237 A Crim R 238
R v Ford [2009] NSWCCA 306273 ALR 286
R v Taylor [2007] NSWCCA 104Ms KN Shead (Crown)
Mr GW Turnbull SCMr L Fernandez (Accused)
Judgment (2 paragraphs)
[1]
Judgment
JOHNSON J: By Notice of Motion dated 23 July 2014, the Accused, Lian Bin (Robert) Xie, seeks orders as follows:
(1) That the evidence contained in the statements of Ms AB dated 29 May 2014, 18 June 2014, 19 June 2014 and 27 June 2014 is excluded pursuant to s. 137 Evidence Act 1995.
(2) If order 1 is made, that the evidence contained in the statements of Patrick Parkinson dated 18 June 2014, Ms BC dated 17 June 2014, Ms CD dated 23 June 2014 and Jennifer James dated 16 June 2014, is not to be adduced, pursuant to s.55 Evidence Act 1995.
Background to Application
Some background is necessary for the present application.
On 10 June 2014, I declined an application by the Accused to exclude evidence of Ms AB concerning sexual interest and sexual activity by the Accused towards her in the periods before and after the murders in July 2009: R v Xie (No 10) [2014] NSWSC 1976.
In that judgment I held that the evidence was relevant for the purposes of s.55 Evidence Act 1995, and I declined to exclude it under s.137 of that Act.
The jury in the trial then proceeding was discharged that day for reasons disclosed in R v Xie (No 10).
As I observed in R v Xie (No 10) at [45], the legal representatives for the Accused had several days, from 2 to 5 June 2014, to take instructions and form a view concerning any application to be made with respect to the statement of Ms AB containing allegations of sexual abuse. Further time was available to the Accused from 5 to 10 June 2014 to prepare for the application to exclude the evidence, which I heard and determined on 10 June 2014.
R v Xie [2014] NSWSC 1978 | Case summary | Zoe
I mention this because the application made on 10 June 2014 was not made on the run. There were written submissions in support of the application, made by Notice of Motion, that the evidence was not relevant and should otherwise be excluded under s.137.
After 10 June 2014, a number of additional statements relevant to this topic were obtained by the Crown and served on the Accused. In addition, for reasons explained in R v Xie (No 11) [2014] NSWSC 1977, I directed that Basha inquiries take place with respect to Ms AB and Patrick Parkinson. The Basha inquiries proceeded on 22 and 23 July 2014. Following the Basha inquiries, the Accused brought the present application by Notice of Motion.
The additional material upon which the Accused relies on the present application is contained in the affidavit of Kara Greiner affirmed 24 July 2014.
A Threshold Issue
The present application invites the Court to revisit the ruling made on 10 June 2014 concerning the evidence of Ms AB.
I do not consider that s.130A Criminal Procedure Act 1986 operates in the present circumstances. Section 130A is directed to "orders" made by a Judge which bind the trial Judge unless the circumstances in s.130A are established.
I do not think my evidentiary ruling on 10 June 2014 constituted an "order" for the purpose of s.130A: R v Ford [2009] NSWCCA 306; 273 ALR 286 at 321-322 [149]-[155].
Section 130A appears to be directed to a situation where one Judge has decided an issue and made an order and a different Judge, being the trial Judge, is asked to revisit the issue. Of course, I am the trial Judge and I was so on 10 June 2014, and again today when the application to revisit my earlier ruling is to be determined.
The appropriate approach in these circumstances, in my view, is to consider whether, as a matter of discretion, I should revisit my earlier interlocutory ruling, having regard to the interests of justice and considering whether circumstances have changed materially since the first ruling: R v Taylor [2007] NSWCCA 104; 169 A Crim R 543 at 550 [31].
The Application
Detailed written submissions were made for the Accused and the Crown on the present application (MFIs 17 and 18). In addition, oral submissions were made yesterday which traversed a number of issues raised on the application.
For the purpose of the present judgment, it is not necessary to recite those submissions, all of which have been taken into account by the Court.
I will refer directly to a number of particular matters addressed in submissions.
In my view, the evidence concerning the alleged sexual interest and sexual activity by the Accused towards Ms AB is substantially the same as that which was available on 10 June 2014. A number of additional statements have been obtained from various persons, including Ms AB and Patrick Parkinson.
