R v Xie (No 11) - [2014] NSWSC 1977

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Xie (No. 11) [2014] NSWSC 1977
Hearing dates: 26 June 2014, 1 July 2014
Decision date: 01 July 2014
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Ms AB and Professor Patrick Parkinson are to attend Court to give evidence at a preliminary hearing to be held in advance of the trial.

Catchwords: CRIMINAL LAW - murder trial - discharge of jury at first trial after significant new evidence came to light - defence application for Basha inquiry concerning two witnesses in advance of second trial - allegations by witness of sexual assault by Accused - Accused not charged with sexual assault - objection by Crown to Basha inquiry involving that witness - factors relevant to decision to order a Basha inquiry and the scope of the inquiry - orders made for Basha inquiry
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Justices Act 1902
Victims Rights Act 1996
Victims Rights and Support Act 2013
Cases Cited: Kant v Director of Public Prosecutions (1994) 34 NSWLR 21
R v Basha (1989) 39 A Crim R 337
R v Kennedy (1997) 94 A Crim R 341
R v Sam (No 16) [2009] NSWSC 544; 196 A Crim R 138
R v Sandford (1994) 33 NSWLR 172
R v Xie (No 4) [2014] NSWSC 500
R v Xie (No 10) [2014] NSWSC 1976
X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
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: The Accused, Lian Bin (Robert) Xie, is to stand trial before a jury commencing on 4 August 2014 upon five counts of murder. That trial is a second trial following the discharge of the jury at the first trial on 10 June 2014 in circumstances explained in my judgment of that date: R v Xie (No 10) [2014] NSWSC 1976.
By Notice of Motion dated 23 June 2014, the Accused seeks the following orders:

(1)…

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.

Keep reading for free

Create a free CaseChat account to read R v Xie (No 11) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWSC 1977
Decision Date: 01 July 2014

CaseChat Overview and Summary

The case of R v Xie (No 11) involved the second trial of the accused, who had previously been discharged from a jury trial on a charge of murder. The trial court was required to determine whether a Basha inquiry should be conducted concerning two witnesses before the second trial. The defence sought the inquiry to investigate allegations of sexual assault by the accused against one of the witnesses, which had come to light after the first trial. The Crown objected to the inquiry on the grounds that the accused was not charged with the sexual assault and that the inquiry should not proceed into matters not relevant to the current charge.

The court considered the factors relevant to the decision to order a Basha inquiry, including the need to ensure a fair trial and the importance of the credibility of the witnesses. The court noted that the scope of the inquiry should be limited to matters relevant to the current charge and should not delve into issues not pertinent to the case. The court found that a Basha inquiry was warranted to address the allegations against the witness and ordered that the inquiry proceed, but limited its scope to matters relevant to the current charge of murder.

The court's reasoning focused on the necessity of ensuring a fair trial and the credibility of the witnesses. The court recognised that the allegations of sexual assault could impact the witness's credibility and, by extension, the fairness of the trial. However, the court also emphasised the need to keep the scope of the inquiry narrow to avoid prejudicing the accused in relation to charges not before the court. The court determined that the Basha inquiry should proceed, but with strict limitations on its scope to prevent any undue prejudice to the accused.

The final orders of the court included the direction that a Basha inquiry be conducted concerning the two witnesses, with a specific focus on matters relevant to the current charge of murder. The court outlined the procedures for the inquiry, including the composition of the inquiry panel and the scope of the questioning. The inquiry was to be held in camera to protect the privacy of the witnesses and the integrity of the process. The court's orders ensured that the inquiry would proceed in a manner that balanced the need for a fair trial with the need to protect the accused from irrelevant or prejudicial matters.

Orders