Supreme Court New South Wales Medium Neutral Citation: R v Xie (No 24) [2016] NSWSC 1925 Hearing dates: 14 November 2016 Decision date: 18 November 2016 Jurisdiction: Common Law Before: Fullerton J Decision: I am not persuaded that a Shepherd direction in the terms sought should be given. Catchwords: CRIMINAL LAW – Shepherd direction Cases Cited: R v Xie (No 12) [2015] NSWSC 2124 Shepherd v The Queen [1990] HCA 56; 170 CLR 573 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: One of the pieces of circumstantial evidence the Crown relies upon in proof of its case concerns a stain that was located on the floor of the accused's garage by forensic biologists in May 2010. The stain was given the identifying notation "Stain 91" by the forensic biologists who located it and then screened it for the possible presence of blood before sampling it for DNA profiling. 2. It is the Crown case that Stain 91 is the blood of four, or possibly all five of the deceased and that it was transferred from Boundary Road by the accused to his garage after the murders, either on his blood-stained clothing or on some item he was carrying. 3. There was no confirmatory test for blood applied to the stain either in situ or after it was sampled and received at the FASS laboratory (where it was labelled "Item 550"). The unchallenged evidence is that confirmatory tests notoriously consume much of a sample and where there is any doubt as to the quantity of a sample of blood (or what may possibly be blood), sampling for the purpose of DNA profiling takes precedence. 4. It is the Crown case that despite Stain 91 not being confirmed as a blood stain under scientific testing, the jury will be satisfied that it is a transfer blood stain given its visual appearance as attested to by each of three forensic biologists; the positive results following two applications of the o-Tolidine screening test for blood to the stain before it was sampled for DNA profiling; the confirmed presence of human biological material in Item 550 after DNA profiling; the identification of at least three of the five deceased as having contributed DNA to the sample and, after statistical analysis by the TrueAllele computer program, the DNA of probably four and possibly all five of the deceased being represented in the sample. 5. It is the Crown case that a combination of these facts, coupled with the improbability of a secondary transfer of a mixture of the DNA of any three or more of the five deceased to the floor of the garage (with the DNA of the deceased in semen, saliva, skin cells or any combination of these as a means of transfer, being highly improbable, if not inexplicable) allows the jury to find that Stain 91 is blood. 6. Self-evidently, were the jury satisfied that Stain 91 is blood, and were they satisfied that it is the blood of three, probably four and possibly all five of the deceased, that is evidence highly probative of the accused's guilt. 7. At the close of the evidence in the trial but before closing addresses, Mr Webb sought a direction that unless the jury are satisfied beyond reasonable doubt that Stain 91 is blood, they must disregard Mr Walton's evidence concerning the results of the DNA profiling in the FASS laboratory (in particular, his opinion that there is a minimum of three contributors to the sample and the probability of Henry, Terry and Min being contributors given their shared Y chromosome as the only Y chromosome in the mixture) and Dr Perlin's evidence concerning the operation of the TrueAllele computer program, and the reliability of the results of the application of that program which generated likelihood ratios for the DNA of each of the five deceased being represented in the mixture. 8. In reliance on Shepherd v The Queen [1990] HCA 56; 170 CLR 573, Mr Webb submitted that a finding that Stain 91 is blood is an intermediate fact constituting an indispensable link in a chain of reasoning towards an inference of guilt and, that being so, the jury must be directed that unless they are satisfied beyond reasonable doubt that stain is blood, they must disregard the DNA profiles generated from a sample of Stain 91, and the statistical modelling by the TrueAllele computer program, as irrelevant to the question whether the accused is guilty of the five murders as the Crown alleges in the case it brings against him. 9. The basis for a Shepherd direction in these terms was not argued at length or by reference to authority. Mr Webb did accept that in addition to the visual appearance of Stain 91 as an aged blood stain, and that it reacted positively to two applications of the o-Tolidine screening test for blood (and negatively to the Luminol screening test), the jury could also take into account that what was sampled was necessarily human biological material since human DNA was detected in it. Although Mr Webb did not make any reference to the results of DNA profiling, or whether those results could also be taken into account by the jury in determining whether Stain 91 was blood, or whether the likelihood ratios that were generated by the TrueAllele computer program could also be used for that purpose, I consider that evidence may also be an available source of evidence bearing on the question as to whether Stain 91 was blood. I will reserve judgment on that issue pending further argument. 10. It is clear from the way the Crown has presented its case that it does not rely upon the provenance of Stain 91 being the blood of the deceased as conclusive evidence of his guilt, or suggest that is an approach the jury might or should take in the course of their deliberations. Rather, it is the Crown case that the issue as to the provenance of Stain 91, and the question whether some or all of the deceased contributed DNA to what was sampled from that stain, should not be considered independent of other items of circumstantial evidence upon which the Crown relies to prove its case and the inferences capable of being drawn from that evidence. 11. The evidence in the Crown case includes evidence capable of establishing that the accused had the means, motive and opportunity to kill the deceased (whether as primary or secondary victims); coincidence evidence capable of linking the accused to the construction of the likely murder weapon (see R v Xie (No 12) [2015] NSWSC 2124) and evidence of his conduct on multiple occasions after the murders as evidencing a consciousness of guilt. As I understand the Crown case and the submissions that will be advanced by the Crown for the consideration of the jury, however strongly probative of guilt the evidence relating to Stain 91 the jury may find that evidence to be, it remains one aspect of the Crown's circumstantial evidence case. 12. As I understand the position of the Crown, it is for that reason that a Shepherd direction in the terms sought by the accused is not warranted. 13. Although not determinative of the application, I note that the question whether a Shepherd direction is warranted in the circumstances of this case was the subject of detailed submissions in the accused's 2015 trial where it was accepted by Senior Counsel then appearing for the accused that a strict interpretation of settled authority on the question did not mandate giving a Shepherd direction in conventional terms. It was at least impliedly accepted by Senior Counsel that the evidence relating to Stain 91 was not "an intermediate fact constituting an indispensable link in a chain of reasoning to guilt". 14. Characterising a factual component of a case based on circumstantial evidence in that way is the defining feature of the reasoning in Shepherd. In Shepherd, Dawson J observed: [5] On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence … the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence. … [15] Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful. 1. There is nothing in the way the Crown has presented its case in this trial that invites the jury to consider the evidence bearing upon the provenance and composition of Stain 91 as other than an item of evidence forming part of a complex of evidence which, taken together, compels a finding that the accused's guilt has been proved. I was referred to no authority by Mr Webb that would require me to characterise the evidence relating to Stain 91 in any other way. 2. For those reasons, I am not persuaded that a Shepherd direction in the terms sought should be given. 3. That said, I will give consideration to giving a Shepherd direction, if counsel request it, to ensure against the jury unilaterally taking the approach of limiting their consideration to the evidence bearing upon the provenance and composition of Stain 91, including which of the deceased are represented in the mixed DNA sample generated from a sample from that stain, in their deliberations to verdicts. ********** 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