On 22 July 2014, in the Basha inquiry, Ms AB swore that the contents of her statements were true and correct. Her evidence on the Basha inquiry clarified a number of issues, including her recollection of the timing of events where, on her account, the Accused demonstrated sexual interest in her (on two occasions) before the murders, and sexually abused her on frequent occasions in his house after the murders. Ms AB's evidence of these events stands at this time.
The Court has been informed that the Accused denies the allegations.
The Crown case statement now contains, at paragraphs 87 to 93, the way in which the Crown seeks to rely on the evidence of Ms AB. What is said there accords with the use of the evidence foreshadowed by the Crown at the time of my ruling on 10 June 2014.
The present application by the Accused has involved, in essence, further submissions of fact and law contending that the evidence is tendency evidence so that ss.97 and 101 Evidence Act 1995 have direct or indirect operation, and submissions which refer to authorities concerning s.137 Evidence Act 1995 and also tendency evidence.
The focus of the submissions for the Accused has been the Crown's proposed use of this evidence as evidence of motive to murder the five members of the Lin family. Submissions were directed to the probative value of the evidence and the danger of unfair prejudice to the Accused.
In R v Xie (No 10), I observed at [13] and [29] that the principles with respect to s.137 were those summarised in the stated paragraphs of my earlier judgment, R v Xie (No 4) [2014] NSWSC 500. Indeed, the ruling of 10 June 2014 was made upon the basis that both the Crown and the Accused invited the Court to apply those principles (R v Xie (No. 10) at [13]). In taking that approach, the parties invited the Court to apply the principles, as referred to in R v Xie (No 4) emerging, in particular, from the decision of the Court of Criminal Appeal in R v Burton [2013] NSWCCA 335; 237 A Crim R 238.
On the present application, submissions made for the Accused have raised other earlier decisions referred to in R v Burton. The submissions of the Accused have invited a different approach to the present application.
I remain of the view that the principles to be applied are those identified in R v Xie (No 4) and R v Xie (No 10), based upon the decision in R v Burton.
I am not persuaded that the Crown's proposed use of this evidence constitutes tendency evidence, or is based upon tendency reasoning.
The Accused is charged with five counts of murder. He is not charged with offences of sexual assault. The evidence of Ms AB, which the Crown seeks to rely upon, indicates an unequivocal sexual interest by the Accused in her, demonstrated on two occasions before the murders.
The fact that the latter incident alleged by her before the murders, is not identified more precisely in time than as occurring in the 12 months before the murders does not, in my view, materially affect its use for present purposes.
Ms AB's evidence of frequent actual sexual assaults by the Accused on her after the murders (by which time she was living in his house), should be viewed with her evidence of alleged acts of the Accused displaying sexual interest in her before the murders.
The evidence of Ms AB of the Accused's sexual activities has significant probative value in this trial. I remain of the view that it is not outweighed by the danger of unfair prejudice to the Accused.
It will be a matter for the jury to consider this evidence, together with all other evidence to be adduced at trial.
I should mention a particular argument that was raised on the application. It was submitted, on behalf of the Accused, that even if this sexual activity occurred, an inference which would be available is that the sexual interest of the Accused in Ms AB was opportunistic and resulting from circumstances that presented themselves, rather than being indicative of a strong sexual feeling on the Accused's part towards her (said to have been acted on before and after the murders), such as to constitute an available motive to murder the other members of her family.
I have considered this argument, together with other arguments advanced on behalf of the Accused. In my view, the true role of this argument is as a matter (if it is to be raised ), which bears upon the fact-finding function of the jury at trial. It would be taken into account, no doubt with the evidence of Ms AB that events occurred before and after the murders, and other aspects relied upon by the Crown as contained in the Crown case statement. I refer to that particular argument because it was a matter emphasised in submissions.
I have considered the merits of the present application. Having done so, I decline to make order 1 in the Notice of Motion of 23 July 2014. In these circumstances, order 2 in the Notice of Motion does not arise.
The Accused's Notice of Motion dated 23 July 2014 is dismissed.
[2]
Amendments
28 February 2017 - Publication restriction on coversheet amended.
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Decision last updated: 28 February 2017