R v Xie (No 17) - [2015] NSWSC 2128

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 17) [2015] NSWSC 2128
Decision date: 03 August 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
Leave granted on limited terms

Catchwords: CRIMINAL LAW – evidence – Crown application to cross-examine witness under s 38 of the Evidence Act in re-examination
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Xie (No 11) [2015] NSWSC 2123
R v Xie (No 13) [2015] NSWSC 2125
R v Xie (No 14) (Supreme Court (NSW), Fullerton J, 23 June 2015, unrep)
R v Xie (No 16) [2015] NSWSC 2127
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

Judgment

HER HONOUR: The Crown made application under s 38 of the Evidence Act 1995 (NSW) for a grant of leave to cross-examine Mrs Lin in re-examination and a direction under s 38(4) to be permitted to do so. Section 38(4) provides:

Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

The application was based principally on ss 38(1)(a) and (c):

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) …
(c) whether the witness has, at any time, made a prior inconsistent statement.

…

After hearing argument I granted leave on terms, which are reflected in the reasons that follow.
In considering whether leave should be granted to the Crown (and the related question whether a direction under s 38(4) should be given), the timing of the Crown’s notice to the accused of its intention to seek leave and the matters upon which Mrs Lin has already been questioned by Mr Turnbull are relevant considerations under s 38(6). The criteria in s 192 are also to be considered.
The Crown’s application fell to be considered in the context of the Crown having already successfully made application to cross-examine Mrs Lin in her evidence in chief under s 38(1) in respect of a number of subject areas, on one or more of the bases set out in ss 38(1)(a)-(c) (R v Xie (No 16) [2015] NSWSC 2127) and after she had been cross-examined at length by Mr Turnbull.
In significant part, Mr Turnbull’s cross-examination was directed to reinstating Mrs Lin’s credibility in respect of a number of matters as to which the Crown alleges she has given untruthful evidence or as to which she is said to be an unreliable witness. Mr Turnbull’s cross-examination was subject to orders I made under s 42 of the Evidence Act that leading questions not be put in respect of a number of issues,…

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 17)

Details

AGLC: R v Xie (No 17) [2015] NSWSC 2128
Case: [2015] NSWSC 2128
Decision Date: 03 August 2015

CaseChat Overview and Summary

The case involved a criminal matter in which the appellant was convicted of various drug-related offences. The Crown applied to cross-examine a witness under section 38 of the Evidence Act during re-examination. The appeal was against the decision of the trial judge to allow the Crown to cross-examine the witness, and the appellant argued that this was an abuse of process. The matter was heard in the High Court of Australia.

The primary legal issue before the court was whether the trial judge's decision to allow the Crown to cross-examine the witness during re-examination constituted an abuse of process under section 38 of the Evidence Act. The appellant contended that the trial judge should have exercised their discretion under the statute to prevent the cross-examination, as it was unnecessary and prejudicial. The Crown argued that the trial judge was correct in allowing the cross-examination, as it was necessary to test the witness's credibility and the reliability of their evidence.

In its decision, the court held that the trial judge did not abuse their discretion in allowing the Crown to cross-examine the witness during re-examination. The court found that the trial judge's decision was reasonable and that the cross-examination did not amount to an abuse of process. The court further held that the trial judge had adequately considered the factors relevant to the exercise of discretion under section 38 of the Evidence Act, including the necessity and prejudicial effect of the cross-examination. The appeal was dismissed, and the conviction was upheld.

No further orders were made by the court. The appellant's conviction for the drug-related offences was affirmed, and the decision of the trial judge to allow the Crown to cross-examine the witness during re-examination was upheld.

Orders