Citation: R v Xie (No 6) [2015] NSWSC 2119
Court: Supreme Court of New South Wales
Date: 30 March 2015
Judge(s): Fullerton J
Background
The accused stood trial for murder. A key Crown witness, referred to here as Ms Lin, gave evidence over five sitting days beginning 9 March 2015. Her evidence included allegations that the accused had sexually abused her both before and after the murders, disclosures she had first made in May 2014.
The late timing of those disclosures had already caused significant procedural disruption. The first trial had been aborted because of admissibility questions surrounding that evidence, and a pre-trial inquiry (known as a "Basha" inquiry) had been convened before the second trial. The second trial was itself cut short when the trial judge fell ill, before Ms Lin's cross-examination had addressed the sexual abuse allegations.
In the third trial, the Crown sought to lead Ms Lin's complaint evidence, specifically her disclosures to the accused's solicitor (Ms Greiner) and others, to support her credibility. The defence took objection, and the parties ultimately reached a written agreement about how that evidence would be treated.
Legal Issues
- Whether Ms Lin's complaint evidence was admissible, and on what statutory basis
- Whether the evidence satisfied the recency requirement in s 66(2A) of the Evidence Act 1995 (NSW), which the Crown did not ultimately rely upon
- Whether s 108(3)(b) of the Evidence Act 1995 (NSW) provided a proper basis for admitting prior consistent statements in circumstances where fabrication or reconstruction of evidence had been suggested or implied
- Whether the complaint evidence should be limited in its use, and if so, to what purpose
Decision
The Crown did not pursue admission of the complaint evidence under s 66, which requires that a complaint be made within a reasonably contemporaneous time. Instead, the Crown relied on s 108(3)(b), which permits a prior consistent statement to be admitted where it is suggested, expressly or by implication, that the witness's evidence was fabricated, reconstructed, or the result of suggestion, provided leave of the court is granted.
The defence had not formally objected to Ms Lin's evidence of her complaints to Ms Greiner and Professor Parkinson, and the Court proceeded on the basis that admissibility of those portions was conceded. This appeared to flow from the defence having been on notice of the Crown's intention to rely on s 108(3)(b), in light of cross-examination that had been conducted at the earlier Basha inquiry concerning the circumstances in which the complaints were made.
After Ms Lin's evidence was complete, the parties reached a written agreement addressing the complaint evidence. That agreement confirmed the Crown's reliance on s 108(3)(b), limited the use of the complaint evidence to credibility only under s 136 of the Evidence Act, and settled which complaint witnesses the Crown would and would not call. The defence also agreed not to challenge the accuracy of the evidence that complaints had been made.
Fullerton J directed the jury accordingly, noting that those directions would need further development in the summing up. Her Honour also withdrew from the jury, on her own motion and without Crown objection, certain remarks attributed to Professor Parkinson concerning the accused's character and the safety of his family, on the basis that this material was irrelevant.
Orders Made
No orders were made in this decision.
Key Takeaways
- Section 108(3)(b) of the Evidence Act 1995 (NSW) provides a pathway for admitting prior consistent statements, including complaint evidence, where fabrication or reconstruction of a witness's testimony has been suggested, even by implication, and where the court grants leave.
- The recency requirement in s 66(2A) did not prevent admission here because the Crown chose not to rely on that provision, instead anchoring admissibility in the credibility provisions of the Act.
- Where a party has been on notice of an opposing party's intention to rely on a specific statutory basis for admitting evidence, and cross-examines witnesses on that basis at a pre-trial inquiry, a court may treat admissibility of that evidence as effectively conceded at trial.
- Complaint evidence admitted under s 108(3)(b) may be limited by the court under s 136 to use for credibility purposes only, and a formal agreement between the parties can settle that limitation.
- A trial judge may, of their own motion, withdraw from a jury's consideration evidence that is irrelevant, even without a formal application from the Crown.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 66(2A), 108(3)(b), 136
Cases:
- R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227
- R v Xie (No 10) [2014] NSWSC 1976
- R v Xie (No 11) [2014] NSWSC 1977