R v Xie (No 17) [2015] NSWSC 2128

Supreme Court New South Wales

Medium Neutral Citation: R v Xie (No 17) [2015] NSWSC 2128 Decision date: 03 August 2015 Jurisdiction: Common Law - Criminal Before: Fullerton J Decision: Leave granted on limited terms Catchwords: CRIMINAL LAW – evidence – Crown application to cross-examine witness under s 38 of the Evidence Act in re-examination Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v Xie (No 11) [2015] NSWSC 2123 R v Xie (No 13) [2015] NSWSC 2125 R v Xie (No 14) (Supreme Court (NSW), Fullerton J, 23 June 2015, unrep) R v Xie (No 16) [2015] NSWSC 2127 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 made application under s 38 of the Evidence Act 1995 (NSW) for a grant of leave to cross-examine Mrs Lin in re-examination and a direction under s 38(4) to be permitted to do so. Section 38(4) provides: Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. 1. The application was based principally on ss 38(1)(a) and (c): 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) … (c) whether the witness has, at any time, made a prior inconsistent statement. … 1. After hearing argument I granted leave on terms, which are reflected in the reasons that follow. 2. In considering whether leave should be granted to the Crown (and the related question whether a direction under s 38(4) should be given), the timing of the Crown's notice to the accused of its intention to seek leave and the matters upon which Mrs Lin has already been questioned by Mr Turnbull are relevant considerations under s 38(6). The criteria in s 192 are also to be considered. 3. The Crown's application fell to be considered in the context of the Crown having already successfully made application to cross-examine Mrs Lin in her evidence in chief under s 38(1) in respect of a number of subject areas, on one or more of the bases set out in ss 38(1)(a)-(c) (R v Xie (No 16) [2015] NSWSC 2127) and after she had been cross-examined at length by Mr Turnbull. 4. In significant part, Mr Turnbull's cross-examination was directed to reinstating Mrs Lin's credibility in respect of a number of matters as to which the Crown alleges she has given untruthful evidence or as to which she is said to be an unreliable witness. Mr Turnbull's cross-examination was subject to orders I made under s 42 of the Evidence Act that leading questions not be put in respect of a number of issues, some of which coincided with the subject areas which had attracted a grant of leave in the Crown's favour under s 38 (see R v Xie (No 13) [2015] NSWSC 2125). 5. When Mr Turnbull's cross-examination was nearing conclusion, the Crown formally indicated its intention to make application for leave to cross-examine Mrs Lin in re-examination, having intimated during the cross-examination that an application would be formally made when the cross-examination concluded, at which time the Crown would articulate the basis of the application with accompanying submissions. 6. In the result, 15 subject areas were relied upon by the Crown as justifying a grant of leave: 1. Alibi; 2. Fear of being framed; 3. 000 call; 4. Discussion between Mrs Lin and the accused about shoes on 6 May 2010; 5. Seeing the accused in the garage on the morning of 18 July; 6. Lights on upstairs at 55A Boundary Road on the night of 17 July 2009; 7. Arrival at 55A Boundary Road on the morning of 18 July 2009; 8. Toolboxes; 9. Movement of bins through the garage; 10. Disclosure of information to the media; 11. Perception of favouritism; 12. Making mistakes; 1. Being unable to recall the accused do anything with shoeboxes when previously said she saw the accused cutting up shoeboxes; 1. Movement of items in and out of the garage at 4 Beck Street; and 2. Credit. 1. Each of the 15 subject areas were particularised referable to what were said to be either statements inconsistent with Mrs Lin's evidence in chief or evidence she had given which was unfavourable to the Crown in answer to questions asked in cross-examination by Mr Turnbull. In respect of some subject areas, the Crown also relied upon answers she had given to police in the course of being interviewed in July 2009 and March 2010 and her attendances before the New South Wales Crime Commission ("NSWCC") in May 2010. 2. In respect of the issue of alibi (subject area 1 above), the Crown indicated its intention to tender and then cross-examine Mrs Lin upon two surveillance device transcripts that had been rejected earlier in the trial when a large volume of surveillance device transcripts were tendered by the Crown (R v Xie (No 11) [2015] NSWSC 2123). The argument directed to the Crown's application for leave to further cross-examine Mrs Lin on the issue of alibi was extensive. 3. Before turning to consider counsel's arguments directed to that issue (see [19] ante), the Crown's application on the remaining subject areas can be addressed relatively briefly. 4. In the course of the Crown's oral submissions, subject areas 6, 7, 8, 9, 10, 13(a) and 14 were not pressed, the Crown Prosecutor having indicated his intention to re-examine on those subject matters strictly in accordance with s 39 of the Evidence Act. 5. Without calling on Mr Turnbull, I also resolved to refuse leave in respect of subject areas 3, 4, 5, 12, 13(b) and 15. My reasons for refusing leave are reflected in the transcript of argument and do not need to be repeated here. I simply note that a consideration which weighed against leave being granted was the risk, as I assessed it, that, for the Crown to be permitted to revisit Mrs Lin's evidence in respect of the six subject areas that were pressed, her evidence would be unduly extended (a consideration under s 192(2)(a)). In refusing leave I also considered that the Crown would not be deprived of the opportunity to submit to the jury that Mrs Lin was an unreliable or untruthful witness in respect of some or even all of those subject areas given the inconsistencies that had already been exposed in her evidence in the course of the Crown's cross-examination with leave and her further cross-examination by Mr Turnbull. The Crown accepted that analysis. 6. An application to cross-examine in respect of the remaining three areas, namely 1, 2 and 11, was pressed. It was only those three areas to which Mr Turnbull was invited to direct submissions.