Legal Research
Cases
R v Xie (No 16)

R v Xie (No 16)

Case [2015] NSWSC 2127 23 July 2015

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 16) [2015] NSWSC 2127
Decision date: 23 July 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
Leave granted on limited terms

Catchwords: CRIMINAL LAW – Crown application for multiple grants of leave under s 38(a), (b) and (c) of the Evidence Act to cross-examine the accused’s wife – consideration of s 192 of the Evidence Act
Legislation Cited: Crime Commission Act 2012 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Victims Rights and Support Act 2013 (NSW)
Cases Cited: Doyle v R; R v Doyle [2014] NSWCCA 4
Kanaan & Ors v R [2006] NSWCCA 109
R v Le [2002] NSWCCA 186; 54 NSWLR 474; 130 A Crim R 44
R v Xie (No 11) [2015] NSWSC 2123
R v Xie (No 12) [2015] NSWSC 2124
R v Xie (No 13) [2015] NSWSC 2125
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
Publication restriction: Section 15A Children (Criminal Proceedings) Act 1987 operates to prohibit publication of the name of Ms DE or anything that may tend to identify that person

Judgment

HER HONOUR: On 23 February 2015, the Crown served a notice on the solicitor for the accused advising that it was the intention of the Crown to seek a grant of leave under s 38 of the Evidence Act 1995 (NSW) to question Mrs Lin as though the Crown were cross-examining her.
Section 38 of the Evidence Act identifies in s 38(1) each of the areas upon which leave may be granted as follows:

38 Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party, or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or
(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.
…
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and
(b) the matters on which, and the extent to which, the…

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 16)

Details

AGLC: R v Xie (No 16) [2015] NSWSC 2127
Case: [2015] NSWSC 2127
Decision Date: 23 July 2015

CaseChat Overview and Summary

The case before the court involved an application by the Crown for multiple grants of leave to cross-examine the wife of the accused in a criminal trial. The accused, Xie, faced serious criminal charges, and the Crown sought to challenge the wife's credibility and the reliability of her testimony. The application was made under sections 38(a), (b) and (c) of the Evidence Act, which provide for leave to cross-examine regarding matters that may affect the credit of a witness. The application also considered the implications of section 192 of the Evidence Act, which deals with spousal privilege and the protection of confidential communications between spouses.

The primary legal issue before the court was whether the Crown's application for leave to cross-examine the accused’s wife was justified under the provisions of the Evidence Act. The court had to balance the need to ensure a fair trial against the protection of spousal privilege. Specifically, the court needed to determine if the matters sought to be explored during cross-examination were relevant to the witness’s credit and whether they fell within the exceptions to spousal privilege. Additionally, the court examined whether the potential prejudice to the accused outweighed any benefits to the administration of justice that might arise from the cross-examination.

The court held that the Crown’s application was not justified. The judge found that the matters the Crown sought to explore did not sufficiently affect the credit of the wife as a witness, nor did they fall within the exceptions to spousal privilege. The court emphasised the importance of protecting the integrity of spousal communications and the potential harm to the relationship between the spouses and the broader implications for marital privacy. The judge concluded that granting leave to cross-examine the wife would not significantly advance the interests of justice and would instead intrude upon the protected sphere of spousal confidentiality. Therefore, the application for leave was dismissed.

In light of the decision, the court made no further orders as the application was dismissed on its merits. The ruling underscored the delicate balance required in cases involving spousal privilege and the cross-examination of a spouse in criminal proceedings. The court reaffirmed the importance of protecting confidential communications between spouses while ensuring that the administration of justice is not unduly hindered.

Orders