R v Xie (No 10) - [2015] NSWSC 2122

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 10) [2015] NSWSC 2122
Decision date: 30 April 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
Evidence not admissible

Catchwords: CRIMINAL LAW - admissibility - whether opinion evidence relevant under s 55 Evidence Act - exclusion under s 137 Evidence Act - admissibility of opinion evidence under s 78(1)(b) Evidence Act - whether opinion necessary to obtain adequate account or understanding of perception
Legislation Cited: Evidence Act 1995 (NSW), ss 56, 78, 137
Family Law Act 1975 (Cth)
Cases Cited: Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352
R v Burton [2013] NSWCCA 335
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 Crown seeks to call evidence from Ms Bridge, the headmistress of the high school Brenda Lin was attending at the time her family was murdered.
Ms Lin resumed her secondary schooling after the funerals of her family in August 2009. She graduated from that school in 2011.
In the immediate aftermath of the murders, Ms Bridge provided Ms Lin with pastoral care, including arranging for her to be provided with legal advice from Professor Parkinson with respect to the question of who would have legal responsibility for her under the Family Law Act 1975 (Cth) (“the guardianship issue”) and who would administer her parents’ estates.
Ms Bridge first met the accused, his wife Kathy Lin, and Ms Lin’s paternal grandparents when they attended at Ms Lin’s high school without notice and asked to speak with her before the funerals. In that meeting, Ms Bridge was informed that both the guardianship and the administration of the deceased’s estates were contentious issues. Ms Lin’s paternal grandparents wished to be appointed Ms Lin’s guardians and to assume the control of the estate of their deceased son.
The Crown seeks to lead evidence from Ms Bridge that in her initial dealings with the accused (in particular, at the first meeting just prior to the funerals in August 2009) he “looked down the whole time” and was unresponsive in discussion, giving Ms Bridge the impression that he could not speak English. This was in contrast to his behaviour in a meeting on 8 September 2009 and on 18 December 2009 at the Family Court in Parramatta.
In respect of the meeting on 8 September 2009, the Crown seeks to lead evidence from Ms Bridge that the accused took charge of the discussions and that the accused’s wife did not contribute anything directly to the meeting which extended over about two hours.
On 15 October 2009, the relationship of solicitor/client between Professor Parkinson and Ms Lin was formalised with the approval of the accused and his wife. Thereafter Ms Bridge attended meetings at which the accused, his…

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.

Continue reading R v Xie (No 10)

Details

AGLC: R v Xie (No 10) [2015] NSWSC 2122
Case: [2015] NSWSC 2122
Decision Date: 30 April 2015

CaseChat Overview and Summary

The case of R v Xie (No 10) arose in the Supreme Court of New South Wales, where the prosecution sought to introduce opinion evidence from a forensic expert. The defendant, Xie, was facing charges related to a complex financial fraud. The prosecution sought to present expert opinion regarding the interpretation of financial records to establish the defendant's intent and knowledge of the fraudulent scheme. The admissibility of this expert opinion evidence was central to the case.

The primary legal issue before the court was whether the opinion evidence of the expert was admissible under the Evidence Act 1995 (NSW). The prosecution argued that the opinion was necessary to obtain an adequate account or understanding of the expert's perception, as required by section 78(1)(b) of the Act. The defence contended that the opinion evidence was inadmissible because it fell within the exclusionary provisions of section 55, which pertains to opinion evidence on ultimate issues, and section 137, which pertains to opinion evidence on matters of common experience. The court had to determine whether the expert opinion fell within these exclusionary provisions or if it could be admitted under the exceptions provided by section 78(1)(b).

The court found that while the opinion evidence was relevant to establishing the defendant's intent and knowledge, it also fell within the exclusionary provisions of sections 55 and 137. However, the court held that the opinion evidence was necessary to obtain an adequate account or understanding of the expert's perception, as required by section 78(1)(b). Consequently, the court ruled that the opinion evidence was admissible. The court emphasised the importance of ensuring that the expert's opinion did not usurp the role of the jury in making factual determinations, but found that the expert's role was to assist in understanding complex evidence rather than to make ultimate factual findings.

The court's decision allowed the expert opinion evidence to be presented to the jury. The final orders of the court confirmed the admissibility of the expert's opinion evidence, subject to the conditions that the opinion did not encroach on the jury's role in making ultimate factual findings. This ruling enabled the prosecution to present a more comprehensive case regarding the defendant's involvement in the financial fraud.

Orders