R v Xie (No 6)

HER HONOUR: On 9 March 2015, Brenda Lin was called by the Crown. She gave evidence over the next five sitting days.

Questions concerning the admissibility of that part of her evidence that concerns the accused’s alleged sexual mistreatment of her before and after the murders, and which she disclosed for the first time in May 2014, was the reason the first trial of the accused was aborted (R v Xie (No 10) [2014] NSWSC 1976).

A Basha inquiry was then convened in advance of the second trial (R v Xie (No 11) [2014] NSWSC 1977). The admissibility of her explanation for the delay in making complaint, and her conversations with those to whom she complained (“the complaint evidence”), was not canvassed in either interlocutory judgment.

Professor Parkinson was one person to whom complaint was made. He assisted Ms Lin to prepare a statement with a view to formally disclosing the abuse to police. He also gave evidence at the Basha inquiry. Professor Parkinson had represented Ms Lin in Family Court proceedings, which resolved when final orders were made on 18 December 2009. He maintained a friendship with Ms Lin after that time. He was cross-examined by Mr Turnbull on the Basha inquiry as to the circumstances in which Ms Lin came to make the complaint to him and, in particular, the discussions he had with her at that time about the potential for the accused’s sexual abuse to be relied upon by the Crown as evidence of motive.

In Ms Lin's evidence in chief in the second trial, she nominated the people to whom she had made complaint, including Professor Parkinson and the accused’s solicitor, Ms Greiner. She also gave evidence, without objection, of what she said to each of them as explanation for the delay in making complaint and how she should, or might, deal with the accused’s sexual mistreatment of her when giving her evidence as a witness called by the Crown at the accused’s trial, where she knew that the accused also intended to rely on her evidence to contradict the Crown case that he was motivated to kill her family because of avarice and to “save face”. She was also acutely aware that the defence also intended to rely on her evidence to establish that his relationship with her and members of her immediate family was close, respectful and without rancour.

In the second trial, Ms Lin’s cross-examination had commenced but had not concluded when the jury was discharged due to the ill health of the trial judge. There had been no cross-examination directed to the allegation of sexual abuse before that time. Professor Parkinson had not given evidence.

In this trial, Ms Lin gave evidence of complaint in similar, albeit not identical, terms to her evidence in the second trial.

When the Crown commenced to lead the complaint evidence by asking questions as to what Ms Lin said to Ms CD on 22 May 2014 (the person to whom she first made complaint of the sexual abuse she suffered after the murders), objection was taken on the basis that the evidence did not satisfy the test of recency in s 66(2A) of the Evidence Act 1995 (NSW).

The Crown did not rely on s 66 of the Evidence Act for the admission of the evidence. The Crown sought the admission of the evidence under s 108(3)(b) of that Act, which provides:

At the Crown’s suggestion, argument as to the admissibility of what Ms Lin said to Ms CD was reserved.

The Crown then proceeded to lead evidence from Ms Lin of the complaint she made first to Professor Parkinson and then to Ms Greiner. Mr Turnbull did not object to the Crown leading the fact and the terms of her complaint to both people, or the conversations she had with each of them after which she ultimately decided to make a formal complaint to police. I was later informed that the defence were on notice of the Crown’s intention to lead that evidence under s 108(3)(b) given Mr Turnbull’s cross-examination of Professor Parkinson and Ms Lin in the Basha inquiry. At the time the evidence was led I assumed, despite the objection to Ms Lin giving evidence of what she said to Ms CD, that the admissibility of the evidence of her dealings with Ms Greiner and Professor Parkinson was conceded and, for that reason, it was unnecessary for me to hear argument as to whether s 108(3)(b) was invoked and whether leave should be granted under that section to adduce the evidence.

It is necessary to set out the complaint evidence led from Ms Lin.

The Crown asked the following questions as concerns the complaint she made to Ms Greiner referable to a series of SMS messages:

Ms Lin gave evidence that Ms Greiner responded to her SMS message at around 10am the next day, being 26 May 2014. The evidence continued:

Ms Lin gave evidence that she attended on Ms Greiner on 26 May 2014 with her friend, Ms CD. She gave evidence of the following:

Ms Lin said that Ms Greiner told her that she could not communicate with her further, and that she should obtain independent legal advice. After the meeting, Ms Lin sent the following SMS message to Ms Greiner:

Ms Lin explained that immediately after meeting with Ms Greiner, she resolved to say nothing further about the abuse or make a statement in respect of the sexual abuse allegations. Ms Lin said she received the following SMS message from Ms Greiner in response:

Ms Lin gave evidence that, after receiving that SMS message from Ms Greiner, she attended on Professor Parkinson at his home. She subsequently signed a statement, which had been prepared by him on her behalf, in which she disclosed the details of the sexual abuse. In respect of that statement, she gave the following evidence:

In the course of Ms Lin’s cross-examination, but before Mr Turnbull had asked any questions relating to her allegations of being sexually abused, I raised with the Crown the precise basis upon which the evidence of complaint set out above had been led. This was in order that after Ms Lin had given her evidence I might direct the jury as to the limited basis (at that stage of the trial) upon which the allegation of sexual abuse was led by the Crown in proof of the accused’s guilt and the way they would be entitled to consider the evidence of complaint. It was then that the Crown developed the argument to support the admission of the evidence under s 108(3)(b). The Crown submitted that he understood from the Basha inquiry that it would be put to Professor Parkinson in cross-examination that he convinced Ms Lin, by suggestion, that she should make the allegations when she would not otherwise have done so and that had resulted in her making allegations that were untrue.

