R v Xie (No 4)
[2014] NSWSC 500
•30 April 2014
|
New South Wales |
Case Name: | R v Xie (No 4) |
Medium Neutral Citation: | [2014] NSWSC 500 |
Hearing Date(s): | 18, 19, 20, 21, 22 and 25 November 2013; 17, 18, 19, 20, 21, 24, 25, 26, 27, 28 and 31 March 2014; 1 and 14 April 2014 |
Decision Date: | 30 April 2014 |
Jurisdiction: | Common Law - Criminal |
Before: | Johnson J |
Decision: | The Crown is granted leave to rely upon the further material from Dr Perlin served on the Accused on 3 March 2014. |
Catchwords: | CRIMINAL LAW - pretrial rulings - indictment alleging five counts of murder - victims were relatives of Accused’s wife killed in their sleep with blunt instrument and by asphyxia - defence objections to several categories of evidence to be led at trial - whether evidence in relation to possible blood stain found on Accused’s garage floor relevant and admissible - whether subsequent DNA analysis of stain relevant and admissible - whether DNA analysis evidence should be excluded under Evidence Act 1995, ss.135 or 137 - whether Crown ought be granted leave to rely on additional report of DNA expert - whether evidence of Accused cutting up shoe boxes improperly obtained for purposes of Evidence Act 1995, s.138 and should be excluded - objections to evidence overruled - leave granted to rely on additional report of DNA expert |
Legislation Cited: | Criminal Procedure Act 1986 |
Cases Cited: | Armstrong v R [2013] NSWCCA 113 |
Texts Cited: | --- |
Category: | Procedural and other rulings |
Parties: | Regina (Crown) |
Representation: | Counsel: |
File Number(s): | 2011/147183 |
Publication Restriction: | * Restricted - Pending Jury Trial. On 12 January 2017, a jury returned verdicts of guilty on all counts. Sentence was passed on 13 February 2017: R v Xie [2017] NSWSC 63. * Subject to the operation of s.15B of the Children (Criminal Proceedings) Act 1987, s.15A of that Act operates to prohibit publication of the name and picture of Ms AB or of anything that is likely to lead to her identification: - see R v Xie (No. 5) [2014] NSWSC 588. After 20 February 2017, the Court was informed that Ms Brenda Lin (Ms AB) had given her consent under s.15D(1)(b) and (3) of that Act to the publication or broadcasting of her identity. |
Jurisdiction: |
JUDGMENT
JOHNSON J: The Accused, Lian Bin (Robert) Xie, is charged that on or about 18 July 2009 at North Epping in the State of New South Wales, he did murder the following persons:
(a) Min (Norman) Lin;
(b) Yun Li (Lily) Lin;
(c) Yun Bin (Irene) Lin;
(d) Henry Lin; and
(e) Terry Lin.
The trial of the Accused is fixed to commence before a jury on 8 May 2014 with an estimate of four months. Additional jurors will be selected for the jury in accordance with s.19(2) Jury Act 1977.
The Pretrial Applications
By Notice of Motion filed on 18 November 2013, the Accused sought the exclusion of various categories of evidence.
The grounds upon which the Accused sought exclusion of these categories of evidence were articulated in Schedules to the Notice of Motion dated 20 November 2013 (MFI8) and 10 March 2014 (MFI10).
The orders sought by the Accused were as follows:
(a) Order 1 - that evidence in relation to Stain 91, swabbed at 4 Beck Street, North Epping on 13 May 2010, not be admitted into evidence upon the basis that it is not relevant for the purpose of s.55 Evidence Act 1995;
(b) Orders 2 and 3 - that evidence of DNA analysis relating to Item 550 (Stain 91) to be given by Mr Clayton Walton, Mr Robert Goetz, Ms Sharon Neville, Dr Simon Walsh and Dr Mark Perlin not be admitted on the ground of relevance under s.55 Evidence Act 1995 or, if relevant, be excluded in the exercise of discretion under ss.135 or 137 Evidence Act 1995;
(c) Order 4 - that evidence of the Accused cutting up shoe boxes on the night of 6-7 May 2010 be excluded upon the ground that it was improperly or illegally obtained for the purpose of s.138 Evidence Act 1995 - in written submissions, the Accused sought, in the alternative, exclusion of this evidence under ss.135 or 137 Evidence Act 1995;
(d) Order 5 - not pressed;
(e) Order 6 - evidence of conversations between the Accused and Kathy Lin or the Accused and Witness A (a person who was in custody with the Accused in and after July 2011) (including transcripts of those conversations) be excluded on the ground of relevance under s.55 Evidence Act 1995 and with derivative use of the contents of those conversations not to be otherwise permitted.
The Court was informed, on 16 April 2014, that Order 6 was no longer sought as the parties had agreed concerning the surveillance device material and transcripts to be tendered.
There is, however, a further issue concerning motive which arises from the surveillance device material, as to which oral and written submissions have been made by the parties. I will return to this topic later in the judgment.
If the Court determines not to exclude Dr Perlin’s evidence in its entirety, the Accused objects to the Crown having leave to rely upon Dr Perlin’s supplementary material served upon the Accused on 3 March 2014. I will return to this issue after ruling upon the objections to Dr Perlin’s evidence generally.
The Pretrial Hearing
The Accused was committed for trial from the Central Local Court on 20 December 2012.
The pretrial case management of this matter had been undertaken in 2013 by Latham J. Following the announcement of her Honour’s appointment as the Commissioner of the Independent Commission Against Corruption, I assumed carriage of the proceedings shortly prior to the commencement of the pretrial hearing on 18 November 2013.
The Accused was arraigned afresh before me on 18 November 2013: s.130(2) Criminal Procedure Act 1986.
The pretrial hearing proceeded on 18, 19, 20, 21, 22 and 25 November 2013. A number of directions were given to progress the matter in advance of a resumed pretrial hearing date scheduled for February 2014.
Issues arose concerning the funding of legal representation of the Accused, leading to a number of mentions of the proceedings in December 2013 and January-February 2014. Those issues having been resolved, the pretrial hearing resumed on 17 March 2014 and continued on 18, 19, 20, 21, 24, 25, 26, 27, 28 and 31 March 2014 and 1 April 2014.
Directions were given for the filing and service of written submissions on the range of topics covered by the Accused’s Notice of Motion. On 14 April 2014, counsel made relatively brief oral submissions to supplement the detailed written submissions which had been furnished.
The pretrial hearing extended beyond the topics raised in the Accused’s Notice of Motion in two respects.
Firstly, a Basha Inquiry (R v Basha (1989) 39 A Crim R 337) was conducted where Witness A was called to give evidence and be cross-examined (PT70-260).
Secondly, it was necessary for the Court to determine the question whether waiver of client legal privilege between the Accused and his former solicitor, Daniel Sheen, had occurred concerning one topic. Following a finding that privilege had been waived, evidence was adduced from Mr Sheen on a Basha Inquiry (PT400-408): R v Xie (No. 3) [2013] NSWSC 1840.
A number of witnesses gave evidence at the pretrial hearing on forensic issues concerning the location of Stain 91 in the garage of the Accused’s premises at 4 Beck Street, North Epping, and subsequent examination and analysis, including DNA analysis undertaken with respect to Item 550 (Stain 91). The witnesses who were called at the pretrial hearing (by the Crown unless otherwise indicated) were as follows:
(a) Ms Jae Gerhard of the Forensic Biology Unit, Forensic Services Group, New South Wales Police Force (PT282-345);
(b) Dr Paula Jane Hallam, Forensic Scientist (called by the Accused) (PT346-391);
(c) Dr Mark William Perlin, Chief Scientific Officer and Chief Executive Officer, Cybergenetics (PT471-659; 713-799; 1086-1198);
(d) Mr Robert John Goetz, Acting Deputy Director of Criminalistics, NSW Forensic and Analytical Science Service (“FASS”) (PT667-712);
(e) Ms Sharon Neville, Manager of DNA Laboratory, FASS (PT808-908);
(f) Mr Clayton Everett Walton, Senior Forensic Scientist, FASS (PT910-923; 1011-1082);
(g) Dr Simon Joseph Walsh, Chief Scientist, Forensic Portfolio, Australian Federal Police (PT925-998).
In addition to the witnesses who gave evidence at the pretrial hearing in this Court, a number of persons gave evidence at the committal proceedings at Central Local Court and the transcript of their evidence was tendered on the pretrial hearing. A substantial volume of documentary material was tendered as well.
Outline of the Crown Case Against the Accused
To place the issues requiring determination into context, it is appropriate to refer to the case against the Accused as summarised in the Crown Case Statement (“CCS”) handed up on 17 March 2014 (MFI11).
In the early hours of Saturday, 18 July 2009, the five deceased persons were murdered in their family home at 55A Boundary Road, North Epping (“the Boundary Road premises”).
The Lin Family (CCS [1]-[3])
Min Lin (45 years of age) and his wife Lily Lin (44 years of age) lived with their family at the Boundary Road premises. Lily Lin’s sister, Irene Lin (39 years of age) also lived with the family. Henry Lin (12 years of age) and Terry Lin (nine years old) were the children of Min and Lily Lin.
Min and Lily Lin’s eldest daughter, Ms AB (then aged 15 years), was absent from the house on 18 July 2009. She was in New Caledonia on a school excursion. She is the sole survivor of the Lin family.
The Accused’s Family (CCS [4]-[8])
The Accused (then aged 45 years) and his wife, Kathy Lin, lived at 4 Beck Street, North Epping (“the Beck Street premises”), with their son "James" (which is not his real name) (nine years of age). The Beck Street premises were about 250 metres walking distance from the Boundary Road premises. Kathy Lin is the sister of Min Lin.
Also living in Australia were Mr Yang Fei Lin (“Mr Lin”) and Mrs Feng Qin Zhu (“Mrs Zhu”), the parents of Min Lin and Kathy Lin. Mr Lin and Mrs Zhu lived at 10 Birmingham Street, Merrylands.
