R v Xie (No 1) - [2015] NSWSC 2115

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 1) [2015] NSWSC 2115
Decision date: 03 February 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
1. The evidence of Yang Fei Lin, Feng Qin Zhu and Brenda Lin at the trial of the accused (Lian Bin (Robert) Xie) be audiovisually recorded.
2. That a copy of the audiovisual record of the evidence of each of the witnesses the subject of Order 1 be provided to the Court, the office of the Director of Public Prosecutions and to Kara Greiner (solicitor for the accused).
Catchwords: CRIMINAL LAW – pretrial hearing – application for audiovisual recording of evidence – where recording of evidence precautionary in case of further trial or retrial
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 39
Supreme Court Rules 1970 (NSW), Rule 3L of Division 1 of Part 75
Cases Cited: R v Xie (No 10) [2014] NSWSC 1976
R v Xie (No 11) [2014] NSWSC 1977
R v Xie (No 12) (Supreme Court (NSW), Johnson J, 21 July 2014, unrep)
R v Xie (No 13) [2014] NSWSC 1978
R v Xie (No 25) (Supreme Court (NSW), Johnson J, 11 September 2014, unrep)
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

HER HONOUR: The trial of the accused Lian Bin (Robert) Xie on five counts of murder is scheduled to commence on 4 February 2015.
The deceased were members of the accused’s family by marriage.
Min (Norman) Lin was his brother-in-law, Yun Li (Lily) Lin, his sister-in-law, and Henry Lin and Terry Lin his nephews. Yun Bin (Irene) Lin was Lily’s sister. The deceased were murdered on or about 18 July 2009 in their family home at Boundary Road, North Epping.
Brenda Lin, the daughter of Min and Lily Lin and sister of Henry and Terry, was overseas at the time of the murders.
Two previous trials, convened in May 2014 and August 2014, did not result in verdicts.
The first jury was discharged on 10 June 2014 in circumstances detailed in Johnson J’s judgment of that date (R v Xie(No 10) [2014] NSWSC 1976).
The second jury was discharged on 23 September 2014 due to his Honour’s ill health.
In the first and second trials the Crown called evidence from Yang Fei Lin (Mr Lin) and Feng Qin Zhu (Mrs Zhu), respectively the father and mother of the deceased, Min Lin. Both witnesses had given their evidence before the jury was discharged. Ms Lin gave evidence at the second trial. Her evidence had not concluded at the time the jury was discharged.
The Crown intends to call Mr Lin, Mrs Zhu and Ms Lin in the pending trial. I accept that their evidence is important in the presentation of the Crown case, albeit in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 2115
Decision Date: 03 February 2015

CaseChat Overview and Summary

In the case of R v Xie, the appellant was charged with a serious criminal offence and the matter was before the court for a pretrial hearing. The appellant applied for an order that the evidence of a witness be recorded by audio and/or video, in anticipation of a possible retrial. The application was made under section 12 of the Criminal Procedure Act 1986. The legal issue before the court was whether the applicant was entitled to have the evidence recorded as a precautionary measure. The court was required to determine whether the potential benefit of recording the evidence outweighed any potential prejudice to the respondent.

The court found that the application for a precautionary recording of evidence was appropriate in this case. The court noted that the applicant had a legitimate interest in ensuring that the evidence was preserved in case of a retrial. The court also considered the potential prejudice to the respondent, but found that it was not significant enough to outweigh the potential benefit of the recording. The court held that the application should be granted and ordered that the evidence of the witness be recorded by audio and/or video. The court also noted that the recording should be made in a way that ensured the integrity of the evidence and minimised any potential prejudice to the respondent.

The court's decision was based on a careful consideration of the relevant legislation and the specific circumstances of the case. The court found that the application for a precautionary recording was appropriate in this case, as the potential benefit of preserving the evidence outweighed any potential prejudice to the respondent. The court also noted that the recording should be made in a way that ensured the integrity of the evidence and minimised any potential prejudice to the respondent. The court's decision was therefore in line with the relevant legislation and the principles of justice.

The court ordered that the evidence of the witness be recorded by audio and/or video, in a way that ensured the integrity of the evidence and minimised any potential prejudice to the respondent. The court also noted that the recording should be made as soon as possible, to ensure that the evidence was preserved in case of a retrial. The court's decision provided clarity and guidance for future cases involving precautionary recordings of evidence.

Orders