Supreme Court New South Wales Medium Neutral Citation: R v Xie (No 23) [2016] NSWSC 1924 Hearing dates: 22 June 2016 Decision date: 23 June 2016 Jurisdiction: Common Law Before: Fullerton J Decision: See [30]-[32] Catchwords: CRIMINAL LAW – evidence – motive – admissibility Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: IMM v R [2016] HCA 14 Category: Procedural and other rulings Parties: The Crown Lian Bin (Robert) Xie (Accused) Representation: Counsel: T Smith / K Ratcliffe (Crown) R Webb / J Gaitanis (Accused) Solicitors: Director of Public Prosecutions (Crown) Kidman Legal (Accused) File Number(s): 2011/147183 Judgment 1. HER HONOUR: At the trial of the accused in 2015 (at the conclusion of which the jury did not return verdicts) the Crown advanced three possible motives for the accused to murder the deceased (or some of the deceased) including, so far as the deaths of Min Lin and Lily Lin are concerned, what the Crown described as the accused's deep and abiding enmity towards them. The accused's attitude to the deceased was said by the Crown to have been driven, in part, by his humiliation at being accorded a subordinate status within the extended family in circumstances where he regarded himself as entitled to respect and admiration for his superior intelligence and business acumen. The enmity he felt towards Min Lin and Lily Lin was also said by the Crown to be the result of what the accused experienced as the differential treatment he and his wife received from his parents-in-law, relative to the attention and support they gave to Min Lin and his wife. It was the Crown case that these feelings were experienced by the accused with particular intensity due to the significance that attaches to the concept of "face" and the "loss of face" in Chinese culture. 2. At the 2015 trial, the Crown relied upon two sources of evidence which the jury were invited to accept as proving the significance of the concept of "face" and the "loss of face" in the Chinese culture and how this impacted on the accused as a person of Chinese ethnicity. 3. A solicitor's letter, forwarded to police on behalf of the accused and his wife in May 2010 in the course of the police investigation, was tendered by the Crown. It included what was said to be "further information and new clues which may assist the investigation of the Lin family murder" as follows: On 8 August 2009, after the funeral service of the murdered Lin family members, our clients saw the bodies of the victims. Of all the family members, only Yunli (Lily) Lin's face was smashed beyond recognition. This odd fact can be an insinuation which may reflect the killer(s)' feelings. We would like to explain to the Police of the relevant Chinese Culture in this context. In Chinese there is a phrase "不要脸", it literally means "Do Not Want Face" and can be translated into English as "No Need to Have Face". It can be easily understood via the English idiom "lose face", as the "face" here is not the physical face, but it implies the decency and reputation of one person. Chinese people, in general, are all concerned about their "faces". To "have face" is very important in the Chinese culture, It reflects one's self-respect and self-esteem. If one person is accused of "不要脸", then he/she is shameless in other people's eyes and he/she has committed some deeds of insolent boldness or it was effrontery. 1. Mr Lin Snr was also asked by the Crown to give his views about the significance of the loss of faith in Chinese culture. No objection was taken to his evidence being limited in that way. He gave the following evidence: In Chinese Culture when we say 'losing face' it means that somebody has lost his integrity, that he's now having no face in front of others, as if he is no longer able to meet other people. So basically that's what it means to lose face, loss of respect." 1. There was no expert evidence called by the Crown as to what the concept of "face" and the "loss of face" means in the Chinese culture and its significance, if any, in filial relationships. 2. It was the Crown's closing submission to the jury that it is not to the point that: … you or any other member of the community would feel humiliation or a loss face in the same situation [as the accused] … the Crown case is that the accused felt those feelings. 1. The Crown submitted the jury would be satisfied of the fact and intensity of the accused's feelings of humiliation and "loss of face" by what he said to Witness A in the course of both recorded and unrecorded conversations at the prison. 2. Witness A gave evidence that during an unrecorded conversation in March 2012 the accused said that his parents-in-law thought that Min Lin was a very strong businessman and that he was very smart. Witness A then asked the accused if he got along with his brother-in-law or whether there had always been problems between them, as to which the accused replied: All family never like me from beginning. They say to my wife to find a better one, more beautiful, more money. They don't know I'm rich man already. The family try to make competition with me and buy paper shop and they think the son is number one businessman. 