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 112Category: Procedural and other rulings Parties: The Crown
Lian Bin (Robert) Xie (Accused)Representation: Counsel:
Solicitors:
M Tedeschi QC / K Ratcliffe (Crown)
G Turnbull SC / L Fernandez (Accused)
Director of Public Prosecutions (Crown)
Kidman Legal (Accused)
File Number(s): 2011/147183
JudgmenT
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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
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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.
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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.
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Section 42 appears…
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- AGLC
- R v Xie (No 13) [2015] NSWSC 2125
- Case
- [2015] NSWSC 2125
- Decision Date
CaseChat Overview and Summary
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.
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