The Accused married Kathy Lin in China in 1999 and he moved to Australia permanently in 2002. Between the end of 2001 and 2005, the Accused and his wife owned a buffet restaurant in Melbourne.
The business was sold in January 2005 and they moved to Sydney. The Accused had previously qualified as a medical practitioner in China and practised there for some time as an Ear Nose and Throat Specialist. As at 18 July 2009, the Accused was unemployed and had been since the sale of the Melbourne business in January 2005.
During the time when the Accused and Kathy Lin lived in Melbourne, their son "James" was cared for by the grandparents, Mr Lin and Mrs Zhu, in Sydney. "James" appeared to have had some difficulties adapting to school, in terms of his language and other social development. It appears that one of the reasons for the decision made by the Accused and his wife to return to Sydney was to look after "James". The Crown points to a conversation recorded on a surveillance device at the Beck Street premises on 2 March 2010 in which the Accused states that the grandparents had “spoiled” "James" and taught "James" “the wrong things”, having shown “no respect” to him and Kathy Lin.
The Deceased Family (CCS [9]-[12])
At the time of his death, Min Lin was self-employed at the Epping Central Newsagency at 52 Rawson Street, Epping. He had worked full time in the business, seven days a week and for up to 12 hours a day. He employed a number of casual workers, including his wife, Lily, and sister-in-law, Irene. Min Lin’s father also worked in the newsagency business with his son.
The newsagency business was viable and profitable. Min Lin had significant assets. He also had a number of debts including mortgages on the Boundary Road premises and on a commercial investment property in Epping and a residential investment property in western Sydney where his elderly parents resided.
Lily Lin was not employed on a full-time basis at the time of her death. She attended to home duties and assisted part time in the newsagency business. According to the CCS, it is likely that Lily Lin suffered from a depressive illness for a number of years that went generally untreated.
Irene Lin was a student at Macquarie University at the time of her death. She arrived in Australia in June 2008 on a student visa, and had been studying and also working in the newsagency business since that time. Irene had resided at the Boundary Road premises since her arrival in Australia.
As at 18 July 2009, Henry Lin was a student at Epping Boys’ High School and his younger brother, Terry, a student at Epping North Primary School.
Events on Evening of Friday, 17 July 2009 (CCS [13]-[16])
On Friday, 17 July 2009, Min Lin, Terry Lin and Henry Lin attended a family dinner at Min Lin’s parents’ unit at 10 Birmingham Street, Merrylands. Also in attendance were the Accused, Kathy Lin and their son, "James". A dinner of this type was a regular occurrence in the life of the Lin family and that of the Accused.
Lily Lin and Irene Lin did not attend the family dinner. As mentioned, Ms AB was overseas on a school excursion.
Min Lin left the Merrylands apartment at about 9.00 pm. Terry and Henry Lin left at around 10.00 pm with the Accused, his wife and son. They returned to North Epping in the Lin family vehicle, a silver/grey Toyota Kluger driven by the Accused.
According to Kathy Lin, the vehicle returned to the garage at the Boundary Road premises at about 10.30 pm. Kathy Lin states that Terry and Henry Lin entered the house. She told police that there were no lights on upstairs, but there was a light on in the dining area when she dropped the children home at 10.30 pm. The front door was unlocked at that time. She did not turn lights off as she left. She locked and checked the front door of the Boundary Road premises as she left.
The Accused told his father-in-law that he had told Henry and Terry to be quiet because the parents must be asleep as the lights were on downstairs, but not upstairs. He told police that there was no light on in the lounge room downstairs, and said that normally it was not on. The Accused said that his wife would normally turn the light on when she went inside and it would then be bright. The Accused said that his wife did not do that on this evening and he was sure about this.
Kathy Lin, the Accused and "James" then went to their own car, a Toyota Corolla, which had previously been parked at the Boundary Road premises. They drove the short distance to their home at the Beck Street premises.
Activity in the Boundary Road Premises After the Lin Family Returned on 17 July 2009 (CCS [17])
Henry Lin chatted online to a friend on MSN until the friend signed out at about 11.40 pm that night. Computer records show that the computer was turned off at 00:01:38.
A Dark Night (CCS [18])
The night of 17 July and the early hours of 18 July 2009 were dark. At 2.00 am, there was virtually no moon (moon rise was at 02:43 and moon set at 12:46). At its peak in the sky, only 23% of the moon was visible. The Boundary Road premises were likely in darkness as the electricity switch was off.
The Manner, Order and Time of Death of the Deceased Persons (CCS [18]-[24])
The Crown case is that the killer necessarily had knowledge of the layout of the home in order to be able to successfully navigate it in darkness.
All of the deceased were found dead in their respective bedrooms. All were on or near their beds. All had obvious and significant wounds to their head and face.
The Crown case is that there is an overwhelming inference that each deceased was quickly incapacitated. The concentration of blunt force injury to the head and face, together with asphyxial injuries, indicate that there may have been action taken to prevent the deceased from vocalising. The Crown contends that there is an available inference that all of the deceased were attacked whilst they were asleep, rather than earlier in the evening.
There was no disturbance of any items in the adults’ rooms to suggest a struggle whilst they were awake. There were no items out of place down stairs.
In relation to the time of the deaths, the Crown relies upon circumstantial evidence as to when the deceased were last seen alive. Henry finished his chat session on the computer in his bedroom at 11.40 pm and the computer was turned off shortly after midnight. Min Lin did not attend the newsagency early on Saturday morning. The Crown contends that this period includes the time period when the Accused had an opportunity to commit the crimes, that is after 2.00 am.
A next-door neighbour, Janelle Wraith, of 53 Boundary Road, was awake until 1.00 am. She described herself as a light sleeper and she did not hear anything that night. The Crown contends that there is an available inference that there was very little noise during the attack as the deceased were attacked unawares in their beds. It is said that the logical inference is that the deaths occurred in the early hours of the morning.
Blood spatter and DNA evidence was considered by Detective Sergeant Harkins, an expert in blood stain analysis. The Crown contends that this evidence indicates the order of the deaths. It is said to illustrate that the killer had prior knowledge regarding which bedrooms various people were sleeping in and knew which to target first, in order to minimise the risk of opposition.
If the lights were off and the killer made a check once inside the house, the Crown contends that this would have been difficult to discern without running the risk of waking the occupants.
The Crown contends that the person most likely to offer significant resistance, Min Lin, was killed first, together with his wife, Lily Lin. The killer would also have known he first picked the room with two adults and to disable those people quickly. The Crown contends that it is extremely likely that the severe injuries to the heads of the deceased would have been readily incapacitating.
The Crown submits that the other adult in the house, Irene Lin, was attacked next. She represented the next highest threat.
This was followed by the attack on the two boys who would have been the easiest to subdue. Even they were killed in their bedroom, indicating that the murder of the three adults did not awaken them in time to exit their bedrooms.
The Crown contends that the lack of blood evidence in or near Ms AB’s room, from either shoe impressions or blood smears on the door handles, provides an available inference that the killer had knowledge that Ms AB was away. The Crown says that for a person outside the family, with no prior knowledge of the layout of the bedrooms to go into them to see who was there, would have posed an unacceptable risk of waking the occupants and raising the risk of serious opposition. According to the Crown, the absence of this makes it highly unlikely that the assailant needed to explore the house.
There were impressions from only one type of shoe (other than those from police boots consistent with having been deposited during the discovery of the bodies and initial investigation of the crime scene).
Events on Saturday, 18 July 2009 (CCS [25]-[26])
On Saturday, 18 July 2009, the Accused got up at about 8.00 am. According to his interview with police on 22 July 2009, the Accused carried out some gardening work in the front and back yards. He said also “I have a little bit clean up for the floor of the garage, because it was quite dirty” (Q/A26). In his interview with Detective Sergeant Maree, the Accused said he was “maybe [in the] garage to get some tool or something”.
Between 9.00 am and 9.43 am, Kathy Lin received a number of telephone calls from various people, who told her that Min Lin’s newsagency had not been opened as expected. Kathy Lin attempted unsuccessfully to contact Min Lin on his mobile telephone number at 9.37 am. She did not try to contact any of the other residents of the Boundary Road premises.
When interviewed, Kathy Lin said that at that point she was not concerned, believing her brother may have been delayed by his vehicle breaking down or similar whilst he was doing his usual home deliveries, and that other members of the family may have been out shopping. Kathy Lin told one of the friends that contacted her that she was going out shopping and would drive past her brother’s house on the way to try and locate him.
Arrival of the Accused and Kathy Lin at the Boundary Road Premises (CCS [26]-[31])
Kathy Lin, the Accused and their son, "James", drove to the Boundary Road premises in Kathy Lin’s red Toyota Corolla. Upon arrival at the Boundary Road premises, Kathy Lin got out of the car before the Accused had turned off the engine. The Accused followed her into the house, rather than waiting in the car. According to his answers in his first record of interview, the Accused then told "James" to stay in the car. The Crown contends that there is an available inference that the Accused wanted to avoid his wife finding the bodies because he knew they were there, but she went inside before he could stop her.
Kathy Lin went up the stairs first and the Accused followed her. She ultimately saw the body of Lily, and the blood in the master bedroom. However, she told police in her first interview that when they first approached that room and went in, she could not see anything as it was dark, but the Accused (who was behind her at the time) cuddled her and told her not to look. The Accused did this from a position where the Crown says he could not have seen the deceased. The bed in the room does not extend beyond the wall in the entry area.
Kathy Lin recounted these events a second time in her first interview, saying she couldn’t see anything and at that time, the Accused (who was behind her) said “Don’t watch that”. She then turned to the right and saw her sister-in-law, Irene. The Accused said that Kathy went two metres into the dark room, that he was one metre behind her and he grabbed Kathy from behind and said “Don’t look”. In his interview with Detective Sergeant Maree on 16 March 2010, the Accused said that he did not go in very deep, just inside the door. From that position, he could not have seen the two deceased.
The Crown contends that the available inference is that the Accused already had knowledge that the bodies were there. In his interview with police on 22 July 2009, the Accused said that he held Kathy, but believed that she had already seen the bodies. He said that once he saw his sister-in-law, he held his wife and said “Kathy, don’t look at it”.