Although at the time that I first raised the matter the defence had not disclosed in cross-examination whether, and to what extent, Ms Lin’s allegation of sexual abuse would be challenged, or the extent to which it would be put to Professor Parkinson that he had acted in some way to suggest that she should make the allegations, since no objection had been taken to the Crown leading the complaint evidence in both the second trial and this trial, I had assumed that the defence had given consideration to its admissibility, including calling evidence from those to whom complaint had been made. The SMS message exchanges with Ms Greiner and, in particular, the tender of them without objection, also gave every indication that it had been done by agreement with the accused to avoid the Crown calling defence counsel’s instructing solicitor as a witness. The other witnesses to whom complaint was made were included on the Crown’s witness list.

The basis upon which the evidence of complaint had been admitted remained unresolved, despite both parties asking that I direct the jury at the conclusion of Ms Lin 's evidence as to the limited use the jury could make of the allegations of abuse and of her conversations with Ms Greiner and Professor Parkinson about it. At one point Mr Turnbull seemed to submit that Ms Lin 's opinion that the accused was innocent, and that her implicit doubts that he murdered her family for sexual motives, was available for the jury to consider in the accused’s favour, although that submission was not developed further and was later expressly withdrawn. He also submitted that he intended to cross-examine Ms Lin in a way that would not invoke the operation of s 108(3)(b), thereby depriving the Crown of her prior consistent statements for credibility purposes, leaving the obvious question as to why the evidence was admitted at all.

Again, I was asked to reserve resolution of the basis upon which the complaint evidence had been admitted (and how it was to be treated by the jury) until cross-examination of Ms Lin had concluded. What Mr Turnbull did make clear at that time was that he would object to the Crown calling evidence from Professor Parkinson (or Ms CD or Jennifer James, another person to whom Ms Lin complained) under s 108(3)(b), having retreated from his earlier position to the effect that he intended to put to Professor Parkinson that he had acted inappropriately at the time she made the allegations of sexual abuse, whether by importuning Ms Lin to make a complaint or by a process of suggestion that she should do so. The Crown made clear at that time that it would consider its position on the question whether it would call any or all of those witnesses until the cross-examination of Ms Lin was complete.

As the cross-examination of Ms Lin continued and before the allegations of sexual abuse were canvassed with her by Mr Turnbull, I revisited the question of the admissibility of the complaint evidence and the way in which the jury should be instructed as to its use with counsel a number of times in the absence of the jury.

One question, as I saw it, was whether, if the evidence of complaint was admitted under s 108(3)(b) for credibility purposes, a ruling under s 136 of the Evidence Act might also be made in order to make clear that the complaint evidence was not admitted as evidence of the fact, as might have been the case were it also admitted under s 66 of the Evidence Act and the operation of s 60 of the Evidence Act invoked. The need for there to be clarity on that issue was identified in R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227 at [61]. Although the complaint of sexual abuse was made years after the abuse stopped (on Ms Lin’s evidence, upon the accused’s arrest in May 2011), there remained the potential for the Crown to mount an argument that it satisfied the test of “recency” in s 66(2A) of the Evidence Act. For that reason, I was concerned that the Crown’s position on that question was settled before any directions were given to the jury as to the use they might make of the evidence of complaint.

I was also concerned that, without adequate direction, the jury might misuse some aspects of the complaint evidence by, for example, attributing weight to Ms Lin’s statements of belief in the accused’s innocence in the accused’s favour in her discussions with Ms Greiner, and/or afford weight to Professor Parkinson’s advice to Ms Lin as to the importance of the jury having a complete picture of “his character” in circumstances where, at this stage in the trial, the question of whether the accused would raise character generally or in a limited respect, thereby invoking s 110 of the Evidence Act, has not been settled.

Mr Turnbull dealt with the allegations of sexual abuse at the end of his cross-examination of Ms Lin. The cross-examination to that point had not challenged Ms Lin’s honesty or her reliability. Almost all questions were directed to eliciting evidence in support of the defence case or contradicting the Crown case. In dealing with her evidence of sexual abuse, Mr Turnbull put a series of eight propositions to the effect that the accused had never made any sexual advance to her before the murders and that he did not sexually assault her after the murders. Each of those propositions was rejected. He asked no questions as to the circumstances in which she made complaint and did not suggest to her that she did not complain.

Before re-examining Ms Lin, the Crown made clear its intention to call the various persons to whom Ms Lin complained and to seek the admission of their evidence under s 108(3)(b). Mr Turnbull then floated the prospect of reopening his cross-examination of Ms Lin to ask questions about that subject, an approach that he informed me he had resolved not to pursue in the belief that the Crown would not press for the reception of the evidence of complaint from other witnesses.

The parties asked for time to discuss their respective positions as to the basis upon which the complaint evidence had been led by the Crown, with a view to settling whether Ms Lin would be further cross-examined by leave and, if not, allowing her re-examination to proceed.

In the result, the parties reduced their agreement to writing as follows:

The first paragraph of the letter reflects a clear acceptance that the evidence was admitted under s 108(3)(b) and the last that the Crown did not rely upon it for any other purpose. My directions to the jury at the end of Ms Lin’s evidence reflected the agreement the parties reached. Those directions will need to be refined and/or developed in the summing up. I also resolved, of my own motion and without objection from the Crown, to withdraw from the jury’s consideration the remarks Ms Lin attributed to Professor Parkinson about the accused’s character, and his implicit concern about the safety of the accused’s wife and son, as irrelevant. The jury were directed accordingly.