subject area 7: Communications regarding the location of Min Lin's body 1. In her evidence, Mrs Lin said she could not recall whether, at any time while she, the accused and her parents were at Boundary Road, either she or the accused suggested to the police that Min Lin's body might have been upstairs. She said she could not recall whether she told her husband, when he arrived back with her parents, that police had only found four bodies. She was unable to give any explanation for the calls she placed to Min Lin's mobile phone, including the call placed at 1.45pm from Hornsby Hospital, other than as follows: Q. Can you think of any other reason that you may have called your brother on his mobile phone at 1.45 other than to try and contact him to see if he was alive? A. I can't remember. Q. Can you now think of any other reason why you may have called your brother's mobile phone? A. Maybe I believed police say they only find the four bodies, but that day, that moment, I can't even thinking what things I do, so I can't remember how many calls ‑ what things I do. Q. I'm asking you now, today, here in court: Can you think of any other reason why you may have called your brother's mobile phone number at 1.45 on that day? A. I can't thinking the reason that moment why I call, but that day is very, very shocking for me. Q. Can I suggest to you that you were still trying to find your brother alive? A. I don't know, but I just lost that day. 1. She gave evidence that she recalled having a conversation with Nurse Edwards at the hospital, but could not recall the substance of what was said. She said she did not hear the accused tell Ms Edwards that they could not find Min Lin but that they thought he was the lump in the bed. When she was asked in cross-examination by the Crown with leave whether it was possible that her husband had said words to that effect to Ms Edwards, she said she could not recall. 2. It was suggested to Mrs Lin by the Crown (without objection) that when Detective Nuttall arrived at the hospital, the Detective said that police needed to know where her brother was, and that she then told the officer that she thought he was in the bed under the doona. It was Mrs Lin's evidence that Detective Nuttall told her that Min had been found "deceased" under the doona on the bed because she recalled the officer using the word "deceased", being an English word with which she was unfamiliar. 3. Mrs Lin denied that she said to Detective Nuttall that Min was "in bed at the house" or that she saw the "lump" in the bed where Min normally slept and that she went to pull the doona down but was stopped by the accused. Mrs Lin said that, at that time, she did not know the words "doona" or "lump". 4. When she was asked whether the accused told her that he thought Min was under the doona on the bed, she said the family only spoke with the nurse and did not have any discussions amongst themselves about Min's whereabouts. 5. Mrs Lin agreed in cross-examination by the Crown that she had told the triple-0 operator that she had not seen her brother's body. Ruling on subject area 7 1. I will not allow leading questions to be put that suggest, directly or indirectly, that Mrs Lin (or the accused) nominated any particular number of deceased to police at the scene, that she in fact saw Min Lin's body in the bed, albeit covered by bedclothes (or that she discussed that with her husband), or that she suspected that was where her brother would be found and that her suspicions were eventually communicated to the nurse or to the police. 2. I am satisfied that, in all the circumstances, any explanation Mr Turnbull may wish to adduce from her as to her belief or suspicions about the whereabouts of her brother, her motivations for seeking to contact him by phone, and the circumstances in which she came to learn that her brother's body had been found, including those she spoke to about it, are facts, to use the test in s 42(3), that are better ascertained if non-leading questions are asked. Subject area 8: Other matters, including storing shoes and shoe boxes at Boundary Road (including the surveillance device transcripts of 6 May 2010) 1. In examination in chief, Mrs Lin was asked whether the accused did anything in relation to "shoeboxes" or "a bucket" on the night of 6 May 2010 and/or the morning of 7 May 2010 after she had been to the Crime Commission. She said "I can't recall". She agreed that she had seen a video recording of that date, which the Crown alleges (and the accused admits) depicts him cutting up shoeboxes and mixing the remnants with water in a bucket, creating a slurry that he then flushes down the toilet. When asked what she saw the accused doing in that video, Mrs Lin said: A: He doing his stuff, I doing my stuff. Q: What is "his stuff"? A: I ‑ that times when we sorting out our ‑ the paper, lots of ‑ the paper, but I can't recall, too many things to do. Q: But you've seen the video. What did you see on the video? A: Some ‑ yeah, some box or something. I can't see very clear, the video. Q: Having seen that video, do you remember what he was doing that night? A: He doing his stuff, I doing my stuff and during that times [my son] and [Ms AB] at home too and they are eating, we have some conversation with [my son] and [Ms AB]. 1. In cross-examination with leave, the Crown reminded Mrs Lin of the evidence she gave at the committal proceedings, where she said that she either could not remember the accused doing anything on the night of 6 May 2010 in relation to the destruction of shoeboxes, or that the video footage that she was shown was "not clear". She was also reminded that at the committal she was asked directly whether the accused was cutting up a shoebox, and that she answered, "It's not a shoebox, just a flat something", however, she could not recall what the "flat something" was. The Crown also referred her to evidence at committal where she said that it was not clear whether the sound of scissors cutting could be heard on the audio. The Crown reminded Mrs Lin that, when asked by Mr Turnbull at committal whether she had seen the accused cutting up boxes that night, she said "Yes". Notwithstanding the fact that the Crown had refreshed her memory by showing her still footage of the surveillance device recording (Exhibit BBB-M) and by reference to evidence she gave at committal in the course of cross-examination, Mrs Lin maintained that she could not recall whether she saw the accused cutting up shoeboxes on the night of 6 May 2010. 