Citation: [2015] NSWSC 2122
Court: Supreme Court of New South Wales
Date: 30 April 2015
Judge: Fullerton J
Background
The accused stood trial for the murders of the Lin family. The Crown alleged three motives for the killings, one of which was financial: that the accused sought, through his wife, to gain control of the deceased's assets and to become the guardian of the sole surviving child, Brenda Lin.
The headmistress of Brenda Lin's high school had provided pastoral care to Brenda in the immediate aftermath of the murders. She had direct dealings with the accused at several points, including at a meeting at the school before the funerals in August 2009 and at Family Court proceedings on 18 December 2009, where she attended as a self-appointed support person during lengthy guardianship and estate negotiations.
The Crown sought to call this witness to give evidence of her observations of the accused's conduct and behaviour at those meetings, including her opinion that he was the dominant person in the room at the Family Court proceedings and became increasingly assertive as the day progressed.
Legal Issues
- Whether the proposed opinion evidence was relevant under s 55 and s 56 of the Evidence Act 1995 (NSW), in that it could rationally affect the assessment of a fact in issue, namely the accused's alleged financial motive for murder
- Whether the evidence constituted admissible lay opinion evidence under s 78(1)(b) of the Evidence Act, on the basis that the opinion was necessary to obtain an adequate account or understanding of the witness's perceptions
- Whether, even if admissible, the evidence should be excluded under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Her Honour accepted that motive, while not an ultimate fact in issue, was relevant to proving the identity of the killer, the only contested element of the murder charges. The Crown's position was that the accused's conduct at the Family Court on 18 December 2009, including his proximity to Brenda Lin, his speaking to her exclusively in Mandarin, and his increasing assertiveness during negotiations, was consistent with a desire to control the estate and was therefore probative of the alleged motive.
Fullerton J considered the probative value of the headmistress's observations carefully. Several factors reduced that value materially. The witness had no understanding of Mandarin and therefore no means of knowing what the accused was actually saying to Brenda Lin. She also acknowledged no appreciation of any cultural dimension to the family relationships. The conduct she observed was, on its face, equally explicable by a number of benign or neutral interpretations other than a desire to dominate Brenda in furtherance of a murderous financial motive.
On the s 137 question, Fullerton J was satisfied that admitting the evidence, particularly in the stressful and emotionally charged atmosphere of Family Court negotiations, created a real risk that the jury would engage in illegitimate reasoning or give the observations undue weight. The probative value of the raw factual observations, stripped of the witness's conclusions and opinions, was assessed as low in those circumstances.
Her Honour concluded that the probative value was outweighed by the danger of unfair prejudice and excluded the evidence. The admissibility of the lay opinion component under s 78 was not ultimately required to be determined separately, given the s 137 ruling.
Orders Made
• Evidence of Ms Bridge's observations of the interaction between the accused and his wife and Ms Lin on 18 December 2009 is not admitted.
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), a court must exclude evidence if its probative value is outweighed by the danger of unfair prejudice, even where some degree of relevance under s 55 is established.
- In assessing probative value for the purposes of s 137, a court is required to focus on the interpretation of the evidence most favourable to its admission, setting aside more benign explanations, before weighing that value against the prejudice risk.
- A witness's inability to understand the language being spoken, and their lack of awareness of relevant cultural context, are factors that can materially reduce the probative value of behavioural observations.
- The risk that a jury will adopt illegitimate reasoning, or give evidence undue weight in an emotionally charged factual context, is a recognised basis for exclusion under s 137.
- Following R v Burton [2013] NSWCCA 335, a "fact in issue" in a criminal trial is not necessarily a fact that is in active dispute between the parties; relevance can attach to facts that bear on contested elements even if not formally denied.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 56, 78, 137
- Family Law Act 1975 (Cth)
Cases
- Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352
- R v Burton [2013] NSWCCA 335