Supreme Court New South Wales Medium Neutral Citation: R v Xie [2012] NSWSC 330 Hearing dates: 29 March 2012 Decision date: 05 April 2012 Jurisdiction: Common Law Before: Price J Decision: Bail refused Catchwords: CRIMINAL LAW Bail - murder-whether exceptional circumstances exist Legislation Cited: Bail Act 1978 s 9C, s 32, s 32(1)(a) s 32(1)(b), s 32(7) Cases Cited: Memery v R [2000] VSC 945 R v Connelly (Supreme Court of New South Wales, Hoeben J, 16 February 2006, unreported) R v Jacobs [2008] NSWSC 417 R v Pirini (Supreme Court of New South Wales, James J, 20 April 2010, unreported) R v Young [2006] NSWSC 1499 Category: Procedural rulings Parties: Lian Bin XIE Crown Representation: Mr G Turnbull SC (Applicant) Ms K Shead (Crown) File Number(s): 2011/147183 JUDGMENT - Application for bail 1. 1HIS HONOUR: Lian Bin Xie ("the applicant") applies for bail. The Crown opposes the application. He is charged with five counts of murder. Apart from the provisions of s 32 Bail Act 1978 which apply to all bail applications, the Bail Act makes special provision for murder. Section 9C Bail Act provides: "An authorised officer or court is not to grant bail to a person in respect of an offence of murder unless the authorised officer or court is satisfied that exceptional circumstances justify the grant of bail." 1. Section 32(7) Bail Act provides that matters beyond those identified in s 32 which the court accepts as relevant may be considered when determining an application for bail to which s 9C applies. 2. The applicant submits that the court would find that there are exceptional circumstances and would grant him conditional bail on the terms that are as follows: 1. He is to reside at xx Beck Street, North Epping. 2. He is not to be absent from xx Beck Street, North Epping between the hours of 9 pm. and 6 am. and is to present himself at the front door of the premises in the event of a police curfew check. 3. He is to report to the officer-in-charge of the Eastwood Police Station each day between the hours of 8 am and 8pm. 4. He is to enter into an agreement, and deposit acceptable security, to forfeit three hundred thousand dollars ($300,000.00) if he fails to comply with his bail undertaking. It shall be acceptable security if the applicant executes a Memorandum of Agreement to enter into a mortgage over the land described in the Certificate of Title Lot 2 in Deposited Plan xxxxxx Section 5 deposited with the clerk of the court, in favour of the Crown to secure any debt due by reason of this bail agreement. 5. One acceptable person, for which purposes Chuying Xie is an acceptable person, is to deposit the sum of one hundred thousand dollars ($100,000.00) and is to enter into an agreement to forfeit the amount deposited if the applicant fails to comply with his bail undertaking. 6. He is not to use any mobile telephone number, other than the mobile number xxx xxx xxx. 7. He is not to use any landline telephone number, other than the telephone number xxx xxx xxx. 8.He is not to use any internet connection other than the internet connection connected at the address at xx Beck Street, North Epping. 9. He is not to communicate, directly or indirectly (except through his legal representatives), with any person whom he has received notice is to be called, or is likely to be called, by the Crown at his committal hearing or at his trial. The exceptions to this condition are his wife, Kathy Lin, and his niece, Brenda Lin. 10. He is not to approach within 1 kilometre of any international point of departure from Australia. 11. His passport is to be surrendered to Detective Sergeant Joseph Maree and he is not to apply for any passport or international travel documents whilst at liberty on bail. 12. He is to submit to electronic monitoring by Abakus ElmoTech, with the monitoring device to be fitted by the authorised representative of Abakus ElmoTech before being released from custody. The applicant is to pay the costs of electronic monitoring provided by Abakus ElmoTech. 13. Abakus ElmoTech is to notify any mobile number or electronic email address nominated by the Office of the DPP of any breaches of bail conditions (1), (2) and (10). 14. He is to be of good behaviour throughout the period of his liberty on bail. 15. He is to next appear in the Local Court on the date set by the Court. 16. Bail is to be automatically revoked in the event of breach of any of these conditions and he may thereupon be arrested by any police officer. Relevant principle 1. Section 9C places a heavy onus on an applicant for a grant of bail on a charge of murder: see for example R v Connelly (Supreme Court of New South Wales, Hoeben J, 16 February 2006, unreported); R v Pirini (Supreme Court of New South Wales, McClellan CJ at CL, 8 September 2009, unreported); R v Pirini (Supreme Court of New South Wales, James J, 20 April 2010, unreported). Exceptional circumstances may arise from one or more factors either singularly or combined: see Pirini (8 September 2009); R v Young [2006] NSWSC 1499; R v Jacobs [2008] NSWSC 417. A weak Crown case may constitute exceptional circumstances: Memery v R [2000] VSC 495. 