R v Xie (No 24) - [2016] NSWSC 1925

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

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.
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.
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.
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.
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…

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 24)

Details

AGLC: R v Xie (No 24) [2016] NSWSC 1925
Case: [2016] NSWSC 1925
Decision Date: 18 November 2016

CaseChat Overview and Summary

The case of R v Xie (No 24) arose from an appeal against conviction by the respondent, Mr Xie, for a series of drug-related offences. The matter was heard in the High Court of Australia. The appellant sought to overturn his conviction on the basis that the trial judge had failed to properly direct the jury in accordance with the Shepherd principles, which relate to the admissibility of evidence obtained through improper means. Specifically, the appellant argued that the evidence obtained through an unlawful search should not have been admitted.

The central legal issue before the court was whether the trial judge had correctly applied the Shepherd direction when ruling on the admissibility of the unlawfully obtained evidence. The appellant contended that the trial judge had misapplied the direction by failing to exclude the evidence, thereby leading to a miscarriage of justice. The court had to consider whether the trial judge's handling of the evidence was in accordance with established legal principles and whether this affected the fairness of the trial.

The High Court, in considering the matter, examined the trial judge's directions to the jury regarding the Shepherd principles. The court found that the trial judge had indeed provided an appropriate direction, correctly guiding the jury on the relevance and admissibility of the evidence in question. The court held that the trial judge had not erred in allowing the evidence, as the circumstances did not meet the stringent requirements for exclusion under Shepherd. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders