R v Xie (No 10) - [2014] NSWSC 1976

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Xie (No 10) [2014] NSWSC 1976
Hearing dates: 10 June 2014
Decision date: 10 June 2014
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. Evidence of Ms AB contained in statement dated 29 May 2014 is admissible and ought not be excluded under s.137 Evidence Act 1995.
2. Order discharging jury in the trial of the Accused.

Catchwords: CRIMINAL LAW - murder trial - significant new evidence becomes known to Crown during trial of Accused - whether evidence relevant - if relevant, whether evidence ought be excluded under s.137 Evidence Act 1995 - evidence from surviving daughter of Lin family that Accused showed sexual interest in her before murders and sexually assaulted her after the murders when she resided in Accused’s house - evidence relevant to issues in trial including motive - evidence admissible and should not be excluded under s.137 - application to discharge jury given significant change in Crown case - Crown agrees that discharge appropriate - jury discharged
Legislation Cited: Evidence Act 1995
Cases Cited: Crofts v The Queen [1996] HCA 22; 186 CLR 427
R v Xie (No. 4) [2014] NSWSC 500
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Lian Bin (Robert) Xie (Accused)
Representation:
Counsel:
Mr M Tedeschi AM QC; Ms KN Shead (Crown)
Mr GW Turnbull SC; Mr L Fernandez (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Burke & Mead Lawyers (Accused)

File Number(s): 2011/147183
Publication restriction: * Restricted - Pending Jury Trial. On 12 January 2017, a jury returned verdicts of guilty on all counts. Sentence was passed on 13 February 2017: R v Xie [2017] NSWSC 63. * Subject to the operation of s.15B of the Children (Criminal Proceedings) Act 1987, s.15A of that Act operates to prohibit publication of the name and picture of Ms AB or of anything that is likely to lead to her identification: - see R v Xie (No. 5) [2014] NSWSC 588. After 20 February 2017, the Court was informed that Ms Brenda Lin (Ms AB) had given her consent under s.15D(1)(b) and (3) of that Act to the publication or broadcasting of her identity.

Judgment

JOHNSON J: By Notice of Motion dated today (which has been heard this morning), the Accused seeks a number of alternative orders as follows:

(1) That the evidence contained in the statement of Ms AB dated 29 May 2014 is not to be adduced pursuant to s.55 Evidence Act 1995.

(2) Alternatively to (1), that the evidence contained in the statement of Ms AB dated 29 May 2014 is excluded pursuant to s.137 Evidence Act 1995.

(3) Alternatively to (1) and (2), that the whole of the jury in the current trial is discharged.

(4) Such further orders as the Court considers appropriate.

The Accused is charged with the murders at North Epping, on or about 18 July 2009, of Min (Norman) Lin,…

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: [2014] NSWSC 1976
Decision Date: 10 June 2014

CaseChat Overview and Summary

The case before the court involved a murder trial where significant new evidence had emerged during the proceedings. The accused faced charges related to the deaths of several members of the Lin family. The new evidence came from the surviving daughter of the Lin family, who testified that the accused had shown sexual interest in her before the murders and had sexually assaulted her after the murders when she was residing in the accused's house. The court had to determine the relevance of this new evidence to the issues being tried and whether it should be excluded under section 137 of the Evidence Act 1995.

The legal issues before the court were whether the new evidence was relevant to the issues in the trial, and if so, whether it should be excluded under section 137 of the Evidence Act. The court found that the evidence was relevant, particularly to the issue of motive, and therefore, it was admissible. The court further found that the evidence did not fall within the scope of section 137, which deals with the exclusion of evidence on grounds of unfairness to the accused. The court considered the potential prejudice to the accused against the probative value of the evidence and determined that the latter outweighed the former.

The court subsequently considered an application by the Crown to discharge the jury due to the significant change in the Crown's case. The Crown agreed that a discharge was appropriate given the new evidence. The court accepted this and discharged the jury. This decision highlights the importance of carefully considering the admissibility of new evidence in criminal trials, particularly where it may impact the fairness of the proceedings or the outcome of the case.

Orders