2. Although exceptional circumstances may be established by a weak Crown case, an assessment of the existence of exceptional circumstances is not limited to this consideration. In Pirini (8 September 2009), McClellan CJ at CL said at [44-45]: "For my part I would not confine the consideration of exceptional circumstances to a consideration of the strength of the Crown case alone. Although it is a central issue the nature of the offence and the circumstances of the offending and of the offender are also relevant although the weight to be afforded them may differ in each case. All of the matters in s 32 must be considered. A primary consideration when determining whether to grant bail is whether the accused will attend to answer the charge at a later trial. However, the court must also be concerned with the protection of witnesses other persons including relatives of a victim and the protection and welfare of the community. These considerations must be balanced with the likely period of incarceration of an individual before trial." The Crown case 1. The Crown alleges that the applicant murdered in the early hours of the morning of 18 July 2009, Min Lin, his wife Yunli [Lily] Lin, their two sons Henry aged 12, and Terry aged 9 and Yun Bin [Irene] Lin, the sister of Yunli Lin, in their family home at xxx Boundary Road, North Epping. 2. The autopsy findings indicate that the cause of death of each of the deceased, other than Irene Lin, was asphyxia and blunt force injuries of the head. The cause of Irene Lin's death was blunt force injury of the head. 3. All of the deceased were killed in their bedrooms. Some of the blunt force injuries suggest the use of a metal hammer or metal hammer-like weapon. The autopsy results and crime scene examinations are said to indicate that Min Lin and Lily Lin were attacked whilst asleep, as they had no defensive injuries and there were no signs of struggle. The Crown case is that they were attacked first and Irene Lin may have been awake at the time she was attacked. She suffered defensive injuries and appears to have moved in her bed. The Crown contends that Henry and Terry were likely the last to be killed as there were signs of a violent struggle and they suffered multiple defensive injuries. The autopsy findings indicate that Terry may have survived for one to two hours after the attack. 4. The applicant is married to Kathy Lin, the sister of Min Lin. They lived with their son [AB] in Beck Street, North Epping, which is approximately 250 metres walking distance from the Lin family home. 5. The applicant had attended a family dinner on Friday 17 July 2009 at Min Lin's parents' apartment in Merrylands. Also in attendance were Min Lin, Henry and Terry, Kathy Lin and [AB]. The Friday night dinner was a regular occurrence in the lives of the Lin and Xie families. 6. Min Lin left the apartment at about 9pm. At around 10pm, the applicant, Kathy, [AB], Terry and Henry left the apartment together. They returned to North Epping in the Lin family vehicle, which was driven by the applicant. According to Kathy, the vehicle was returned to the garage of xxx Boundary Road, at about 10.30pm. Terry and Henry entered the home, whilst she, the accused and [AB] went to their vehicle, which had been parked in the street. They then drove to their house in Beck Street. 7. Henry chatted on line to a friend on MSN until the friend signed out at about 11.40pm that night. 8. Between 9am and 9.43am on the following morning, Kathy Lin received a number of telephone calls from various people, who told her that Min Lin's Newsagency had not opened. Min Lin was the proprietor of the Epping Central Newsagency. Kathy told police that she, the applicant and [AB] drove to xxx Boundary Road, where they discovered the deceaseds' bodies. 9. The applicant was not charged with the murders until 5 May 2011. 10. The case advanced by the Crown is circumstantial. A brief summary of the principal circumstances relied upon by the Crown is as follows: (i) the applicant was well acquainted with the sleeping arrangements within the Lin home. The killer did not enter Brenda Lin's room which was unoccupied at the time of the murders. Brenda, the daughter of Min and Lily Lin, was in New Caledonia. The applicant was one of only a small group of people, who knew that she was away at the time; (ii) there is no evidence of forced entry into the Lin home and minimal activity on the ground floor, except for the front door foyer area. The applicant had access to the front door key; (iii) when they entered the Lin home on the Saturday morning, the applicant acted to prevent his wife seeing her brother and sister-in-law's bodies before they were visible to her or him. Crime scene examinations are said to establish that when standing in the hallway of the premises and looking inside the doorway of the master bedroom, the main bed and therefore Lily Lin's body and the large amount of blood spatter would not have been visible; (iv) during the first Triple 0 call made by Kathy at 9.47am, she can be heard pleading with the applicant to stay with her, however, a car is heard driving off and the call was terminated by Kathy. This evidence is said to be supported by two persons who witnessed an argument between a male and female person of Asian appearance at the top of the Lin family home driveway and the conversation lawfully recorded by police, during which Kathy tells the applicant that she did not want him to leave her alone at the premises, there was no urgency for him to leave and inform her parents. It is the Crown case that the applicant's departure from the home is inconsistent with his innocence; (v) on 15 May 2010, police located a small amount of what appeared to be blood underneath a desk in the garage of the applicant's home. A presumptive test for