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

1. 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.

2. Ms Lin resumed her secondary schooling after the funerals of her family in August 2009. She graduated from that school in 2011.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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 wife and Ms Lin were present where the proposed appointment of the Public Trustee to administer the deceased’s estates was discussed with Professor Parkinson.

8. Professor Parkinson gave evidence that proceedings were filed in the Family Court on 21 October 2009, after which Ms Lin’s grandparents were named as interveners. On 27 October 2009, Collier J made interim orders that Ms Lin would reside with the accused and his wife. The proceedings were then adjourned to 18 December 2009.

9. The Crown does not seek to lead evidence of what occurred at the meetings Ms Bridge attended in September or October 2009. They have been the subject of extensive evidence from both Professor Parkinson and Ms Lin.

10. Ms Bridge attended the Family Court proceedings on 18 December 2009 as a self-appointed support person and was present during the course of lengthy negotiations between the solicitor representing Ms Lin’s grandparents and Professor Parkinson with a view to resolving the impasse on both the issue of guardianship and the administration of the estates.

11. Ms Bridge had no formal role in the negotiations on that day and does not give evidence of any conversations with any of the people who were present. The Crown seeks to adduce evidence of the observations Ms Bridge made during the course of those negotiations, including that the accused sat in close proximity to Ms Lin for the duration of the day and spoke to her only in Chinese, while Ms Lin sat with her head down but apparently listening to him. She also observed that Ms Lin was at times “teary” but largely passive. She also observed that the accused and his wife rarely spoke during the day and when they did speak she did not look at him and appeared to be physically distant from both him and Ms Lin. To Ms Bridge’s observation the accused’s wife did not participate in any of the discussions as attempts at a negotiated outcome were made and she did not express any opinion as to how the impasse might be resolved.

12. Ms Bridge does not give any evidence that the accused was speaking with an elevated tone of voice nor does she describe his physical gestures other than that he sat in close physical proximity to Ms Lin. Ms Bridge does not claim to have any understanding of Mandarin.

13. The Crown seeks to invite Ms Bridge to comment on what was, in her opinion, the accused’s apparent resistance to accepting the appointment of the Public Trustee to administer the deceased’s estates and his determination to seek independent advice from the duty solicitor.

14. The Crown also seeks to lead from Ms Bridge that the accused appeared to her to become more dominant and assertive as the negotiations progressed over the course of the day despite the presence of Professor Parkinson as Ms Lin’s lawyer. The precise way she expressed herself in her statement (the evidence the Crown seeks to lead) is as follows:

…clearly he was the dominant person in the room. As the day progressed Robert became more dominant even with Patrick around, far more so than earlier in the day. He was certainly more assertive when wanting to speak to the duty solicitor and I guess this marked the remainder of the day.

15. The accused objects to the evidence the Crown wishes to lead from Ms Bridge as being irrelevant to any fact in issue in the trial and as inadmissible lay opinion evidence under s 78 of the Evidence Act 1995 (NSW). Even if admissible, the accused submits that the evidence should be rejected under s 137 of the Evidence Act.

16. In opening submissions to the jury, the Crown identified three motives for the accused to kill the deceased, as follows:

The second alleged motive is a financial one. The Crown alleges that, after the murders, the accused, through his wife, Kathy, went to great extent to try and ensure that he and Kathy had control of Min Lin's assets.

…

Firstly, the accused and Kathy, through Kathy, were trying to get control of the newsagency; and secondly, the accused and Kathy, through Kathy, were trying to ensure that they became the guardians of the surviving child, Brenda, who was only 15 at that time.

