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Supreme Court 23 June 2016

R v Xie (No 23)

[2016] NSWSC 1924

Homicide
CRIMINAL LAW EVIDENCE MOTIVE ADMISSIBILITY

Citation: R v Xie (No 23) [2016] NSWSC 1924
Court: Supreme Court of New South Wales
Date: 23 June 2016
Judge(s): Fullerton J

Background

The accused stood trial for the murders of members of his extended family. The Crown alleged that one of his motives was a deep and abiding enmity toward his brother-in-law and sister-in-law, driven partly by jealousy and partly by his belief that he had suffered a "loss of face" within the family. A previous trial in 2015 ended without verdicts, and the Crown sought to run the same motive argument at the 2016 retrial.

To support that motive, the Crown proposed to lead evidence about the Chinese cultural concepts of "face" and "losing face." Two pieces of evidence were at issue: a solicitor's letter written on behalf of the accused during the police investigation, which explained the Chinese cultural idiom in the context of the crime scene; and lay opinion evidence from a family member about what "losing face" means in Chinese culture.

The Crown also relied on conversations between the accused and a prison witness, in which the accused spoke about family rivalry, his perception that he was not respected, and his belief that the family had tried to "take his face." The admissibility of the cultural evidence was the subject of this pre-trial ruling.

  • Whether evidence explaining the Chinese cultural concept of "face" and "losing face" was admissible as circumstantial evidence of the accused's motive to commit murder.
  • Whether lay opinion evidence (from the solicitor's letter and the family member) was sufficient for the purpose the Crown sought to use it, or whether expert evidence was required.
  • Whether the solicitor's letter carried a risk of unfair prejudice to the accused that could not be cured by jury directions.
  • Whether a three-dimensional plastic model of the crime scene was admissible as an aid for the jury under the Evidence Act 1995 (NSW).

Decision

Fullerton J accepted that evidence of the cultural concepts of "face" and "losing face" was relevant and potentially probative as part of the Crown's circumstantial case on motive. When weighing probative value against the risk of unfair prejudice, the court was required to assess the evidence at its highest in terms of its capacity to affect the jury's assessment of the probability of the fact in issue, consistent with the approach confirmed by the High Court in IMM v R [2016] HCA 14.

However, the court found that the lay opinion evidence, as currently tendered, fell short of what was needed. The solicitor's letter and the family member's evidence both represented lay opinion on a cultural matter, and that limited their probative value for the purpose for which the Crown sought to use them. The court was not satisfied that, in their current form, those pieces of evidence would support the inference of motive to the degree required to outweigh the risk of unfair prejudice.

The court took a different view of the position if the Crown were to call a suitably qualified expert to explain what "face" and "losing face" mean to non-Chinese people. Such expert evidence, taken together with the range of other circumstances in the Crown's case, including the accused's own recorded and unrecorded prison conversations, would likely carry sufficient probative value to justify admission.

Regarding the solicitor's letter specifically, the court noted an additional concern: the context and form of the lay opinion expressed in that letter may carry a risk of prejudice to the accused that jury directions alone would not adequately address. On the three-dimensional crime scene model, the court found it did not have the capacity to mislead or confuse the jury, or to produce unfairness, and saw no basis for exclusion under section 136 of the Evidence Act 1995 (NSW).

Orders Made

The court reserved its ultimate determination on the admissibility of the cultural "face" evidence to allow the parties to consider the reasons expressed and, in particular, to allow the Crown to decide whether to press the evidence in its current form or to substitute it with expert evidence.

Key Takeaways

  • Lay opinion evidence about the cultural significance of "face" and "losing face" in Chinese culture carried reduced probative value when offered to establish a culturally specific motive, because it did not carry the authority or reliability of expert evidence.
  • Where cultural concepts are deployed as part of a circumstantial motive case, the Supreme Court indicated that evidence from a suitably qualified expert is more likely to achieve the probative weight needed to justify admission.
  • The solicitor's letter raised a separate prejudice concern: its context and form created a risk of unfair prejudice to the accused that directions to the jury may not have been capable of curing.
  • Under the IMM v R framework, a court assessing probative value against unfair prejudice must consider the evidence at its highest, measuring its potential effect on the jury's assessment of the probability of the disputed fact.
  • The crime scene model was not excluded: the court found no basis under section 136 of the Evidence Act 1995 (NSW) to exclude the three-dimensional model as a jury aid, having considered it in operation.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), including section 136

Cases:
- IMM v R [2016] HCA 14