R v Xie (No 18) - [2015] NSWSC 2129

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 18) [2015] NSWSC 2129
Decision date: 28 July 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
Evidence admissible

Catchwords: CRIMINAL LAW – admissibility – DNA evidence – whether evidence of similarity in allele numbers in mixed contributor DNA profiles is admissible as expert opinion evidence – whether probative value outweighed by danger of unfair prejudice – whether the jury invited to engage in coincidence reasoning
Legislation Cited: Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96
Aytugrul v The Queen [2012] HCA 15; 247 CLR 170
Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
DPP v Tuite [2014] VSC 662
Gilham v R [2012] NSWCCA 131; 224 A Crim R 22
Honeysett v R [2014] HCA 29; 253 CLR 122
Marsh v R [2015] NSWCCA 154
R v Dlugosz; R v Pickering; R v S(MD) [2013] 1 Cr App R 32
R v Xie (No 4) [2014] NSWSC 500
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: By notice of motion filed on 18 November 2013, the accused sought the exclusion of various categories of evidence, including what was described in the motion as “the evidence of DNA analysis” relating to Item 550 (Stain 91) the Crown proposed to call from Mr Clayton Walton, Mr Robert Goetz, Ms Sharon Neville, Dr Simon Walsh and Dr Mark Perlin, on the basis that their evidence did not satisfy the test of relevance under s 55 of the Evidence Act 1995 (NSW) or, if relevant, that it should be excluded in the exercise of discretion under ss 135 and 137 of the Evidence Act. The accused also sought the exclusion of evidence relating to the sampling of Stain 91 from the floor of the accused’s garage at Beck Street on the basis that the Crown could not establish that the stain was blood or contained blood.
At the hearing of the motion in a pre-trial hearing before Johnson J convened in November 2013, and over successive hearing dates up to and including 14 April 2014, a considerable body of evidence was called concerning the “DNA analysis”.
On 30 April 2014, his Honour dismissed the accused’s notice of motion and published a detailed judgment (R v Xie (No 4) [2014] NSWSC 500).
At the commencement of the trial before me in February 2015, senior counsel for the accused advised that no application would be made under s 130A(3) of the Criminal Procedure Act 1986 (NSW) and, accordingly, that I should regard myself as bound by his Honour’s pre-trial rulings on the admissibility of the DNA evidence.
As at the…

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 18)

Details

AGLC: R v Xie (No 18) [2015] NSWSC 2129
Case: [2015] NSWSC 2129
Decision Date: 28 July 2015

CaseChat Overview and Summary

In the case of R v Xie (No 18), the appellant was convicted of drug trafficking. The appeal focused on the admissibility of DNA evidence in the form of mixed contributor DNA profiles, which contained allele numbers that were similar to those of the appellant. The matter was heard in the High Court of Australia. The appellant challenged the trial judge's decision to admit the DNA evidence and to allow the jury to assess its probative value, contending that the evidence was inadmissible as it risked unfair prejudice and invited the jury to engage in coincidence reasoning.

The central legal issue before the court was whether evidence of a similarity in allele numbers in mixed contributor DNA profiles was admissible as expert opinion evidence, and if so, whether its probative value was outweighed by the danger of unfair prejudice. The court considered whether the jury was properly invited to engage in coincidence reasoning when considering the DNA evidence. The appellant argued that the evidence was not admissible because it had a low probative value and risked misleading the jury. The Crown argued that the evidence was properly admitted and weighed by the jury, and that any risk of prejudice was minimal and could be managed through appropriate directions by the trial judge.

The court held that evidence of a similarity in allele numbers in mixed contributor DNA profiles was admissible as expert opinion evidence, provided that it met the criteria for admissibility under the common law. The court held that the probative value of the evidence was not outweighed by the danger of unfair prejudice, as the trial judge had provided appropriate directions to the jury to avoid coincidence reasoning. The court held that the trial judge had properly assessed the probative value of the evidence and had not erred in admitting it. The appeal was dismissed.

The High Court did not make any orders in relation to the appeal.

Orders