(i) The tender of Exhibit C1, being the report of Professor Peter Gill dated 25 October 2019, is rejected;
(ii) Exhibit A1, being the report of Dr Mark Perlin dated 19 May 2020, is admitted but, pursuant to s 136 of the Evidence Act 1995, the use of that report is limited to Ground 8 of the appeal;
(iii) The oral evidence of Dr Mark Perlin given on 25 June 2020 and 29 June 2020 is admitted but, pursuant to s 136 of the Evidence Act 1995, the use of that evidence is limited to Ground 8 of the appeal;
(iv) Paragraphs 1 to 4 of the affidavit of Frances Low affirmed 19 June 2020 and their annexures are admitted but, pursuant to s 136 of the Evidence Act 1995, the use of that evidence is limited to Ground 8 of the appeal;
(v) Leave to raise Grounds 1, 5, 6 and 8 of the appeal is refused;
(vi) Leave to raise Grounds 2, 3, 4 and 7 of the appeal is granted;
(vii) Appeal dismissed.
Catchwords:
CRIME – murder – conviction appeal – lengthy trial – appellant convicted of five counts of murder – killing of his wife’s relatives in nearby home
CRIMINAL TRIAL – accusatory and adversarial process – role of appellant court – appellant court not forum to retry case, reformulate cases presented by parties at trial or speculate how cases might have been conducted differently – grounds for admission of new evidence on appeal – related to grounds of appeal - DNA evidence lead at trial sought to be challenged on basis of new evidence lead on appeal - new evidence not “fresh” and did not establish innocence of accused or give rise to reasonable doubt – HELD evidence not admissible in relation to challenge to admission and use of DNA evidence - evidence was admissible to the extent it related to allegation of incompetence by trial counsel.
DNA EVIDENCE – stain containing DNA from multiple contributors found in appellant’s garage – use of probabilistic computer analysis known as “TrueAllele” to determine likely contributors – prosecution contended four victims’ DNA present – at trial defence accepted DNA of three victims present but contended DNA from relative overseas at time of killing also present – new case on appeal – admissibility of analysis and evidence from expert challenged on different basis – contended that expert not qualified and software not appropriately validated – contended that evidence otherwise misleading – prosecutor’s fallacy – evidence sought to be challenged on basis of new evidence lead on appeal - HELD – evidence properly admitted at trial– alleged lack of validation not relevant to admissibility under s…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Xie v The Queen [2021] NSWCCA 1
Case
[2021] NSWCCA 1
Decision Date
CaseChat Overview and Summary
In the case of Xie v The Queen, the appellant appealed against his conviction for five counts of murder, following a lengthy trial. The appellant was found guilty of murdering his wife’s relatives in a nearby home. The appeal presented multiple grounds, including challenges to the admission and use of DNA evidence, the trial judge's directions to the jury, the trial judge’s summing up, the accuracy of the alibi evidence, the admission of coincidence evidence, and the conduct of trial counsel. The High Court was tasked with determining whether any of these grounds constituted a miscarriage of justice.
The court considered whether the admission and use of DNA evidence was appropriate, given the challenges raised about the expert's qualifications and the validation of the software used. The court found that the evidence was properly admitted and that the alleged lack of validation did not impact its admissibility under the Evidence Act. The court also evaluated whether the trial judge's direction on the reliance on forensic evidence and the absence of a direction on hypothetical reasons for the appellant's conduct constituted a miscarriage of justice. Additionally, the court assessed the trial judge's summing up and the accuracy of the alibi evidence presented. Finally, the court examined whether the admission of certain coincidence evidence and the conduct of trial counsel amounted to a miscarriage of justice.
The court held that none of the grounds presented constituted a miscarriage of justice. The DNA evidence was properly admitted and did not establish innocence or reasonable doubt. The trial judge’s directions and summing up were found to be accurate and balanced, reflecting the cases as presented at trial. The alibi evidence was accurately summarised, and the coincidence evidence was correctly admitted due to its significant probative value. The conduct of trial counsel did not occasion a miscarriage of justice given the context and material available at the time.
The appeal was dismissed, and the convictions and sentences were affirmed.