Xie v The Queen - [2021] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Xie v R [2021] NSWCCA 1
Hearing dates: 22 June 2020 to 1 July 2020
Date of orders: 15 February 2021
Decision date: 15 February 2021
Before: Bathurst CJ
R A Hulme J
Beech-Jones J
Decision:
(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 79 of the Evidence Act – assuming trial judge refused to allow questioning on voir dire about validation then trial judge was correct to do so – prosecutor’s fallacy not established – misleading nature of evidence not established - new evidence not “fresh” and did not establish innocence of accused or give rise to reasonable doubt – evidence not admissible in relation to challenge to admission and use of DNA evidence
“CSI” DIRECTION – contended that trial judge erred in directing jury not to expect all issues to be answered by forensic analysis – whether direction had tendency to divert jury from considering evidence and whether guilt established beyond reasonable doubt – HELD – no miscarriage of justice established – ground rejected
CONSCIOUSNESS OF GUILT – prosecution relied on conduct of accused on day of killing and period thereafter as consciousness of guilt – contended that trial judge erred in failing to direct jury about the hypothetical reason he might have engaged in the alleged conduct – in one case accused provided reason and in other case accused denied the conduct – no application made to trial judge for further direction - HELD – direction not required – where accused provided reason for engaging in alleged conduct suggested hypothetical reasons added nothing – where accused denied conduct suggested direction had real tendency to undermine denials – as for balance of conduct said to support consciousness of guilt contended that trial judge’s summing up was unbalanced in favour of the Crown - contended that trial judge failed to put the “real defence case” – no redirection sought- HELD – no miscarriage of justice established – summing up accurately reflected parties case as presented at the trial – leave to raise ground refused.
ALIBI – appellant contended that he was asleep with his wife when killings occurred – alleged that trial judge’s summary of the alibi evidence was inaccurate and directions were unbalanced – no redirection sought- HELD – complaint not established – leave to raise the ground refused
COINCIDENCE EVIDENCE – Crown contended that murder weapon was “hammer like device” – folded cloth and rubber band found at crime scene covered in victims’ blood – Crown contended that it covered murder weapon – “improvised massage device” found at appellants’ premises – covered with folded cloth and rubber band – similar depressions on each cloth – contended that evidence of massage device wrongly admitted as coincidence evidence – HELD – evidence correctly admitted – sufficient similarities to establish evidence had significant probative value – conclusion not rebutted by dissimilarities – no prejudicial effect establish – ground rejected
MISCARRIAGE ARISING FROM CONDUCT OF TRIAL COUNSEL – contended that conduct of appellant’s counsel occasioned miscarriage of justice – conduct to be assessed in the context of the trial as it unfolded and the material available to counsel – particulars of ground reflected other grounds – HELD – no miscarriage of justice demonstrated

Legislation Cited:
Children’s (Criminal Proceedings) Act 1987
Criminal Appeal Act 1912
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986
Evidence Act 1995 (NSW)

Cases Cited:
A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
Ali v R [2005] HCA 8; (2005) 214 ALR 1
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Aytugrul v R (2012) 247 CLR 170; [2012] HCA 15
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Broadhurst v The Queen [1964] AC 441
Cesan v DPP (Cth) [2007] NSWCCA 273; (2007) A Crim R 385
Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
Chen v R [2018] NSWCCA 106
Doheny and Adams [1997] 1 Cr App R 369
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GBF v The Queen [2020] HCA 40
Hanna v R [2017] NSWCCA 168
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Matthews v R [2013] NSWCCA 187
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
Morgan v R [2011] NSWCCA 257; (2011) 215 A Crim R 33
MRW v R [2011] NSWCCA 260
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573.
Nudd v R [2006] HCA 9; (2005) 225 ALR 161
Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
R v Atkins (2009) EWCA Crim 1876
R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
R v Cook [2004] NSWCCA 52
R v Denis Adams (No 2) [1998] 1 Cr App R 377
R v Denis Adams [1996] 2 Cr App R 467
R v Finnan [2005] VSCA 151
R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487
R v Galli [2001] NSWCCA 504; (2001) 127 A Crim R 493
R v Gardner [2004] EWCA Crim 1639
R v GK [2001] NSWCCA 413; (2001) 125 A Crim R 315
R v Heyde (1990) 20 NSWLR 234
R v Keir [2002] NSWCCA 30; (2002) 127 A Crim R 198
R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174
R v MK [2012] NSWCCA 110; (2012) 223 A Crim R 672
R v Robinson [2003] NSWCCA 188
R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167
R v Xie (No 12) [2015] NSWSC 2124
R v Xie (No 4) [2014] NSWSC 500
R v Xie [2017] NSWSC 63
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
Selby v R [2017] NSWCCA 40
Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46
Tuite v The Queen (2016) 49 VR 196; [2015] VSCA 148
Vella v R; Siskos v R [2015] NSWCCA 148
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Texts Cited:
D Hodgson, “A Lawyer looks at Bayes Theorem” (2002) 76 ALJR 109

Category: Principal judgment
Parties: Lian Bin Xie (Appellant)
The Crown (Respondent)
Representation:
Counsel:
B Rigg SC; T Quilter (Appellant)
AM Mitchelmore SC; CB Curtis (Crown)
Solicitors:
Legal Aid NSW (Appellant)
Director of Public Prosecutions (Crown)

File Number(s): 2011/147183
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Citation:

[2017] NSWSC 63

Date of Decision:

13 February 2017

Before:

Fullerton J

File Number(s):

2011/147183

HEADNOTE

[This headnote is not part of the Court’s reasons for judgment]

On 11 May 2011 the appellant was charged with the murder of his wife’s sister, Lily Lin, her husband, Min Lin, their two sons, Henry and Terry Lin, and Lily Lin’s sister, Irene Lin. Their badly beaten bodies were discovered at their home in Boundary Road, North Epping on the morning of 18 July 2009. The appellant lived with his wife and their child in Beck Street, North Epping which was 300 metres from the home at Boundary Road.