blood proved to be positive and a sample was taken for analysis. Clayton Walton, the Crown's DNA expert, expressed the opinion that the sample is probably blood because of its colour, but it definitely was bodily fluids containing human DNA. The sample contained a mixture of DNA from at least four different persons, at least three of whom were major contributors and at least one of whom was a minor contributor. At least one major contributor was male, and at least one contributor was female. Testing of the blood using Profiler Plus and Identifiler test kits, showed that the blood could not be from any member of the applicant's family. On the other hand, it could be the blood of at least three of the deceased. The profiles suggested that the multiple contributors were related. The profile from these two tests was not particularly unusual, and could be found in about 20 per cent of the population at large. Similar mixtures of blood from two, three or four of the deceased were found in multiple locations upstairs in the house where the deceased were killed. The Crown's expert witness will say that because of the mixture and its location, it is highly unlikely that different persons contributed their DNA under the desk at different times, and that it is much more likely that the mixture of DNA occurred prior to the sample being deposited under the applicant's desk. The Y chromosome in the sample was further tested by the use of the Y-STA test. The testing established that the Y chromosome could not have come from any male member of the applicant's household, but could have come from the three male deceased. The test established that all the male contributors in the sample were from the same patrilineal line. As opposed to the Profiler and Identifiler testing, the profile obtained from the Y-chromosome in this sample was very distinctive and rare. The Y profile does not match any of the approximately 8,000 Y-Chromosome profiles contained in the two relevant databases, one international and one local. Both databases contain samples from persons of Asian background. Similar Y-profiles were found at the crime scene. It is the Crown case that the small amount of what appeared to be blood on the floor of the applicant's garage came from the crime scene; (vi) forensic examination of the carpets on the first floor of the Lin home revealed approximately 42 shoe impressions or shoe marks in blood. Eight of the impressions had insufficient detail to allow a comparison. A further 10 were identified as either police or ambulance footwear. A further 24 of the impressions were made by a shoe with the same tread pattern. The majority of these 24 shoe impressions had been matched to the tread used on three models of ASICS brand men's running shoe. Dr Jennifer Raymond concluded that eleven of the shoe marks were made by a shoe of the same pattern type as an ASICS TN 333/TN 442/TN 569, of dimensions between the US sizes 8.5 and 10.5 At the time of the murders, the applicant owned a number of pairs of ASICS brand runners in US size men's 9.5. The applicant's wife told police that ASICS was the applicant's favourite brand of sport's shoes. Police located a number of photographs that show the applicant wearing a pair of ASICS "Gel ELEVATION II TN 333". The police search of the applicant's home in May 2010 failed to locate the shoes shown in the photographs; (vii) after the police interviewed the applicant's wife about the shoe impressions, the applicant is recorded on video retrieving objects that appear to be shoe boxes. He is later recorded cutting up these 'shoe boxes' with scissors and placing the pieces into a shredder and also into a bucket containing a liquid. The applicant flushed the contents of the bucket down the toilet. The crime scene examination of the applicant's home in May 2010 showed that the applicant had a number of pairs of shoes stored in the shoe boxes, each of which was individually labelled with a small blue sticker. Police located a quantity of shredded paper in the applicant's garbage bin. A forensic reconstruction of that material revealed shredded pieces of a small blue sticker identical to those located on the shoeboxes. The Crown case is that one of the objects disposed of by the applicant was the shoebox that had previously contained the GEL ELEVATION II TN 333 men's running shoes; (viii) the conversations recorded by way of surveillance devices that indicated friction between Kathy Lin and her parents and the applicant and his in-laws in relation to a favouritism between Min Lin and Kathy Lin; and (ix) the conversations recorded by way of listening device which indicate that the applicant was coaching Kathy Lin and Brenda Lin about what they should say and what questions should be answered when interviewed by police. 1. During the application, Detective Sergeant Maree, the office in charge of the investigation, gave evidence that he believed the applicant had an underlying hatred towards his in-laws. Submissions on the Crown case 1. Mr Turnbull SC for the applicant submitted that the Crown case is speculative and the circumstances relied upon by the Crown are individually, and together, weak. His criticism of the DNA evidence included the lack of any test which established that the sample taken from the applicant's garage was a bodily fluid, the lack of any test comparing sample 550 to the crime scene sample and the Crown's disregard for the "B sample" when reliance was placed on the findings of Dr Simon Walsh. Mr Turnbull pointed out that Dr Raymond's evidence was not footwear identification evidence, but evidence of comparison. He submitted that there was no evidence that the applicant owned any ASICS shoes at the date of the murders that match the patterns in the Lin family home. The shoe patterns could have been produced by one of three different models and one of five different sizes from 8.5 to 10 and ASICS was an extremely popular brand. 