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

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.
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.
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.
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…

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. 14)

Details

AGLC: R v Xie (No. 14) [2014] NSWSC 1979
Case: [2014] NSWSC 1979
Decision Date: 05 August 2014

CaseChat Overview and Summary

The appellant, Xie, was on trial for the murder of a police officer. The case was heard in the Supreme Court of Queensland. The Crown objected to several aspects of the defence’s opening address. The legal issues before the court centred on the permissible scope and content of the Crown's opening address in the context of a complex and multifaceted trial.

The court held that the Crown's opening should encapsulate the essential elements of the prosecution case, including the facts, legal principles, and the Crown's case theory. However, it should not delve into unnecessary details that might prejudice the jury. The court found that the Crown’s opening had exceeded these boundaries by including potentially prejudicial information. The court emphasised that while the Crown was entitled to outline the essential facts and legal framework of the case, it should avoid including details that might inflame the jury or prejudice the defendant. The court also noted that the defence's right to a fair trial must be protected, and any prejudicial information introduced at the outset could undermine this right.

The Supreme Court concluded that certain parts of the Crown's opening address were inadmissible and could not be relied upon by the Crown in its case. The court ordered that these parts be stricken from the record and instructed the jury to disregard them. The trial proceeded with a corrected opening from the Crown that adhered to the court's guidelines on permissible content. The court's decision underscored the importance of maintaining the integrity of the trial process and protecting the rights of both the prosecution and the defence.

Orders