R v Xie (No 16) [2015] NSWSC 2127

Supreme Court New South Wales

Medium Neutral Citation: R v Xie (No 16) [2015] NSWSC 2127 Decision date: 23 July 2015 Jurisdiction: Common Law - Criminal Before: Fullerton J Decision: Leave granted on limited terms Catchwords: CRIMINAL LAW – Crown application for multiple grants of leave under s 38(a), (b) and (c) of the Evidence Act to cross-examine the accused's wife – consideration of s 192 of the Evidence Act Legislation Cited: Crime Commission Act 2012 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Victims Rights and Support Act 2013 (NSW) Cases Cited: Doyle v R; R v Doyle [2014] NSWCCA 4 Kanaan & Ors v R [2006] NSWCCA 109 R v Le [2002] NSWCCA 186; 54 NSWLR 474; 130 A Crim R 44 R v Xie (No 11) [2015] NSWSC 2123 R v Xie (No 12) [2015] NSWSC 2124 R v Xie (No 13) [2015] NSWSC 2125 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 Publication restriction: Section 15A Children (Criminal Proceedings) Act 1987 operates to prohibit publication of the name of Ms DE or anything that may tend to identify that person

Judgment 1. HER HONOUR: On 23 February 2015, the Crown served a notice on the solicitor for the accused advising that it was the intention of the Crown to seek a grant of leave under s 38 of the Evidence Act 1995 (NSW) to question Mrs Lin as though the Crown were cross-examining her. 2. Section 38 of the Evidence Act identifies in s 38(1) each of the areas upon which leave may be granted as follows: 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. … (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. … 1. Leave is governed by s 192 of the Evidence Act which provides: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) ... 1. The notice served by the Crown on 23 February 2015 referred to a previous notice dated 30 September 2013 and the Crown's written submissions dated 16 May 2014. It also referred to oral argument before Johnson J on 19 May 2014 on the question whether leave should be granted under s 38 to cross-examine Mrs Lin, and the Crown's further letter to the accused of 10 September 2014. (His Honour did not ultimately rule on the Crown's application. The first trial was aborted on 10 June 2014.) 2. I understand that the only relevance of this material to the Crown's application for leave under s 38 mounted in the course of Mrs Lin's evidence before me (although foreshadowed before she was called) was to establish that the Crown's intention to seek a grant of leave, first communicated to the accused in advance of the first trial commencing in February 2014, has been unwavering since that date. While s 38(6) provides that the timing of notice is a consideration that may be taken into account in considering whether leave should be granted, neither party submitted that it was material on this application. 3. Each of the subject areas identified in the notice served in 2013 were substantially overtaken by a document prepared by the Crown as Mrs Lin's evidence in chief was being adduced. In that document (in its final form marked in the proceedings as MFI 269), 20 subject areas in respect of which leave was sought to cross-examine were particularised by reference to Mrs Lin's evidence in chief and, in respect of some areas, to prior inconsistent statements relied upon by the Crown as justifying a grant of leave under s 38(1)(c). 4. Other aspects of Mrs Lin's evidence were said to be either unfavourable to the Crown (attracting leave under s 38(1)(a)) or concerned matters which indicated a lack of preparedness on her part to make a genuine attempt to give evidence (under s 38(1)(b)). In respect of some specific issues or subject areas, the application for leave was based upon a combination of unfavourability and either Mrs Lin's prior inconsistent statements or what was said to be her repeated resort to a failure of recall, rather than making a genuine attempt to answer the question or questions asked of her. 5. Mr Turnbull submitted that the Crown should be refused leave to cross-examine on each of the 20 enumerated subject areas identified in MFI 269. He submitted that because the Crown's actual objective was an attack on Mrs Lin's credit as a means of bolstering the Crown case, leave should be refused under ss 38(1)(a)-(c), and that no basis had been made for a grant of leave under s 38(3). He also submitted that the probative value of any evidence that may be adduced with leave, on any of the grounds relied upon by the Crown, would be substantially outweighed by the danger that it would be unfairly prejudicial to the accused and that it should be excluded under s 137 for that reason. 6. Insofar as the Crown sought leave under s 38(1)(c), Mr Turnbull submitted that in considering whether there are any inconsistencies between Mrs Lin's evidence and previous statements such as might attract a grant of leave, the fact that Mrs Lin has been asked to recount, on repeated occasions, the traumatic events of 18 July 2009 cannot be ignored and neither can the fact that English is not her first language. He submitted that what the Crown relied upon as inconsistencies between what she said in evidence in chief and what she has said on previous occasions are, on a fair reading, no more than her different recollections of the same event at intervals of months or years, or different ways of describing the same event in different forums over that same time frame. That being the case, he submitted that to allow the Crown to cross-examine Mrs Lin about her previous statements as if they reflect a material change in her account of those events, was not a proper invocation of the power under s 38(1)(c) and that it would also be productive of unfairness to Mrs Lin and leave should be refused under s 192(1)(b) for those reasons. 7. To the extent that the Crown identified aspects of Mrs Lin's evidence as "unfavourable", whether as an additional or alternate basis for a grant of leave to cross-examine, Mr Turnbull submitted that her evidence in respect of some of the 20 identified areas in MFI 269, in particular, the support she gives to the accused's account to police that he was in bed when the deceased were killed, is simply incompatible with the Crown case theory of the accused's guilt (a case that he submitted presumes the guilt of the accused rather than a case which is fairly based on evidence probative of his guilt), and that was not enough to render her evidence "unfavourable" under s 38(1)(a), in the sense that it is evidence which undermines or contradicts the evidence probative of the accused's guilt, or evidence which has that effect. 