17. In the Crown’s submission, Ms Bridge’s observations of the accused’s conduct and behaviour at the Family Court on 18 December 2009, and her perception that he assumed a position of dominance as the negotiations progressed, satisfies the test of relevance in s 56(1) of the Evidence Act. The Crown submitted that her observations and the opinions she formed based on those observations have the capacity to rationally affect the jury’s assessment of the probability one of the facts in issue in the proceedings, namely whether the accused was in fact motivated to kill the deceased in order to gain control of the estates of the deceased. The Crown submitted that the way the accused conducted himself on 18 December 2009 is consistent with that being his motivation. Although the question of motive is not one of the ultimate facts in issue in the trial, in this case, I regard motive as a fact relevant to proof of the only constituent element of the offence of murder that is in issue in the trial, that is, whether it was the accused who murdered the deceased.

18. On the evidence already led in the trial there is an issue as to whether Ms Lin exercised an independent and informed judgment in giving instructions to Professor Parkinson in the Family Court proceedings, up to and including the disposition of those proceedings by orders made by Collier J on 18 December 2009. Accepting the observations of Simpson J in R v Burton [2013] NSWCCA 335 at [148] that in a criminal trial a “fact in issue” is not necessarily to be equated with a “fact in dispute”, I also take into account counsel’s submissions directed to the admission of Ms Bridge’s evidence under both s 56, and whether the evidence should be rejected under s 137 of the Evidence Act, referable to this fact or issue in dispute, arising, as it does, from the evidence as to the events of 18 December 2009, but from the perspective of other witnesses.

19. Ms Lin gave evidence concerning the contentious issues of her guardianship and the appointment of the Public Trustee to administer her parents’ estates in the immediate aftermath of the murders, and in the weeks and months leading to her appearance before the Family Court on 18 December 2009. She gave evidence that her grandparents spoke to her regularly about the question of who should have parental responsibility for her and whether or not she should elect to have them fulfil that role. The accused and his wife also suggested to her that she should live with whomever she was most comfortable. Ms Lin gave evidence that her preference was to live with the accused and his wife at Beck Street, Epping.

20. Ms Lin was not asked questions in examination in chief in respect of the accused’s involvement in the negotiations on 18 December 2009. However, in cross-examination she said that the accused and his wife were present throughout the negotiations, and that she would speak to them about her preferred outcome from time to time as the day progressed. Ms Lin also confirmed that Professor Parkinson conducted himself during the proceedings in accordance with her instructions. She agreed that as the afternoon progressed she became upset and, in an attempt to compromise the conflict with her grandparents, she instructed Professor Parkinson to prepare an agreement giving her grandparents “everything” (that is, the estate and responsibility for its administration) whilst maintaining her preference to live with the accused and his wife. Ms Lin confirmed that neither the accused nor his wife sought to persuade her to make any particular decision, or to instruct Professor Parkinson in any particular way, during the course of the negotiations.

21. Professor Parkinson gave evidence as to the formation of the relationship of solicitor/client with Ms Lin and his dealings with her, and with the accused and his wife, after Ms Lin’s grandparents notified their intention to intervene in the Family Court proceedings. He also gave evidence that, during the negotiations on 18 December 2009, the accused made it clear that he did not want the grandparents to hold any parental responsibility over Ms Lin. He said that a number of possible resolutions were suggested to the accused (in respect of both the guardianship issues and the administration of the estate) and that all suggestions were met by the accused with a level of “discomfort”. Professor Parkinson said that Ms Lin did not express a view different from that of the accused at any point throughout the day. Professor Parkinson said that, generally speaking, the accused acted as the “spokesman” for the family throughout the course of the negotiations.

22. Professor Parkinson also gave evidence that late in the afternoon of 18 December 2009 a compromise was reached between Ms Lin and her grandparents that guardianship should be shared by her grandparents and the accused’s wife. Professor Parkinson said that the accused was not content with this compromise because he said that if the grandparents were given any parental responsibility over Ms Lin they would “interfere”. In answer to questions regarding Ms Lin’s reticence to utilise the services of the Public Trustee, Professor Parkinson said that he was concerned that Ms Lin was “unduly influenced” by her uncle who was opposed to the proposal.

