R v Xie (No. 14)

[2014] NSWSC 1979

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Xie (No. 14) [2014] NSWSC 1979
Hearing dates:	5 August 2014
Decision date:	05 August 2014
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Objection to aspects of Crown opening overruled.
Catchwords:	CRIMINAL LAW - murder trial - Crown opening address - defence objection to aspects of Crown opening - permissible scope and content of Crown opening in a complex and multi-faceted trial
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:	R v MM [2004] NSWCCA 81; 145 A Crim R 148 R v Tangye (1997) 92 A Crim R 545 Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
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

1. JOHNSON J: In the course of the Crown opening address, which commenced this morning, Mr Turnbull SC for the Accused, has risen to object to the content and tone of the Crown address. The application that is made is that the Court should remind the Crown of his obligations and to, in effect, seek to restrain him.

2. Issues of this sort were the subject of argument at the first trial of the Accused which commenced in May 2014. Written submissions were contained in MFIs 5 and 9, and there was a discussion at some length on 9, 12 and 13 May 2014. I indicated at page 72 of that transcript that I had formed a view, with respect to the matters then raised, which was articulated briefly. I indicated I would in due course give reasons for that conclusion.

3. As the first trial ended with the discharge of the jury, I did not move to give judgment, as it would have been in the nature of an advisory opinion.

4. The issue has now arisen in the manner which I have identified this morning. The basis of the defence argument is a passage in the judgment of Howie J in R v MM [2004] NSWCCA 81; 145 A Crim R 148 at 177-178 [155]. It is a well-known passage, in which his Honour was dealing directly with the operation of s.159 Criminal Procedure Act 1986 relating to the ability of defence counsel to open to the jury immediately after the Crown opening. In that passage, Howie J said:

"As an opening address by the Crown should not contain any argument or submission to the jury as to the validity of its case, so the 'matters disclosed in the prosecutor's address' referred to in the section, cannot be arguments or submissions arising from the nature of the evidence to be called by the Crown."

5. In the course of argument which occurred in the first trial, I observed that it was necessary to have regard to the nature of the trial. In a single issue trial where the evidence to be adduced is relatively brief, and the issue in contest and the way in which the Crown puts its case may be shortly stated, the content of a Crown opening (and for that matter a defence opening after the Crown opening) are likely to be relatively brief and focused.

6. This is a trial with a four-month estimate. It is a lengthy and complex trial involving a multi-facetted Crown case. The Crown case is said to involve circumstantial evidence, forensic evidence, the evidence of Witness A and other evidence. It is said to involve a combination of direct evidence and inferences which the Crown says ought be drawn from the evidence.

7. It seems to me that the nature of an opening by the Crown in a trial must be affected, to some extent at least, by the issues in the trial and its complexity. A bare recital of the evidence to be adduced, without some articulation of the way in which the Crown says that the evidence is said to fit together, and what it is said to point to in support of the Crown case, would not be of meaningful assistance to a jury in a trial such as this.

8. In my view, statements in R v Tangye (1997) 92 A Crim R 545 at 556, and Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 at 128 [141] (both referred to in submissions at the first trial) have some application and support this approach.

9. Those passages should not be confined to a construction that the Crown opening ought identify issues such as whether there may be scope for an alternative verdict, or whether the Crown is to put its case in a particular way, such as reliance on the concept of joint criminal enterprise. Undoubtedly those aspects are parts of what the Crown should articulate, and R v Tangye and Robinson v R support that proposition.

10. But in my view, the Crown is entitled to articulate in some detail the way in which the Crown puts its case by reference to the evidence which is anticipated to be given.

11. Section 159 Criminal Procedure Act 1986 itself provides some hint in this regard. Section 159(2) provides that:

"Any such opening address [that is by defence counsel] is to be limited generally to an address on:

(a)   the matters disclosed in the prosecutor's opening address, including those that are in dispute and those that are not in dispute, and

(b)   the matters to be raised by the accused person."

12. An opening address should not, of course, be a form of early version of the closing address. I said to the jury this morning, before the Crown opened, that the Crown opening address has the purpose of informing them about the evidence the Crown expected to be led, and the manner in which the Crown put its case by reference to that evidence.

13. The Crown, of course, from time to time says the Crown case is X or the Crown case is Y. Mr Turnbull SC complains about that formulation. He submits it is contrary to Howie J's statement in R v MM. I do not agree.

14. In my view, there needs to be some articulation of the Crown case. However, there are two important aspects to be borne in mind. Firstly, the language used should not be intemperate or excessive. Secondly, there should be a reminder (and I will remind the jury of this when they return to Court), that the opening address is based upon evidence which the Crown anticipates will be called, and that whether the evidence actually given supports the matters relied upon by the Crown, as facts or conclusions to be drawn, will be a matter for the future as the evidence is given. It will be for the jury, as the judges of the facts, to find those matters. That is an appropriate reminder to be given to the jury and I will do so.

15. The Crown has heard the argument which has occurred this morning and is hearing what I am saying now. It is important that the opening address be expressed in terms of that which is expected to be the evidence to be given.

16. I have raised one aspect, not yet touched upon in the opening, with the Crown by reference to paragraph 88 of the revised Crown case statement. To the extent that that paragraph uses the term "classic sexual grooming behaviour by the Accused", it seems to me to be a problematic proposition to utilise in opening. It involves an opinion, an opinion which may or may not be supported by evidence. Having regard in particular to the context in which that phrase was used, it is important that careful language is used when that aspect is reached.

17. In saying that, I am not indicating that the Crown cannot open in a manner which identifies the evidence expected to be given, and the way in which the Crown seeks to rely upon that material, all with the caveat that that may or may not be the position later in the trial.

18. I do not consider that anything said by Howie J in R v MM cuts across what I have said. However, as I have already observed, I accept that the complexity of a trial such as this requires some articulation of the matters advanced by the Crown by reference to the evidence expected to be given, and the way in which the jury is being invited to view this material if the evidence emerges in this way.

19. I will, of course, apply s.159 Criminal Procedure Act 1986, noting that it permits defence counsel to address on matters disclosed in the prosecutor's opening address, including matters which are in dispute and are not in dispute, and matters to be raised by the Accused.

20. Thus, the jury will have assistance, and I trust meaningful assistance, from both sides of the Bar table before the oral evidence is given, but with the very important rider throughout that these are openings being made before evidence is given.

21. In these circumstances, I do not propose to go beyond what I have said in this judgment. When the jury comes down, I do propose to remind them at that time that this is an opening address, and to use a formula of words of the type which I have identified in this judgment.

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Amendments

28 February 2017 - Publication restriction on coversheet amended.

Decision last updated: 28 February 2017