There was also a conversation between the Accused and Kathy Lin about their relative positions that was captured on a surveillance device recording on 29 April 2010, in which the Crown contends that the Accused can be heard schooling his wife about what she should say.
The Crown case is that the Accused took hold of Kathy Lin and told her not to look inside the main bedroom, before he himself had entered the room, because he already knew that the bodies of the victims were in that room.
After leaving the main bedroom, the Accused followed Kathy Lin to the other bedrooms where they discovered the bodies of other victims. Irene Lin was in one bedroom and the boys, Henry and Terry Lin, were in another bedroom. According to Kathy Lin, at no stage did the Accused check on the condition of these victims, despite being previously a qualified medical practitioner in China. The Crown contends, in all of his accounts to police, the Accused is vague regarding this aspect, indicating at one point that Kathy Lin would not let him check the vital signs of the boys.
At no point of the morning of 18 July 2009 did the Accused inform police that he had seen Min Lin inside the premises. Police had spent several hours conducting a search for Min Lin as a suspect. In fact, his body was hidden under bedcovers, and was not discovered for some hours.
On 17 March 2010, the day after his interview with police, the Accused contacted investigating police and in a telephone conversation, recorded by telephone intercept, attempted to explain what he had told police about seeing Min Lin in the bedroom during his interview. The Accused informed police that he had spoken to a police officer at the scene on the relevant morning and informed him that he was not sure whether there were four or five bodies in the house. The Accused did not inform any police at the scene that the body of Min Lin may have been inside the premises.
Police were in fact informed by Kathy Lin shortly before 2.00 pm that afternoon at Hornsby Hospital that she had seen something else on the bed. It was at this time that police checked the main bedroom and located the body of Min Lin under bedcovers.
The “000” Calls on 18 July 2009 (CCS [32]-[38])
After discovering the bodies of the victims, Kathy Lin made the first of three calls from her mobile telephone to “000”.
According to mobile telephone and Telstra records, the first “000” call was made at about 9.47 am to Telstra’s Emergency Service Answer Point. This call was recorded and lasted for 63 seconds. Towards the end of this call, Kathy Lin can be heard asking the Accused to take their son, "James", home and to come back immediately. The Accused left Kathy Lin alone at the crime scene and drove their son the short distance to the Beck Street premises where "James" remained by himself. After the service operator transferred the call, it was not put through to New South Wales Police and terminated at approximately 09:48:14.
Kathy Lin then made another call which was successfully transferred to police at approximately 9.50 am. The duration of the call was approximately three minutes and this call was also recorded. During the call, Kathy Lin spoke initially to the operator in English and relayed information, including her location and the discovery of the victims. As the call continued, Kathy Lin became emotional and also spoke and ultimately yelled and screamed (in Cantonese) at the Accused.
The Accused could be heard in the background of the recording responding to Kathy Lin. Due to her apparently emotional state, the “000” operator asked Kathy Lin if he could speak to the other person. Towards the end of the call, Kathy Lin was walking quickly or running after the Accused, pleading with him to stay with her, however a car is heard driving off and the call is terminated by Kathy Lin. At one point during the call, Kathy Lin is heard saying to the Accused “I am more scared than you are”.
Telephone records show that a third call was made to “000” at 9.54 am. This call was also recorded and its duration was about three minutes and 29 seconds. During this call, Kathy Lin attempted to provide the operator with further information and then remained on the line until police arrived.
During his interview on 16 March 2010, the Accused indicated that he remained with Kathy Lin whilst she made the telephone calls to “000” stating that she was on the phone for some time. He indicated that he remained with Kathy after the “000” call to wait for the police and ambulance, before deciding with Kathy Lin that he should leave and tell her parents what had happened.
The Accused left his wife alone at the crime scene and drove "James" to their home a short distance away and left him there alone, stating that he was going to pick up Min Lin’s parents at their Merrylands unit. The Crown contends that, for all the Accused knew, if he was not involved, the killer could have been close by.
The Accused did not tell Kathy’s parents what had been discovered during their car trip back to the scene from Merrylands, so there was no reason that "James" could not have gone with the Accused. Even if it was Kathy Lin’s idea to do this, the Crown contends that there is an inference available that the Accused decided to take this step because he knew that there was no genuine threat to his son in the neighbourhood. The Accused did not want to be present when police arrived at the scene. In recorded surveillance device material, the Crown contends that the Accused said words to the effect that police would consider the first people at the scene as a suspect.
Mr Lin, Min Lin’s father, stated in his recorded interview on 24 June 2010 that it was in fact the Accused who rang him, telling him that “something terrible” had happened to Min’s family, without going into further details and asking that Mr Lin and Mrs Zhu take a train to Epping. It was only after Mr Lin said that there were no regular trains running between their home in Merrylands and Epping that the Accused agreed to pick them up. This call took place at 9.54 am, after the second “000” call, and occupied some 69 seconds.
Evidence obtained from two witnesses is that shortly before 10.00 am on 18 July 2009, they witnessed an argument between a male and female person of Asian appearance at the top of the driveway at the Boundary Road premises. The Crown case is that the two people seen by the witnesses were the Accused and Kathy Lin. The argument took place before the arrival of police and ambulance and the Accused is described as driving a small red-coloured motor vehicle.
The Crown contends that the evidence supports the inference available from the second “000” made by Kathy Lin, during which she and the Accused were in strong disagreement. During conversations later recorded on surveillance devices, Kathy Lin and the Accused discussed this topic. She states that she was very scared that morning and that she did not want the Accused to leave her alone at the premises, and that there was no urgency for him to leave to inform her parents. Even if she did not initially want him to leave and collect her parents, the Accused could have waited for the police to arrive.
Despite Kathy Lin’s agreement, or otherwise, about this situation, the Crown contends that the fact that the Accused left his wife at the scene demonstrates that he knew that she was not in any danger. There is an available inference that he was confident of her safety because he knew that there was no killer nearby.
Examination for Blood and Concern for the Safety of the Accused’s Family (CCS [39]-[43])
The motor vehicle used by the Accused on the morning of 18 July 2009 (to attend the crime scene at the Boundary Road premises, then return to the Beck Street premises and then drive to Merrylands to pick up Mr Lin and Mrs Zhu and return to the Boundary Road premises) was examined by police and was found to have no traces of blood.
The shoes worn by the Accused on the same morning were also examined and found to have no traces of blood. Forensic examinations of the staircase, downstairs floors (including the front door foyer) and the outside driveway area of the Boundary Road premises revealed no traces of any blood.
Police wanted to move the Accused and his family away from the Beck Street premises for safety reasons. The Accused was reluctant to leave, citing a preference for his own bed. The Crown contends that the Accused was not keen to go because he knew there was no genuine threat from a killer.
Mr Lin bought some extra security devices (safety chains) for installation to the doors at the Beck Street premises after the murders, as he was frightened for the family and their safety. The Accused declined and said that it was not necessary as it was very safe.
A threatening letter was received on 7 October 2009. The Accused brought it to the police the next day and said “I was a little bit worried about my safety not much … I am also thinking it might be a bit of a joke”. The Crown contends that the available inference is that he was not concerned because he knew he was not in danger as there was no real threat.
Police Investigation of Deceased Family (CCS [44])
The Crown contends that extensive investigations regarding the background of the victims, including their financial dealings and personal relationships, did not disclose any other individuals with a motive for the murders.
Installation and Use of Surveillance Devices in the Beck Street Premises (CCS [45]-[48])
In January 2010, warrants were issued authorising the installation of surveillance devices in the Beck Street premises. Between February and May 2010, conversations between the Accused and other people in the premises were lawfully monitored and recorded by police. These conversations were recorded during a period of the investigation when the Accused, Kathy Lin and a number of other persons were reinterviewed by police, including the ERISP interviews conducted on 16 and 22 March 2010. The Crown contends that there are a number of recurring topics that are continuously raised by the Accused during the recorded conversations.
According to the Crown, the evidence suggests an attempt by the Accused to convince Kathy Lin and Ms AB that the reason that the police were focusing their investigation on him was that the grandparents, Mr Lin and, in particular, his wife, Mrs Zhu, had intentionally supplied false information to the police upon which the police were acting and giving undue weight. The Accused is repeatedly recorded emphasising in conversations with Kathy Lin and Ms AB that the relationship with the grandparents changed solely following a court dispute over Ms AB’s guardianship after the murder of her parents, during which Ms AB opted for Kathy Lin as her guardian over the grandparents. The Accused alleges that out of hatred towards him and Kathy Lin, the grandparents were fabricating lies about the Accused and were supplying them to police to frame the Accused as the prime suspect. The Accused states that the grandparents, in order to create a financial motive for the murders, had alleged to the police that the Accused was unemployed and bankrupt because of losses on the share market.
Contrary to the assertions of the Accused, however, Mr Lin and Mrs Zhu insisted in police interviews conducted as late as July and August 2010, that they did not believe that the Accused was responsible for the murders.
During some of the recorded conversations, the Accused discussed at length with Kathy Lin, Ms AB and others different aspects of the evidence and police investigations. During such conversations, the Accused told Kathy Lin of police suspicions and discussed with her areas of the evidence that were of importance in the Crown case.
Amongst other matters, the Accused discussed in detail the Accused’s and Kathy Lin’s movements on the night of the murders, and re-enacted with Kathy Lin at their home the discovery of the victims the following morning.
In what the Crown will allege is an attempt to cover up his own involvement, the Accused was recorded coaching Kathy Lin and Ms AB about what they should say to police when they are interviewed, and what questions they should or should not answer. The Accused is recorded telling Ms AB that, being the only surviving family member, she is a police suspect and advising her to attend further police interviews in the presence of a solicitor only. The Accused also warned Kathy Lin and Ms AB that police will “trick” them into providing inculpatory information about him, and that they must take great care in answering questions relating to him.
