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Supreme Court 30 July 2014

R v Xie (No. 13)

[2014] NSWSC 1978

Sexual offencesHomicide
CRIMINAL LAW MURDER TRIAL APPLICATION TO EXCLUDE EVIDENCE REFUSED

Citation: R v Xie (No. 13) [2014] NSWSC 1978
Court: Supreme Court of New South Wales
Date: 30 July 2014
Judge(s): Johnson J

Background

The accused faced five counts of murder relating to the deaths of members of a family in July 2009. One surviving member of that family, identified as Ms AB, gave statements describing sexual interest shown towards her by the accused both before and after the murders. After the murders, Ms AB had moved into the accused's house, where she alleged frequent sexual assaults occurred.

On 10 June 2014, Johnson J had already ruled that Ms AB's evidence was relevant and admissible, declining to exclude it under s 137 of the Evidence Act 1995. The jury then sitting was discharged for separate reasons. Following that discharge, the Crown obtained additional statements and the court directed "Basha" inquiries (a process allowing the defence to examine a witness before trial to test the evidence). Those inquiries took place on 22 and 23 July 2014.

Armed with the new material emerging from those inquiries, the accused brought a fresh Notice of Motion on 23 July 2014, again seeking exclusion of Ms AB's evidence. The application also sought to prevent related corroborating evidence from being adduced if the primary exclusion was granted.

  • Whether the court should revisit its earlier interlocutory ruling admitting Ms AB's evidence, and on what legal basis it could do so
  • Whether Ms AB's evidence constituted tendency evidence governed by ss 97 and 101 of the Evidence Act 1995
  • Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995, justifying exclusion
  • Whether any new material arising from the Basha inquiries materially changed the position established at the earlier ruling

Decision

Johnson J first addressed the threshold question of whether s 130A of the Criminal Procedure Act 1986 applied. His Honour concluded it did not, because s 130A is directed at binding orders made by one judge that a different trial judge is asked to revisit. As the same judge had made the original ruling and was hearing the fresh application, the appropriate framework was instead a discretionary one: whether, in the interests of justice, circumstances had changed materially since the first ruling, citing R v Taylor [2007] NSWCCA 104.

On the substantive question, the court found that the evidence before it was substantially the same as at the 10 June 2014 hearing. Ms AB had confirmed her statements under oath at the Basha inquiry. The additional material did not materially alter the evidential landscape. Johnson J also rejected the argument that the Crown's use of the evidence amounted to tendency reasoning, noting that the accused was charged with murder, not sexual assault, and that the evidence was directed to establishing a possible motive rather than proving a tendency to act in a particular way.

The court also addressed the argument that the accused's sexual interest might have been merely opportunistic rather than evidence of a deep motivation capable of supporting an inference of motive to murder. Johnson J accepted that this line of argument was available, but held it was properly a matter for the jury to weigh at trial rather than a basis for exclusion at the admissibility stage.

Finding that the probative value of Ms AB's evidence remained significant and was not outweighed by the danger of unfair prejudice, the court adhered to its earlier ruling. The application was dismissed.

Orders Made

  • The accused's Notice of Motion dated 23 July 2014 was dismissed.
  • Order 1 (exclusion of Ms AB's statements under s 137) was refused.
  • Order 2 (exclusion of corroborating statements under s 55) did not arise in light of the refusal of Order 1.

Key Takeaways

  • A trial judge has a discretion to revisit an earlier interlocutory evidentiary ruling, but should do so only where the interests of justice require it and where circumstances have materially changed since the first ruling.
  • Section 130A of the Criminal Procedure Act 1986 is directed at situations where one judge has made an order and a different trial judge is asked to revisit it; it does not apply where the same judge reconsiders their own earlier ruling.
  • Evidence of a sexual interest in a witness is not automatically characterised as tendency evidence under ss 97 and 101 of the Evidence Act 1995; where it is advanced to support a motive for murder rather than to prove a behavioural tendency, those provisions may not be engaged.
  • Under s 137 of the Evidence Act 1995, the court reaffirmed the principles in R v Burton [2013] NSWCCA 335, finding that significant probative value was not outweighed by the danger of unfair prejudice, even where the evidence related to uncharged conduct of a sexual nature.
  • Arguments going to the weight or alternative interpretation of contested evidence, such as whether a motive was opportunistic rather than premeditated, are generally matters for the jury rather than grounds for exclusion at the admissibility stage.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 97, 101, 137
- Criminal Procedure Act 1986 (NSW), s 130A

Cases
- R v Burton [2013] NSWCCA 335; 237 A Crim R 238
- R v Ford [2009] NSWCCA 306; 273 ALR 286
- R v Taylor [2007] NSWCCA 104; 169 A Crim R 543
- R v Xie (No 4) [2014] NSWSC 500
- R v Xie (No 10) [2014] NSWSC 1976
- R v Xie (No 11) [2014] NSWSC 1977