R v Xie (No. 11) [2014] NSWSC 1977

R v Xie (No. 11) [2014] NSWSC 1977

Because Ms AB's May and June 2014 statements introduced serious and significant new allegations of sexual abuse relied on by the Crown as important motive evidence in a five-count murder trial, and because she had thereby become a key Crown witness in circumstances materially different from committal, there was a serious risk of an unfair trial unless the Accused was permitted controlled pre-trial cross-examination on identified permissible topics. Professor Parkinson was also to attend, the Crown not opposing his attendance subject to clarification of questioning.

Jurisdiction
Australia
Judgment Date
01 July 2014
Procedural Posture
Criminal Murder Trial; Defence Application for Basha Inquiry / Pre Trial Preliminary Hearing Ruling Before Second Jury Trial
Outcome
Application granted; Ms AB and Professor Patrick Parkinson ordered to attend Court to give evidence at a preliminary hearing before trial, with examinations controlled by the terms of the judgment.
Legal Topics
['basha Inquiry' 'murder Trial' 'preliminary Hearing' 'cross Examination Before Trial' 'sexual Assault Allegations as Motive' 'vulnerable Witness']
['criminal Law' 'criminal Procedure' 'evidence'] ['basha Inquiry' 'murder Trial' 'preliminary Hearing' 'cross Examination Before Trial' 'sexual Assault Allegations as Motive' 'vulnerable Witness']

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Procedural Posture

Criminal Murder Trial; Defence Application for Basha Inquiry / Pre Trial Preliminary Hearing Ruling Before Second Jury Trial

Legal Issues

  1. 1 ['Whether Ms AB should be directed to attend Court to give evidence at a preliminary hearing in advance of trial by way of a Basha inquiry.' 'Whether Professor Patrick Parkinson should be directed to attend Court to give evidence at a preliminary hearing in advance of trial.' 'What test and scope should govern a Basha inquiry where significant new evidence emerged after committal and after discharge of the first jury.']

Ratio Decidendi

Because Ms AB's May and June 2014 statements introduced serious and significant new allegations of sexual abuse relied on by the Crown as important motive evidence in a five-count murder trial, and because she had thereby become a key Crown witness in circumstances materially different from committal, there was a serious risk of an unfair trial unless the Accused was permitted controlled pre-trial cross-examination on identified permissible topics. Professor Parkinson was also to attend, the Crown not opposing his attendance subject to clarification of questioning.

Court Disposition

Application granted; Ms AB and Professor Patrick Parkinson ordered to attend Court to give evidence at a preliminary hearing before trial, with examinations controlled by the terms of the judgment.

Orders

  • ['Ms AB is to attend Court to give evidence at the preliminary hearing held in advance of the trial.' 'Professor Patrick Parkinson is to attend Court to give evidence at the preliminary hearing to be held in advance of the trial.' 'Those examinations are to be conducted in accordance with the terms of the judgment.']