R v Xie (No. 12)

[2014] NSWSC 1980

Supreme Court

New South Wales

Medium Neutral Citation:	R v Xie (No. 12) [2014] NSWSC 1980
Hearing dates:	21 July 2014
Decision date:	21 July 2014
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Orders made that Ms AB give evidence at Basha inquiry in closed court and by means of closed-circuit television
Catchwords:	CRIMINAL LAW - Accused charged with murder - Basha inquiry in advance of trial - Crown application that witness give evidence at Basha Inquiry by CCTV and in closed court - powers of Court under s.26 Evidence Act 1995 - application allowed
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Xie (No 10) [2014] NSWSC 1976 R v Xie (No 11) [2014] NSWSC 1977
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. * Until February 2017, s.15A Children (Criminal Proceedings) Act 1987 operated to prohibit publication of the name and picture of Brenda Lin (described previously as Ms AB) or of anything that was likely to lead to her identification: R v Xie (No. 5) [2014] NSWSC 588. After 20 February 2017, the Court was informed that Ms Brenda Lin had given her consent under s.15D(1)(b) and (3) of that Act to the publication or broadcasting of her identity.

Judgment

1. JOHNSON J: Tomorrow, 22 July 2014, a Basha inquiry will commence with respect to Ms AB and Patrick Parkinson, in accordance with my decision in R v Xie (No 11) [2014] NSWSC 1977.

2. The Crown has made application by Notice of Motion that the evidence of Ms AB on the Basha inquiry be given via closed circuit television and that the evidence be given in closed court.

3. In support of that Notice of Motion, a medical certificate has been provided to the Court (MFI12).

4. Mr Fernandez, for the Accused, has indicated that there is no opposition to the Crown application in the Notice of Motion for the purpose of the Basha inquiry. If applications of this sort were made for the purpose of the trial itself, there may be an issue to be determined after a contested hearing. However, that does not arise for the moment.

5. An associated Crown application is that Ms AB give evidence for not more than three hours on any day, and this is supported by reference to the medical certificate.

6. The proposal is that Ms AB give evidence each morning for the length of time that the Basha inquiry will occupy, and Professor Patrick Parkinson will give evidence each afternoon, thereby making effective use of the Court sitting day.

7. As was observed in R v Xie (No 11), the Accused is not charged with any sexual assault offence. He remains charged with five counts of murder. The evidence to be adduced from Ms AB is to be relied upon in the ways referred to in my judgments, R v Xie (No 10) [2014] NSWSC 1976 and R v Xie (No 11). Accordingly, the statutory provisions which may apply to a sexual assault trial do not appear to have a direct application to this case.

8. Section 26 Evidence Act 1995 provides for the Court to make orders, as are considered just, in relation to the questioning of witnesses. That provision allows the Court to make orders, amongst other things, concerning the presence and behaviour of any person in connection with the questioning of witnesses: s.26(d). That provision, on its face, appears to address directly, not just the manner of questioning of a witness, but who is in Court at the time when that occurs.

9. It will be apparent from my judgments, R v Xie (No 10) and R v Xie (No 11), that the subject matter of the evidence of Ms AB will raise sensitive issues. She is, by analogy, close to the position of an alleged victim of sexual assault giving evidence in a sexual assault trial.

10. The response of the criminal justice system to witnesses of that class has been to seek to facilitate, to the extent that it is possible, the giving of evidence by persons in that category. I am satisfied that the powers available to this Court in this trial extend to the making of orders which will facilitate the giving of evidence of Ms AB. The use of closed circuit television, with the witness giving evidence from a remote location, is well-known and is available in this Court. It is appropriate to use it on the Basha inquiry involving Ms AB.

11. The power to close the Court, when evidence of this type is to be given, is also available and is utilised from time to time. In this respect, I bear in mind that this is a pretrial hearing, a Basha inquiry in advance of a trial where a jury will be empanelled in two weeks' time.

12. It is important not only that the Basha inquiry proceed in a proper and effective manner, but that the evidence be able to be given without the prospect of any event which may cause a problem concerning the start date of the trial. I have in mind that factor as well, which is peculiar to this case, in addition to factors affecting Ms AB herself, and the evidence she is to give in this case.

13. Although there is no contest with respect to the orders sought on the Crown Notice of Motion, it is appropriate for the Court to provide short reasons to explain why these steps are being utilised. These reasons are intended to serve that purpose.

14. I make Orders 1, 2 and 3 in accordance with the Short Minutes of Order which I have signed and dated today. For the benefit of those in Court, I will read them out:

1. The Notice of Motion dated 21 July 2014 be returnable instanter.

2. The evidence of Ms AB on the Basha inquiry be given by closed circuit television.

3. The evidence of Ms AB on the Basha inquiry be given in closed court.

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