1. Witness A then asked the accused, "They try to make you look bad to your wife?". The accused replied: They always try to take my face. My culture face is very important. The older Chinese people face more important than money. 1. In a subsequent unrecorded conversation on 15 May 2012, Witness A said that the accused again told him that his wife's parents had not liked him from the beginning and they did not know that he (the accused) had money. He went on to say: They tell Kathy she can get better husband, more beautiful than me, more success, but they don't know I own land and I'm successful already. When I come to Australia and buy restaurant, own house, they are very jealous, and always tell my wife I'm no good". 1. Witness A suggested, "Maybe they're jealous because you're more successful than Min?". The accused responded: Of course, they think he is a number one businessman, very smart and can beat me. They help him to set up the newsagent so he can show me he is very smart businessman, but this business is rubbish. I can tell you my restaurant in Melbourne make a lot of money, much more than Min. 1. During a recorded conversation on 19 May 2012 between the accused and Witness A, the subject of the accused's relationship with his parents-in-law was raised by Witness A. He asked whether, when they found out that the accused was successful, their attitude to him changed. The accused replied: When they find out I'm really good with business [indistinct] I'm making money, better than [indistinct]…[overtalk] before they know me in more detail [indistinct] my son's a lot better than you, … but later on they realised [indistinct] better than my son. They feel jealousy something like that, you know. 1. The accused went on to say that his parents-in-law believe that their son is the best and when "another person's son is better than their son they feel unhappy": Because their son…[ind]…top...[ind]...high school, primary school…[ind] university…always the top ones…[ind]…business...[ind]. Yeah, because they believe their son smartest." The accused then refers to the fact that later when their son ran the newsagency they realised that he is not a businessman, just struggling, cannot make money and working "15 hours a day, seven days of the week and they work hard. Compare with me, Compare with me. I'm boss as well [indistinct] I'm different. 1. The accused later referred to Min Lin's business as a "rubbish business" and talked about the difference between Min Lin's business and the business the accused had operated in Melbourne. The accused said that he worked "easier" and for a "shorter time". 2. In a recorded conversation between the accused and Witness A on 27 October 2012, Min Lin was discussed again. The accused said that Min had "no business idea" because he spent 15 hours a day in the shop. Later the accused said, "Min was such a person he knows that's the best business ... [indistinct] shit. I call him shit". The accused then goes on to say something to effect of: And more important, Min's parents and Min himself may well think I am smarter than him. Min's father knows that I do things better but they do not agree with this, they will not say talk to Robert. 1. The accused's parents-in-law also gave evidence as to their views about the members of their extended family (including their daughter, the accused's wife, and their son, Min Lin) and how they treated them. While they gave evidence that they did not consciously or deliberately give any preferential or differential treatment to their children or their children's families, the Crown relied upon their evidence as supporting the accused's belief or perception that he was subordinate to their son because of the financial support they gave to Min Lin, and their voiced criticisms of the accused (and his wife) because they had not worked since leaving Melbourne and taking up residence in Sydney in 2005. 2. In the pending (2016) trial, the Crown intends to open the Crown case on the issue of motive to include what is alleged to be the accused's intense enmity for his brother-in-law and sister-in-law, fuelled both by jealously and his perception that he had "lost face" in the eyes of the extended family or because they had "attempted to take his face". Although expressed in a slightly different way, this submission is not dissimilar to the submission advanced by the Crown in the 2015 trial. The Crown relies upon the same body of evidence as was led at the 2015 trial. 3. In the pending trial, the Crown intends to advance the further submission that by murdering Min Lin and Lily Lin, the accused was removing what he saw as an impediment to being given the respect and treated with the high regard that he considered he deserved within the extended family and, further, that murdering them would also hurt his parents-in-law as those from whom he believed himself to have been entitled to receive respect and admiration. I do not understand the Crown to submit that this is a motive separate and independent from what the jury would be entitled to infer from the evidence I have already referred to but, rather, that it is a feature of it. 4. The accused objects to the Crown being permitted to advance any case to the jury on motive as outlined by the Crown. The primary challenge is as to relevance. In defence counsel's submission, the evidence the Crown relies upon, drawn principally from the accused's conversations with Witness A, is incapable of rationally affecting (directly or indirectly) the jury's assessment of whether enmity, jealousy and/or revenge (whether or not reactive to a "loss of face") are what motivated, or what might have motivated, the accused to kill the deceased as the fact in issue to which this evidence is directed. 