R v Xie (No 15)

HER HONOUR: On 11 June 2015 in the course of Mrs Lin being cross-examined by Mr Turnbull SC, an issue arose concerning the application of s 18 of the Evidence Act 1995 (NSW). As at that date, Mrs Lin had given evidence before the jury over the course of ten days, albeit with lengthy breaks from time to time.

Section 18 of the Evidence Act provides:

The application of the section was not raised either by me or by counsel when Mrs Lin was first called to give evidence in the trial, or prior to that when her pending appearance as a Crown witness was discussed, including on some occasions when she was represented by Ms Cook of counsel. For my part, that was in part because I had a recollection of the matter being canvassed and resolved before Johnson J and also because I simply overlooked clarifying the position with counsel and Mrs Lin before she commenced giving evidence. It also appears that counsel also overlooked raising it with me, both having proceeded on the assumption that because Mrs Lin had expressly disavowed taking the objection in the committal when she gave evidence at the Court’s request following a direction under s 93 of the Criminal Procedure Act 1986 (NSW), she would not take the objection at the accused’s trial.

Mrs Lin gave evidence at the committal proceedings in August 2012 over the course of a number of days. On 21 August, Mr Corish of counsel appeared on behalf of Mrs Lin and informed the presiding Magistrate that Mrs Lin did not intend to make an application under s 18(2) of the Evidence Act. The Magistrate had the following exchange with Mrs Lin:

Upon the Crown’s further researches, it was confirmed that on 19 May 2014, when Mr Odgers SC appeared on Mrs Lin’s behalf before Johnson J, Mr Odgers informed his Honour that he had explained the effect of s 18 to Mrs Lin, and her right to object to giving evidence as the wife of the accused, and that she did not intend to take the objection. There was the following exchange between his Honour and Mr Odgers on that occasion:

That trial, which commenced before Johnson J in May 2014, was aborted prior to Mrs Lin being called to give evidence. Mrs Lin did not give evidence during the (aborted) second trial in August 2014.

Both counsel submitted that, despite it being clear that on two previous occasions Mrs Lin had informed the Court that she both understood her rights under s 18 to object to giving evidence as a witness called by the Crown and had determined she would give evidence, I should, nonetheless, inquire of her whether she was aware of her right to object to giving evidence in the trial before me and to confirm what both counsel assumed to be her (continuing) preparedness to do so.

In the absence of the jury, I reminded Mrs Lin that she had informed the Magistrate at the committal proceedings that she had received legal advice in relation to her right to object to giving evidence, that she understood that she had that right and that she had resolved not to exercise it. Mrs Lin agreed that the effect of s 18 was explained to her by Mr Corish but that she had understood that she was required to give evidence. She then accepted my offer to seek further advice as to the operation of s 18 before informing me about the position she intended to take in this trial. (It was in the interim that the Crown identified the transcript of proceedings before Johnson J in May 2014 extracted at [5] above.)

When the Court reconvened, Mr Averre of counsel appeared on Mrs Lin’s behalf. He confirmed that he had provided advice to her as to the operation of s 18. Mrs Lin then indicated to me that, although Mr Averre had explained the operation of the section to her, she remained confused about certain matters and was therefore not in a position to advise whether she would object to giving further evidence. She requested additional time to speak with Mr Averre. I afforded her that opportunity.

After conferring further with Mrs Lin, Mr Averre initially advised me that she wished to obtain other legal advice and, ultimately, other legal representation for the remainder of her evidence and that she was not, for that reason, in a position to advise me of her position. To that end, and notwithstanding the fact that s 18 expressly provides that the question as to whether or not a witness intends to object to giving evidence is one that should be resolved prior to the commencement of that witness’ evidence, (no doubt in order that, if objection is taken, consideration can be given to requiring the witness to give evidence as contemplated by ss 18(6) and (7)), the section does not prevent a witness seeking advice, or even after they have commenced to give evidence. In fact, on one reading, s 18(2)(b) contemplates that may occur in circumstances where objection is taken to giving particular evidence only.

When Mrs Lin returned to Court (with Mr Averre), with his encouragement and the encouragement of both the Crown and Mr Turnbull, I reminded Mrs Lin that she had eschewed taking the objection on two previous occasions after receiving advice from two members of counsel and, on both occasions, that she had indicated to the Court that she understood her right to refuse to answer questions on the basis of the advice she had received at that time. I also indicated to Mrs Lin that the question I had asked her earlier that morning was an ordinary incident of a criminal trial where the operation of s 18 has relevant application, and that she should not think that the issue arose, when it arose, because of any view I might have concerning the evidence she had given in the trial to that point.

Mrs Lin again sought advice from Mr Averre, after which she informed me that she would not take the objection under s 18 and that she would continue to give her evidence.

Since Mrs Lin ultimately resolved that she would not object to giving evidence, and I was satisfied she had been given every opportunity to seek advice from counsel before informing me of that fact, it was not necessary for me to consider whether I would require Mrs Lin to give evidence despite any objection she might have taken under ss 18(6) and (7), or to make any enquiry of Mrs Lin, or of counsel, as to the matters to which ss 18(6)(a) and (b) are directed.

Were I to have had occasion to give consideration to the operation of ss 18(7) or (8), the fact that Mrs Lin is a witness whose evidence is relied upon by the accused, despite being called by the Crown as a witness in the Crown case, is a most material consideration. In particular, she has given evidence of an alibi, albeit challenged by the Crown which, should the Crown be unable to disprove beyond reasonable doubt, will result in an acquittal. In addition, the evidence before me is that, far from there being any harm that might come to Mrs Lin, or any damage occasioned to her relationship with her husband by giving evidence in his trial, her support for her husband continues, to the extent that they have had contact throughout the trial through weekend visits at the prison with their marriage enduring over the course of his remand.

In all the circumstances, I can see no reason why I would not have required Mrs Lin to five evidence in the accused’s trial as a witness called by the Crown were she to have taken the objection under s 18(1) or s 18(2).