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.
The Accused’s Notice of Motion dated 18 November 2013 is dismissed.
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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Xie (No 4) [2014] NSWSC 500
Case
[2014] NSWSC 500
Decision Date
CaseChat Overview and Summary
In the case of R v Xie (No 4), the accused was indicted on five counts of murder of relatives of the accused's wife, who were killed in their sleep using a blunt instrument and by asphyxia. The Crown sought to present various pieces of evidence at the trial, including evidence of a blood stain found on the accused's garage floor, DNA analysis of the stain, and evidence of the accused cutting up shoe boxes. The accused objected to the admissibility of this evidence, arguing that it should be excluded under sections 135, 137, and 138 of the Evidence Act 1995. The court was required to determine whether the evidence was relevant and admissible and whether it should be excluded under the Evidence Act.
The court found that the evidence in relation to the possible blood stain found on the accused's garage floor and the subsequent DNA analysis of the stain was relevant and admissible under section 55 of the Evidence Act and declined to exclude it under sections 135 and 137 of the Evidence Act. The court also found that the evidence of the accused cutting up shoe boxes was admissible and declined to exclude it under sections 135, 137, or 138 of the Evidence Act. The court granted the Crown leave to rely on an additional report of a DNA expert. The court noted that further submissions would be heard on a suggested motive if the Crown sought to rely on it.
The court's decision was that the evidence objected to by the accused would be admitted at the trial. The court dismissed the accused's notice of motion and granted the Crown leave to rely on an additional report of a DNA expert. The court noted that further submissions would be heard on a suggested motive if the Crown sought to rely on it. This decision was significant as it determined the admissibility of key pieces of evidence in the case and allowed the trial to proceed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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])
Decision
Reasons for decision
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.**********