Xie v R [2021] NSWCCA 1

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Xie v R [2021] NSWCCA 1 Hearing dates: 22 June 2020 to 1 July 2020 Date of orders: 15 February 2021 Decision date: 15 February 2021 Before: Bathurst CJ R A Hulme J Beech-Jones J Decision: (i) The tender of Exhibit C1, being the report of Professor Peter Gill dated 25 October 2019, is rejected; (ii) Exhibit A1, being the report of Dr Mark Perlin dated 19 May 2020, is admitted but, pursuant to s 136 of the Evidence Act 1995, the use of that report is limited to Ground 8 of the appeal; (iii) The oral evidence of Dr Mark Perlin given on 25 June 2020 and 29 June 2020 is admitted but, pursuant to s 136 of the Evidence Act 1995, the use of that evidence is limited to Ground 8 of the appeal; (iv) Paragraphs 1 to 4 of the affidavit of Frances Low affirmed 19 June 2020 and their annexures are admitted but, pursuant to s 136 of the Evidence Act 1995, the use of that evidence is limited to Ground 8 of the appeal; (v) Leave to raise Grounds 1, 5, 6 and 8 of the appeal is refused; (vi) Leave to raise Grounds 2, 3, 4 and 7 of the appeal is granted; (vii) Appeal dismissed. Catchwords: CRIME – murder – conviction appeal – lengthy trial – appellant convicted of five counts of murder – killing of his wife's relatives in nearby home CRIMINAL TRIAL – accusatory and adversarial process – role of appellant court – appellant court not forum to retry case, reformulate cases presented by parties at trial or speculate how cases might have been conducted differently – grounds for admission of new evidence on appeal – related to grounds of appeal - DNA evidence lead at trial sought to be challenged on basis of new evidence lead on appeal - new evidence not "fresh" and did not establish innocence of accused or give rise to reasonable doubt – HELD evidence not admissible in relation to challenge to admission and use of DNA evidence - evidence was admissible to the extent it related to allegation of incompetence by trial counsel. DNA EVIDENCE – stain containing DNA from multiple contributors found in appellant's garage – use of probabilistic computer analysis known as "TrueAllele" to determine likely contributors – prosecution contended four victims' DNA present – at trial defence accepted DNA of three victims present but contended DNA from relative overseas at time of killing also present – new case on appeal – admissibility of analysis and evidence from expert challenged on different basis – contended that expert not qualified and software not appropriately validated – contended that evidence otherwise misleading – prosecutor's fallacy – evidence sought to be challenged on basis of new evidence lead on appeal - HELD – evidence properly admitted at trial– alleged lack of validation not relevant to admissibility under s 79 of the Evidence Act – assuming trial judge refused to allow questioning on voir dire about validation then trial judge was correct to do so – prosecutor's fallacy not established – misleading nature of evidence not established - new evidence not "fresh" and did not establish innocence of accused or give rise to reasonable doubt – evidence not admissible in relation to challenge to admission and use of DNA evidence "CSI" DIRECTION – contended that trial judge erred in directing jury not to expect all issues to be answered by forensic analysis – whether direction had tendency to divert jury from considering evidence and whether guilt established beyond reasonable doubt – HELD – no miscarriage of justice established – ground rejected CONSCIOUSNESS OF GUILT – prosecution relied on conduct of accused on day of killing and period thereafter as consciousness of guilt – contended that trial judge erred in failing to direct jury about the hypothetical reason he might have engaged in the alleged conduct – in one case accused provided reason and in other case accused denied the conduct – no application made to trial judge for further direction - HELD – direction not required – where accused provided reason for engaging in alleged conduct suggested hypothetical reasons added nothing – where accused denied conduct suggested direction had real tendency to undermine denials – as for balance of conduct said to support consciousness of guilt contended that trial judge's summing up was unbalanced in favour of the Crown - contended that trial judge failed to put the "real defence case" – no redirection sought- HELD – no miscarriage of justice established – summing up accurately reflected parties case as presented at the trial – leave to raise ground refused. ALIBI – appellant contended that he was asleep with his wife when killings occurred – alleged that trial judge's summary of the alibi evidence was inaccurate and directions were unbalanced – no redirection sought- HELD – complaint not established – leave to raise the ground refused COINCIDENCE EVIDENCE – Crown contended that murder weapon was "hammer like device" – folded cloth and rubber band found at crime scene covered in victims' blood – Crown contended that it covered murder weapon – "improvised massage device" found at appellants' premises – covered with folded cloth and rubber band – similar depressions on each cloth – contended that evidence of massage device wrongly admitted as coincidence evidence – HELD – evidence correctly admitted – sufficient similarities to establish evidence had significant probative value – conclusion not rebutted by dissimilarities – no prejudicial effect establish – ground rejected MISCARRIAGE ARISING FROM CONDUCT OF TRIAL COUNSEL – contended that conduct of appellant's counsel occasioned miscarriage of justice – conduct to be assessed in the context of the trial as it unfolded and the material available to counsel – particulars of ground reflected other grounds – HELD – no miscarriage of justice demonstrated Legislation Cited: Children's (Criminal Proceedings) Act 1987 Criminal Appeal Act 1912 Criminal Appeal Rules, r 4 Criminal Procedure Act 1986 Evidence Act 1995 (NSW) Cases Cited: A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 Ali v R [2005] HCA 8; (2005) 214 ALR 1 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Aytugrul v R (2012) 247 CLR 170; [2012] HCA 15 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Broadhurst v The Queen [1964] AC 441 Cesan v DPP (Cth) [2007] NSWCCA 273; (2007) A Crim R 385 Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 Chen v R [2018] NSWCCA 106 Doheny and Adams [1997] 1 Cr App R 369 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GBF v The Queen [2020] HCA 40 Hanna v R [2017] NSWCCA 168 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Matthews v R [2013] NSWCCA 187 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 Morgan v R [2011] NSWCCA 257; (2011) 215 A Crim R 33 MRW v R [2011] NSWCCA 260 Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573. Nudd v R [2006] HCA 9; (2005) 225 ALR 161 Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 R v Atkins (2009) EWCA Crim 1876 R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 R v Cook [2004] NSWCCA 52 R v Denis Adams (No 2) [1998] 1 Cr App R 377 R v Denis Adams [1996] 2 Cr App R 467 R v Finnan [2005] VSCA 151 R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487 R v Galli [2001] NSWCCA 504; (2001) 127 A Crim R 493 R v Gardner [2004] EWCA Crim 1639 R v GK [2001] NSWCCA 413; (2001) 125 A Crim R 315 R v Heyde (1990) 20 NSWLR 234 R v Keir [2002] NSWCCA 30; (2002) 127 A Crim R 198 R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174 R v MK [2012] NSWCCA 110; (2012) 223 A Crim R 672 R v Robinson [2003] NSWCCA 188 R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167 R v Xie (No 12) [2015] NSWSC 2124 R v Xie (No 4) [2014] NSWSC 500 R v Xie [2017] NSWSC 63 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Selby v R [2017] NSWCCA 40 Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5 The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46 Tuite v The Queen (2016) 49 VR 196; [2015] VSCA 148 Vella v R; Siskos v R [2015] NSWCCA 148 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 Texts Cited: D Hodgson, "A Lawyer looks at Bayes Theorem" (2002) 76 ALJR 109 Category: Principal judgment Parties: Lian Bin Xie (Appellant) The Crown (Respondent) Representation: Counsel: B Rigg SC; T Quilter (Appellant) AM Mitchelmore SC; CB Curtis (Crown)