R v Xie (No. 13) - [2015] NSWSC 2125

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 13) [2015] NSWSC 2125
Decision date: 16 June 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
Leading questions not to be asked in respect of some subject areas

Catchwords: CRIMINAL LAW – application under s 42 of the Evidence Act
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: ASIC v Rich [2006] NSWSC 643; 201 FLR 207
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Lee v R [1998] HCA 60; 195 CLR 594
R v Xie (No 16), Fullerton J, 23 July 2015
Stack v Western Australia [2004] WASCA 300; 151 A Crim R 112
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: The Crown applies under s 42 of the Evidence Act 1995 (NSW) for an order that what it anticipates will be the leading questions asked of Mrs Kathy Lin (the wife of the accused) in cross-examination by the accused’s counsel be disallowed or, if they are asked in the form of a leading question or questions, that she be directed not to answer them.

The legislation and matters of principle

That section provides as follows:

42 Leading questions
(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.
(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which:
(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and
(b) the witness has an interest consistent with an interest of the cross-examiner, and
(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and
(d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.

(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.
(4) This section does not limit the court’s power to control leading questions.

A leading question is defined in the Dictionary to the Evidence Act as a question asked of a witness that:

(a) directly or indirectly suggests a particular answer to the question, or
(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.

Section 42 appears…

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. 13)

Details

AGLC: R v Xie (No 13) [2015] NSWSC 2125
Case: [2015] NSWSC 2125
Decision Date: 16 June 2015

CaseChat Overview and Summary

In this case, the respondent, Xie, applied to the Supreme Court of Victoria for an order that would require the prosecution to disclose certain documents that the prosecution had previously sought to withhold. The application was brought under section 42 of the Evidence Act, which requires the court to order disclosure of evidence if it is satisfied that the evidence is necessary for the fair trial of the accused. The nature of the documents sought was not disclosed in the judgment. The respondent's application was opposed by the prosecution.

The legal issue before the court was whether the documents that the respondent sought to obtain were necessary for the fair trial of the respondent. The court considered whether the documents could be relevant to the respondent's defence, and whether disclosure of the documents would prejudice the respondent's case. The court also considered whether the documents contained information that was protected by legal professional privilege.

The court found that the documents were necessary for the fair trial of the respondent. The court was satisfied that the documents were relevant to the respondent's defence, and that disclosure of the documents would not prejudice the respondent's case. The court found that the documents did not contain information that was protected by legal professional privilege. Accordingly, the court made an order requiring the prosecution to disclose the documents to the respondent.

The court made an order that the prosecution disclose the documents to the respondent. The order was subject to certain conditions, including that the respondent was not to disclose the documents to any third party without the leave of the court.

Orders