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Supreme Court 23 July 2015

R v Xie (No 16)

[2015] NSWSC 2127

Homicide
CRIMINAL LAW EXAMINE THE ACCUSED’S WIFE

Citation: R v Xie (No 16) [2015] NSWSC 2127
Court: Supreme Court of New South Wales
Date: 23 July 2015
Judge(s): Fullerton J

Background

This decision arose in the course of the murder trial of the accused, who was charged in connection with the deaths of members of his wife's extended family on 18 July 2009. The accused's wife, referred to as Mrs Lin, was called as a Crown witness and gave evidence in chief. As her evidence unfolded, the Crown sought leave under s 38 of the Evidence Act 1995 (NSW) to question her as though she were being cross-examined.

The Crown had foreshadowed this application well in advance, first notifying the accused's solicitor of its intention in September 2013, with further notices and submissions following in 2014. The first trial was aborted in June 2014 before any ruling was made on the s 38 application. The application was renewed in the second trial before Fullerton J.

By the time Mrs Lin's evidence in chief was complete, the Crown had identified 20 discrete subject areas in which it sought to cross-examine her, set out in a document marked as MFI 269. Those areas engaged all three limbs of s 38(1): unfavourable evidence, failure to make a genuine attempt to give evidence, and prior inconsistent statements.

  • Whether the Crown should be granted leave under s 38(1)(a) to cross-examine Mrs Lin about evidence unfavourable to the Crown's case
  • Whether leave was available under s 38(1)(b) on the basis that Mrs Lin was not making a genuine attempt to give evidence on certain matters
  • Whether prior inconsistent statements justified leave under s 38(1)(c), particularly in circumstances where Mrs Lin is a non-native English speaker who had recounted traumatic events on multiple occasions over several years
  • Whether s 192 considerations, including fairness to Mrs Lin and the accused, warranted refusal of leave across some or all of the 20 subject areas
  • Whether any evidence adduced with leave should be excluded under s 137 on the basis that its probative value was substantially outweighed by the danger of unfair prejudice to the accused

Decision

Fullerton J considered each of the 20 subject areas identified in MFI 269 against the three limbs of s 38(1) and the mandatory and discretionary considerations in s 192. The defence submitted that the Crown's true objective was to attack Mrs Lin's credit, rather than to correct a genuine failure of evidence, and that this was an improper use of the s 38 power. Her Honour assessed each subject area individually rather than treating the application globally.

On the question of prior inconsistent statements under s 38(1)(c), the defence argued that apparent inconsistencies in Mrs Lin's accounts reflected the ordinary variation of memory over time, the stress of recounting traumatic events, and language and translation difficulties, rather than any material change in her account. Her Honour took these contextual factors into account in determining whether a genuine inconsistency existed capable of supporting a grant of leave.

Regarding the specific subject area reproduced in the judgment, the Crown sought to put to Mrs Lin that she had understated the degree of animosity between herself, the accused, and her parents. The Crown's position was that the dispute extended beyond guardianship arrangements to include the active pursuit of control of the estates of deceased family members. Her Honour granted leave for the Crown to put that proposition to Mrs Lin.

The judgment records a series of individual rulings across the 20 subject areas. The extracted reasons illustrate the granular, fact-specific nature of the analysis, with each ruling turning on the particular evidence given, any prior statement relied upon, and the applicable s 192 considerations.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 38 of the Evidence Act, a party calling a witness may seek leave to cross-examine on multiple concurrent grounds, and a court will assess each identified subject area individually against the relevant limb or limbs of s 38(1).

  • The timing of a party's notice of intention to seek a s 38 grant is a relevant consideration under s 38(6), though on the facts of this case neither party pressed it as a material factor.

  • Section 192 requires the court to take into account fairness both to the witness and to the opposing party, and these considerations apply alongside the specific grounds enumerated in s 38(1).

  • Apparent inconsistencies between a witness's trial evidence and prior statements are not automatically sufficient to attract leave under s 38(1)(c): contextual factors such as language difficulties, trauma, and the passage of time are relevant to whether a genuine inconsistency exists.

  • A Crown witness giving evidence that is simply incompatible with the Crown's theory of the case does not necessarily render that evidence "unfavourable" within the meaning of s 38(1)(a); the concept of unfavourability must be assessed by reference to whether the evidence undermines or contradicts evidence probative of the party's case.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 38, 39, 137, 192
- Crime Commission Act 2012 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Victims Rights and Support Act 2013 (NSW)

Cases
- Doyle v R; R v Doyle [2014] NSWCCA 4
- Kanaan & Ors v R [2006] NSWCCA 109
- R v Le [2002] NSWCCA 186; 54 NSWLR 474; 130 A Crim R 44
- R v Xie (No 11) [2015] NSWSC 2123
- R v Xie (No 12) [2015] NSWSC 2124
- R v Xie (No 13) [2015] NSWSC 2125