R v Xie (No 15) [2015] NSWSC 2126

Supreme Court New South Wales

Medium Neutral Citation: R v Xie (No 15) [2015] NSWSC 2126 Decision date: 23 June 2015 Jurisdiction: Common Law - Criminal Before: Fullerton J Decision: Witness would have been required to give evidence were objection taken Catchwords: CRIMINAL LAW – evidence – compellability of spouse – whether court satisfied that witness aware of entitlement to object to giving evidence as a witness for the prosecution under s 18 of the Evidence Act Legislation Cited: Criminal Procedure Act 1986 (NSW) 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: On 11 June 2015 in the course of Mrs Lin being cross-examined by Mr Turnbull SC, an issue arose concerning the application of s 18 of the Evidence Act 1995 (NSW). As at that date, Mrs Lin had given evidence before the jury over the course of ten days, albeit with lengthy breaks from time to time. 2. Section 18 of the Evidence Act provides: … (2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required: (a) to give evidence, or (b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution. (3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later. (4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person. … 1. The application of the section was not raised either by me or by counsel when Mrs Lin was first called to give evidence in the trial, or prior to that when her pending appearance as a Crown witness was discussed, including on some occasions when she was represented by Ms Cook of counsel. For my part, that was in part because I had a recollection of the matter being canvassed and resolved before Johnson J and also because I simply overlooked clarifying the position with counsel and Mrs Lin before she commenced giving evidence. It also appears that counsel also overlooked raising it with me, both having proceeded on the assumption that because Mrs Lin had expressly disavowed taking the objection in the committal when she gave evidence at the Court's request following a direction under s 93 of the Criminal Procedure Act 1986 (NSW), she would not take the objection at the accused's trial. 2. Mrs Lin gave evidence at the committal proceedings in August 2012 over the course of a number of days. On 21 August, Mr Corish of counsel appeared on behalf of Mrs Lin and informed the presiding Magistrate that Mrs Lin did not intend to make an application under s 18(2) of the Evidence Act. The Magistrate had the following exchange with Mrs Lin: HIS HONOUR: I will just indicate a couple of things to you. It has been indicated to me by Mr Corish, the counsel who appears for you as your legal representative, that you don't intend to object to giving evidence in these proceedings. I understand you to be the wife of the accused in these proceedings and, as such, you have a right to object to giving evidence. Now, I am required to satisfy myself that you are aware of the effect of the section which allows you to object to giving evidence. I assume that you have been advised of your right to do so and if your objection was upheld you wouldn't be required to give evidence. Now, is it the situation that you have been given legal advice and you understand that you do have a right to object to giving evidence. This has to be recorded so I am going to have to ask you to keep your voice up, so I will just ask you again. You have received some advice from Mr Corish, your legal advisor? MRS LIN: Yes. HIS HONOUR: And I take it he has explained certain things to you as to your right to object to giving evidence? MRS LIN: Yes. HIS HONOUR: Is it the situation that after obtaining that legal advice you do not wish to make an objection to giving evidence? MRS LIN: Yes. HIS HONOUR: You are indicating yes, all right. In those circumstances I am satisfied, as per the requirements of s 18 of the Evidence Act that the witness is aware of the right to object to giving evidence in the circumstances but that, after receiving that legal advice she does not wish to make such an objection. 1. Upon the Crown's further researches, it was confirmed that on 19 May 2014, when Mr Odgers SC appeared on Mrs Lin's behalf before Johnson J, Mr Odgers informed his Honour that he had explained the effect of s 18 to Mrs Lin, and her right to object to giving evidence as the wife of the accused, and that she did not intend to take the objection. There was the following exchange between his Honour and Mr Odgers on that occasion: ODGERS: Yes, perhaps I should make one thing clear. A question was raised at some point about whether or not an application would be made pursuant to section 18. HIS HONOUR: I was going to raise that. ODGERS: And I wanted to inform the Court that a decision has been made not to make such an application. HIS HONOUR: So that, in fact, is the first question, I suppose, before one gets into these other issues. ODGERS: Yes. HIS HONOUR: Mrs Lin, as the spouse of the accused, has the capacity to object under section 18 which would then require a ruling. But you are indicating that Mrs Lin will not object-- ODGERS: That's correct. HIS HONOUR: --to give evidence in the Prosecution case, and, therefore, the argument today can proceed on that basis. ODGERS: Yes, your Honour. I think there are some obligation in terms of explaining her rights to her. HIS HONOUR: Yes. ODGERS: I can indicate to your Honour that I have provided that explanation to her, and I can indicate to your Honour that – can I just say this by way of introduction? As your Honour would no doubt appreciate, this has been a terribly traumatic experience for her, both initially when the events occurred and since then, and that will be a relevant consideration, I think, in respect of the other applications today. Certainly in her mind there was an issue about whether or not she was prepared to go through more trauma in relation to giving evidence. As I have indicated on balance, she has concluded that she is prepared to do so. I just flag as relevant that there are issues about her state of mind and ongoing depression and other aspects relating to her mental well-being which are relevant, I respectfully submit, to the other issues that arise today. But, yes, it has been explained to her by me what her rights are and she has chosen not to object to giving evidence. 