Citation: R v Xie (No 4) [2015] NSWSC 2117
Court: Supreme Court of New South Wales
Date: 19 March 2015
Judge(s): Fullerton J
Background
The accused stood trial for murder. At the conclusion of the re-examination of a witness (a young woman who had lived at the same property as the accused), the Crown sought leave under the Evidence Act 1995 (NSW) to ask a question that had not been covered in examination in chief.
The proposed question asked whether the witness had ever seen the accused cleaning or sweeping the floor of his garage during the approximately 20 months she lived at the property. The Crown anticipated the answer would be "No."
The significance of the question lay in the Crown's case that the accused had told police he cleaned or swept the garage floor on the morning of 18 July 2009, before the bodies of the deceased were discovered. The Crown sought to characterise that account not as innocent housekeeping, but as an admission against interest reflecting steps taken to remove evidence of murder.
Legal Issues
- Whether the proposed question and anticipated answer satisfied the test of relevance under s 55 of the Evidence Act 1995 (NSW)
- Whether the evidence was caught by the tendency rule under s 97 of the Evidence Act, and if so, whether it met the significant probative value threshold under s 97(1)(b)
- Whether the coincidence rule under s 98 of the Evidence Act applied to exclude the evidence
- Whether leave under s 39 of the Evidence Act should be granted to ask the question outside re-examination
Decision
Relevance: The defence argued the question was irrelevant because the witness was away from the property for large portions of each week attending school and extracurricular activities, meaning any negative answer could not rationally affect the probability of whether the accused's police account was an admission. Fullerton J rejected this submission. Her Honour held that the distinction between the admissibility of evidence and its weight is a matter of law versus a matter for the jury. The fact that other evidence might undermine the weight of the witness's answer does not bear on whether that answer is capable of rationally affecting the jury's assessment of the issue.
Tendency rule (s 97): The defence submitted that evidence directed to the accused's conduct (specifically, that he did not customarily clean the garage) invoked the tendency rule, requiring significant probative value before it could be admitted. The Crown responded that the evidence was not led to prove a tendency or propensity, but to establish the concrete fact that the witness never observed garage cleaning in the relevant period. Fullerton J accepted the Crown's characterisation: the evidence was led for a non-tendency purpose, namely to allow the jury to assess whether the accused's police statement was a genuine innocent explanation or an admission. Section 97 was not engaged.
Coincidence rule (s 98): The defence raised s 98 as an alternate basis for exclusion, but did not develop the submission. Fullerton J found no basis for the coincidence rule to apply to this evidence.
Leave: Leave was granted. The defence was entitled to, and did, cross-examine the witness on the matter.
Orders Made
No orders were made in this decision.
Key Takeaways
- The admissibility of evidence and the weight to be given to it are distinct questions: the possibility that other evidence might contradict or undermine a witness's answer does not deprive that answer of the capacity to rationally affect an issue in the trial under s 55 of the Evidence Act.
- Evidence about a witness's observations of a specific person's conduct is not necessarily tendency evidence under s 97, provided it is led to establish a particular fact rather than to invite the jury to reason from a propensity or character trait.
- Under s 97 of the Evidence Act, the tendency rule is only engaged where the purpose of the evidence is to prove that a person has a tendency and acted in conformity with it; a non-tendency purpose takes the evidence outside the rule's operation.
- The coincidence rule in s 98 of the Evidence Act requires some basis to invoke it, and a bare submission without developed argument will not satisfy the court that it applies.
- Where leave is granted under s 39 of the Evidence Act to ask a question outside re-examination, the opposing party retains the right to cross-examine the witness on that additional matter.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 39 (leave to question witnesses)
- Evidence Act 1995 (NSW), s 55 (relevant evidence)
- Evidence Act 1995 (NSW), s 97 (tendency rule)
- Evidence Act 1995 (NSW), s 98 (coincidence rule)
- Evidence Act 1995 (NSW), s 192 (leave, permission or direction)
Cases cited: No cases were cited in this decision.