Citation: R v Xie (No. 11) [2014] NSWSC 1977
Court: Supreme Court of New South Wales
Date: 1 July 2014
Judge(s): Johnson J
Background
The accused faced five counts of murder arising from the deaths of five family members in July 2009. Following the discharge of the jury at the first trial in June 2014, a second trial was scheduled to commence on 4 August 2014. The circumstances leading to the jury's discharge were addressed separately in R v Xie (No 10) [2014] NSWSC 1976.
After the first trial was discharged, the Crown served significant new evidence. A witness referred to as Ms AB alleged that the accused had sexually assaulted her on numerous occasions after the murders, during the period when she (then aged 15) came to live in the accused's home following the deaths of her family members. The Crown indicated it would rely on this alleged sexual abuse as evidence of motive, arguing the accused was driven by a sexual passion for Ms AB. The accused was not charged with any sexual offences.
By notice of motion, the accused sought a Basha inquiry, a form of pre-trial examination, in respect of Ms AB and expert witness Professor Patrick Parkinson. The Crown did not oppose the Basha inquiry in relation to Professor Parkinson but resisted the application as it related to Ms AB.
Legal Issues
- Whether the court should order a Basha inquiry requiring Ms AB to give evidence at a preliminary hearing before the trial commenced
- What legal principles govern the ordering and scope of a Basha inquiry in the Supreme Court
- Whether provisions of the Victims Rights and Support Act 2013 and analogous committal provisions in the Criminal Procedure Act 1986 affected the exercise of the court's discretion
- Whether a Basha inquiry should also be ordered in respect of Professor Parkinson
Decision
A Basha inquiry takes its name from R v Basha (1989) 39 A Crim R 337, in which the Court of Criminal Appeal confirmed that a trial court may allow a witness to be cross-examined on a voir dire before the witness is called at trial, particularly where the defence had no opportunity to cross-examine that witness at committal proceedings. Johnson J applied this principle together with the later authorities in R v Sandford (1994) 33 NSWLR 172 and R v Kennedy (1997) 94 A Crim R 341.
The Crown argued that the Victims Rights and Support Act 2013, which provides that victims will be relieved from appearing at preliminary hearings unless the court otherwise directs, weighed against ordering Ms AB's attendance. Johnson J acknowledged that provision but found it did not preclude the court from exercising its discretion to require her attendance in the circumstances of this case.
Turning to the scope of permissible questioning, Johnson J identified topics on which examination would be permitted at the Basha inquiry. These included matters that would assist the accused in properly preparing for trial, such as particularising the timing and circumstances of the alleged abuse in a context where surveillance devices had been installed in the accused's home for a period. The judge also noted that questioning aimed at testing the reliability or credit of Ms AB's account as it bore on her ability to recall and articulate events was a legitimate purpose. One proposed topic, concerning discussions Ms AB may have had with the Lin family relatives about whether the accused was the murderer, was not permitted on the current materials, though the judge left open the possibility that a permissible forensic purpose for that line of questioning could be articulated.
The application concerning Professor Parkinson was not contested in substance. The Crown and defence were continuing to discuss the precise areas of questioning, and Johnson J indicated orders would be made in terms of paragraph 2 of the notice of motion without the need for a ruling on scope at this stage.
Orders Made
- Ms AB directed to attend court to give evidence at the preliminary hearing to be held in advance of the trial
- Professor Patrick Parkinson directed to attend court to give evidence at the preliminary hearing to be held in advance of the trial
- Both examinations to be conducted in accordance with the terms of the judgment
Key Takeaways
- A Basha inquiry is available in the Supreme Court where significant new witness evidence emerges after committal proceedings, giving the defence an opportunity to examine that witness before trial, particularly where no cross-examination was possible at committal.
- Victims Rights and Support Act 2013 provisions relieving victims from attending preliminary hearings do not automatically preclude a court from directing a witness's attendance; the provision expressly preserves a court's discretion to direct otherwise.
- The permitted scope of a Basha inquiry is controlled by the trial court and is limited to questioning that achieves a legitimate forensic purpose in preparing for trial, rather than providing a general opportunity to test the witness's evidence in full.
- Where surveillance device recordings may bear on the circumstances of alleged conduct, that factual context can constitute a specific basis for allowing pre-trial examination to assist the accused in particularising the allegations.
- The committal provisions in the Criminal Procedure Act 1986 governing when vulnerable witnesses may be required to give evidence do not apply directly to a Basha inquiry in the Supreme Court, though they may offer analogous guidance.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 91, 93, 94
- Evidence Act 1995 (NSW), s 79
- Justices Act 1902 (NSW), s 48EA
- Victims Rights Act 1996 (NSW)
- Victims Rights and Support Act 2013 (NSW), s 6, s 6.9
Cases
- R v Basha (1989) 39 A Crim R 337
- R v Sandford (1994) 33 NSWLR 172
- Kant v Director of Public Prosecutions (1994) 34 NSWLR 21
- R v Kennedy (1997) 94 A Crim R 341
- R v Sam (No 16) [2009] NSWSC 544; 196 A Crim R 138
- X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
- R v Xie (No 4) [2014] NSWSC 500
- R v Xie (No 10) [2014] NSWSC 1976