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Supreme Court 3 February 2015

R v Xie (No 1)

[2015] NSWSC 2115

Homicide
CRIMINAL LAW PRETRIAL HEARING

Citation: R v Xie (No 1) [2015] NSWSC 2115
Court: Supreme Court of New South Wales
Date: 3 February 2015
Judge(s): Fullerton J

Background

The accused faced five counts of murder arising from the deaths of five family members by marriage at a North Epping residence in July 2009. Two previous trials, conducted in May 2014 and August 2014 respectively, had each ended without a verdict: the first jury was discharged in June 2014 and the second jury was discharged in September 2014 due to the trial judge's ill health.

A third trial was scheduled to commence on 4 February 2015. The Crown intended to call three witnesses whose evidence had featured in both earlier trials: two elderly parents of one of the deceased, and the deceased's daughter, who had also given evidence (though not completed it) in the second trial.

On 19 December 2014, the Crown brought a motion seeking orders that the evidence of all three witnesses at the upcoming trial be audiovisually recorded. The accused did not oppose the application.

  • Whether the court had power under s 39 of the Criminal Procedure Act 1986 (NSW) and Rule 3L of Division 1 of Part 75 of the Supreme Court Rules 1970 (NSW) to order audiovisual recording of Crown witnesses' evidence.
  • Whether sufficient grounds existed to justify making such orders on a precautionary basis, in anticipation of a possible further trial or retrial.
  • What considerations were relevant to the exercise of that discretion, given that neither the Act nor the Rules specify the matters the court must take into account.

Decision

Fullerton J granted the orders. The power to direct audiovisual recording of witness evidence arises under s 39 of the Criminal Procedure Act and Rule 3L of the Supreme Court Rules. The legislation and rules do not prescribe the factors the court must weigh, leaving the matter to judicial discretion.

In relation to the two elderly witnesses, the court accepted that their age created a real risk of unavailability if a fourth proceeding were ever necessary. An audiovisual record made in the third trial would preserve their evidence for both the Crown and the accused in that event.

In relation to the third witness, the precautionary rationale was similar, but an additional consideration arose. It was anticipated that she would give evidence of alleged sexual assaults by the accused following the murders. Because the accused had not been charged with those assaults, her evidence did not fall within the regime under s 306B of the Criminal Procedure Act, which specifically permits the Crown to tender an audiovisual record of a complainant's evidence at a retrial of a prescribed sexual offence. The court noted that the accused's consent would be required before any such recording could be tendered in a future murder trial, and the order was made to preserve the option of considering that question if it arose.

Fullerton J was satisfied that a proper basis existed for all three orders and that appropriate arrangements could be made to facilitate the recordings without adversely affecting the accused's trial.

Orders Made

  • The evidence of the three named Crown witnesses at the trial of the accused is to be audiovisually recorded.
  • A copy of each audiovisual record is to be provided to the Court, the office of the Director of Public Prosecutions, and the solicitor for the accused.

Key Takeaways

  • Under s 39 of the Criminal Procedure Act 1986 (NSW) and Rule 3L of the Supreme Court Rules, the Supreme Court may direct that witness evidence be audiovisually recorded, and neither instrument prescribes the matters the court must consider when exercising that power.
  • A precautionary purpose, specifically preserving evidence in case of a further trial or retrial, can constitute sufficient grounds for ordering audiovisual recording of witness evidence.
  • Witness age and the associated risk of future unavailability are relevant considerations in the exercise of the court's discretion to order recording.
  • Where the accused has not been charged with sexual offences, the s 306B pathway for tendering an audiovisual record of a complainant's evidence at a retrial of a prescribed sexual offence is not available; the accused's consent would instead be required before such a recording could be tendered in subsequent proceedings.
  • The absence of opposition from the defence does not automatically resolve the question: the court must still be satisfied that a proper basis exists for the orders sought.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 39, 306B
- Supreme Court Rules 1970 (NSW), Rule 3L of Division 1 of Part 75

Cases:
- R v Xie (No 10) [2014] NSWSC 1976
- R v Xie (No 11) [2014] NSWSC 1977
- R v Xie (No 12) (Supreme Court (NSW), Johnson J, 21 July 2014, unreported)
- R v Xie (No 13) [2014] NSWSC 1978
- R v Xie (No 25) (Supreme Court (NSW), Johnson J, 11 September 2014, unreported)