Citation: R v Xie (No 17) [2015] NSWSC 2128
Court: Supreme Court of New South Wales
Date: 3 August 2015
Judge(s): Fullerton J
Background
This decision arose during a murder trial in which the accused faced charges relating to the deaths of five people. A key Crown witness, the accused's wife (referred to throughout as Mrs Lin), had already been cross-examined by the Crown with leave under s 38 of the Evidence Act 1995 (NSW) during her evidence in chief. The accused's counsel, Mr Turnbull, then conducted a lengthy cross-examination directed substantially at rehabilitating Mrs Lin's credibility on several issues the Crown had challenged.
Following that cross-examination, the Crown applied for leave under s 38 to cross-examine Mrs Lin again in re-examination. The Crown also sought a direction under s 38(4), which ordinarily requires any questioning under that section to occur before the other party cross-examines. The Crown identified 15 separate subject areas as the basis for the application.
The judgment records Fullerton J's reasoning in granting leave on some of those areas, refusing it on others, and addressing a subsequent Crown application to tender surveillance device transcripts used during the cross-examination.
Legal Issues
- Whether the Crown should be granted leave under s 38(1)(a) and (c) of the Evidence Act to cross-examine Mrs Lin in re-examination, on the basis that her evidence was unfavourable to the Crown or that she had made prior inconsistent statements
- Whether a direction under s 38(4) should be given permitting the cross-examination to occur at the re-examination stage rather than before the accused's cross-examination
- Which of the 15 subject areas identified by the Crown justified a grant of leave
- Whether two surveillance device transcripts, previously rejected, should be tendered following the completion of Mrs Lin's evidence
Decision
The Crown pressed 15 subject areas as grounds for leave, but the Court resolved most of them without requiring submissions from defence counsel. Seven subject areas were abandoned by the Crown during oral submissions, with the Crown Prosecutor indicating he would address those topics in conventional re-examination under s 39. Leave was refused without calling on Mr Turnbull in respect of six further subject areas. In refusing those, Fullerton J considered that permitting further cross-examination would unduly extend Mrs Lin's evidence under s 192(2)(a) of the Evidence Act, and noted the Crown remained able to submit to the jury that she was unreliable or untruthful based on inconsistencies already exposed.
On the "fear of being framed" subject area, the Crown sought to establish that Mrs Lin's stated fear of police was something the accused had instilled in her, which then underpinned further conduct. Fullerton J was not persuaded the Crown could establish that foundational proposition, and refused leave accordingly. On the "perception of favouritism" subject area, the Court was not satisfied that Mr Turnbull's cross-examination had raised any new matters that would permit the Crown to re-agitate the issue in re-examination under s 38.
The alibi subject area received the most extensive treatment. Mrs Lin had stated in evidence in chief that, being a light sleeper, she would have known if the accused left the bed during the night. The Crown sought leave to cross-examine her by reference to two surveillance device transcripts that had been rejected earlier in the trial. After detailed argument, Fullerton J granted leave on this issue, permitting the Crown to use those transcripts to cross-examine Mrs Lin on whether her conversations with the accused related to his movements on the night in question.
After Mrs Lin was excused, the Crown separately applied to tender the surveillance device transcripts. Fullerton J admitted them, limited to the question of Mrs Lin's credibility regarding her characterisation of those conversations. The Court concluded that, without the transcripts, the jury could not meaningfully resolve the dispute between the Crown and defence about the true subject matter of those conversations. Admission was permitted so the jury could assess the accused's own statements in context, expressly not as admissions by the accused.
Orders Made
No orders were made in this decision.
Key Takeaways
- Leave under s 38 of the Evidence Act may be granted at the re-examination stage, not only during evidence in chief, where the opposing party's cross-examination has raised matters warranting further challenge by the party who called the witness.
- Under s 192(2)(a), the risk of unduly extending a witness's evidence is a material consideration weighing against granting leave, particularly where existing inconsistencies in the record already provide a basis for submissions about reliability.
- A Crown application to cross-examine its own witness on the basis that a particular fear was instilled by the accused will not succeed under s 38(1)(a) or (c) if the Crown cannot establish the foundational proposition supporting that characterisation.
- Previously rejected surveillance device transcripts may become admissible following cross-examination where a factual dispute about the subject matter of recorded conversations cannot otherwise be resolved by the jury.
- The Supreme Court drew a careful distinction between tendering recorded conversations as admissions by the accused and tendering them solely to assist the jury in assessing a witness's credibility, treating those as separate and distinct bases for admission.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38, 38(1)(a), 38(1)(c), 38(4), 38(6), 39, 42, 192, 192(2)(a)
Cases
- R v Xie (No 11) [2015] NSWSC 2123
- R v Xie (No 13) [2015] NSWSC 2125
- R v Xie (No 14) (Supreme Court (NSW), Fullerton J, 23 June 2015, unreported)
- R v Xie (No 16) [2015] NSWSC 2127