Citation: R v Xie (No 13) [2015] NSWSC 2125
Court: Supreme Court of New South Wales
Date: 16 June 2015
Judge(s): Fullerton J
Background
The accused stood trial on charges arising from events on and after 17 July 2009. His wife, Mrs Kathy Lin, was called as a Crown witness and gave evidence in chief. Her evidence revealed inconsistencies with accounts she had previously given, including at the committal proceedings in August 2012.
The Crown brought an application under s 42 of the Evidence Act 1995 (NSW) seeking orders to disallow anticipated leading questions in cross-examination by the accused's counsel, or directing Mrs Lin not to answer them. The Crown's concern was not primarily that such questioning would devalue Mrs Lin's evidence in the jury's eyes, but that leading questions risked allowing counsel to put propositions to a sympathetic and interested witness that she would simply assent to on contested matters where she was the only available Crown witness.
The accused's counsel, Mr Turnbull, submitted that he had not conferred with Mrs Lin and also pointed to a psychological report about her condition in support of permitting leading questions. The Crown argued that these considerations did not displace the operation of s 42.
Legal Issues
- Whether the court should exercise its power under s 42 of the Evidence Act 1995 (NSW) to disallow leading questions, or direct a witness not to answer them, in cross-examination conducted by an accused's own counsel
- The extent to which Mrs Lin's interest consistent with the accused's interests (s 42(2)(b)) and her sympathy toward the cross-examiner as the accused's counsel (s 42(2)(c)) warranted restrictions on leading questions
- Whether Mrs Lin's psychological condition (s 42(2)(d)) was a relevant consideration in favour of permitting leading questions
- The proper scope of permissible leading questions in each identified subject area of cross-examination
Decision
Fullerton J approached the application by examining the structure and purpose of s 42, read alongside the general case management power in s 26 and guided by relevant authority. Her Honour drew on the High Court's observations in Lee v R that cross-examination, while not an absolute right, is traditionally exercised with considerable freedom, including through the use of leading questions, to ensure full and fair interrogation of potentially partisan witnesses. However, her Honour also adopted Heydon J's remarks in Kirk v Industrial Court of New South Wales, which noted that the ordinary rationale for allowing leading questions is significantly diminished when a witness is in total sympathy with the cross-examiner's client, or actually is that client, because persistent leading questions in those circumstances create an unavoidable appearance of collusion.
Her Honour found that Mrs Lin was plainly a witness with an interest consistent with that of the accused (s 42(2)(b)) and one who had demonstrated sympathy toward him as his counsel's client (s 42(2)(c)). Although Mr Turnbull had not personally conferred with Mrs Lin, there remained at least an appearance of alignment between Mrs Lin's account and the accused's instructions, meaning that leading questions consistent with those instructions could be exploited, even unwittingly. The Crown's concern was that across several subject areas, leading questions risked producing mere assent on contested factual matters rather than genuine evidence.
On the question of Mrs Lin's psychological condition, her Honour accepted the Crown's submission that s 42(2)(d) was not a factor that favoured permitting leading questions in these circumstances, characterising the accused's reliance on the psychological report as a misconstruction of that provision's purpose.
The ruling proceeded subject area by subject area. In each, her Honour drew a consistent line: leading questions that draw a witness's attention to a prior inconsistent statement or the source of an inconsistency are permissible, but leading questions that directly or indirectly suggest a particular explanation for an inconsistency, or that assume the existence of a contested fact not yet established in evidence, are not. Restrictions were imposed across all eight subject areas canvassed, with the precise scope of permissible and impermissible leading questions calibrated to the particular contested facts in each area.
Orders Made
No orders were made in this decision.
Key Takeaways
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Under s 42 of the Evidence Act 1995 (NSW), a court may disallow leading questions in cross-examination where the witness has an interest aligned with the cross-examiner's client (s 42(2)(b)) or is sympathetic to the cross-examiner (s 42(2)(c)), even where counsel has not personally conferred with that witness.
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The Supreme Court applied the principle from Kirk v Industrial Court of New South Wales that the ordinary forensic justification for leading questions is materially weakened when a witness is in total sympathy with a cross-examiner's client, because persistent leading questions in that situation carry an unavoidable appearance of collusion.
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A distinction emerges between two categories of leading questions: those that legitimately draw a witness's attention to the source of an inconsistency, which remain permissible, and those that suggest a particular explanation for an inconsistency or assume a contested fact, which may be disallowed.
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Section 42(2)(d), which concerns a witness's age or disability, was found not to operate as a basis for permitting more liberal use of leading questions in favour of the cross-examiner simply because a witness has a psychological condition.
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Cross-examination is not an absolute right under the Evidence Act, and the court's supervisory power to restrict leading questions extends to calibrating that restriction subject-area by subject-area, depending on the specific contested facts and the witness's demonstrated partiality.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 26, 42, 184, 192
Cases
- ASIC v Rich [2006] NSWSC 643; 201 FLR 207
- Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
- Lee v R [1998] HCA 60; 195 CLR 594
- Stack v Western Australia [2004] WASCA 300; 151 A Crim R 112
- R v Xie (No 16), Fullerton J, 23 July 2015