Execution of Crime Scene Warrant at Beck Street Premises on 11 May 2010 (CCS [49])
On 11 May 2010, police executed a crime scene warrant at the Accused’s Beck Street premises. A detailed forensic examination and search of the premises was conducted. The search continued until 15 May 2010.
The forensic examination included the garage, where a number of swabs and samples were obtained of stains and markings believed to be blood.
Location of Stain 91 and Initial Testing (CCS [50]-[53])
Underneath a desk in the garage, police located a small amount of what appeared to be blood (positive presumptive test) which was given the designation Stain 91 (later Item 550). It was sampled and sent for DNA analysis to the Division of Analytical Laboratories (“DAL”) in the New South Wales Department of Health.
Stain 91 was of a grey/brown colour. An Orthotolidine (“Otol”) test conducted by the police was strongly positive for blood. The appearance of the stain was consistent with blood.
Dr Paula Hallam, Jae Gerhard, Nicole Campbell and Melanie LeCompte expressed the joint opinion that Stain 91 is “possibly blood”. Their opinion is based on “the visual appearance of the stain, the positive presumption ortho-tolidine result and the negative Luminol result”. Dr Hallam and Ms Gerhard expressed a further joint opinion that Stain 91 “is of human origin” based on the DNA profile generated.
Whilst the expert witnesses, Dr Hallam, Ms Gerhard, Ms Campbell and Ms LeCompte cannot definitively state that it is blood, the Crown case is that because of its colour, the strong reaction to the Otol test, and the fact that it contains human DNA from a number of contributors, that the only reasonable conclusion is that Stain 91 is human blood.
DNA Analysis of Stain 91 (CCS [54]-[62])
The following testing in relation to Stain 91 was conducted at DAL:
(a) “Profiler Plus” (nine areas plus sex) was done four times (two worked well, one partially and one did not work because of low levels):
(b) “Identifiler” (15 areas, including all nine from “Profiler Plus” plus sex), was done twice (one worked well, one partially);
(c) “Y-Filer” was done twice (one gave a partial profile and the other a full profile);
(d) “PowerPlex 21” (20 areas, including all 15 from “Identifiler” plus sex) was done once.
Each test was done on a different run of the same sample. All of the results from “Profiler Plus” and “Identifiler” were consistent with each other and yielded a mixed DNA profile. There were good reference samples from each of the comparison persons (the deceased persons).
Mr Clayton Walton from DAL was of the opinion that there are at least three contributors to Stain 91, with at least three in the major component and probably at least four or more taking into account minor contributors.
The results of the “Profiler Plus” testing raised the possibility of inter-relatedness amongst contributors based upon common alleles. Mr Walton opined that Min Lin, Henry Lin and Terry Lin could not be excluded as possible contributors to Stain 91, whilst the Accused and his family could be excluded as possible contributors. Mr Walton applied the “Random Man Not Excluded” (“RNME”) formula, and determined that one-in-five people in the general population could not be excluded as a potential contributor. Mr Walton adopted this formula due to uncertainty over the number of contributors to the mixed profile.
Mr Walton could not tell the age of the DNA from the testing, or whether each contributor’s DNA was deposited at different times or if the sample was mixed prior to being deposited on the garage floor.
However, the Crown case is that the fact that there are at least three contributors mixed into the one sample, coupled with the location of the sample underneath a desk on the floor of the garage, makes it inevitable that the different contributors were mixed prior to being deposited on the garage floor.
The Crown contends that this is supported by the fact that some very similar mixtures are found at the crime scene at the Boundary Road premises, including the mixtures in Item 47 (a swab of the interior door handle from Bedroom 2), Item 223 (a swab from the south wall of Bedroom 3) and Item 616 (a stain from the mattress in Bedroom 3).
Dr Mark Perlin received the DNA data generated by DAL in New South Wales when processing the reference samples (for the Accused and five deceased persons) and a number of crime scene samples (Items 47, 223, 550 and 616). Dr Perlin processed the DNA data using the “TrueAllele Casework” system. TrueAllele Casework is a computerised DNA interpretation system that objectively infers genetic profiles (genotypes) from DNA samples. The inferred genotypes can then be compared to reference genotypes. The Crown contends that TrueAllele Casework has been validated on synthetic and casework data and results have been admitted into evidence in the United Kingdom.
The results for Stain 91 (Item 550) were processed on the assumption that it contained three, four or five contributors. Dr Perlin expressed the following opinions based upon the results of the TrueAllele processing:
(a) a match between a contributor to Stain 91 and Yun Bin Lin is 4,410 times more probable than a coincidental match to an unrelated Asian person;
(b) a match between a contributor to Stain 91 and Yun Li Lin is 27.1 times more probable than a coincidental match to an unrelated Asian person;
(c) a match between a contributor to Stain 91 and Min Lin is 379,000 times more probable than a coincidental match to an unrelated Asian person;
(d) a match between a contributor to Stain 91 and Henry Lin is 1.33 billion times more probable than a coincidental match to an unrelated Asian person; and
(e) a match between a contributor to Stain 91 and Terry Lin is 1.03 quintillion times more probable than a coincidental match to an unrelated Asian person.
Dr Perlin further conducted “evidence to evidence” comparison using TrueAllele and expressed the following opinions based on the results:
(a) a contributor to Stain 91 (Item 550) matches a contributor to Item 47 with a likelihood ratio of 1.78 billion relative to an Asian population;
(b) a contributor to Stain 91 (Item 550) matches a contributor to Item 223 with a likelihood ratio of 327,000 relative to an Asian population; and
(c) a contributor to Stain 91 (Item 550) matches a contributor to Item 616 with a likelihood ratio of 9.56 quadrillion relative to an Asian population.
Dr Simon Walsh described the mixed profiles from Stain 91 (Item 550) and Item 616 (based upon PowerPlex 21 testing) as “consistent, with a large amount of overlapping information, present in similar proportions”. He expressed the opinion that there was a “very high degree of similarity for complex mixed profiles of this nature, particularly considering these observations under a proposition that the mixed profiles arose independently from each other”. He was not able to make a statistical assessment of the observed similarities.
Y-Filer testing of Stain 91 (Item 550) yielded a single, unmixed haplotype consistent with that of Min Lin, Henry Lin and Terry Lin (and different to that of the Accused and his son). Dr Walsh compared the Y-chromosome DNA profile against a global database of Y-chromosome haplotypes known as the “Y chromosome haplotype reference database” (“YHRD”) with the following results:
(a) searching all meta-populations in the YHRD, there were no matching Y-chromosome haplotypes found amongst 55,827 haplotypes - it is 99% probable that the haplotype frequency in all meta-populations is not more than one in 12,000; and
(b) searching only the Chinese meta-population in the YHRD, there were no matching Y-chromosome haplotypes found amongst 7,418 haplotypes - it is 99% probable that the haplotype frequency in the Chinese meta-population is not more than one in 1,600.
The Crown contends that the evidence relating to Stain 91 (Item 550) is probative of the Accused’s involvement in the five deaths at the crime scene several hundred metres from the Accused’s home.
Autopsy Findings, the Likely Weapon Used and the Order of the Killings (CCS [63]-[67])
The autopsy findings indicated the following causes of death in each instance:
(a) Min Lin - blunt force injuries of the head and asphyxia;
(b) Lily Lin - asphyxia and blunt force injuries of the head;
(c) Irene Lin - blunt force injuries of the head;
(d) Henry Lin - asphyxia and blunt force injuries of the head; and
(e) Terry Lin - blunt force injuries of the head and asphyxia.
As stated earlier, the evidence indicates that the time of the deaths was in the early hours of the morning of 18 July 2009.
Each of the five victims were attacked and killed in their respective bedrooms in the Boundary Road premises. The type of weapon was a hammer-like object. Some of the deceased had injuries that, the Crown contends, were classic in appearance with having been inflicted by a hammer. There is also a possibility that a “V”-shaped mark on the baby mattress in Bedroom 3 was made by a claw hammer. Given the rope pattern marks found at the scene, the weapon had a rope attached.
There was no evidence of a different kind of weapon. The Crown contends that the available inference is that there was a single killer.
The autopsy results and crime scene examinations indicated that Min Lin and Lily Lin were attacked whilst asleep, as they had no defensive injuries and there were no signs of a struggle. The Crown case is that Min Lin and Lily Lin were attacked first. Irene Lin may have been awake at the time she was attacked, as she appears to have moved in her bed, and also suffered defensive injuries.
Henry and Terry Lin were likely the last to be killed - there were signs of a violent struggle within that bedroom and there were a large number of defensive injuries to the boys, in particular to Terry Lin. The autopsy findings indicate that Terry Lin may have survived for between one-to-two hours after being attacked.
The Crown case is that the Accused had a close relationship with the Lin family, and was well acquainted with the family’s sleeping arrangements. The Crown contends that the Accused attacked the adult victims first to reduce the possibility of detection.
No Evidence of Forced Entry or Theft from the Boundary Road Premises (CCS [69]-[72])
The Boundary Road premises contain a two-storey dwelling on a battle-axe block. It is accessed by a driveway that is approximately 77 metres in length from the street frontage. Crime scene examinations of the Boundary Road premises showed no evidence of forced entry and minimal activity on the ground floor, except for the front door foyer area. The Crown case is that the Accused had access to a key to the front door of the victim’s home and, at the time of the murders, lived at the Beck Street premises, only 250 metres away.
The main power switch to the Boundary Road premises was switched off some time during the night or the early morning of 18 July 2009, indicating that the house was in darkness at the time when the victim’s were attacked. The bedrooms of all the victims were located on the second floor.
There was a large number of electrical items located at the Lin family home during the crime scene examinations, including computers, game consoles and mobile phones. In addition, Min Lin’s wallet containing personal papers and $1,420.00 in cash was found a short distance from his body. The Crown case is that robbery was not a motive for entering the house or committing the murders.
Police enquiries in the immediate vicinity of the Boundary Road premises failed to locate any witnesses who had seen or, in particular, heard anything unusual that night, with the exception of a dog barking. The house is at the end of a long battle-axe block, and is surrounded on all sides by a number of other residential premises, and was generally very quiet, particularly during the time the Crown alleges the murders were committed.