8. Insofar as concerns the application for leave to cross-examine under s 38(1)(b), Mr Turnbull submitted that there was no legitimate basis for the Crown to assert that Mrs Lin has not made a genuine attempt to give evidence about any of the various matters the Crown directed her to in the course of her evidence in chief. He submitted that the occasions when she claimed no recall, in particular, about the events of 18 July 2009, it should not be assumed that was a ruse adopted by her to avoid answering the Crown's questions, such as to permit the Crown to challenge her lack of recall, or lack of detailed recall of those events, as false. He submitted that, viewed in the context of the time that has elapsed since the murders, the nature of the investigation that culminated in the arrest of the accused in May 2011 and the number of occasions that Mrs Lin has been asked by interrogating police and the New South Wales Crime Commission ("the NSWCC") to state or restate discrete details of her perception and actions and those of the accused when the bodies of members of her extended family were found, there is nothing in her answers, or in her demeanour in the witness box, to ground the submission that her failures of recall are not genuine. 9. Mr Turnbull also submitted that the Crown Prosecutor had exceeded the legitimate bounds of his examination in chief in the manner and the form of the leading questions he has already asked Mrs Lin in respect of some issues (as to which see later). For that reason, he submitted that the mandatory considerations of fairness to the accused and Mrs Lin provided for in s 192(2)(b) dictated that I should refuse any further cross-examination of Mrs Lin in respect of those issues. 10. In Mr Turnbull's submission, because Mrs Lin is a "victim of crime" (see s 5 of the Victims Rights and Support Act 2013 (NSW)), considerations of fairness in s 192(1)(b), in respect of each of the three substantive bases under s 38(1) relied upon by the Crown for leave to cross-examine, were of such weight that leave should be refused. In respect of some of the 20 subject areas relied upon by the Crown in MFI 269 (in particular, the circumstances in which Mrs Lin found the deceased on 18 July 2009 and her triple-0 call to emergency services to report it), Mr Turnbull submitted that to grant leave to the Crown after Mrs Lin had become visibly and volubly distressed in her evidence in chief, would necessarily result in her reliving again the trauma of the discovery of the bodies, carrying with it the risk of creating an unfair and misleading impression of her reliability, when her demeanour should be understood as a result of her psychological vulnerability. In support of that submission, he relied upon a report of 18 March 2015 from Mrs Lin's treating psychologist, Pranjal More, in support of that submission. In the report, the psychologist said: On the 17th of October 2012 I diagnosed Mrs Shu Lin as suffering from Major Depressive Disorder and Generalised Anxiety Disorder. She had been experiencing the following symptoms: ● Depressed mood most of the day ● Markedly diminished interest and pleasure in activities that were previously enjoyed ● Loss of energy ● Feelings of worthlessness ● Diminished ability to think and concentrate ● Sleep disturbance For over 12 months Shu had been experiencing: ● Excessive, uncontrollable anxiety and worry ● Easily fatigued ● Difficulty concentrating ● Restlessness and feeling keyed up and on edge ● Irritability ● Persistent Anger These symptoms tended to cause impairment to her daily functioning. 1. Ms More went on to report that Mrs Lin had made "slow but steady" progress since commencing treatment in late 2012 and, although she continued to experience "depressed mood and stress", there had been a significant reduction in the symptoms associated with her anxiety. On a previous occasion, I indicated that I was not satisfied that Mrs Lin's psychological condition, as reported upon by Ms More, affected her ability to answer questions in the trial, or that it had any obvious impact on the answers she has given in the trial. I have also previously observed that, although Mrs Lin exhibited distress during the course of giving evidence, she seemed to have a capacity to focus on the questioning by both counsel and that she had an understanding and appreciation of the importance of her evidence in the trial and the need to contain her emotions where she could (see R v Xie (No 13) [2015] NSWSC 2125). 2. In written submissions, jointly authored by Mr Turnbull, as senior defence counsel, and Mr Fernandez, as junior defence counsel, a further submission was advanced to justify the Crown's application being refused which requires separate consideration. It was submitted that the history of the investigation, and the various pre-trial stages through which the trial has progressed, has revealed the Crown Prosecutor to have breached his professional obligations of objectivity and fairness. In support of that submission, it was alleged that the Crown had prepared the questions which Mrs Lin was asked under compulsion at a NSWCC hearing on 26 September 2011, three months after the accused was charged. 3. It was also submitted that the Crown's initiation of additional lines of inquiry in the course of this trial, resulting in the admission of coincidence evidence against the accused (see R v Xie (No 12) [2015] NSWSC 2124), has compromised the Crown Prosecutor's independence. 4. In short, it was submitted that the Crown Prosecutor has not maintained a principled professional distance from the investigation, or the investigators, and that the application for leave to cross-examine Mrs Lin (at this time) should, for that reason, be seen as a tactical forensic decision which has been planned by the Crown over years, with each of the bases under s 38(1) upon which the application was mounted also having been predetermined in advance of the trial. Mr Turnbull submitted that the Crown's application is capable of being understood as the exploitation of a number of questionable investigative techniques by the police and the NSWCC where Mrs Lin has been repeatedly asked questions about the same issues with the intention of identifying inconsistencies in her account of events of 17 and 18 July 2009 and, in that way, undermining her reliability on those aspects of her evidence which are in conflict with the Crown case. It was submitted that the Crown should be deprived of any opportunity to rely on such inconsistencies that have emerged as a result of repeated questioning on the application for leave to cross-examine under s 38(1)(c), or to capitalise on the appearance of disparity in Mrs Lin's recollection of the events of 17 and 18 July 2009 in an attack on her credit.