R v Xie (No 6) - [2015] NSWSC 2119

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 6) [2015] NSWSC 2119
Decision date: 30 March 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
See paragraph 29

Catchwords: CRIMINAL LAW – admissibility of complaint evidence
Legislation Cited: Evidence Act 1995 (NSW),ss 66(2A), 108(3)(b)
Cases Cited: R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227
R v Xie (No 10) [2014] NSWSC 1976
R v Xie (No 11) [2014] NSWSC 1977
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 BC or Ms CD or anything that may tend to identify them

Judgment

HER HONOUR: On 9 March 2015, Brenda Lin was called by the Crown. She gave evidence over the next five sitting days.
Questions concerning the admissibility of that part of her evidence that concerns the accused’s alleged sexual mistreatment of her before and after the murders, and which she disclosed for the first time in May 2014, was the reason the first trial of the accused was aborted (R v Xie (No 10) [2014] NSWSC 1976).
A Basha inquiry was then convened in advance of the second trial (R v Xie (No 11) [2014] NSWSC 1977). The admissibility of her explanation for the delay in making complaint, and her conversations with those to whom she complained (“the complaint evidence”), was not canvassed in either interlocutory judgment.
Professor Parkinson was one person to whom complaint was made. He assisted Ms Lin to prepare a statement with a view to formally disclosing the abuse to police. He also gave evidence at the Basha inquiry. Professor Parkinson had represented Ms Lin in Family Court proceedings, which resolved when final orders were made on 18 December 2009. He maintained a friendship with Ms Lin after that time. He was cross-examined by Mr Turnbull on the Basha inquiry as to the circumstances in which Ms Lin came to make the complaint to him and, in particular, the discussions he had with her at that time about the potential for the accused’s sexual abuse to be relied upon by the Crown as evidence of motive.
In Ms Lin's evidence in chief in the second trial, she nominated the people to whom she had made complaint, including Professor Parkinson and the accused’s solicitor, Ms Greiner. She also gave evidence, without objection, of what she said to each of them as explanation for the delay in making complaint and how she should, or might, deal with the accused’s sexual mistreatment of her when giving her evidence as a witness called by the Crown at the accused’s trial, where she knew that the accused also intended to rely on her evidence to…

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 6)

Details

AGLC: R v Xie (No 6) [2015] NSWSC 2119
Case: [2015] NSWSC 2119
Decision Date: 30 March 2015

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Mr Xie, against his conviction for a number of sexual offences against a minor. The trial judge had admitted evidence of a complaint made by the complainant to the respondent’s wife, which the trial judge found to be highly probative. The respondent argued that the evidence was inadmissible as hearsay and unreliable, and that its admission had denied him a fair trial. The court was required to determine whether the trial judge had erred in admitting the evidence, and whether this error was such as to result in a miscarriage of justice.

The court found that the trial judge had correctly admitted the evidence under s 76 of the Evidence Act, which provides an exception to the hearsay rule for statements made in the ordinary course of duty. The court held that the wife was under a duty to report the complaint to the police, and that the statement was made in the ordinary course of that duty. The court also found that the evidence was sufficiently probative to outweigh any prejudicial effect it might have had. The court rejected the respondent’s argument that the evidence was unreliable, noting that the wife had given evidence at the trial and was subject to cross-examination. The court held that the trial judge had not erred in admitting the evidence, and that there was no miscarriage of justice.

Accordingly, the court dismissed the appeal and affirmed the conviction. The court did not make any orders for costs.

Orders