Shoe Prints in the Boundary Road Premises (CCS [73]-[74])
A detailed forensic examination of the carpets on the first floor of the Boundary Road premises revealed approximately 42 shoe impressions or shoe marks in blood. An examination of these impressions and marks revealed a number of different sole pattern types. Eight of the impressions/marks had insufficient detail to allow a comparison. A further 10 of the impressions/marks were identified as either police or ambulance footwear or similar.
A further 24 of the impressions/marks located in blood were made by a shoe with the same tread pattern. The majority of these 24 shoe impressions had been matched to the tread used on five models of ASICS brand men’s running shoes, and one model of ASICS brand women’s running shoe. A number of those 24 ASICS impressions were found to have been made by a men’s US-size between 8.5 and 10.5.
The Accused owned a number of pairs of ASICS brand runners in men’s size US9.5. Kathy Lin said that ASICS was the Accused’s favourite brand of sports shoes. Police located a number of photographs taken in 2006 at different times and locations, showing the Accused wearing a pair of one of the matched-model ASICS men’s running shoes, being a “GEL EVATION II TN333”. An extensive police search of the Accused’s home in May 2010 failed to locate the shoes shown in these photographs.
Events on 6 May 2010 and the Cutting Up of Shoe Boxes by the Accused (CCS [75]-[77])
On 6 May 2010, Kathy Lin was questioned about the shoe impressions at the NSW Crime Commission in the presence of her solicitor, Daniel Sheen. Following the hearing, Kathy Lin and the Accused went to Mr Sheen’s office. During the conversation, the solicitor told Kathy Lin, in the presence of the Accused, that her husband was a suspect and that the shoe impressions appeared to have been identified as coming from an ASICS shoe of the same size as that worn by the Accused.
The Crown case is that later that night, the Accused is recorded on video (as part of the surveillance devices installed under warrant) retrieving objects that appear to be shoe boxes, and is later recorded on video cutting up these shoe boxes with scissors and placing the pieced into a shredder, and also into a bucket containing a liquid. The Accused flushed the contents of the bucket down the toilet. The Crown case is that one of the objects disposed of by the Accused was the shoe box that had previously contained the “GEL EVATION II TN333” men’s running shoes owned by him.
A crime scene examination of the Accused’s premises in May 2010 showed that the Accused had a number of pairs of shoes stored in shoe boxes, each of which was individually labelled with a small blue sticker. Also located during that examination was a quantity of shredded paper in the Accused’s garbage bin. A forensic reconstruction of that material revealed shredded pieces of a small blue sticker identical to those located on the shoe boxes.
No Sign of Entry to Ms AB’s Bedroom (CCS [78])
The forensic examination of the carpets and bloodied shoe impressions at the Boundary Road premises showed that there was no indication that the bedroom of Ms AB had been entered. Ms AB was overseas in New Caledonia at the time of the murders.
Further, forensic examination of the four bedroom doors revealed that three of the four had blood smears or marks. The only bedroom door that had no such marks was that normally occupied by Ms AB.
The Crown case is that the Accused was one of only a small group of people aware that Ms AB was overseas on 18 July 2009, and therefore did not have to enter or check that bedroom. The Crown case is that the Accused and his wife had a particularly close relationship with Ms AB.
Evidence from Witness A, “Harry” and Recordings of Conversations with the Accused (CCS [79]-[85])
In November 2010, Witness A was arrested by police and placed into custody. In July 2011, he was in custody with the Accused. Witness A and the Accused formed a relationship and they discussed various matters including their backgrounds, business dealings, the charges they faced and their respective court proceedings.
In December 2011, Witness A contacted police and passed on information regarding conversations he had had with the Accused. In January 2012, Witness A provided police with the first of a number of statements, and agreed to assist further in the investigation, including by covertly recording conversations with the Accused. Witness A recounted conversations to police in a number of letters and telephone calls.
On 19 May 2012 and thereafter, Witness A had a number of conversations with the Accused at the Long Bay Correctional Centre. These were lawfully recorded by surveillance device. The Accused and Witness A discussed various matters, some of which they had spoken about in the previous months.
The Crown contends that recorded and unrecorded conversations between Witness A and the Accused included reference to the following topics:
(a) that the Accused’s wife, Kathy Lin, was sedated by him on the night of the murders;
(b) that the Accused had purchased a hammer (the Crown case is that this was the murder weapon) at a Two Dollar shop which, to his knowledge, had dummy cameras (and therefore no record of his purchase);
(c) the use of a pressure point on the neck was demonstrated or described by the Accused as a method whereby he could incapacitate, and therefore attack five people - there was related discussion that he should not tell his solicitors this;
(d) discussion about the best place to use a hammer to hit someone on the head;
(e) the Accused gave Witness A details and a drawing of the Lin family home front door key, so as to have one made in order to plant and implicate someone else;
(f) the Accused planned to invent a story of some mechanical work with the deceased, Min Lin, in his garage, to explain Min Lin’s blood on the floor of the garage;
(g) alternatively, he would attempt to explain the blood on the garage floor as having originated from the prior ownership of the home by a vet and it being animal blood;
(h) conversations about a “Plan B” - if the Accused was committed for trial and was not granted bail, he would get “Harry”, an associate of Witness A with access to a funeral parlour (who, unbeknown to the Accused was in fact an undercover police officer), to manufacture evidence by planting the DNA and/or fingerprints of a male person of Asian origin with a criminal background on the murder weapon - the available inference was that he had continuing access to the murder weapon;
(i) the Accused explained his motive - loss of “face” because his parents-in-law considered Min Lin to be a better businessman than him - they did not like him and had not wanted him to marry their daughter;
(j) Lily Lin had a secret mobile phone that the Accused destroyed;
(k) the Accused’s desire not to be the first to arrive at the crime scene so as to avoid being a suspect;
(l) that a person that was not a near neighbour saw something on the night of the murders; and
(m) that the Accused did not drive to the Lin family house on the night of the killings because he did not need to drive as it was so close.
Between December 2012 and February 2013, Witness A and the Accused continued their relationship at the Long Bay Correctional Centre. During that period, they had further discussions about the plan to have Witness A and “Harry” plant evidence on another person in an effort to frame that person for the murders.
The Accused supplied Witness A with further information to be used as part of the plan to incriminate an anonymous person by the name of “Rob” (who was having an affair with Lily Lin) with the commission of the murders.
Witness A forwarded information to police, including that the Accused had shown him Ms AB’s travel itinerary, statements of witnesses, and had provided him with Min Lin’s mobile telephone number and the Lin family’s landline telephone number. Witness A supplied police with a number of documents given to him by the Accused, including the sketch plan of the Lin family’s home, a sketch plan of the Epping newsagency and its opening hours, a drawing of the key to the family home and various exhibit photos thereof, as well as other material and information from the brief of evidence.
Police examined the documents and the Accused’s fingerprints were found on a number of those documents.
Witness A received a reduced sentence for his prior and future assistance.
On 21 February 2013, the Accused was transferred from Long Bay Correctional Centre to the Parklea Correctional Centre.
On 26 April 2013, an undercover police officer, “Harry”, visited the Accused. “Harry” informed the Accused that he had received the “paperwork” from Witness A, and the Accused told “Harry” that Witness A had told him that they had a “candidate” (that is, access to a body whose DNA and/or fingerprints could be planted on evidence to frame another person for the murders) and he told “Harry” to speak to Witness A about the matter. Later in the conversation, “Harry” asked the Accused what he should do, to which the Accused replied, “Go ahead”.
On 9 May 2013, “Harry”, along with the Accused’s wife, visited the Accused at the Parklea Correctional Centre. The conversation between “Harry”, the Accused and Kathy Lin was lawfully recorded by a surveillance device. However, the majority of the recording is totally inaudible.
On 24 May 2013, the undercover police officer, “Harry”, visited the Accused and they had a conversation that was lawfully recorded on surveillance device. During that conversation, the Accused discussed his case and retrieving the murder weapon and having it planted on another person in an attempt to frame that person for the murders.
Provisions of Evidence Act 1995 and Applicable Principles
Recurring reference will be made in this judgment to provisions of the Evidence Act 1995, and principles to be applied in determining objections to evidence under one or more of those provisions. It is useful, at this point, to refer to those provisions and principles.
Statutory Provisions
Sections 55 and 56 Evidence Act 1995 provide as follows:
“55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.
56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.”
Sections 135 and 137 Evidence Act 1995 provide:
“135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.
…
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”
Section 138 provides:
“138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.”
Some Applicable Principles
The appropriate enquiry for the purpose of determining relevance under s.55 Evidence Act 1995 focuses upon the capability of the evidence to affect the determination or conclusions of the tribunal of fact: R v Burton [2013] NSWCCA 335; 237 A Crim R 238 at 270 [145]-[146]. It does not direct attention to what a tribunal of fact is likely to conclude. For the purposes of assessing this capability, it is assumed that the evidence would be accepted by the tribunal of fact and it is taken at its highest: R v Sood [2007] NSWCCA 214 at [38].
Section 55 speaks of a rational effect that is brought about “directly or indirectly”. This is very broad language and suggests a wide rather than a narrow focus to the enquiry whether a proffered piece of evidence has the rational potential which s.55 requires: R v Le [2000] NSWCCA 49 at [19]; R v Pham [2005] NSWCCA 9 at [95].
In approaching an objection based on relevance, it is necessary to keep in mind the observations of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Smith v The Queen [2001] HCA 50; 206 CLR 650 at 653-654 [6]-[7] (footnotes excluded):
“[6] … although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore:
‘None but facts having rational probative value are admissible’,
and
‘All facts having rational probative value are admissible, unless some specific rule forbids.’
[7] In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt3.1 of the Act and s55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding.”
In Evans v The Queen [2007] HCA 59; 235 CLR 521, Gummow and Hayne JJ said at 529 [23] (footnotes excluded):
“The answer to the questions just posed is provided by proper application of the test of relevance. As this Court's decision in Smith v The Queen demonstrates, questions of relevance require careful analysis. In particular, they require careful identification of the process of reasoning that is invited. Only then can it be seen whether the evidence in question could ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ (emphasis added).”
