R v Xie (No 12) [2015] NSWSC 2124

Supreme Court New South Wales

Medium Neutral Citation: R v Xie (No 12) [2015] NSWSC 2124 Decision date: 21 May 2015 Jurisdiction: Common Law - Criminal Before: Fullerton J Decision: Evidence admissible Catchwords: CRIMINAL LAW – admissibility of coincidence evidence in s 98 of the Evidence Act – whether leave should be granted under s 192 on Crown's failure to give reasonable notice Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: DSJ v R; NS v R [2012] NSWCCA 9 R v Gale; R v Duckworth [2012] NSWCCA 174 R v Harker [2004] NSWCCA 427 R v Xie (No 8) [2015] NSWSC 2121 R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 Category: Procedural and other rulings Parties: The Crown Lian Bin (Robert) Xie (Accused) Representation: Counsel: M Tedeschi QC / K Ratcliffe (Crown) G Turnbull SC / L Fernandez (Accused)

Solicitors: Director of Public Prosecutions (Crown) Kidman Legal (Accused) File Number(s): 2011/147183

Judgment 1. HER HONOUR: On 18 July 2009, crime scene officers located a blood-soaked piece of cotton cloth folded into four (that is to say, folded in half and folded in half again) on the floor of the third bedroom at 55A Boundary Road in which the bodies of the two deceased children were found. The ends of the folded cloth were secured by a red rubber band. It is not in issue that a mixture of the DNA of Min Lin (as the major contributor) and Lily Lin (as the minor contributor) was identified on samples cut from the cloth. 2. The cloth was examined and photographed by Ms Te, both in its original (bound) form and after the rubber band was removed and the cloth unfolded. In its bound state the cloth piece measured 2.5cm by 4cm. When the rubber band was removed and the cloth was unfolded it measured 8cm by 12cm. The cloth and the remnants of the red rubber band have been tendered in the trial as Exhibit BBB. 3. The cloth, both as photographed and in specie, has a puckered appearance, having apparently retained some of the creases and folds from being folded and secured with the rubber band when the cloth became soaked in blood. A symmetrical arrangement of four circular-type patterns formed in blood are also discernible on the cloth, with void areas generally centre of the round shapes with blood diffusing from them. 4. In her evidence Ms Te described the cloth as follows: The muslin-type material, once it's folded out, appears to have been folded in half and then half again and then it appears to have possibly been placed over something that was circular to produce … those circular images. 1. At the time she gave her evidence, Ms Te indicated on one of the photographic images of the cloth projected on a screen, what she described as "four circles" or "round circular marks". 2. Dr Raymond also gave evidence that whilst the cloth was being examined and photographed by Ms Te, it appeared to her that there were "circular shapes that were visible in what appeared to be bloodstains, and which were spaced in a regular array". 3. It is the Crown case that the cloth was at one time wrapped around the rounded head of the "hammer-like weapon", a description utilised by Dr Irvine, forensic pathologist, to describe the object with a round surface about the size of a hammer head that was used to inflict the multiple blunt force injuries she identified on each of the deceased. 4. There was no challenge to Dr Irvine's evidence that a "hammer-like weapon" inflicted many, if not most, of the blunt force injuries to the head of each of the deceased. 5. Blunt force injuries and asphyxiation were identified by Dr Irvine as either the primary or secondary causes of death of Min Lin, Lily Lin, Henry Lin and Terry Lin. I note that although asphyxiation was the primary cause of death of both Lily Lin and Henry Lin, Lily Lin also sustained a gross deformation of her face with a depressed injury to the centre of her face which entered the sinus cavity. 6. It is the Crown case that the accused fashioned the weapon, with the cloth at one time secured on its rounded head by a rubber band, in order to either cushion the impact of the weapon he intended to wield at the heads of the deceased, or he fashioned it in that way for some other reason consistent with that intention. 7. It is also the Crown case that the accused initially fashioned the weapon by attaching a piece of rope to the handle with the loose end of the rope wrapped or looped around his hand or wrist, but that the rope became detached from his arm before Irene and the children were killed, thereby explaining the rope patterns in blood on the walls in their bedrooms as they were being struck repeatedly with the hammer, and the absence of rope patterns in Min and Lily Lin's bedroom. 8. Detective Harkins has given evidence that on his analysis of the crime scene, and on his analysis of the blood patterning discernible in each of the three bedrooms and the hallway connecting them (inclusive of the rope patterns in blood in Bedrooms 2 and 3), the order in which the deceased were killed was Min and Lily Lin, then Irene Lin and then the children. He also gave evidence that in his opinion the killings occurred within a short period of time of each other. 9. On Detective Harkins' analysis of the order of the killings, the piece of cloth, replete with the rubber band and the DNA of Min and Lily Lin, must have been implicated in some way in their murder (perhaps becoming detached after initial blows were struck) and then transported into the children's bedroom by the murderer, where it was inadvertently left or dropped, perhaps in the course of a struggle. The unchallenged evidence of Detective Harkins is that Terry Lin was engaged in a prolonged struggle with the murderer, evidenced by the spread of his blood in a range of distinct and different blood patterns throughout the bedroom. 10. The defence do not accept that Detective Harkins' opinion as to the order and timing of the killings is the only conclusion open on an objective analysis of the crime scene evidence. As I understand the cross-examination of Detective Harkins, it is the defence case that not only is there a reasonable possibility of more than one assailant (contrary to the Crown case that the accused acted alone in committing the murders), but there is also a reasonable possibility that at least Henry Lin may have been asphyxiated in another part of the house and then assaulted in his bedroom. Further, again as I understand the defence case, it is open on the evidence for the jury to find that there was a considerable time interval between the killings, including the reasonable possibility that when the children were dropped at home at 10.30pm on 17 July 2009, their parents and aunt were already dead or dying, which exculpates the accused as the murderer. 11. Finally, it is also the Crown case that the accused's various conversations with Witness A, a prison informer, after his arrest in May 2011 are capable of being interpreted by the jury as admissions that he used a hammer as the murder weapon which he disposed of the following morning en route to collect his parents-in-law after police were notified by his wife that the bodies of at least four of the five deceased had been found at 55A Boundary Road (Witness A is yet to be called). It is the accused's case that he was led into speaking with Witness A about the evidence that he understood from the service of the brief would be tendered against him and that, properly understood, he was simply reciting back, in faltering English, that evidence and his reaction to it. In summary, Mr Turnbull submitted the accused revealed nothing to Witness A that was not otherwise known to police including, in particular, his reference to a "hammer-like weapon" or a hammer as the murder weapon.