Supreme Court New South Wales Medium Neutral Citation: R v Xie (No 10) [2014] NSWSC 1976 Hearing dates: 10 June 2014 Decision date: 10 June 2014 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: 1. Evidence of Ms AB contained in statement dated 29 May 2014 is admissible and ought not be excluded under s.137 Evidence Act 1995. 2. Order discharging jury in the trial of the Accused. Catchwords: CRIMINAL LAW - murder trial - significant new evidence becomes known to Crown during trial of Accused - whether evidence relevant - if relevant, whether evidence ought be excluded under s.137 Evidence Act 1995 - evidence from surviving daughter of Lin family that Accused showed sexual interest in her before murders and sexually assaulted her after the murders when she resided in Accused's house - evidence relevant to issues in trial including motive - evidence admissible and should not be excluded under s.137 - application to discharge jury given significant change in Crown case - Crown agrees that discharge appropriate - jury discharged Legislation Cited: Evidence Act 1995 Cases Cited: Crofts v The Queen [1996] HCA 22; 186 CLR 427 R v Xie (No. 4) [2014] NSWSC 500 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Lian Bin (Robert) Xie (Accused) Representation: Counsel: Mr M Tedeschi AM QC; Ms KN Shead (Crown) Mr GW Turnbull SC; Mr L Fernandez (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Burke & Mead Lawyers (Accused) File Number(s): 2011/147183 Publication restriction: * Restricted - Pending Jury Trial. On 12 January 2017, a jury returned verdicts of guilty on all counts. Sentence was passed on 13 February 2017: R v Xie [2017] NSWSC 63. * Subject to the operation of s.15B of the Children (Criminal Proceedings) Act 1987, s.15A of that Act operates to prohibit publication of the name and picture of Ms AB or of anything that is likely to lead to her identification: - see R v Xie (No. 5) [2014] NSWSC 588. After 20 February 2017, the Court was informed that Ms Brenda Lin (Ms AB) had given her consent under s.15D(1)(b) and (3) of that Act to the publication or broadcasting of her identity. Judgment 1. JOHNSON J: By Notice of Motion dated today (which has been heard this morning), the Accused seeks a number of alternative orders as follows: (1) That the evidence contained in the statement of Ms AB dated 29 May 2014 is not to be adduced pursuant to s.55 Evidence Act 1995. (2) Alternatively to (1), that the evidence contained in the statement of Ms AB dated 29 May 2014 is excluded pursuant to s.137 Evidence Act 1995. (3) Alternatively to (1) and (2), that the whole of the jury in the current trial is discharged. (4) Such further orders as the Court considers appropriate. 1. The Accused is charged with the murders at North Epping, on or about 18 July 2009, of Min (Norman) Lin, Yun Li (Lily) Lin, Yun Bin (Irene) Lin, Henry Lin and Terry Lin. 2. The trial of the Accused on those charges commenced, with the empanelment of a jury of 15, on 8 May 2014. 3. The background to the trial, including a statement of the way in which the Crown put its case against the Accused, may be found in my judgment of 30 April 2014: R v Xie (No. 4) [2014] NSWSC 500. I will refer again to that judgment in the course of the present decision. 4. On 2 June 2014, the Crown served on the defence a further statement of Ms AB made on 29 May 2014. 5. Ms AB is the sole surviving member of the Lin family. She was absent overseas on a school excursion at the time of the deaths of her family on or about 18 July 2009. Ms AB was 15 years old at the time of the deaths of her family members. 6. Ms AB was always expected to be called as a Crown witness at the trial. However, the further statement of Ms AB dated 29 May 2014 raised a new issue. 7. In that statement, Ms AB stated, put shortly, that, in the 12-month period before the deaths, the Accused became increasingly physically affectionate towards her, involving touching, which the Crown contends was sexual in nature. Ms AB states that, after the deaths in July 2009, the Accused engaged in more intrusive sexual conduct with her on a number of occasions. 8. The Court has been informed that the Accused denies this conduct alleged against him by Ms AB. 9. The defence seeks the exclusion of this evidence upon a number of bases, with an alternative submission that, if the evidence is to be allowed, the jury ought be discharged. The Exclusion Application 1. I will deal initially with the application to exclude the further evidence contained in the statement of Ms AB of 29 May 2014. 2. The defence submit that the evidence is not relevant for the purpose of s.55 Evidence Act 1995, or, if relevant, that the evidence should be excluded by the Court upon the basis that its probative value is outweighed by the danger of unfair prejudice to the Accused, for the purpose of s.137 Evidence Act 1995. 3. The application has been argued upon the basis that the relevant principles concerning those provisions of the Evidence Act 1995 are summarised in my judgment R v Xie (No. 4) at [148] to [161]. 4. The Crown submits that the evidence of Ms AB, as contained in the statement, is relevant to the proceedings. It is contended that it indicates sexual interest on the part of the Accused, towards Ms AB, both prior to and after the deaths. 