23. Mr Turnbull submitted that Ms Lin’s evidence that she was not overborne or influenced by the accused in the ultimate disposition of the proceedings was uncontradicted. However, to the extent that Professor Parkinson’s evidence put that in issue, he submitted that Ms Bridge’s evidence could not rationally affect the jury’s resolution of that dispute since it was based on nothing more than her uninformed impression.

24. Mr Turnbull also submitted that, whilst Professor Parkinson gave evidence that he had a “concern” that the accused was exerting “undue influence” over Ms Lin, that does not permit a finding that the accused was in fact exerting that degree of influence over her on 18 December 2009 or on any other date. Mr Turnbull emphasised that Professor Parkinson also gave evidence that he acted at all times on Ms Lin’s instructions, having made his own assessment that she was capable of giving those instructions and that he sought to negotiate an outcome in the Family Court proceedings consistent with those instructions.

25. The Crown submitted that given Ms Lin’s age as at 18 December 2009, and the fact that, on the Crown case, she was the victim of the accused’s sustained sexual abuse of her before that date and for 17 months after that date, the jury would be entitled to find that her capacity to assess or appreciate the degree to which the accused was influencing the outcome of the Family Court proceedings, or attempting to do so, in order to obtain control of her parents’ estates was compromised as to justify the jury giving no weight to the leading questions asked of her in cross-examination. The Crown also submitted that she may not have been aware of the accused’s manipulation of the outcome of those proceedings, including, for the purposes of the evidence under consideration, his exercise of dominance over her and his wife during the course of negotiations.

26. In summary, Mr Turnbull submitted that the evidence of what Ms Bridge observed and her perceptions based on those observations and the opinion she expressed does not satisfy the test of relevance in s 56(1) of the Evidence Act because, taken at its highest, that evidence does not have the capacity to rationally affect any assessment by the jury of any of the motives the Crown attributes to the accused in proof of the Crown case or the resolution of other issues in dispute. That being so, he submitted the evidence must be excluded in accordance with s 56(2) of the Evidence Act and, for that reason, its admission as lay opinion evidence under s 78 of the Evidence Act does not arise.

27. Mr Turnbull also submitted that, even if Ms Bridge’s evidence were relevant (and even if that part of her evidence that is lay opinion is admissible under s 78), I would exclude the evidence under s 137 of the Evidence Act as its probative value is outweighed by the danger that it will be productive of unfair prejudice to the accused.

28. In Burton, Simpson J expressed the test to be applied under s 137 in the following way:

The section requires two separate assessments and a judgment: first, an assessment of the probative value of the evidence sought to be adduced by the Crown, second, an assessment of the danger of unfair prejudice to the defendant (that might be caused by its admission), and, finally, a judgment as to whether any such danger outweighs the probative value of the evidence. If the result of the assessment process is that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant, the court is obliged to exclude the evidence. There is a danger of unfair prejudice if there is a real risk that the jury will make improper use of the evidence: R v BD (1997) 94 A Crim R 131.

29. I am satisfied that Ms Bridge’s evidence (both her observations and the opinions based on those observations) is relevant. In my view, applying the qualitative assessment required by s 56(1), that evidence does have the capacity to rationally affect the assessment of the probability of the Crown’s attribution of motive to the accused.

30. I turn now to consider s 78 of the Evidence Act. Section 78 provides as follows:

The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

31. The evidence sought to be led by the Crown is that, in Ms Bridge’s opinion, the accused was dominating Ms Lin and his wife. Ms Bridge’s opinion as to various interactions of the accused and Ms Lin and the accused and his wife during the course of the day, albeit exclusively from what she saw of those interactions, is the sole basis upon which her opinion that he was increasingly dominant is based, since she could not understand what was being said by the accused to Ms Lin and she does not contend that the accused was shouting or in any other way exercising physical dominance over either of them. Section 78(a) being satisfied on the basis of what Ms Bridge saw, in order for her evidence to be admissible under s 78(b), her opinion that the accused was dominant and progressively more assertive as the negotiations continued must be “necessary” for her account of what she perceived of his conduct or demeanour to generate an adequate understanding of her perceptions and observations.

