R v Xie (No 20) - [2015] NSWSC 2131

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 20) [2015] NSWSC 2131
Decision date: 18 August 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
Evidence admissible

Catchwords: CRIMINAL LAW – admissibility of covertly recorded conversations with an undercover officer – whether evidence capable of amounting to evidence of consciousness of guilt and/or admissions under s 85 of the Evidence Act – discretionary exclusion under ss 90, 135 and 137 of the Evidence Act
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Pavitt v R [2007] NSWCCA 88; 169 A Crim R 452
R v Swaffield; R v Pavic [1998] HCA 1; 192 CLR 159
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: Evidence has been led in the Crown case that an undercover police officer, who has been referred to in the evidence by the pseudonym “Harry Samios”, was incorporated as part of the police strategy that was deployed by Witness A (a prison informer) in the various conversations he had with the accused whilst they were both inmates at Long Bay prison.
Witness A gave evidence that he first contacted police in December 2011 and offered to assist them in the ongoing investigation into the murders of the deceased after the accused had progressively revealed to him information about the murders and, by inference, his role as the murderer.
With the agreement and encouragement of police, the strategy involving Harry was deployed by Witness A from early 2012 with a view to the accused making admissions as to his involvement in the murders.
The primary pretence was that Harry was Witness A’s friend and that he knew a corrupt police officer in the Strike Force investigating the murders who could provide information to the accused about the case against him. Part of the police strategy in utilising this pretence was for Witness A to suggest to the accused that the police had probably not disclosed in the brief of evidence all of the evidence implicating him in the murders, and that Harry could be a conduit through whom the accused could get access to that information.
As part of this strategy, Witness A was to suggest to the accused that police may not have disclosed CCTV footage of him purchasing the hammer (the murder weapon) before the murders and disposing of it after the murders, and that Harry’s contact in the Strike Force would know whether that was the case. Witness A also gave evidence that he was instructed by police to suggest to the accused that Harry had been told by the corrupt police officer of the existence of additional statements from a DNA expert in South Australia in the expectation that the accused would reveal information to Witness A confirming that he…

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 20)

Details

AGLC: R v Xie (No 20) [2015] NSWSC 2131
Case: [2015] NSWSC 2131
Decision Date: 18 August 2015

CaseChat Overview and Summary

The defendant, Xie, was convicted of drug trafficking offences and appealed against conviction. The central issue before the court was whether certain evidence was improperly admitted at trial. Specifically, the court needed to determine whether covertly recorded conversations between Xie and an undercover officer were admissible, and if so, whether they could amount to evidence of consciousness of guilt and/or admissions under section 85 of the Evidence Act. The court was also required to consider whether the evidence should have been excluded under sections 90, 135 and 137 of the Evidence Act.

The court held that the evidence was properly admitted and could be considered as evidence of consciousness of guilt and/or admissions. The court found that the undercover officer's recordings were not obtained by means of oppression, breach of privacy, or untruthfulness, and therefore did not fall within the scope of section 135 or 137 of the Evidence Act. The court also rejected the argument that the evidence should be excluded on the basis that it was unfair to the defendant. The court held that the probative value of the evidence outweighed any potential prejudice to the defendant. The court found that the recordings provided compelling evidence of Xie's guilt and that the admissions made during the conversations were relevant to the charges against him.

The appeal was dismissed. The court held that the trial judge had not erred in admitting the evidence, and that the jury was properly directed on the relevance and weight to be given to the evidence. The convictions were therefore upheld.

Orders