5. It is submitted that it bears upon the issue of motive in circumstances where the deaths of the family members occurred when Ms AB was absent from the house. It is submitted as well that it is relevant in that it sheds light upon what are said to be the substantial efforts taken by the Accused to obtain legal guardianship of Ms AB in his wife's name after the deaths of the remainder of the family. 6. The Crown submits that it goes to the issue of the Accused's good character, character having been raised in the trial. 7. It is submitted that it goes, as well, to contradict evidence of Kathy Lin that she would have noticed if the Accused had been out of his bed on the night of the murders. The Crown submits that this alibi evidence is capable of being undermined by the statement of Ms AB that, at times, the Accused was sexually dealing with her at night. 8. The Crown submits that the matters advanced by it, which I have shortly summarised and which are the subject of more detailed submissions made today, do not involve speculative reasoning, but are available as a process of the drawing of inferences at the trial. 9. The defence submissions challenge the Crown's characterisation of this material. 10. It is submitted that the contents of the statement are not capable, in the relevant sense, of bearing upon the issue of motive for the Accused allegedly murdering five members of the Lin family. 11. It is submitted as well that there is no further conduct alleged by Ms AB against the Accused, beyond the acts contained in the statement, which would support a conclusion that any alleged sexual interest he had in Ms AB was capable of bearing rationally upon a motive to murder the five members of the family. 12. I bear in mind that the question with respect to relevance involves a relatively low threshold. Evidence is relevant in circumstances where, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 13. It will be apparent from the conduct of this trial so far that the dynamics within the Lin family, and the interrelationship between members of the Lin family with the Accused and his wife, are matters which have attracted close attention in the trial. 14. The Crown case is that the Accused murdered five members of the Lin family. Ms AB was not in the house at the time. Evidence adduced in the present trial so far has indicated steps taken with respect to the guardianship of Ms AB on the part of Kathy Lin and the Accused. The dynamics between the two families are an important part of the case. 15. The Crown now submits that, added to the previously understood family dynamics, is a new feature, being that, according to Ms AB, for a period of months before the murders, the Accused had displayed what the Crown says is sexual interest in her; and, the Crown says, by reference to Ms AB's statement, that he acted upon that sexual interest at the time when she was living in his house after the murders. 16. I am well satisfied that this evidence could rationally affect, directly or indirectly, the determination or conclusions of the jury as the tribunal of fact. It is capable of bearing upon the issue of motive. It is capable of bearing upon other issues in the trial as well. Importantly, it is said to be conduct involving the Accused directed to the sole surviving member of the Lin family, in a period before and after the deaths. 17. The argument in support of the admissibility of this evidence is not based upon purely speculative reasoning. It is based upon inferences which would be available to the jury. 18. I am satisfied that the evidence is relevant for the purpose of s.55 Evidence Act 1995. 19. The next application by the Accused was that the evidence be excluded under s.137 Evidence Act 1995. The principles with respect to an application of that type were summarised in R v Xie (No. 4) at [154] and following. 20. A balancing exercise is required by the Court. The question ultimately, as I have said, is whether the probative value of this evidence is outweighed by the danger of unfair prejudice to the Accused. Unfair prejudice does not result merely because the evidence may be incriminating of an accused person. 21. It is submitted for the Accused that s.137 is activated, in the circumstances of this case, because the Accused will effectively be fighting two battles, one being allegations of sexual assault by Ms AB against him; the other being the charges of murder against him, with the two battles being fought on the same battlefield. 22. In many cases, that submission may have considerable force, given the difference in the nature of the alleged offending. The present case, however, has a number of unusual features, some of which I have touched upon already. In particular, it appears that the relationship between the Accused and Ms AB, the sole surviving member of the Lin family, is an important feature of the case and may shed light, in significant respects, upon his thought processes, not only towards her but the other members of the family. 23. In saying that, I am not of course expressing any finding. I am merely articulating what is said to be the probative value of this evidence. 