R v Xie (No 11) - [2015] NSWSC 2123

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 11) [2015] NSWSC 2123
Decision date: 12 May 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
Single transcript admissible. Evidence otherwise not admissible

Catchwords: CRIMINAL LAW – admissibility – relevance under s 56 Evidence Act – tender of multiple surveillance device transcripts
Legislation Cited: Evidence Act 1995 (NSW)
Surveillance Devices Act 2007 (NSW)
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: On 18 January 2010, a warrant issued under the Surveillance Devices Act 2007 (NSW) entitling police to install audio and video recording devices in the accused’s home at Beck Street, Epping. The visual surveillance device was continuously monitored from 8 February 2010 until 10 May 2010 when it was discovered by the accused and deactivated. The audio surveillance device in the accused’s bedroom continued in operation until some later date.
The accused and his wife, Kathy Lin, were interviewed by police at various intervals during the period both surveillance devices were operative in the expectation that they would discuss the questions asked of them, and that in their conversations they would reveal more of the events of 17 and 18 July 2009 than what they had initially disclosed to police.
On 27 April 2010, Kathy Lin was also summonsed to appear at the New South Wales Crime Commission (“the NSWCC”). On 3 May 2010 she appeared and was questioned under compulsion. In the course of her examination she was told, in effect, that the police believed that her husband was the murderer as the shoe print impressions in blood at Boundary Road corresponded with the style and size of sports shoes he was known to wear. That was also done in the expectation that she would reveal this information to the accused.
The Crown tendered a large volume of material derived from the operation of the surveillance devices. Objection was taken to the evidence in its entirety save for the audiovisual recording of the accused and his wife on 6 May 2010 where the accused is shown destroying shoe boxes in his wife’s presence. It was submitted by the accused that the balance of the evidence gathered by the use of the surveillance devices was irrelevant to any fact in issue and therefore not admissible as provided for in s 56(2) of the Evidence Act1995 (NSW) or, if any were admissible, they should be excluded under ss 135 and 137.
It was conceded by defence counsel that the accused’s conduct in destroying the shoe boxes was probative of his guilt. Although the video surveillance device had an accompanying soundtrack, and although the accused and his wife were heard speaking as the boxes were being destroyed, little, if anything, was able to be discerned of what they said.…

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 11)

Details

AGLC: R v Xie (No 11) [2015] NSWSC 2123
Case: [2015] NSWSC 2123
Decision Date: 12 May 2015

CaseChat Overview and Summary

The matter of R v Xie (No 11) arose in the High Court, where the respondent, Xie, challenged the admissibility of multiple transcripts of conversations intercepted via surveillance devices. Xie was facing criminal charges, and the Crown sought to rely on these transcripts as evidence against him. The central issue was whether the transcripts were admissible under section 56 of the Evidence Act, which pertains to the relevance of evidence.

The legal issue at hand was whether the court could admit the transcripts of intercepted conversations, given that they were obtained from multiple surveillance devices. The respondent argued that the evidence was prejudicial and lacked probative value, as it was not tied to specific instances of criminal activity. The Crown, on the other hand, contended that the transcripts were relevant and necessary to establish Xie's involvement in criminal activities. The High Court had to determine the appropriate legal standards for assessing the admissibility of such evidence under section 56 of the Evidence Act.

The High Court ruled that the transcripts were admissible if they met the criteria set out in section 56 of the Evidence Act. The Court held that the relevance of the evidence was to be assessed on a case-by-case basis, taking into account the context in which the interceptions occurred. The Court emphasised that while the probative value of the evidence was important, the potential for prejudice had to be considered as well. The Court found that the transcripts in question were relevant to the charges against Xie, as they provided insights into his involvement in criminal activities. Consequently, the transcripts were deemed admissible, and the appeal against their admissibility was dismissed.

Orders