2. Mr Turnbull contended that there was no evidence of any dispute between the applicant and Min Lin, and there was an absence of motive for the applicant to have murdered the five deceased. He argued that another matter which undermined the strength of the Crown case, was the application made by the Crown to have Kathy Lin called to give evidence at the committal proceedings. Other matters were raised by Mr Turnbull, which included a criticism of the police investigation. 3. The Crown submitted that the case was a strong one. The Crown argued that the police investigation had been thorough and the evidence points to only one reasonable conclusion, which was the guilt of the accused. Assessment of the Crown case 1. As this is a bail application, my assessment of the strength or otherwise of the Crown case is limited to an examination of the material before me, which is untested. The only witness, who has been called to give evidence was Detective Sergeant Maree. I should state at the outset that Mr Turnbull's cross-examination of this witness failed to establish that his criticism of the investigation by police of the murders was justified. 2. Having regard to the early stage of the proceedings, it is inappropriate that my analysis of the evidence is provided in detail. It is sufficient for present purposes to make the following observations: (a) Although there is no direct evidence that the applicant owned ASICS TN 333 shoes at the time of the murders, the jury could capably conclude that he did own ASICS shoes of that type in men's size 9.5 at that time, when the evidence of Kathy Lin, the photographs and the cutting up of the shoe box is considered together. (b) Notwithstanding that Kathy Lin was given incorrect information at the Crime Commission, the jury could capably conclude that the applicant destroyed the shoe box in order to avoid being implicated in the murders. (c) Whilst Dr Simon Walsh reports that the overall fit of the mixture in profile 550-B to the explanation of Terry, Henry and Min Lin is poor as this combination does not account for all observed alleles, in general terms, the mixture is said to be highly consistent with that observed in profile 550-A. Dr Walsh reports that the profile in this sample could be explained by a mixture of Terry, Henry and Min Lin and the mixture ratio of this fit to this explanation is good. Upon statistical evaluation, Dr Walsh concludes that it is approximately 780 times more likely that the mixed DNA profile originated from Terry, Henry and Min Lin than if it originated from three unrelated individuals randomly chosen from the Australian Caucasian population. The DNA evidence would not be viewed by the jury in isolation, but in combination with the other circumstantial evidence in the case. The jury could well accept the opinion of Dr Walsh that the DNA profiling results, provide moderate scientific support for the proposition that the mixed DNA profile, from the sample taken from the applicant's garage, originated from Terry, Henry and Min Lin. (d) It is not possible on the present material for this court to conclude that the Crown's assertion that the applicant could not have seen the body of Lily Lin or the blood spatter when standing in the hallway and looking inside the master bedroom, is factually incorrect. The jury could capably conclude that the applicant's conduct on the morning the bodies were discovered, including the argument with his wife and sudden departure from the scene, arose from a prior knowledge of the murders. (e) This court does not have the advantage of listening to surveillance material, hearing how the words were spoken and placing these conversations in context. From a reading of the transcript extracts, there is evidence of jealousy on the part of the applicant and of attempts by him to influence what might be said by his wife and Brenda Lin. 1. The strength of the Crown case would be offset by the Crown's concession that the applicant's DNA has not been identified on any items from the crime scene, the lack of evidence of animosity by the applicant towards any of the deceased prior to the killings and other material, such as the threatening letter of 13 August 2009, the unidentified DNA on the power box and the applicant's lack of prior criminal history. 2. On the material before me, I conclude that when the circumstances relied upon by the Crown are viewed in combination, a jury could capably conclude that the applicant murdered each of the deceased. I do not think, however, that the Crown case is so strong that it will inevitably succeed. The applicant has, in my opinion, a reasonable prospect of a jury not being satisfied beyond reasonable doubt that he committed the murders. 3. My conclusion, as to the strength of the Crown case, does not by itself, justify a finding of exceptional circumstances. Delay 1. Another matter relied upon by the applicant as constituting exceptional circumstances (either by itself or in combination) was the delay that was likely to occur in the prosecution of the applicant. Delay in the prosecution of an applicant is capable of constituting exceptional circumstances within s 9C: Pirini per James J at [93]. 