R v Xie (No. 13) - [2014] NSWSC 1978

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Xie (No. 13) [2014] NSWSC 1978
Hearing dates: 29 July 2014
Decision date: 30 July 2014
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
The Accused's Notice of Motion dated 23 July 2014 is dismissed.

Catchwords: CRIMINAL LAW - murder trial - further application by Accused seeking exclusion of evidence which the Court had determined to admit - evidence from surviving daughter of murdered family concerning sexual interest shown towards her by Accused before and after murders - Court adheres to ruling that evidence admissible - application to exclude evidence refused
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: R v Burton [2013] NSWCCA 335; 237 A Crim R 238
R v Ford [2009] NSWCCA 306; 273 ALR 286
R v Taylor [2007] NSWCCA 104; 169 A Crim R 543
R v Xie (No 4) [2014] NSWSC 500
R v Xie (No 10) [2014] NSWSC 1976
R v Xie (No 11) [2014] NSWSC 1977
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: By Notice of Motion dated 23 July 2014, the Accused, Lian Bin (Robert) Xie, seeks orders as follows:

(1) That the evidence contained in the statements of Ms AB dated 29 May 2014, 18 June 2014, 19 June 2014 and 27 June 2014 is excluded pursuant to s. 137 Evidence Act 1995.

(2) If order 1 is made, that the evidence contained in the statements of Patrick Parkinson dated 18 June 2014, Ms BC dated 17 June 2014, Ms CD dated 23 June 2014 and Jennifer James dated 16 June 2014, is not to be adduced, pursuant to s.55 Evidence Act 1995.

Background to Application

Some background is necessary for the present application.
On 10 June 2014, I declined an application by the Accused to exclude evidence of Ms AB concerning sexual interest and sexual activity by the Accused towards her in the periods before and after the murders…

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 1978
Decision Date: 30 July 2014

CaseChat Overview and Summary

The case of R v Xie (No. 13) involved a murder trial where the accused was facing charges for the brutal killing of a family. The surviving daughter of the murdered family sought to provide evidence of the accused's sexual interest towards her, both before and after the murders. This evidence had already been admitted by the court in earlier proceedings, but the accused made a further application seeking its exclusion. The court had to decide whether this evidence should be excluded from the trial, despite its prior admission.

The central legal issue was whether the evidence of sexual interest should be excluded despite the court's earlier ruling allowing its admission. The court had to balance the probative value of the evidence against any potential prejudice it might cause to the accused. The accused argued that the evidence was highly prejudicial and irrelevant to the charges of murder. The prosecution maintained that the evidence was relevant to the accused's state of mind and provided important context to the nature of the crime.

In its reasoning, the court emphasised the importance of maintaining consistency in its earlier ruling. The court found that the evidence had significant probative value in understanding the accused's character and potential motive, and thus, it was not unduly prejudicial. The court noted that the evidence was relevant in showing a pattern of behaviour that connected the accused to the crime. Consequently, the court refused the application to exclude the evidence, upholding its earlier decision. The court found that the probative value of the evidence outweighed any prejudicial effect it might have.

Orders