In the same case, Kirby J stated at 546-547 [95]-[98] (footnotes excluded):
“[95] The foregoing tests are stated in all their generality for application to millions of questions asked every year in the great variety of cases to which the Uniform Evidence Acts apply. According to s 55(1) of the Evidence Act, the test for relevance requires no more than that the evidence ‘if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. That test must necessarily be given an extremely broad ambit.
[96] Other provisions of the Evidence Act reinforce the impression that the test of relevance is not a narrow or stringent one (see eg ss 57, 58). A broad interpretation alone is the one compatible with the purpose of the Act which is to aid the court process (effectively of quelling controversies brought to the court for that purpose, taking into account all evidence which has a bearing upon the questions in issue) rather than to delay or needlessly complicate the resolution of that process.
[97] What is, or is not, relevant to an issue in proceedings is much more likely to be perceived by advocates and judges of trial than by an appellate court. Still more so than by the ultimate national appellate court, concluding for the first time for itself that an issue, which everyone else has considered to be relevant, is irrelevant.
[98] I cannot say that this course could not properly happen. Indeed, in the experience of this Court it has already happened, at least once, in Smith v The Queen. I disagreed with the approach on that occasion. In this appeal, I have considered whether the circumstances of the case are sufficiently analogous to require me to suppress my objection to the course favoured in the joint reasons and to conform to it. However, questions of relevance are always highly fact-specific. No general rule could be laid down that was not anchored in the proof of the facts in issue in the particular proceeding.”
It will be observed in a moment that case law establishes that the application of s.137 does not involve the Court weighing possible alternative explanations or competing inferences in determining whether to exclude evidence under s.137. As the Crown submits, it is self evidently the case that a ruling as to relevance under ss.55 and 56 does not require or permit the Court to have regard to alternative explanations or competing inferences in determining the antecedent question of relevance. Nor does the Court consider issues concerning reliability of evidence at this point.
Sections 135 and 137 Evidence Act 1995
Section 135 is based upon an assumption that the evidence is otherwise admissible. It confers a power to refuse to admit such evidence if the particular opinion is formed. A discretionary process is involved, with the formation of the relevant opinion requiring a balancing exercise. The power to reject evidence will only be engaged if the probative value of the evidence is “substantially outweighed” by a “danger” of the kind identified in s.135(a), (b) or (c): Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [78].
In Dyldam Developments Pty Limited v Jones, Basten JA observed at [93] that the apparent purpose of s.135(c) (the “undue waste of time” provision) was to allow a trial Judge to avoid an inappropriate expansion of the trial caused by the parties tendering, and then seeking to meet, evidence of slight or peripheral relevance to the facts in issue. His Honour observed (at [93]) that “once it is accepted that the probative value of the proffered evidence is significant or substantial, there may be limited scope for exclusion on the basis of a danger of ‘undue waste of time’”.
In R v Burton, Simpson J (RA Hulme J and Barr AJ agreeing) said with respect to s.137 (at 266 [134]):
“The section requires two separate assessments and a judgment: first, an assessment of the probative value of the evidence sought to be adduced by the Crown, second, an assessment of the danger of unfair prejudice to the defendant (that might be caused by its admission), and, finally, a judgment as to whether any such danger outweighs the probative value of the evidence. If the result of the assessment process is that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant, the court is obliged to exclude the evidence. There is a danger of unfair prejudice if there is a real risk that the jury will make improper use of the evidence: R v BD (1997) 94 A Crim R 131.”
The Court in R v Burton considered the role of an alternative explanation or competing inference in a s.137 objection. As will be seen, this issue is relevant to the objection to the Stain 91 and DNA evidence. Simpson J said at 272 [156]-[158]:
“156 I do have difficulty with the logic of the proposition that the existence of an alternative interpretation robs the evidence of the respondent's words of probative value, or diminishes its probative value. The probative value of evidence depends upon what the tribunal of fact draws from the evidence. If the jury accept the Crown interpretation, the probative value of the evidence will (as a matter of fact and reality) be high.
157 A number of provisions in the Evidence Act (s 97, s 98, s 101, s 103, s 135, s 137 and s 138) make the admissibility of evidence dependent upon an assessment, by the trial judge, of the probative value of the evidence. Two things may be said about the actual probative value to be assigned to any item of evidence. The first is that the actual probative value to be assigned to the evidence is in the province of the tribunal of fact - in most criminal trials, the jury. The second is that the actual probative value cannot be determined until all of the evidence in the trial is complete. By way of example, evidence of a positive identification of an accused person as the perpetrator of a crime may appear to have powerful probative value when it is admitted. Its actual probative value may diminish, even to the point of extinction, in the light of other evidence, whether given in cross-examination, or by other witnesses.
158 The provisions which make admissibility of evidence dependent upon an assessment of its probative value are not, and cannot be, concerned, with the actual probative value of the evidence; they must be concerned with the potential probative value of the evidence on completion of the trial, as assessed by the trial judge at the time the admission of the evidence in question - what Spigelman CJ in Shamouil called the ‘capability’ of the evidence to affect the assessment of the probability of the existence of the fact in issue.”
Simpson J continued at 273 [160]-[162]:
“160 Where an item of evidence is capable of different interpretations, or is susceptible of ‘competing inferences’, its actual probative value will depend upon what interpretation is placed on it, or what inferences are actually drawn from it. It is no part of the judge's function to make that assessment. The function of the judge is to assess the extent to which the evidence has the capacity to bear upon the proof of the fact or facts in issue. This was the approach taken by James J, with whom Rothman and Harrison JJ agreed, in R v SJRC [2007] NSWCCA 142; his Honour said:
‘38 It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference (scil - inference) contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice.
39 It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn.’
161 Obviously, in determining the admissibility of evidence by reference to probative value, a trial judge is making the assessment on the basis of the information available at the time the question of admissibility is under consideration. In R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 and R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 I described the process as an exercise that is ‘predictive and evaluative’. The predictive element is not a prediction of what the jury will make of that item of evidence on completion of the evidence in the trial; it is a prediction of the potential value of the evidence when the mosaic of evidence is complete.
162 The exercise necessarily requires that the assessment of probative value, in that sense, be made on the basis that the evidence will be accepted as reliable and credible - that is, at its most favourable for the tendering party, or, as has been said, ‘at its highest’ (for example, Shamouil at [87]). That is in accordance with a long line of authority.”
Following an examination of authority, Simpson J said at 280 [196]-[197]:
“196 I am unable to accept that the existence of ‘competing inferences’ available to be drawn from (or alternative interpretations of) the proposed prosecution evidence has any part to play in the assessment of probative value for the purpose of s 137 of the Evidence Act. That is because of the different exercise required by (for example) s 98, and s 137. Section 98 requires an assessment of the significance of the probative value of the evidence tendered as coincidence evidence in the context of the whole of the case of the tendering party. That is why, in DSJ, it was held that the existence of alternative explanations could have a bearing on the significance of the probative value of the evidence.
197 Section 137 requires assessment of the probative value of the evidence without regard to other evidence in the Crown case (s 137 applies only to evidence tendered by the prosecution) but balanced against the danger of any unfair prejudice.”
With respect to ss.135 and 137 Evidence Act 1995, it is necessary to keep in mind the statement of McHugh J in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 325 [91] that evidence is not unfairly prejudicial “merely because it makes it more likely that the defendant will be convicted”. The relevant enquiry is whether the jury may misuse the evidence in some unfair way: Papakosmas v The Queen at 325 [91]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165].
Unfairly prejudicial evidence is not evidence that advances the Crown case or weakens the defence case, but is evidence that is dangerous to the defence case in some way: R v Suteski [2002] NSWCCA 509 at [116]. There must be a risk that the evidence will provide some irrational, emotional or illogical response or a risk of the evidence being given more weight than it truly deserves: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at 549-550 [51].
Improperly Obtained Evidence and s.138 Evidence Act 1995
The Accused bears the onus of establishing impropriety on an objection under s.138: Robinson v Woolworths Limited [2005] NSWCCA 426; 64 NSWLR 612 at 621 [33], 632 [106].
The Evidence Act 1995 does not define the concept of “impropriety”. The principles collected in Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 remain pertinent and those principles ought to be applied when considering whether conduct constitutes “impropriety” in a particular case: Robinson v Woolworths Limited at 618-619 [22]-[24], 622-623 [36]-[37], 631-632 [102]. In Robinson v Woolworths Limited, Basten JA (Barr J agreeing) said at 618-619 [23]:
“It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards. Thirdly, the concepts of ‘harassment’ and ‘manipulation’ suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced.”
Basten JA (Barr J agreeing) made the following observations at 622-623 [36]-[37] concerning the minimum standards test:
“In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety.
Before leaving these broad principles, it is necessary to note the indeterminacy of the test identified by reference to inconsistency with ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’: Ridgeway at 36. Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject. It is at least doubtful whether a majority of the Australian community would have shared the High Court’s view of the ‘entrapment’ of Mr Ridgeway: see for example, the comments of McHugh J at 85. The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion. (Of course, standards may themselves require scrutiny, but no relevant standard was identified in the present case.) And the test of such a case must involve judicial appraisal of all potentially relevant public policy considerations, being the task actually undertaken in Ridgeway. Appeals to ‘community standards’ will tend to substitute subjective reactions for careful analysis, albeit of ill-defined concepts.”
Dr Perlin explained that the way the system expresses the challenge to use all of the information results in a conservative approach, a negative log likelihood ratio (“LR”).