2. Finally, Mrs Lin was shown a document in which the accused made admissions under s 184 of the Evidence Act to cutting up shoeboxes on the night of 6 May 2010 (Exhibit 67). Having read that document to herself, the following exchange occurred: Q: Would you like me to repeat the question? Do you still maintain that you can't remember if Robert cut up shoeboxes on the night of the 6th going into the 7th of May 2010? A: I can't remember, because that day Crime Commission whole day, I'm very, very upset, they put me the questions. I feel, yeah. Q: Do you remember Robert removing any blue stickers bearing his name from boxes that night? A: I can't remember. As I remember, I doing my stuff and he doing his stuff after watched the video. Q: Do you remember Robert putting some cut‑up pieces of cardboard into a bucket of water that night? A: I can't remember. Q: Do you remember Robert taking a white bucket into the toilet? A: From the video, yeah, I saw that, but I can't remember. Q: Do you remember the toilet flushing and Robert returning with an empty white bucket? A: Yeah, I can't remember, but from the video, yes. Q: Do you remember Robert placing blue stickers, which bore his name, into the garage bin in your study room? A: Yeah, I can't remember. Q: I suggest to you, Mrs Lin, that you are deliberately lying about your memory of the events that night in a desire to protect your husband? A: No, because I sat the whole day in Crime Commission; the question they put me has made me very, very upset and, as I say, I can't remember, I doing my stuff, my husband doing his stuff. 1. Mrs Lin was shown a series of photographs (Exhibit AAA-G) depicting the accused wearing ASICS sports shoes in 2006. Mrs Lin could not recall when or where the accused purchased that pair of shoes, or how long he kept them for. She did, however, give evidence that the accused would wear the same pair of shoes every day and when the shoes were worn, she would throw them away. She said that she threw the particular pair of shoes depicted in the photographs in the bin "a couple of years" after the accused had purchased them and that it was "before the tragedy … maybe 2007". 2. Mrs Lin could not recall whether that particular pair of shoes was purchased in a shoebox or not, but that during 2006 the accused "mostly" purchased shoes overseas in either China or Hong Kong and they did not come in a box. 3. In cross-examination with leave, the Crown referred Mrs Lin to her evidence at the committal proceedings, where she said she had "no idea" when or where the accused purchased the shoes shown in the photograph. The Crown also referred Mrs Lin to the fact that, in this trial, she had given two different accounts in respect of those shoes, namely that she could not remember where the accused purchased the shoes and that the accused purchased them in Hong Kong. When asked which version was correct, she said: I don't know where ‑ I don't know which, Hong Kong or China. Generally my husband brought the shoes from Hong Kong or China before police search our home. 1. In relation to the discarding of the particular pair of shoes the accused was wearing in the photographs, Mrs Lin was also reminded of the evidence she gave at the committal, to the effect that she had no idea how many years the accused kept that pair of shoes but that "He never threw those shoes". When it was suggested to her that she did not throw the shoes out and that, in fact, she had no idea what happened to them, she said: No, in my home all the shoes I sorting out, if we are not wearing, wear, I put in the box in on top and if the shoes were old, my son's shoes were old, my husband's shoes were old, my shoes were old, I throw in the bin. All the shoes I look after. Ruling on subject area 8 1. This subject area comprehends two areas of fact as they relate to ASICS-style sports shoes. The first is the fact that the accused destroyed and disposed of a number of shoeboxes on 6 May 2010, the evening after Mrs Lin was informed by the Crime Commission that the murderer wore ASICS-style sports shoes. That is not in issue in the trial. The accused has made admissions under s 184 of the Evidence Act in those terms. Mrs Lin's evidence in the trial to the effect that she was unaware of her husband destroying shoeboxes, her claimed failure to recall having given contrary evidence in cross-examination by Mr Turnbull at the committal, and the question whether she communicated to her husband what she had learnt from the Crime Commission, is evidence relevant both to a fact or facts in issue and to her credit. 2. To the extent that an explanation for the obvious inconsistency in the evidence she has given here and at the committal is sought to be adduced from her in cross-examination, I am satisfied that, other than leading questions being legitimately put to draw her attention to the source of any inconsistency Mr Turnbull wishes to explore, leading questions are not to be put to suggest any particular explanation for it. 3. The second issue concerns Mrs Lin's evidence about the circumstances in which she last saw or dealt with the shoes worn by the accused in the photographs. Her evidence on this issue has been canvassed at length and inconsistencies exposed in the various explanations and accounts she has given. 4. Other than leading questions being legitimately put to draw her attention to the source of any inconsistency, leading questions should not be put that directly or indirectly suggest any explanation she may give for the inconsistency. Leading questions should also not be put to suggest the existence of any other fact relevant to this issue that she has not already given in evidence or that is not otherwise established by the evidence. ********** 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: 01 March 2017