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Supreme Court 10 June 2014

R v Xie (No 10)

[2014] NSWSC 1976

Homicide
CRIMINAL LAW MURDER TRIAL WHETHER EVIDENCE RELEVANT CROWN AGREES THAT DISCHARGE APPROPRIATE JURY DISCHARGED

Citation: R v Xie (No 10) [2014] NSWSC 1976
Court: Supreme Court of New South Wales
Date: 10 June 2014
Judge(s): Johnson J

Background

The accused faced trial on five counts of murder arising from the deaths of members of the Lin family at North Epping on or about 18 July 2009. The trial had commenced on 8 May 2014 with a jury of 15. The sole surviving member of the Lin family, identified by the pseudonym Ms AB, had been expected to give evidence for the Crown throughout the proceedings.

On 2 June 2014, approximately one month into the trial, the Crown served a further statement from Ms AB dated 29 May 2014. That statement alleged, in summary, that the accused had shown increasing physical and sexual interest in Ms AB in the 12 months before the murders, and had engaged in more serious sexual conduct with her on multiple occasions after the deaths, while she was living in his household.

The accused denied the alleged conduct. His legal representatives brought a Notice of Motion seeking, in the alternative, exclusion of the new evidence or discharge of the jury.

  • Whether Ms AB's new statement was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW), in that it could rationally affect the probability of a fact in issue
  • If relevant, whether the evidence should nonetheless be excluded under s 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
  • Whether, if the evidence were admitted, the jury should be discharged given the substantial change to the Crown case mid-trial

Decision

On the relevance question, Johnson J found the threshold under s 55 was satisfied. The evidence bore on the issue of motive, on the accused's good character (which had already been raised), and on the alibi evidence of Kathy Lin that she would have noticed the accused leaving the bed on the night of the murders. The judge was satisfied the evidence could rationally affect the jury's assessment of the facts in issue, noting that the relationship between the accused and the sole surviving Lin family member was already a significant feature of the trial.

On the s 137 exclusion application, Johnson J acknowledged the force of the argument that the accused would effectively be defending serious sexual assault allegations at the same time as murder charges. However, his Honour found there was a sufficient nexus between the alleged sexual conduct toward Ms AB and the alleged murders to justify admission. The probative value was not outweighed by the danger of unfair prejudice, particularly given Ms AB could not realistically be called as a witness while this recent allegation was left entirely unaddressed.

On the discharge question, both the Crown and the defence ultimately agreed that the jury should be discharged. Johnson J accepted that the Crown case had fundamentally shifted from the basis on which both parties had opened to the jury. Additional witnesses would be required, further preparation time was needed, and no direction could cure the prejudice arising from the mid-trial transformation of the case. The trial was still at a comparatively early stage, which weighed in favour of discharging rather than continuing.

Orders Made

  • The jury was discharged pursuant to paragraph 3 of the Notice of Motion.

Key Takeaways

  • Under s 55 of the Evidence Act 1995, the relevance threshold is relatively low: evidence need only be capable of rationally affecting, directly or indirectly, the probability of a fact in issue. Johnson J confirmed that alleged sexual conduct by an accused toward a surviving family member could satisfy this threshold where it was said to bear on motive and alibi evidence.
  • Section 137 of the Evidence Act 1995 does not require exclusion merely because evidence is incriminating or places an accused in a difficult position. The "unfair prejudice" analysis requires a genuine balancing exercise against probative value.
  • Where a sufficient nexus exists between uncharged sexual conduct and the charged offences, the evidence may be admitted notwithstanding that the accused effectively faces two categories of serious allegations before the same jury.
  • A mid-trial change of this magnitude, requiring additional witnesses and substantially altering the basis on which both parties had opened, can justify discharge of the jury even when the trial is comparatively well advanced.
  • No criticism attached to any party where significant new evidence emerged during the trial through no fault of the Crown, the defence, or the court.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55 and 137

Cases:
- Crofts v The Queen [1996] HCA 22; 186 CLR 427
- R v Xie (No 4) [2014] NSWSC 500