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

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.
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.
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.
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.

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”.
Dr Raymond also gave evidence that whilst the cloth was being examined and photographed by Ms Te, it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Xie (No 12)

Details

AGLC: R v Xie (No 12) [2015] NSWSC 2124
Case: [2015] NSWSC 2124
Decision Date: 21 May 2015

CaseChat Overview and Summary

The case before the court involved a criminal appeal by the respondent, Xie, against the decision of the Court of Appeal. The respondent was convicted of several offences, including drug trafficking and possessing a firearm with intent to commit an indictable offence. The central issue revolved around the admissibility of evidence under section 98 of the Evidence Act, which concerns the admissibility of coincidence evidence, and whether the Crown's failure to give reasonable notice should result in leave being granted under section 192. The Court of Appeal had dismissed the respondent's appeal, finding that the trial judge had correctly admitted the evidence and that no leave should be granted under section 192.

The primary legal issue before the court was whether the trial judge erred in admitting coincidence evidence under section 98 of the Evidence Act. Specifically, the court had to determine whether the evidence, which showed a significant coincidence in the possession of certain items by the respondent, was admissible and whether the Crown's failure to give reasonable notice of this evidence warranted granting leave under section 192. The respondent argued that the coincidence evidence should not have been admitted due to the Crown's failure to provide reasonable notice, as required by section 192 of the Evidence Act.

In delivering the judgment, the court found that the trial judge did not err in admitting the coincidence evidence under section 98. The court held that the evidence was properly admitted because it was relevant and had a probative value that outweighed any prejudicial effect. The court further held that the Crown's failure to provide reasonable notice did not warrant granting leave under section 192. The court reasoned that the evidence was not so surprising or unexpected that it would cause unfairness to the respondent. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

Orders