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

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

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 1980
Decision Date: 21 July 2014

CaseChat Overview and Summary

The case before the court involved the defendant, Xie, who had been charged with the crime of murder. The prosecution sought to have certain witnesses provide evidence via CCTV and in a closed court setting, prior to the formal trial. This request was made under the powers granted by section 26 of the Evidence Act 1995. The primary legal issue that the court had to address was whether it was appropriate to allow witnesses to give evidence in this manner, given the nature of the proceedings and the potential implications for the defendant's right to a fair trial.

The court considered the provisions of section 26 of the Evidence Act 1995, which allows for special measures to be taken to ensure the fair treatment of a witness, particularly in cases involving vulnerable witnesses or where the witness's evidence is critical to the proceedings. The court examined the circumstances of the case and the nature of the evidence that the witnesses were expected to provide. It also considered the potential impact on the defendant's right to a fair trial, including the right to confront witnesses and the right to a public trial. Ultimately, the court found that the measures proposed by the prosecution were necessary to protect the witnesses and to ensure the integrity of the proceedings. The court accepted that the witnesses' safety and well-being were paramount and that the measures in question would not unfairly prejudice the defendant's right to a fair trial.

In light of the above considerations, the court allowed the application, permitting the witnesses to give evidence via CCTV and in a closed court setting. The court concluded that the benefits of protecting the witnesses and ensuring the integrity of the proceedings outweighed the potential disadvantages to the defendant. The decision was based on a careful assessment of the facts and the legal principles applicable to the case. The final orders of the court allowed the witnesses to provide their evidence in the manner requested by the prosecution, subject to certain conditions to ensure that the defendant's rights were protected as far as possible.

Orders