1. That trial, which commenced before Johnson J in May 2014, was aborted prior to Mrs Lin being called to give evidence. Mrs Lin did not give evidence during the (aborted) second trial in August 2014. 2. Both counsel submitted that, despite it being clear that on two previous occasions Mrs Lin had informed the Court that she both understood her rights under s 18 to object to giving evidence as a witness called by the Crown and had determined she would give evidence, I should, nonetheless, inquire of her whether she was aware of her right to object to giving evidence in the trial before me and to confirm what both counsel assumed to be her (continuing) preparedness to do so. 3. In the absence of the jury, I reminded Mrs Lin that she had informed the Magistrate at the committal proceedings that she had received legal advice in relation to her right to object to giving evidence, that she understood that she had that right and that she had resolved not to exercise it. Mrs Lin agreed that the effect of s 18 was explained to her by Mr Corish but that she had understood that she was required to give evidence. She then accepted my offer to seek further advice as to the operation of s 18 before informing me about the position she intended to take in this trial. (It was in the interim that the Crown identified the transcript of proceedings before Johnson J in May 2014 extracted at [5] above.) 4. When the Court reconvened, Mr Averre of counsel appeared on Mrs Lin's behalf. He confirmed that he had provided advice to her as to the operation of s 18. Mrs Lin then indicated to me that, although Mr Averre had explained the operation of the section to her, she remained confused about certain matters and was therefore not in a position to advise whether she would object to giving further evidence. She requested additional time to speak with Mr Averre. I afforded her that opportunity. 5. After conferring further with Mrs Lin, Mr Averre initially advised me that she wished to obtain other legal advice and, ultimately, other legal representation for the remainder of her evidence and that she was not, for that reason, in a position to advise me of her position. To that end, and notwithstanding the fact that s 18 expressly provides that the question as to whether or not a witness intends to object to giving evidence is one that should be resolved prior to the commencement of that witness' evidence, (no doubt in order that, if objection is taken, consideration can be given to requiring the witness to give evidence as contemplated by ss 18(6) and (7)), the section does not prevent a witness seeking advice, or even after they have commenced to give evidence. In fact, on one reading, s 18(2)(b) contemplates that may occur in circumstances where objection is taken to giving particular evidence only. 6. When Mrs Lin returned to Court (with Mr Averre), with his encouragement and the encouragement of both the Crown and Mr Turnbull, I reminded Mrs Lin that she had eschewed taking the objection on two previous occasions after receiving advice from two members of counsel and, on both occasions, that she had indicated to the Court that she understood her right to refuse to answer questions on the basis of the advice she had received at that time. I also indicated to Mrs Lin that the question I had asked her earlier that morning was an ordinary incident of a criminal trial where the operation of s 18 has relevant application, and that she should not think that the issue arose, when it arose, because of any view I might have concerning the evidence she had given in the trial to that point. 7. Mrs Lin again sought advice from Mr Averre, after which she informed me that she would not take the objection under s 18 and that she would continue to give her evidence. 8. Since Mrs Lin ultimately resolved that she would not object to giving evidence, and I was satisfied she had been given every opportunity to seek advice from counsel before informing me of that fact, it was not necessary for me to consider whether I would require Mrs Lin to give evidence despite any objection she might have taken under ss 18(6) and (7), or to make any enquiry of Mrs Lin, or of counsel, as to the matters to which ss 18(6)(a) and (b) are directed. (6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and (b) the nature and extent of that harm outweighs the desirability of having the evidence given. (7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following: (a) the nature and gravity of the offence for which the defendant is being prosecuted, (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it, (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor, (d) the nature of the relationship between the defendant and the person, (e) whether, in giving the evidence, the person would have to disclose [a] matter that was received by the person in confidence from the defendant. 1. Were I to have had occasion to give consideration to the operation of ss 18(7) or (8), the fact that Mrs Lin is a witness whose evidence is relied upon by the accused, despite being called by the Crown as a witness in the Crown case, is a most material consideration. In particular, she has given evidence of an alibi, albeit challenged by the Crown which, should the Crown be unable to disprove beyond reasonable doubt, will result in an acquittal. In addition, the evidence before me is that, far from there being any harm that might come to Mrs Lin, or any damage occasioned to her relationship with her husband by giving evidence in his trial, her support for her husband continues, to the extent that they have had contact throughout the trial through weekend visits at the prison with their marriage enduring over the course of his remand. 2. In all the circumstances, I can see no reason why I would not have required Mrs Lin to five evidence in the accused's trial as a witness called by the Crown were she to have taken the objection under s 18(1) or s 18(2).