24. It would seem impossible that a trial could be conducted at which Ms AB is called where this evidence was not adduced. Ms AB could not be called at a trial in circumstances where her recent allegation was effectively ignored. It may be capable of being put to one side if it was entirely extraneous to the subject matter of this trial, but it is not. 25. There is a sufficient nexus between the alleged sexual activity of the Accused towards Ms AB and the alleged murders to render the material admissible. 26. Having undertaken the relevant balancing exercise for the purpose of s.137, I am not persuaded, that the probative value of the evidence contained in Ms AB's statement of 29 May 2014 is outweighed by the danger of any unfair prejudice to the Accused. 27. Accordingly, I decline to make orders 1 or 2 as contained in the Accused's Notice of Motion. 28. The effect of that conclusion is that the evidence of Ms AB, as contained in the statement, is available to the Crown to be called. The Discharge Application 1. I then move to paragraph 3 of the Notice of Motion. The Accused applies, in the circumstances, to have the whole of the jury discharged. Written submissions have been advanced on behalf of the Accused in support of this application. 2. The Crown concedes that the Accused has been unfairly prejudiced in the events which have occurred as a result of the provision of this material. The Crown accepts that the only way the prejudice can be overcome is by a discharge of the jury and the holding of a new trial. 3. It remains, of course, a matter for the Court to determine whether the discretion to discharge the jury should be exercised. 4. The principles to be borne in mind on an application for discharge of the whole jury appear in the decision of the High Court of Australia in Crofts v The Queen [1996] HCA 22; 186 CLR 427 at 432, 440-441. 5. This is not a case where material previously available and known to the Crown has not been disclosed. The material became available to the Crown in late May this year and was then furnished to the defence. I put to one side, for present purposes, any earlier knowledge which may have been available to the defence as to which a submission was made by the Crown. My decision will relate to the evidence before the Court. 6. Clearly, this trial has been opened by both sides and conducted so far in a manner which paid no regard to the possibility of the material contained in Ms AB's statement of 29 May 2014 coming forward. Such material, of course, was not known to the Crown. 7. The statement of 29 May 2014 was provided by the Crown to the Accused promptly on 2 June 2014. I allowed the Accused from Monday, 2 June to Thursday, 5 June to consider this material and provide instructions. The Crown did not oppose that course, which was entirely appropriate, given the nature of the material. 8. The present application has been made by the Accused against that background. The trial has been conducted on an entirely different basis to that which would have occurred if the statement had been available prior to the trial. Both the Crown and the defence opened at length to the jury in early May 2014, by reference to the Crown case as it then stood. 9. The Crown case to be advanced, with this additional evidence from Ms AB, will be different and the defence response may be expected to be different. 10. Further, there will be other witnesses called by the Crown on this issue and an opportunity will be necessary for the Crown and defence to prepare in that respect prior to trial. 11. The trial is still at a comparatively early stage. This is relevant to the exercise of discretion to discharge the jury. The written submissions on behalf of the Accused have said that measures may be available, for example, by use of some of the trial transcript from the current trial, to reduce difficulties which may arise in witnesses having to give evidence again at a future trial. 12. The defence submits, in effect, that the Crown's case has fundamentally shifted, that defence counsel have conducted the trial upon the basis of the Crown case communicated prior to trial, that there was prejudice to the Accused, that additional witnesses are foreshadowed and that the statement of Ms AB involves the introduction of serious matters. It is submitted that no direction to the present jury could cure any prejudice to the Accused's case. 13. No doubt it is because of considerations of that type that the Crown has taken the approach which it has to the application. In my view, the Crown's approach is realistic. This is a trial which simply cannot proceed on a reasonable and fair basis, given the events which have occurred in the last week. 14. There is no criticism directed to any party in the events which have come about, the circumstances of which have been described in this judgment. 15. Accordingly, I am satisfied that I should make an order, in terms of paragraph 3 of the Notice of Motion. ********** Amendments 28 February 2017 - Publication restriction on coversheet amended. 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: 28 February 2017