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Supreme Court 5 August 2014

R v Xie (No. 14)

[2014] NSWSC 1979

Homicide
CRIMINAL LAW MURDER TRIAL CROWN OPENING ADDRESS FACETED TRIAL

Citation: R v Xie (No. 14) [2014] NSWSC 1979
Court: Supreme Court of New South Wales
Date: 5 August 2014
Judge: Johnson J

Background

The accused stood trial for murder in a lengthy and complex proceeding estimated to run for four months. The Crown case involved a combination of circumstantial evidence, forensic evidence, and direct witness testimony. This was the second trial, the first having ended with the discharge of the jury.

During the Crown's opening address, senior counsel for the accused rose to object to aspects of its content and tone. The defence sought an order that the Court remind the Crown of his obligations and, in effect, restrain him from making certain types of statements to the jury.

The central dispute concerned how far a Crown opening may go in articulating the Crown's theory of the case, and whether characterising the evidence in terms of conclusions or arguments crossed a line established by prior authority.

  • What is the permissible scope and content of a Crown opening address, particularly in a lengthy and complex trial?
  • Does the Crown exceed its proper role by stating "the Crown case is X" or "the Crown case is Y" in opening?
  • What restrictions, if any, arise from the judgment of Howie J in R v MM regarding the absence of argument or submission in a Crown opening?
  • What directions, if any, should the jury receive in connection with the opening?

Decision

Johnson J declined to restrain the Crown or go beyond the guidance set out in the judgment. His Honour accepted that the proper content of a Crown opening is necessarily shaped by the nature and complexity of the trial. A bare recitation of anticipated evidence, with no explanation of how the Crown says that evidence fits together, would not meaningfully assist a jury in a four-month multi-faceted trial.

His Honour distinguished the present case from shorter, single-issue trials. In complex proceedings, the Crown is entitled to articulate with some detail the way in which it puts its case by reference to the anticipated evidence, including the inferences it invites the jury to draw if the evidence emerges as expected. The passages in R v Tangye and Robinson v R were read as supporting this broader approach, not confining a Crown opening merely to identifying discrete structural issues such as alternative verdicts or joint criminal enterprise.

Johnson J did not accept that Howie J's statement in R v MM prohibited the Crown from framing its case in opening. That statement was directed at the operation of s 159 of the Criminal Procedure Act 1986 and did not, in his Honour's view, prevent the Crown from identifying the thrust of its case by reference to expected evidence. However, two important qualifications were noted: the language used must not be intemperate or excessive, and the opening must be framed throughout as based on evidence the Crown anticipates calling, not as established fact.

One specific concern was raised about language in paragraph 88 of the Crown case statement describing conduct as "classic sexual grooming behaviour by the Accused." Johnson J identified this as a problematic proposition for use in opening because it expressed an opinion that may or may not ultimately be supported by evidence. The Crown was directed to exercise particular care when reaching that aspect of its address. His Honour indicated he would remind the jury, upon their return, that an opening address is not evidence and that whether the anticipated evidence supports the Crown's assertions remains a matter for determination as the trial proceeds.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The permissible scope of a Crown opening address is not fixed and must be assessed in light of the complexity of the particular trial. A simple recitation of anticipated evidence may be insufficient in lengthy, multi-faceted proceedings.
  • In complex trials, the Crown may articulate its theory of the case with some detail, including how it contends the evidence fits together and what inferences it invites the jury to draw, provided the language is not intemperate and the address is framed in terms of anticipated rather than established evidence.
  • R v MM [2004] NSWCCA 81 does not prohibit the Crown from stating the nature of its case in opening. Johnson J read that authority as directed to the operation of s 159 of the Criminal Procedure Act 1986, not as a general prohibition on characterising the Crown case.
  • Characterising conduct in an opening address as a specific forensic or clinical category (such as "grooming behaviour") carries risk where that characterisation depends on opinion evidence not yet admitted.
  • Under s 159 of the Criminal Procedure Act 1986, defence counsel may open to the jury immediately after the Crown opening and is entitled to address on all matters disclosed in the Crown's opening, including disputed and undisputed matters.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 159

Cases
- R v MM [2004] NSWCCA 81; 145 A Crim R 148
- R v Tangye (1997) 92 A Crim R 545
- Robinson v R [2006] NSWCCA 192; 162 A Crim R 88