5. In defence counsel's submission, when the accused is reporting to Witness A what he perceives as the lack of acknowledgment or respect from his parents-in-law (and perhaps other members of his extended family), rather than expressing anger or bitterness, he expresses only indifference to their opinion of him, perhaps even indifference suggestive of hubris, but nothing even faintly resembling anger or bitterness. To the extent that the accused refers to the concept of "face" and its importance in his culture, counsel submitted that he is merely attributing thoughts and actions to others, not complaining that he has in fact "lost face" or has any concerns about "losing face". In counsel's submission, no other interpretation of what was said by the accused is open on the evidence and, for that reason, the evidence should be excluded as irrelevant. 6. I am unable to accept that submission. While the text and tone of the accused's conversations with Witness A and the context in which they occurred may render them susceptible to multiple interpretations, I am satisfied that since the question whether evidence qualifies for admission under s 55(1) is predicated on the jury accepting the evidence and the inferences to which the evidence may legitimately give rise, the evidence meets the minimum requirements for admission, and for the purposes to which the Crown seeks to lead the evidence. 7. In the joint judgment of French CJ, Kiefel, Bell and Keane JJ in IMM v R [2016] HCA 14, the following was said: [38] By s 55, evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." There can be no doubt that the reference to the effect that the evidence "could" have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its "rational" effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact. [39] The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words "if it were accepted", which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance. [40] Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is "probative". Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, "probative". But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law. 1. Even if the evidence of Witness A and the recorded conversations between him and the accused are admitted as capable of informing the motives the accused had to kill the deceased (or some of them), defence counsel objected to the Crown being permitted to mount its case on motives of anger, bitterness, jealousy or resentment by including any reference to what is said to be the Chinese cultural attitude to the concept of "face" or "losing face" or leading evidence of it. 2. In counsel's submission, that evidence invites the jury to adopt propensity reasoning based on racial or cultural stereotyping. Since it is clear that the Crown does not seek the admission of the evidence as some variant of tendency evidence in s 97(1) of the Evidence Act 1995 (NSW), counsel's challenge to the evidence was limited to it being excluded under s 137 of the Evidence Act. 3. Counsel submitted that in undertaking the evaluative judgment required under s 137, the probative value of the evidence as to what "having face" entails and how a person might react to "losing face" is outweighed by the danger of unfair prejudice to the accused. Counsel submitted that even if the solicitor's letter were sent on the accused's instructions and read by him before it was sent (which I am satisfied that it was), for the Crown to invite the jury to conclude from what is said by the author of the letter (and Mr Lin Snr) to be a concern that Chinese people, in general, have about "face" and its importance, that the accused must have experienced a "loss of face" because he is a person of Chinese ethnicity and because he reported to Witness A that he was compared unfavourably and undeservedly to Min Lin, is to invite the jury to find that it is the accused's ethnicity that has both predisposed him to react adversely to the way he perceived he was being treated by his family and to have ultimately caused him to react adversely to what he perceived as loss of self-respect and self-esteem. To invite the jury to reason in this way, it is submitted, involves the risk that the jury will be deflected by cultural or racial stereotyping from making an informed and impartial assessment as to whether the evidence supports a finding that the accused was motivated to kill the deceased (or might have been so motivated) because of the dynamics of his extended family and their treatment of him (or his perceptions of their treatment of him) and, even if they were to so find, deflected from a consideration as to whether he acted on that motive and killed those who he considered were responsible (even if indirectly) for that state of affairs. 