32. In Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352, French CJ, Heydon and Bell JJ approached the requirement of necessity in s 78(b) consistent with the pre-existing common law position. At [48] their Honours said:

The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness's perception of the sobriety, age or emotional state being observed.

33. Their Honours went on to conclude that the concept of necessity, in the context of the issue in the case there under consideration, also consistently with the application of the common law test, meant that “the only way” to overcome some “incapacity” in the witness “to perceive, to remember what they had perceived, or to say what they had perceived about it” (see [48]) would be to permit the opinion to be stated, in this case, that the accused was a dominating influence.

34. I am unable to conclude that it is necessary for Ms Bridge to express the opinion that the accused was increasingly dominant and assertive in order to obtain an adequate account or understanding of her perceptions of the interaction between family members at the Family Court proceedings. Accordingly, her opinion that he was dominant and increasingly assertive is not admissible under s 78. The question remains whether, although I am satisfied that Ms Bridge’s observations of the accused’s interaction with Ms Lin or the lack of any interaction with his wife are relevant and admissible under s 56, the evidence should be excluded under s 137.

33. In support of exclusion of the evidence, Mr Turnbull submitted that because Ms Bridge has no pre-existing knowledge of the relationship between Ms Lin and any member of her surviving family before her immediate family were murdered, she was in no position to make an informed judgment as to the accused’s relationship with his wife or Ms Lin such as may explain his physical proximity to Ms Lin and his relative distance from his wife on 18 December 2009. He also submitted that the course of negotiations on that day had been preceded by a gathering family crisis of some intensity where the question of who was to be Ms Lin’s legal guardian was a source of very considerable conflict. In that context, he submitted that the accused’s dealings with Ms Lin and his wife, and even his control of the negotiations, were readily explicable for reasons other than by a desire to dominate her consistent with the motive the Crown attributes to him for killing the deceased. Consistently with established authority, in undertaking an assessment of the potential probative value of Ms Bridge’s observations for the purposes of s 137, I am obliged to disregard what might be an explicable and more benign interpretation of the accused’s behaviour or demeanour and focus on what the Crown submitted was the interpretation favouring its admission and its capacity to bear upon proof of the facts in issue.

34. Finally, Mr Turnbull also emphasised that Ms Bridge does not profess to have any appreciation of any cultural dimension to the relationship between the family members and, as she makes clear in her statement, her observations were limited to the physical interaction between the accused and his wife and Ms Lin, since she had no means of understanding what the accused was saying. He submitted that taking those considerations into account, the probative value of what she saw of that interaction (that is, the quantitative exercise involved in the assessment of the extent to which the evidence could rationally affect the assessment of the existence of a fact in issue) was low and the danger of unfair prejudice to the accused by allowing her to give evidence of her observations of their interactions overwhelms its probative value.

35. I am satisfied that by allowing the Crown to lead evidence of Ms Bridge’s observations of the interaction between the accused and his wife and Ms Lin on 18 December 2009, as compared with her earlier dealings with him, and in the very stressful and emotionally charged atmosphere of negotiations in a Family Law dispute on that day, in particular, without any appreciation of what was being said by him whilst seated in proximity to Ms Lin, there is a risk that the jury will adopt an illegitimate form of reasoning (or give the evidence undue weight) when considering whether the accused was conducting himself consistent with the Crown’s contention that he was motivated to kill the deceased to gain control over the estates of the deceased.

36. In circumstances where the probative value of Ms Bridge’s observations (shorn as they must be from her conclusions or opinion as to what they reflected) is reduced by the matters to which Mr Turnbull has referred, I am satisfied that her evidence should not be admitted.

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Decision last updated: 01 March 2017