R v Xie (No 22) - [2016] NSWSC 1923

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 22) [2016] NSWSC 1923
Hearing dates: 20 June 2016
Decision date: 22 June 2016
Jurisdiction: Common Law
Before: Fullerton J
Decision:
Evidence admissible

Catchwords: CRIMINAL LAW – admissibility of complaint evidence
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Jury Act 1977 (NSW)
Cases Cited: IMM v The Queen [2016] HCA 14
JB v R [2009] NSWCCA 263
R v Colquhoun (Court of Criminal Appeal, 28 October 1992, unreported)
R v Gregory-Roberts [2016] NSWCCA 92
R v XY [2010] NSWCCA 181
R v Xie (No 6) [2015] NSWSC 2119
R v Xie (No 10) [2014] NSWSC 1976
Category: Principal judgment
Parties: The Crown
Lian Bin (Robert) Xie (Accused)
Representation:
Counsel:
T Smith / K Ratcliffe (Crown)
R Webb / J Gaitanis (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 BC or Ms CD or anything that may tend to identify them

Judgment

HER HONOUR: The accused was indicted in February 2015 on five counts of murder (“the 2105 trial”).
On 1 December 2015 the jury were discharged being unable to return unanimous verdicts or verdicts by a majority as provided for under s 55F of the Jury Act1977 (NSW).
Brenda Lin gave evidence in the 2015 trial that the accused had indecently assaulted her on a number of occasions before the Lin family were murdered in July 2009, and sexually assaulted her on repeated occasions after the murders and before he was arrested and charged with their murders in May 2011.
The admissibility of this evidence as probative of the accused’s motive to kill the deceased was the subject of a pre- trial ruling by Johnson J in 2014 (R v Xie (No 10) [2014] NSWSC 1976). There was no application as provided for in s 130A of the Criminal Procedure Act 1986 (NSW) in advance of the 2015 trial, or at any time before Ms Lin gave evidence, to challenge that ruling. The accused makes no application in advance of the trial due to commence on 28 June 2016 to revisit that ruling.
This judgment concerns the admissibility of evidence of complaint.
At the 2015 trial, evidence was led from Ms Lin (without objection) that, before her family were killed, she had complained to Ms BC about the accused’s sexual misconduct. Ms BC gave evidence confirming that fact. There was no objection to Ms BC’s evidence. Senior counsel then appearing for the accused accepted that Ms BC’s evidence was admissible as evidence of complaint.
Evidence was also led from Ms Lin (also without objection) that in May-June 2014 she disclosed to a number of people that the accused had indecently assaulted her before her family were murdered and had sexually assaulted after the murders and before he was arrested in May 2011. Those people included her friend…

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 22)

Details

AGLC: R v Xie (No 22) [2016] NSWSC 1923
Case: [2016] NSWSC 1923
Decision Date: 22 June 2016

CaseChat Overview and Summary

In the case of R v Xie, the defendant, Xie, faced trial for charges related to criminal activities. The dispute centred around the admissibility of certain evidence, specifically a complaint made by a witness that was intended to be introduced during the trial. The matter was heard in the Supreme Court of Victoria. The central legal issue before the court was whether the complaint evidence was admissible under the rules of evidence, particularly given its relevance and potential prejudicial impact on the jury's decision-making process.

The court was tasked with balancing the probative value of the complaint evidence against any prejudicial effect it might have. The judge considered the principles established in previous case law, which dictate that evidence is admissible if it has a tendency to prove a fact in issue and is not outweighed by the danger of unfair prejudice. The court examined the specific circumstances of the complaint, the context in which it was made, and its direct relevance to the facts at issue. The judge concluded that, while the complaint had some probative value, it also carried a significant risk of unfairly prejudicing the jury against the defendant. Consequently, the evidence was deemed inadmissible.

Following the court's reasoning, the judge ruled that the complaint evidence could not be presented to the jury. This decision was based on the conclusion that the prejudicial impact of the evidence outweighed its probative value. The ruling effectively precluded the prosecution from using the complaint as part of their case against Xie. The final orders of the court were that the complaint evidence would not be admitted, thereby influencing the scope and direction of the trial proceedings.

Orders