4. Counsel submitted that, even were the jury directed that to reason in this way would be contrary to law, the risk of unfair prejudice to the accused by the Crown's invitation to adopt racial stereotyping (even if only by implication) substantially outweighs the probative value of the Crown's attempt to ascribe the cultural driver of "loss of face" to the accused's poor relationship with his family by calling evidence as to what the concept entails from the accused's solicitor and Mr Lin Snr. In counsel's submission, the probative value of evidence as to the way that "face" or the "loss of face" is generally understood in the Chinese community (that is, the effect of the evidence under challenge) is so low that when the evaluative judgment called for under s 137 is undertaken the evidence must be excluded. 5. In undertaking an assessment of the probative value of the evidence the Crown seeks to lead as to how "face" or the "loss of face" should be understood by the jury, I note that the Crown only seeks to utilise the concept (and call evidence as to what it means) because of what the accused himself said to Witness A about it. I venture the view that, were the accused to have said nothing to anyone at any time about having "lost face" or that there was an attempt by his family to deprive him of "face", the Crown may not have sought to tender the solicitor's letter or to have led the evidence from Mr Lin Snr. As importantly, the Crown makes no submission that the content of the solicitor's letter alone constitutes an admission by the accused (defined in the dictionary to the Evidence Act as a previous representation that is adverse to the accused's interest) or as constituting any attempt by him to deflect police attention from himself to a murderer who may, by focusing on the faces of the deceased, himself have suffered a "loss of face" and to have murdered the deceased in retaliation. 6. Rather, the Crown seeks to lead the evidence of what the author of the letter says about the concept of "face" or "losing face" and what Mr Lin Snr understands by the concept as probative only of what the accused should be taken to have meant when he said to Witness A "they always try to take my face". Although those words are attributed to the accused in an unrecorded conversation with Witness A, and despite the substantial challenge that is made to anything Witness A says that accused said to him that is not otherwise supported by independent evidence, Witness A's credibility and the reliability of the evidence he gives must be ignored in assessing the probative value of the Crown's attribution to the accused of having "lost face" as a feature of the Crown case on motive for the purposes of s 137 (see IMM). 7. In assessing the probative value of that evidence, that is, the extent to which what is understood by the author of the letter and Mr Lin Snr as encompassing the joint cultural concepts of "face" or "losing face" is probative of the Crown case on motive, against the danger of unfair prejudice, I am obliged to consider the evidence at its highest in the effect it could achieve on the jury's assessment of the probability of the existence of that fact. While I am not of the view that the particular evidence under challenge, taken by itself, supports proof of motive in the way the Crown contends to a high degree of probability, and while I consider that the lay opinion of the author of the letter and Mr Lin Snr's evidence derogates from the probative value of the evidence for the purpose to which the Crown seeks to put it because it is a lay opinion, I am of the view that were the Crown to call evidence from a suitably qualified expert as to what the cultural concepts of "face" or "losing face" mean (or how they are to be understood by non-Chinese people), as a piece of circumstantial evidence to be taken in conjunction with the range of circumstances in the Crown circumstantial evidence case, it would likely have the capacity to support the inference for which the Crown contends to such an extent as to outweigh any risk of any unfair prejudice to the accused. 8. I am also of the view that so far as concerns the solicitor's letter, the context in which the letter is written, and the form in which the lay opinion of the solicitor is expressed, may of itself carry a risk of prejudice to the accused that directions would not adequately alleviate which is as an additional basis which would likely warrant exclusion of the letter. 9. I propose to reserve my ultimate determination as to whether the Crown should be permitted to lead evidence as to what is encompassed by the cultural concepts of "having face" or "losing face" to allow the parties the opportunity to reflect upon my reasons, thus far expressed, and for the Crown, in part, to consider whether the evidence in its present form is pressed or whether expert evidence will be relied upon in substitution for it. 10. Having considered the "interactive 3D model" of the crime scene in operation, as to which no objection is taken, I am not of the opinion that the three dimensional plastic model, as a further aid to the jury's understanding of the crime scene, has the capacity to mislead or confuse the jury, or that it might be productive of unfairness to the accused, such as would warrant its exclusion under s 136 of the Evidence Act. ********** 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: 02 March 2017