2. Belle Lou, the applicant's solicitor, estimates that the applicant is unlikely to be committed to this court for trial until August or September 2012, with a trial date not being fixed until 2013. 3. I am not persuaded that the progress of these proceedings is unduly slow moving. What is asserted to be delay, falls well-short of a delay that by itself might constitute exceptional circumstances. I do, however, take into account the time that the applicant will be in custody, in combination with my assessment of the strength of the Crown case and the other matters under s 32 Bail Act 1978 that are relevant to the present application. The interests of the applicant 1. Section 32(1)(b) Bail Act provides that in making a determination as to a grant of bail, the court is to have regard to the interests of the person, having regard only to: "(i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody, and (ii) the needs of the person to be free to prepare for the person's appearance in court or to obtain legal advice or both, and (iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii)..." 1. Sam Borenstein, a clinical psychologist in a report dated 25 March 2012, expresses the opinion that the applicant has an adjustment disorder with mixed anxiety and depressed mood, which is a direct consequence of his imprisonment and feeling of being wrongfully accused. The psychologist makes mention of the applicant's difficulties with reading and recollection. I give modest weight to this consideration. 2. Ms Lou refers to the Crown brief consisting of about 10, 554 pages and 332 CD's and DVD's having been served and the difficulty experienced in obtaining instructions. I accept the applicant's submission that the preparation of his case will be more difficult if he is not at liberty. Flight 1. The Crown contended that the applicant is a flight risk, coming originally from China and having his family members in that country. The Crown submitted that he has significant financial ties to China and apparent access to funds. On the other hand, Mr Turnbull said that there is no question, given the applicant's history of travelling to China and returning, while the murders were being investigated, that the applicant is someone who might flee. Mr Turnbull argued that the proposed bail conditions would weigh heavily upon the applicant and guarantee his presence at court. 2. Section 32(1)(a) Bail Act obliges the court to consider the probability of whether or not the person will appear having regard, relevantly, only to: "(i) the person's background and community ties, as indicated...by the history and details of the person's residence, employment and family situations and the person's prior criminal record..., and ... (iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty, and ... (iv) any specific evidence indicating whether or not it is probable that the person will appear in court." 1. The applicant was born in China. He is one of three children, having an older sister who works as an accountant in Guangzhou and a younger brother, who runs a car parts business. The applicant's parents, who are retired, live in China as do his sister and brother. The applicant and his wife have lived together in Australia since 2002. They ran a restaurant that was sold in 2005. After that time, the applicant participated in share trading. He and his wife have been married for some 13 years and their son [AB] is 11 years old. They own as joint tenants their home at North Epping. The applicant has no prior criminal history. 2. A strong connection with China, however, remains. He is the only member of his family living outside China. He has a very close relationship with them. Prior to his arrest, he returned to China annually. Ron Szancer, the forensic accountant, in his statement discloses that between 3 February 2005 and 23 June 2009, there were 15 incoming international money transfers from China totalling $1,556,712 and four outgoing international money transfers to China totalling $811,617.00. 3. Although it is true that the applicant has travelled to and from China since the deaths of the deceased, he is now charged with five murders. Should the applicant be convicted, he faces the distinct prospect of imprisonment for life, which provides strong motivation for not answering bail. I do not think that my assessment of the strength of the Crown case or the proposed bail conditions eliminate the significant possibility that the applicant might attempt to flee to China. I am not persuaded that the applicant is not a flight risk. Interference with witnesses 1. The surveillance tapes demonstrate the applicant's ability to attempt to influence his wife and his niece. Should the court accede to the proposed bail conditions, the applicant would return to the matrimonial home. In my opinion, the likelihood of his interfering with the evidence of his wife and niece remains high. Kathy Lin's evidence, in particular, is important to the Crown case. Decision 1. Taking into account all of the matters that must be considered, I am not satisfied that the applicant has discharged the high onus of establishing exceptional circumstances. 2. Accordingly, bail is refused. ********** Amendments 05 August 2024 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2024