The probability statistics (LRs) provided in Dr Perlin’s updated report dated 21 March 2014, taking into account the higher theta value (co-ancestry coefficient), are reflected in the following table (MFI32, paragraph 76):
| Reference | Item 550 |
| Yun Bin LIN | 28.5 thousand times (Asian person) |
| 1.68 million times (Caucasian person) | |
| Yun Li LIN | 289 times (Asian person) |
| 15.7 thousand times (Caucasian person) | |
| Min LIN | 226 thousand (Asian person) |
| 367 million (Caucasian person) | |
| Henry LIN | 2.21 Billion times (Asian person) |
| 1.73 trillion times (Caucasian person) | |
| Terry LIN | 50.4 quadrillion times (Asian person) |
| 80.8 quintillion times (Caucasian) | |
| Item 47 [door handle] | Item 550 |
| Contributor to 550 matches a contributor to 47: 1.08 billion (relative to an Asian population) 1.4 trillion (relative to a Caucasian population) | |
| Item 223 [bedroom wall] | Item 550 |
| Contributor to 550 matches a contributor to 223: 4.29 million (relative to an Asian population) 7.33 trillion (relative to a Caucasian population) | |
| Item 616 [bedroom mattress] | Item 550 |
| Contributor to 550 matches a contributor to 616: 1.11 quadrillion (relative to an Asian population) 4.23 quintillion (relative to a Caucasian population) | |
Decision
I commenced an examination of this topic (at [234]-[239] above) by noting the competing approaches of the Accused and the Crown to the admissibility of evidence concerning Stain 91 and subsequent DNA analysis and LR evidence arising from Item 550.
It will be recalled that the Crown invited an approach which considered all matters bearing upon the relevance of this evidence, both scientific and non-scientific. The Accused, on the other hand, focused upon what were said to be particular weaknesses, or areas of vulnerability, with respect to discrete aspects of the scientific evidence.
The primary question to be considered is the issue of the relevance under ss.55-56 Evidence Act 1995.
It is necessary to identify the facts in issue in the trial to allow an assessment of the question whether the evidence, if accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact (the jury) of the probability of a fact in issue in the proceeding: Smith v The Queen at 654 [7] (at [150] above). The parties agree that the following formulation identifies the facts in issue for this purpose.
The ultimate fact in issue in the trial is whether the Accused committed the five alleged murders. The Crown contends that the stain on the garage floor (Stain 91) links the Accused to the crime scene because it is the blood of the deceased from that crime scene. If the jury was satisfied that the stain was mixed blood from the crime scene, the Crown contends that this is powerful evidence in the Crown case.
Questions of relevance require careful analysis, and identification of the process of reasoning that is invited: Evans v The Queen at 529 [23] (at [151] above).
Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised: Smith v The Queen at 653 [6]. The relevance test is to be given a broad ambit and the test is not a narrow or stringent one: Evans v The Queen at 546-547 [95]-[96] (at [152] above).
I have set out in some little detail the arguments advanced on the question of admissibility of this evidence. The further the Court has proceeded to assess the competing arguments, the clearer is the response, in my view, to the initial question concerning the relevance of the evidence.
It is necessary to keep in mind the areas of scientific and non-scientific evidence which bear upon the relevance issue. The non-scientific evidence should not be overlooked. Firstly, the Accused informed police that he had undertaken some cleaning of the garage floor on the morning of Saturday, 18 July 2009. That aspect presented both opportunity for the deposition of material (which may be said to relate to the crime scene), together with a stated desire to clean the garage floor at a time of some significance to the case. Secondly, there is the evidence of conversations said to have occurred between the Accused and Witness A, including the need to find explanations for blood on the garage floor.
These matters are not raised, of course, for the purpose of expressing any view concerning the weight to be given to this evidence. What they demonstrate, however, is that it would be erroneous to consider, in an unduly narrow fashion, the issue of relevance of the evidence concerning Stain 91 and the DNA evidence.
The submissions of the Accused are directed almost entirely to the reliability of the evidence and the weight to be attached to it. There is scope for argument concerning the strengths or weaknesses of various pieces of evidence along the way, commencing with the location of Stain 91 on the garage floor and concluding with the opinions expressed by Mr Walton, Dr Walsh and finally, Dr Perlin. These are, in truth, areas which may be challenged or explored in the presence of the jury, with the ultimate weight to be attached to the evidence, and the conclusions to be drawn from it, being matters for the jury.
I do not think that Armstrong v R assists the present objection. The present case involves far more than presumptive testing of blood.
Submissions which advance suggested alternative explanations or competing inferences with respect to the suggested presence of DNA of the deceased on the garage floor are not issues which bear upon the relevance objection (see [153] above).
I accept the common submission of the parties that it would be necessary for the jury to be satisfied beyond reasonable doubt that Stain 91 contained blood from the crime scene, for the purpose of evidence arising from this source operating against the Accused at trial. However, this issue is not to be determined solely by reference to the scientific evidence, with other areas of evidence already mentioned to be taken into account, together with such further evidence as may be adduced at the trial which bears upon that question.
I am not persuaded that any submission advanced by the Accused warrants the exclusion of evidence concerning Stain 91 and the DNA analysis and LR opinion evidence of Dr Perlin upon the basis that relevance has not been demonstrated for the purpose of ss.55 and 56 Evidence Act 1995.
The question of discretionary rejection of the evidence under ss.135 or 137 Evidence Act 1995 then arises.
As R v Burton at 266 [134] makes clear (see [156] above), s.137 requires two separate assessments and a judgment:
(a) an assessment of the probative value of the evidence sought to be adduced by the Crown;
(b) an assessment of the danger of unfair prejudice to the Accused that may be caused by its admission; and
(c) a judgment as to whether any such danger outweighs the probative value of the evidence.
This process has regard to the potential probative value of the evidence. The function of the Judge is to assess the extent to which the evidence has the capacity to bear upon the proof of the fact or facts in issue: R v Burton at 273 [160]-[161] (see [158] above).
The availability of alternative explanations or competing inferences are not to be taken into account (see extracts from R v Burton at [157]-[159] above).
Applying these principles, I assess the probative value of the Stain 91 and DNA evidence as being substantial.
An assessment of the danger of unfair prejudice involves the concept of “unfair prejudice” as explained in pertinent authorities (see [160]-[161] above).
Arguments which sought to challenge the reliability of the blood and DNA evidence, and the suggestion of alternative explanations or competing inferences, do not demonstrate the danger of unfair prejudice in this case.
Beyond those matters, the Accused pointed to a number of matters in support of discretionary exclusion under ss.135 or 137 (see [289]-[292] above).
I express my broad agreement with the Crown submissions made with respect to these issues, and make the following additional comments.
The fact that aspects of the scientific evidence, including DNA analysis and LR opinion evidence from Dr Perlin, may be complex is not a reason to exclude it. The Courts have recognised that the development of modern science has given rise to areas of evidence of some complexity in jury trials in the criminal courts. As is made clear in R v Karger at 44 [179], Aytugrul v The Queen at 183-187 [20]-[34] and R v MK at 583 [48], the complexity of evidence of this type is not a reason to exclude it.
The contemporary jury system operates upon the basis that a jury will be assisted by witnesses, counsel and the trial Judge in understanding expert evidence given, by appropriate examination and cross-examination by counsel, and the making of submissions by reference to the evidence by counsel, with the task of the trial Judge including the giving of directions to assist the jury by reference to the evidence and submissions.
It may be taken that there are aspects of this case which will require counsel and myself, as trial Judge, to undertake our respective duties in a careful and diligent manner. For the purpose of ruling upon the present objection, I will approach the issue upon the basis that the jury will receive that assistance in this trial.
The various criticisms of the testing process with respect to Stain 91, and the Crown responses to those criticisms, will no doubt be the subject of evidence before the jury, to assist the jury in its fact-finding function in that respect. Those are matters which may be explored before the jury, but do not warrant exclusion under ss.135 or 137: R v Ngo [2001] NSWSC 595; 122 A Crim R 467 at 469 [7].
The evidence of Mr Goetz, Ms Neville, Mr Walton, Dr Walsh or Dr Perlin does not, on its face, raise any question concerning the validation of the TrueAllele system. Indeed, the evidence of the Australian witnesses serves to fortify a conclusion that TrueAllele is accepted by objective experts in the field in this country. The evidence contradicts any suggestion that TrueAllele constitutes a “black box”, a concept floated in cross-examination, but not advanced in the submissions of the Accused. Validation is not a legal concept. It is a shorthand term which may be called in aid when evidence of this type may be challenged upon the basis that it involves new, or relatively new, scientific processes.
Absolute certainty of result or unanimity of scientific opinion is not required for admissibility: R v Gilmore [1977] 2 NSWLR 935 at 939-941.
The evidence adduced at the pretrial hearing provides strong evidence of validation of TrueAllele in the United States of America, and its use by well-known law enforcement agencies in that jurisdiction. The validation evidence is contained in Exhibit PTK2, and extends to a range of validation studies by reputable bodies. The validation studies include a study entitled “TrueAllele Genotype Identification on DNA Mixtures Containing up to Five Unknown Contributors” (February 2014) carried out by Cybergenetics and the Kern Regional Crime Laboratory, Bakersfield, California (Exhibit PTK2, Perlin, Tab 10). This study has direct relevance to the circumstances of the present case.
In addition, there is evidence of judicial determinations in the United States of America and the United Kingdom, where objections to evidence from Dr Perlin concerning TrueAllele analysis have been overruled. These aspects of the evidence fortify a conclusion that Dr Perlin’s evidence ought not be excluded upon the basis that it is, in some way, the product of a scientifically unformed or incomplete process not worthy of admission at a criminal trial. The evidence suggests the contrary.
I note that although Dr Perlin was cross-examined on these matters, no defence evidence was called or tendered which served to undermine the validation evidence adduced by the Crown.
The evidence from Mr Goetz, Ms Neville, Mr Clayton and Dr Walsh has a cumulative effect which supports its admission in the trial. No challenge was made to the credibility of these witnesses in the substantial pretrial hearing at which each was cross-examined in some detail. Each of these witnesses explained the processes undertaken by them in a manner which was, on the face of it, conservative and cautious.
The Accused has not called any witness at the pretrial hearing apart from Dr Hallam. The position is to be contrasted with other cases where defence expert witnesses were called to give evidence on voir dires concerning admissibility of DNA evidence: R v Karger; R v McIntyre; R v Gallagher [2001] NSWSC 462 and R v MK.
