R v Xie (No 2) - [2015] NSWSC 2116

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 2) [2015] NSWSC 2116
Decision date: 03 February 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
The notice of motion is dismissed.

Catchwords: CRIMINAL LAW – pre-trial hearing – application by accused for previous evidence of certain witnesses to be read out and tendered in pending trial as entirety of those witnesses evidence – where witnesses competent and available to give evidence in pending trial
Cases Cited: BUSB v R [2011] NSWCCA 39; 209 A Crim R 390
Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435
R v Xie (No 10) [2014] NSWSC 1976
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 trial of the accused, Lian Bin (Robert) Xie, on five counts of murder is scheduled to commence on 4 February 2015.
The deceased were members of the accused’s family by marriage.
Min (Norman) Lin was his brother-in-law, Yun Li (Lily) Lin, his sister-in-law, and Henry Lin and Terry Lin, his nephews. Yun Bin (Irene) Lin was Lily’s sister. The deceased were murdered on or about 18 July 2009 in their family home at Boundary Road, North Epping.
Brenda Lin, the daughter of Min Lin and Lily Lin and sister of Henry and Terry, was overseas at the time of the murders.
Two previous trials, convened in May 2014 and August 2014, did not result in verdicts.
The first jury was discharged by Johnson J on 10 June 2014 in circumstances detailed in his Honour’s judgment of that date (R v Xie (No 10) [2014] NSWSC 1976).
The second jury was discharged on 23 September 2014 due to his Honour’s ill health.
In the first and second trials the Crown led evidence from Yang Fei Lin (Mr Lin) and Feng Qin Zhu (Mrs Zhu), respectively the father and mother of the deceased Min Lin. They had each given their evidence before the discharge of the jury.
The Crown intends to call Mr Lin and Mrs Zhu in the pending trial. I accept that their evidence is important in the presentation of the Crown case. This is reflected in the comprehensive Crown case statement extensively referred to in a number of interlocutory judgments published in the course of the first and second trials and in the Crown’s opening address in both trials.
By an amended notice of motion filed on 2 February 2015, the accused seeks orders that the transcripts of the evidence of Mr Lin and Mrs Zhu, and the evidence tendered through them in the second trial, be tendered as constituting…

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 2)

Details

AGLC: R v Xie (No 2) [2015] NSWSC 2116
Case: [2015] NSWSC 2116
Decision Date: 03 February 2015

CaseChat Overview and Summary

In this case, the accused, Xie, made an application in the County Court of Victoria to have previous evidence given by certain witnesses read out and tendered in the pending trial. The nature of the dispute was whether the previous evidence should be read out and tendered in its entirety, as the witnesses were competent and available to give evidence in the current trial. The application was brought before the County Court of Victoria, which had jurisdiction to hear the matter.

The legal issue before the court was whether the previous evidence of the witnesses should be read out and tendered in its entirety, as the witnesses were competent and available to give evidence in the current trial. The court was required to consider the principles and precedents governing the admissibility of previous evidence in criminal trials, as well as the interests of justice in the particular circumstances of the case.

In delivering the judgment, the court considered the principles and precedents governing the admissibility of previous evidence in criminal trials. The court noted that the general rule is that witnesses should be available to give evidence in the current trial, and that previous evidence should not be read out and tendered if the witnesses are available. However, the court also recognised that there may be exceptional circumstances in which previous evidence should be admitted, such as where the witnesses are unable to attend or give evidence due to illness or other valid reasons. The court concluded that, in the present case, the witnesses were competent and available to give evidence in the current trial, and that there were no exceptional circumstances that warranted the admission of their previous evidence. The application was therefore dismissed.

The court ordered that the application be dismissed and that the previous evidence of the witnesses not be read out and tendered in the pending trial. The court emphasised that the decision was based on the specific circumstances of the case, and that each case would need to be considered on its own merits. The decision provides guidance to legal practitioners on the admissibility of previous evidence in criminal trials and the importance of ensuring that witnesses are available to give evidence in the current trial.

Orders