R v Xie (No 13) [2015] NSWSC 2125

R v Xie (No 13) [2015] NSWSC 2125

Because Mrs Lin was the accused's wife, had an interest consistent with his defence, had shown sympathy to him, and had already given evidence with exposed inconsistencies on significant disputed matters, some facts in issue would be better ascertained if leading questions were not used. The Court could make an advance ruling where the proposed subject areas were sufficiently identified, but it would not impose a blanket prohibition across all eight areas. Leading questions were disallowed or restricted only in identified respects where they would suggest disputed answers or explanations on critical matters, while no general restriction was made for other areas where the basis for s 42...

Jurisdiction
Australia
Judgment Date
16 June 2015
Procedural Posture
Criminal Law Application Under S 42 of the Evidence Act 1995 (nsw) / Procedural Ruling During Trial Concerning Leading Questions in Cross Examination
Outcome
The Crown's application was allowed in part; leading questions were not to be asked in respect of some subject areas, but no blanket prohibition was made.
Legal Topics
['leading Questions in Cross Examination' 'court Control Over Questioning of Witnesses' 'advance Rulings' 'cross Examination of Sympathetic Witness' 'evidence Act 1995 (nsw) Ss 26, 38, 42, 192, 192 A']
['criminal Law' 'evidence'] ['leading Questions in Cross Examination' 'court Control Over Questioning of Witnesses' 'advance Rulings' 'cross Examination of Sympathetic Witness' 'evidence Act 1995 (nsw) Ss 26, 38, 42, 192, 192 A']

Case Brief

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Procedural Posture

Criminal Law Application Under S 42 of the Evidence Act 1995 (nsw) / Procedural Ruling During Trial Concerning Leading Questions in Cross Examination

Legal Issues

  1. 1 ['Whether the Crown should obtain an order or direction under s 42 of the Evidence Act 1995 (NSW) disallowing leading questions, or directing the witness not to answer leading questions, in cross-examination of Mrs Kathy Lin by counsel for the accused.' 'Whether an advance ruling could be made before the relevant questions were asked, and whether the relevant subject areas were identified with sufficient particularity.' "Whether Mrs Lin's interest consistent with the accused and sympathy to the accused justified restrictions on leading questions under s 42(2)(b) and s 42(2)(c)." 'Whether the facts in identified subject areas would be better ascertained if leading questions were not used under s 42(3).' "Whether Mrs Lin's psychological condition supported the accused's submission that leading questions should be permitted under s 42(2)(d)."]

Ratio Decidendi

Because Mrs Lin was the accused's wife, had an interest consistent with his defence, had shown sympathy to him, and had already given evidence with exposed inconsistencies on significant disputed matters, some facts in issue would be better ascertained if leading questions were not used. The Court could make an advance ruling where the proposed subject areas were sufficiently identified, but it would not impose a blanket prohibition across all eight areas. Leading questions were disallowed or restricted only in identified respects where they would suggest disputed answers or explanations on critical matters, while no general restriction was made for other areas where the basis for s 42...

Court Disposition

The Crown's application was allowed in part; leading questions were not to be asked in respect of some subject areas, but no blanket prohibition was made.

Orders

  • ['No limitation was imposed for subject area 1 concerning dropping Henry and Terry at Boundary Road and the circumstances of Mrs Lin closing the door.' 'For subject area 2, the Court would disallow leading questions suggesting that Mrs Lin believed or suspected police were motivated to frame or falsely implicate the...