Citation: R v Xie (No 2) [2015] NSWSC 2116
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 members of his extended family at their North Epping home in July 2009. Two previous trials, held in May and August 2014, had each ended without a verdict: the first jury was discharged by Johnson J, and the second jury was discharged due to the presiding judge's ill health. A third trial was scheduled to begin on 4 February 2015.
In each of the two prior trials, the Crown had called two key witnesses, the parents of one of the deceased, who gave lengthy evidence with the assistance of interpreters. In the second trial alone, one witness gave evidence over nine days (307 transcript pages) and the other over nine days (208 transcript pages). Both witnesses remained competent and available to give evidence in the third trial.
On the eve of the third trial, the accused brought a motion seeking orders that the transcripts of those two witnesses' evidence from the second trial be read to the jury by actors, as a "re-enactment," and that no further evidence be taken from either witness. The Crown opposed the application, and both witnesses had provided statements indicating a preference to give their evidence in person.
Legal Issues
- Whether the Supreme Court should exercise its inherent power to control its own processes to order that previous transcript evidence be substituted for the live oral evidence of two available and competent witnesses.
- Whether any ground of "necessity" was established sufficient to justify such an order, including concerns about trial length, the cost burden on a privately funded accused, and the witnesses' conduct during previous trials.
- Whether the proposed re-enactment procedure was consistent with the Crown's entitlement to present its evidence in the manner it considered appropriate.
Decision
Fullerton J dismissed the motion. Her Honour accepted that the Court possessed an inherent power to control its own processes and proceedings, as recognised in Jago v District Court of NSW (1989) 168 CLR 23, but held that the exercise of that power is qualified by a test of necessity. Citing Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435, her Honour stated that the test requires the orders to be "reasonably required or legally ancillary to" ensuring a fair trial so as to prevent injustice. Where the proposed exercise impinges on a fundamental principle of the administration of criminal justice, a higher degree of strictness applies.
The accused advanced four grounds of necessity: that the witnesses need not give lengthy evidence again; that a re-enactment would focus the jury on what genuinely mattered; that it would reduce the length of a third trial at the accused's personal expense; and that it would relieve the court and counsel of managing witnesses who had previously given non-responsive and discursive answers. Fullerton J was not persuaded that any of those grounds, individually or in combination, met the threshold.
Her Honour placed particular weight on the principle, affirmed by the High Court in Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, that oral evidence is fundamental to the conduct of criminal trials. Oral testimony allows the jury to assess a witness's credibility and demeanour, creates a public atmosphere at trial, and facilitates open jury deliberation in ways that documentary or recorded evidence cannot replicate. Where the Crown had contested the credibility of the witnesses' accounts in prior proceedings, depriving the jury of the opportunity to observe them give evidence in person was not justified by considerations of cost, convenience, or trial efficiency.
The court also noted that, with two prior trials on record, counsel for both parties would be well placed to make their own forensic judgments about the scope of examination and cross-examination in the third trial, including in light of concessions already made about which parts of the evidence were not genuinely in dispute.
Orders Made
- The notice of motion was dismissed.
Key Takeaways
- The Supreme Court confirmed that its inherent power to control proceedings is qualified by a necessity test, applied with heightened strictness where the proposed exercise would impinge on a fundamental principle of criminal justice administration.
- A desire to reduce trial length, manage witness conduct, or spare a privately funded accused from further expense does not, without more, satisfy the necessity threshold for overriding the ordinary mode of adducing oral evidence.
- The principle from Butera v DPP (Vic) (1987) 164 CLR 180 remains applicable in New South Wales: oral evidence allows juries to assess demeanour and credibility in ways that transcript-based alternatives cannot replicate, and that value is not extinguished merely because witnesses have previously given evidence in earlier trials.
- Competent and available witnesses who are willing to give oral evidence will ordinarily be required to do so; neither the Crown nor the accused can compel the opposite result through an application invoking inherent jurisdiction alone.
- In refusing the motion, the court drew a clear boundary between case-management efficiency and the foundational procedural requirements of a fair criminal trial.
Legislation and Cases Referenced
Cases:
- BUSB v R [2011] NSWCCA 39; 209 A Crim R 390
- Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
- Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
- Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435
- R v Xie (No 10) [2014] NSWSC 1976
Legislation: No specific legislation was cited in the judgment.