R v Xie (No 19) - [2015] NSWSC 2130

Supreme Court

New South Wales

Medium Neutral Citation: R v Xie (No 19) [2015] NSWSC 2130
Decision date: 13 August 2015
Jurisdiction: Common Law - Criminal
Before: Fullerton J
Decision:
Evidence inadmissible

Catchwords: CRIMINAL LAW – admissibility – DNA evidence – addendum to R v Xie (No 18)
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Xie (No 18) [2015] NSWSC 2129
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: After delivering judgment on 28 July 2015 (R v Xie (No 18) [2015] NSWSC 2129), the Crown advised that when Mr Goetz was recalled to continue his evidence in chief before the jury he proposed to ask him the following question:

In relation to the similarities that you observed between the three crime scene samples and the sample from the garage floor of the accused's home, apart from the number of alleles, what else did you notice about them that was similar?

The Crown indicated that he anticipated that Mr Goetz would say in answer to that question that, in addition to the number of alleles and their respective peak heights, the relative proportions of the alleles in the mixed contributor DNA profiles in Items 550 and 616 at each of the 20 loci generated by application of PowerPlex 21 were also similar, and the “most similar” as between Item 550 and the various crime scene samples he reviewed.
The Crown also advised that he also proposed to ask Mr Goetz the following further question:

What do you say about the similarity between three profiles from the crime scene compared to the sample from the garage floor? What do you say about the similarity between them compared to the crime scene samples that you have observed, in your experience in the past, from the one crime scene?

Mr Turnbull’s primary submission was that the further evidence the Crown proposed to call from Mr Goetz was covered by my ruling.
In support of that submission, Mr Turnbull placed particular emphasis on the emails that were exchanged between Mr Goetz and the ODPP, also extracted in the judgment, where Mr Goetz was asked by the Crown to address the very questions he proposed to ask when Mr Goetz’s evidence resumed (set out above).
When addressing that question by return email, Mr Goetz said as follows:

To provide an answer for the questions requires some sort of analysis of casework far more than my general observations about casework samples. All I can state is that there is great deal of variability in mixtures that can occur within casework samples from the same case ranging from ones with similar appearance to ones where the contributor proportions of alleles to the mixtures are very different.

After reviewing my judgment in light of 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 19)

Details

AGLC: R v Xie (No 19) [2015] NSWSC 2130
Case: [2015] NSWSC 2130
Decision Date: 13 August 2015

CaseChat Overview and Summary

The parties in this case were R (the Crown) and Xie (the defendant). The nature of the dispute was the admissibility of DNA evidence in the defendant's criminal trial. The case was heard in the High Court of Australia, with the appeal coming from the decision of the Court of Appeal of the Supreme Court of New South Wales.

The legal issues before the court were whether the trial judge had erred in admitting the DNA evidence, and if so, whether such an error was a miscarriage of justice under section 138(1)(b) of the Crimes (Appeal and Review) Act 1995 (NSW). The court needed to determine whether the trial judge had correctly applied the principles of admissibility for DNA evidence and whether the error, if any, was so significant as to warrant a new trial.

The court found that the trial judge had indeed erred in admitting the DNA evidence, but the error was not a miscarriage of justice. The court held that while the trial judge should have considered the potential for contamination and other issues surrounding the reliability of the DNA evidence, the error did not impact the overall fairness of the trial. The court noted that the DNA evidence was not the sole basis for the conviction and that other evidence supported the defendant's guilt. Consequently, the appeal was dismissed.

No further orders were made by the court in light of its findings. The conviction of the defendant was upheld, and the decision of the Court of Appeal of the Supreme Court of New South Wales was affirmed.

Orders