AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 21 July 2014

R v Xie (No. 12)

[2014] NSWSC 1980

Homicide
CRIMINAL LAW ACCUSED CHARGED WITH MURDER BASHA INQUIRY IN ADVANCE OF TRIAL APPLICATION ALLOWED

Citation: R v Xie (No. 12) [2014] NSWSC 1980
Court: Supreme Court of New South Wales
Date: 21 July 2014
Judge(s): Johnson J

Background

The accused faced five counts of murder and was scheduled to stand trial with a jury to be empanelled within two weeks of this ruling. A Basha inquiry (a pre-trial hearing at which the defence can cross-examine witnesses whose evidence may otherwise be unavailable at trial) was set to commence the following day, 22 July 2014, in accordance with the Court's earlier decision in R v Xie (No 11).

One of the witnesses to give evidence at the Basha inquiry was Ms AB. Her evidence raised sensitive issues, and a medical certificate had been provided to the Court in support of special arrangements for her testimony. A second witness, Professor Patrick Parkinson, was to give evidence in the afternoons while Ms AB gave evidence in the mornings.

The Crown applied by Notice of Motion for Ms AB's evidence to be given via closed circuit television (CCTV) from a remote location, in a closed court, and for her evidence to be limited to no more than three hours per day. The accused did not oppose the application for the purpose of the Basha inquiry.

  • Whether the Court had power under s 26 of the Evidence Act 1995 (NSW) to order that Ms AB give evidence by CCTV and in closed court during a Basha inquiry.
  • Whether those orders were appropriate in the circumstances, having regard to Ms AB's personal circumstances and the proximity of the trial date.

Decision

Johnson J identified s 26 of the Evidence Act 1995 as the primary source of power. That section empowers the Court to make orders it considers just in relation to the questioning of witnesses, including orders concerning the presence and behaviour of any person in connection with that questioning. His Honour found that this provision extended beyond the manner of questioning to encompass who was present in court during that questioning.

His Honour observed that the accused was not charged with any sexual assault offence, so statutory provisions specific to sexual assault trials did not directly apply. However, he considered that Ms AB's position was analogous, by comparison, to that of an alleged victim giving evidence in a sexual assault trial, and that the criminal justice system's established approach of facilitating evidence from such witnesses was instructive.

Johnson J was satisfied that the Court's available powers extended to making orders facilitating Ms AB's evidence in this trial. He noted that both CCTV evidence from a remote location and the closing of a court are well-known and available mechanisms. He also identified a further reason specific to this case: preserving the trial's start date by minimising any risk that an adverse event during the Basha inquiry might disrupt the imminent jury empanelment.

Although the application was unopposed, the Court recorded brief reasons to explain why the measures were being employed. His Honour noted that any similar application for the trial itself, if contested, would require a separate hearing and determination at that time.

Orders Made

  • The Notice of Motion dated 21 July 2014 was made returnable instanter (immediately).
  • Ms AB's evidence on the Basha inquiry was to be given by closed circuit television.
  • Ms AB's evidence on the Basha inquiry was to be given in closed court.

Key Takeaways

  • Section 26 of the Evidence Act 1995 (NSW) provides a source of power to order CCTV evidence and a closed court during a pre-trial Basha inquiry, not only during the trial itself.
  • The provision extends, on its face, to controlling who is present in court during witness questioning, not merely the manner in which questions are put.
  • Where a witness occupies a position analogous to an alleged victim of sexual assault, the court may draw on the criminal justice system's established approach of facilitating such evidence, even in the absence of formal sexual assault charges.
  • Protecting the integrity of an upcoming trial date constitutes a separate and legitimate consideration when determining whether to make facilitative orders at a pre-trial hearing.
  • Uncontested applications of this kind may still warrant short published reasons, so the basis for the court's exercise of discretion is transparent on the record.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 26

Cases
- R v Xie (No 10) [2014] NSWSC 1976
- R v Xie (No 11) [2014] NSWSC 1977