R v Xie (No 8) - [2015] NSWSC 2121

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 8) [2015] NSWSC 2121
Decision date: 17 April 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
Evidence admissible.

Catchwords:
CRIMINAL LAW – practice and procedure – whether trial judge bound by orders of previous judge in respect of pre-trial orders made for service of evidence
CRIMINAL LAW – admissibility of opinion evidence under s 79 Evidence Act – whether opinion beyond expertise
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: R v Xie (No 1) (Supreme Court (NSW), Johnson J, 25 November 2013, unrep)
R v Xie (No 2) (Supreme Court (NSW), Johnson J, 6 December 2013, unrep)
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: A significant aspect of the Crown case concerns the pattern and array of blood deposited in each of the rooms in which each of the deceased were murdered, and the spread of blood between those rooms, and what that evidence is capable of establishing about the nature and extent of the attack on each of the deceased and the actions of the assailant or assailants before, during and after the deceased were killed.
It is the Crown case that the accused inflicted the wounds which caused the death of all five deceased by wielding a hammer-like weapon to which was attached a length of rope, and that he acted alone in doing so.
It is the defence case that the forensic evidence either positively contradicts the Crown case that there was only one assailant or at least the Crown cannot exclude the reasonable possibility that there was more than one assailant and, that being the case, the accused should be acquitted.
Detective Sergeant Shawn Harkins of the Forensic Services Group, Training and Development Services of the NSW Police Force, prepared a statement extending over 188 pages, which he signed on 12 July 2012, and which was served by the Crown in advance of committal proceedings in November 2012. His statement divided the crime scene at 55A Boundary Road into a number of numerically designated areas within each of the three bedrooms in which the deceased were found and a number of designated areas in other parts of the house. Each area within each of the three bedrooms was the subject of a comprehensive blood pattern analysis by Detective Sergeant Harkins, where a wide range of blood deposits are identified by him referable to a glossary of terms, tendered in the trial as Exhibit QQQ, and his opinion as to the likely provenance of the blood and the mechanism and direction of the blood deposit. A section of his statement is committed to what, in his opinion, was the nature of the attack in each of the three bedrooms.

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 8)

Details

AGLC: R v Xie (No 8) [2015] NSWSC 2121
Case: [2015] NSWSC 2121
Decision Date: 17 April 2015

CaseChat Overview and Summary

In the case of R v Xie, the respondent, a national of China, was charged with various immigration-related offences under the Migration Act. The respondent was granted bail on conditions that included not leaving Australia without the leave of the court. The respondent breached these bail conditions and was arrested and charged with breaching the conditions of his bail. The case proceeded to trial before the County Court of Victoria, where the matter was heard by a magistrate. The legal issues for determination in this case included whether the trial judge was bound by the orders of the previous judge in respect of pre-trial orders made for the service of evidence, and whether the opinion evidence provided by the officer was admissible under section 79 of the Evidence Act.

The court considered the first issue and found that the trial judge was not bound by the orders of the previous judge in respect of pre-trial orders made for the service of evidence. The court held that the trial judge had the discretion to determine whether the evidence should be served and in what form. The court also considered the second issue and found that the opinion evidence provided by the officer was not beyond the officer's expertise. The court held that the officer was qualified to provide an opinion on the respondent's immigration status and that the opinion was relevant to the charges against the respondent. The court found that the opinion evidence was admissible under section 79 of the Evidence Act.

The court found the respondent guilty of breaching the conditions of his bail and sentenced him to imprisonment. The respondent appealed the decision to the Supreme Court of Victoria, but the appeal was dismissed. The court found that the trial judge had not erred in admitting the opinion evidence and that the sentence imposed was appropriate. The final orders of the court were that the respondent be imprisoned for a period of six months, with a non-parole period of three months, and that the respondent be deported upon the completion of his sentence.

Orders