R v Xie (No 17) [2015] NSWSC 2128

R v Xie (No 17) [2015] NSWSC 2128

Leave was granted only on limited terms because the surveillance device excerpts were capable of bearing directly on the central alibi issue and on whether Mrs Lin could account for the accused's presence at the time of the murders, and their use for that limited purpose was not unfair when the accused would have an opportunity to further cross-examine. The Crown was confined to directing Mrs Lin to relevant passages, asking whether she accepted saying the words attributed to her, and putting that she could not in fact account for the accused remaining with her after they went to bed, without treating the accused's statements as admissions. Leave was refused or not pressed for the other...

Jurisdiction
Australia
Judgment Date
03 August 2015
Procedural Posture
Criminal Proceeding / Crown Application Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine a Witness in Re Examination
Outcome
Leave granted on limited terms
Legal Topics
['unfavourable Witnesses' 'cross Examination in Re Examination' 'prior Inconsistent Statements' 'alibi Evidence' 'credibility' 'surveillance Device Transcripts' 'admissions']
['criminal Law' 'evidence'] ['unfavourable Witnesses' 'cross Examination in Re Examination' 'prior Inconsistent Statements' 'alibi Evidence' 'credibility' 'surveillance Device Transcripts' 'admissions']

Case Brief

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Procedural Posture

Criminal Proceeding / Crown Application Under S 38 of the Evidence Act 1995 (nsw) to Cross Examine a Witness in Re Examination

Legal Issues

  1. 1 ["Whether the Crown should be granted leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine Mrs Lin in re-examination after she had been cross-examined by the accused's counsel." 'Whether a direction should be given under s 38(4) permitting questioning under s 38 to occur in re-examination rather than before other parties cross-examine the witness.' 'Whether the Crown could cross-examine Mrs Lin about surveillance device transcripts said to be inconsistent with her evidence that she could account for the accused in bed at the time of the murders.' 'Whether use of the surveillance device transcripts would be unfair to the accused or would improperly rely on statements by the accused as admissions.']

Ratio Decidendi

Leave was granted only on limited terms because the surveillance device excerpts were capable of bearing directly on the central alibi issue and on whether Mrs Lin could account for the accused's presence at the time of the murders, and their use for that limited purpose was not unfair when the accused would have an opportunity to further cross-examine. The Crown was confined to directing Mrs Lin to relevant passages, asking whether she accepted saying the words attributed to her, and putting that she could not in fact account for the accused remaining with her after they went to bed, without treating the accused's statements as admissions. Leave was refused or not pressed for the other...

Court Disposition

Leave granted on limited terms

Orders

  • ['The Crown was granted leave to reopen its examination in chief of Mrs Lin and cross-examine her under s 38 on the alibi issue on limited terms.' "The Crown was to direct Mrs Lin's attention to relevant passages in the transcripts and invite her to accept that she said the words attributed to her, without reference...