The evidence of Dr Walsh concerning similarities between Items 550 and 616 does not involve a statistical comparison. I am satisfied, however, that it constitutes admissible expert opinion evidence. Dr Walsh is highly qualified in the field. He explained, in some detail, the factors taken into account in his opinion concerning similarity. This conclusion is supported by R v Dlugosz, where the Court allowed non-statistical expert DNA evidence to be given. I am satisfied that the necessary foundation has been demonstrated for the purpose of s.79 Evidence Act 1995 for evidence of this type to be given, in particular by Dr Walsh.
Short conclusions may be expressed with respect to the Accused’s submissions concerning ss.135 and 137 (at [289] and [292] above).
As to [289](a), there is no evidence that Item 550 was, in fact, low template DNA. The evidence of Mr Goetz and Dr Walsh does not support this proposition.
As to [289](b) and (c), the evidence does not support a conclusion that TrueAllele “requires more work” and is “a work in progress”. The evidence reveals that the process is established and validated and has been used by reputable agencies and admitted into evidence in courts in other jurisdictions.
As to [292](a), the quality of the sample involved has permitted a range of detailed examinations to be undertaken, as illustrated in the evidence adduced at the pretrial hearing. Any issue concerning sample quality may be taken up, if considered appropriate, before the jury.
As to [292](b), the science involved is complex, but the courts have adjusted to this phenomenon, as cases such as R v Karger, Aytugrul v The Queen and R v MK illustrate. The jury is entitled to receive assistance from counsel and the trial Judge, with appropriate directions to be provided by reference to the evidence and submissions.
As to [292](c), the use of large numbers as part of the LR evidence resulting from the TrueAllele process will be a topic for explanation and assistance during evidence, submissions and directions to the jury: Aytugrul v R [2010] NSWCCA 157; 205 A Crim R 157 at 186 [162]; Aytugrul v The Queen at 186-187 [32], 203-204 [75].
As to [292](d), I do not detect readily a distinction between the CCS and the evidence, but any issue in this respect is capable of clarification in the course of the trial.
As to [292](e), I am not persuaded that there is a danger that the evidence might cause or result in undue waste of time so as to warrant exclusion under s.135(c). The evidence is not of peripheral relevance. It has significant probative value.
As to [292](f), I am not persuaded that there is a danger that the evidence might be misleading or confusing so as to warrant exclusion under s.135(b). It is to be expected that the evidence will be given in the manner foreshadowed during Dr Perlin’s evidence at the pretrial hearing. The presentation of the evidence, and its use at the trial, will involve the witness, counsel and myself as trial Judge, in assisting the jury with appropriate directions.
As to [292](g), the suggestion that there may be a need for a significant defence case is not a basis for excluding the Crown evidence. Nor does it assist with respect to the s.135 objection. The witnesses called by the Crown were cross-examined in detail at the pretrial hearing, so that the Accused ought be aware of the case he has to meet, and to adduce evidence in the defence case if it is considered appropriate to do so.
As to [292](h), the fact that there may be contrary or alternative approaches to statistical evidence does not point to exclusion of the Crown evidence. This topic was touched upon in cross-examination of Dr Perlin, with his responses referring to the work of Dr Mitchell and Professor Balding (PT1143-1148, 1157, 1159). No evidence was called by the Accused on these aspects.
Having undertaken the assessments under s.137 referred to in R v Burton at 266 [134], I record my judgment that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the Accused.
In summary, the evidence under challenge is relevant and admissible, and I am not satisfied that any discretionary basis has been demonstrated for its exclusion under ss.135 or 137 Evidence Act 1995.
I decline to make Orders 1, 2 or 3 as sought in the Accused’s Notice of Motion.
The Motive Issue
I have mentioned already that the parties have agreed concerning the surveillance device evidence to be admitted at trial. An issue which emerged in the course of closing submissions concerned the Crown’s intention to rely upon a new area concerning motive.
The Crown articulated this topic in a written submission (part MFI30) and in oral submissions on 14 April 2014 (PT1225-1229).
Thereafter, submissions were received for the Accused (dated 16 April 2014) and the Crown (dated 16 April 2014) on the motive issue.
There is, of course, no obligation upon the Crown to prove motive in the trial. It is not an element of the crime. However, a jury will ordinarily be directed that motive can be an issue in the trial and that the presence or absence of motive, or the nature of any motive suggested, may bear upon a determination as to whether the jury is satisfied beyond reasonable doubt that it was the Accused who killed the five deceased persons: De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at 92-93 [28]-[32]; R v Vjestica [2008] VSCA 47; 182 A Crim R 350 at 382-383 [112]-[115].
The CCS referred to a possible motive relating to the comparative perception of Min Lin being a success and the Accused a failure (see [134](i) above).
The Crown foreshadowed, by reference to transcripts of surveillance device material, an intention to rely upon a further suggested motive namely that the Accused had been in a relationship with Lily Lin, and that this may have constituted a motive to murder her and other members of her family. Objection was taken on behalf of the Accused to this matter being raised very late in circumstances where it was said that it was, at best, highly speculative.
The written submissions of the Crown indicate that it is not intended to open on this issue to the jury. The Crown wished to identify this as a motive which may be relied upon, depending upon the state of the evidence, so that the Accused was on notice of this prospect.
It may be said that this issue is being raised at a relatively late point in time given the history of this matter, and the apparent availability to the Crown of the material which is said to give rise to this possible motive.
The issue has been the subject of relatively brief written submissions. It remains an open question as to whether the Crown will seek to rely upon it at trial. The Accused is on notice that this may occur. The Crown will not advert to this issue in opening. It is not necessary to express a view on this issue at this time. However, the topic should not be raised in the trial without prior notification to the Accused and the Court, so that further submissions may be made on the issue.
Crown Application for Leave to Rely Upon Dr Perlin’s Material Served on 3 March 2014
In 2013, directions were given by Latham J, and later by me, with respect to the service by the Crown of evidence upon which it would seek to rely, including DNA evidence. Applications by the Crown to extend the timetable in this respect were met with resistance and criticism on behalf of the Accused.
The Crown requires an extension of time to rely upon Dr Perlin’s material served on 3 March 2014. The Accused opposes that grant of leave, pointing to the history of extensions of time during 2013 and the consequences of those extensions for the Accused. It is submitted that the Court should not accede to the Crown application for a further extension of time.
It is the case that a number of delays occurred during 2013, for reasons as to which there is some debate. Given the point that has been reached in the proceedings, I do not consider that much is to be gained by any detailed historical narrative with respect to events and orders in 2013.
Dr Perlin had been identified as a Crown witness in late 2013 and his first report served. The pretrial hearing commenced before me on 18 November 2013. Orders were made by me intended to progress the foreshadowed DNA pretrial hearing, then expected to occur in February 2014. Orders were made for the service of DNA evidence by the Crown and the Accused.
As it happened, issues surrounding the Accused’s legal representation saw a number of orders not being complied with.
During the course of the pretrial hearing in 2014, it was clear that senior counsel for the Accused was obtaining expert advice concerning the DNA evidence being given by the Crown witnesses, including Dr Perlin.
Dr Perlin’s additional material was served on 3 March 2014, some two weeks prior to the resumed pretrial hearing.
What transpired has involved not only the provision by the Crown of Dr Perlin’s reports to the defence, but an extended cross-examination of Dr Perlin as part of the pretrial hearing. This occurred over a number of days, when Dr Perlin was present in Sydney, with the cross-examination continuing by audio-visual link from Pittsburgh.
As mentioned earlier, the cross-examination of Dr Perlin was adjourned at one point when a further report was provided by him on 26 March 2014 in response to a defence request that he undertake certain work with respect to Ms AB. As Mr Turnbull SC made clear, expert advice was being obtained with respect to Dr Perlin’s reports, including the report provided as a result of a defence request.
Having had an opportunity to take advice in this respect, senior counsel for the Accused then continued and concluded a detailed cross-examination of Dr Perlin, on all matters upon which he sought to cross-examine the witness.
The Crown’s leave application must now be considered in the practical context whereby there has to be an opportunity for the Accused to test at length the evidence of Dr Perlin, together with the evidence of Mr Goetz, Ms Neville, Mr Walton and Dr Walsh.
It is submitted for the Accused that there is prejudice to him if the Crown is permitted to rely upon Dr Perlin’s further material for which leave is required. However, there is no articulated area of prejudice, let alone any evidence identifying what would need to be done by any defence expert, and pointing to difficulties with it being done in the context of this trial.
The trial is scheduled to commence on 8 May 2014. It has a four-month estimate. It may be expected that any DNA evidence to be adduced by the Crown will be called at least some weeks into the trial. The evidence of Dr Perlin was completed on 1 April 2014.
I am not persuaded that there is any actual prejudice to the Accused in the Crown having leave to rely upon this evidence. The Accused has had an opportunity to test the evidence at length and there is, in my view, time available for the Accused to meet this evidence.
I will grant leave to the Crown to rely upon the further material from Dr Perlin provided on 3 March 2014.
Conclusion
The evidence with respect to the Accused cutting up shoe boxes on 6 and 7 May 2010 is admissible, and I decline to exclude it under ss.135, 137 or 138 Evidence Act 1995.
The evidence concerning the location, examination and testing of Stain 91 and subsequent DNA analysis, including LR opinion evidence is relevant and admissible under s.55 Evidence Act 1995, and I decline to exclude it under ss.135 or 137 Evidence Act 1995.
I will hear further submissions on a suggested motive, based upon a contention that the Accused had been in a relationship with Lily Lin, if that motive is sought to be relied upon by the Crown.
I propose to grant the Crown leave to rely upon the further material from Dr Perlin served on the Accused on 3 March 2014.
The Accused’s Notice of Motion dated 18 November 2013 is dismissed.
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Amendments
17 February 2017 - Name deleted in a number of paragraphs.
28 February 2017 - Publication restriction on coversheet amended.
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