The appellant stood trial in the Supreme Court before Johnson J and a jury twice in 2014 but both trials were aborted. He was tried again before Fullerton J and a jury in 2015 but the jury was discharged after being unable to reach a verdict. He underwent a fourth trial in 2016 before Fullerton J. On 12 January 2017, a jury of 12 returned majority verdicts on each of the five counts of murder. He was subsequently sentenced to life imprisonment. He appealed his conviction but did not appeal his sentence.

The Crown case against the appellant was circumstantial. It had three broad steps. First, the Crown sought to exclude the possibility that the murders were the result of a robbery, theft, or sexual assault “gone wrong”. Second, the Crown sought to prove that they were the work of a single assailant. Third, the Crown sought to prove that the appellant was the single assailant.

In relation to the third step, the prosecution relied on twelve circumstances. One of those circumstances concerned DNA extracted from a stain found in the appellant’s garage during the execution of a search warrant in May 2010 (“Stain 91”). The prosecution contended that Stain 91 contained the DNA of at least four of the victims which it contended was only explicable on the basis that it was brought back to the Beck Street home by the appellant on the night of the murders and transferred from some item to the garage floor. The Crown adduced evidence from an expert witness, Dr Mark Perlin, which included the results of the application of the “TrueAllele” software that he developed. TrueAllele performs a probabilistic analysis of mixed DNA samples. After a voir-dire before the first trial, Johnson J held that this evidence was admissible. A further challenge to its admissibility was made before Fullerton J.

As part of the challenge to Dr Perlin’s evidence, on appeal the appellant sought to tender a report from an expert, Professor Peter Gill, and tender certain reports concerning the validation of TrueAllele. A responsive report from Dr Perlin was also sought to be tendered and he was cross examined. All of this evidence was received by the Court provisionally.

Another circumstance relied on by the Crown was various post offence conduct of the appellant that it said demonstrated a consciousness of guilt. In addition, over objection, the Crown adduced, as coincidence evidence, evidence that the appellant constructed a “massage device” that included a cloth covering bound by a rubber band similar to a bloodied cloth found at the murder scene that the Crown contended covered the implement used as the murder weapon. The Crown also sought to rebut an alibi of the appellant to the effect that at the time of the killings he was in bed with his wife.

The principal issues on the appeal were:

Whether Johnson J erred in admitting the evidence of TrueAllele’s results and whether the scope of that ruling extended to the opinions expressed by Dr Perlin in explaining those results;
Whether the trial judge (Fullerton J) refused to allow cross examination on a challenge to the admissibility of the TrueAllele results and Dr Perlin’s opinions explaining those results on the basis that TrueAllele was not appropriately validated and, if so, whether her Honour erred in doing so;
Whether the admission and use of evidence of TrueAllele’s results and Dr Perlin’s opinions explaining those results occasioned a miscarriage of justice;
Whether the new evidence from Dr Perlin, Professor Gill and certain reports concerning the validation of TrueAllele were admissible on appeal;
Whether the trial judge erred in giving the jury a direction about the “CSI” effect namely they should not speculate in the event the forensic analysis of the primary crime scene left questions unanswered;
Whether, in directing the jury about consciousness of guilt, the trial judge erred in failing to include hypothetical explanations for the conduct of the accused relied on by the Crown;
Whether the summing up of the trial judge in relation to factual matters concerning the conduct of the appellant said to constitute a consciousness of guilt was unbalanced in favour of the Crown;
Whether the summing up of the trial judge in relation to the appellant’s alibi was unbalanced in favour of the Crown;
Whether the coincidence evidence was wrongly admitted;
Whether the conduct of the appellant’s trial by his counsel constituted a miscarriage of justice.

Held, dismissing the appeal (per the Court)

As to issues (i), (ii) and (iii):

To the extent that the Appellant’s complaints about the admissibility of True Allele’s results and Dr Perlin’s opinions explaining them were based on an assertion that TrueAllele was not appropriately validated then they did not raise an issue under s 79 of the Evidence Act 1995 (NSW) (at [258] and [301]).
Tuite v The Queen (2016) 49 VR 196; Chen v R [2018] NSWCCA 106 applied; Honeysett v The Queen (2014) 253 CLR 122; IMM v The Queen (2016) 257 CLR 300; R v Tang (2000) 65 NSWLR 681 considered;
The complaint that the ruling of Johnson J involved a misconstruction of the facts and a failure to take in account material considerations was misconceived (at [371], [374], [376] to [377]). The scope of that ruling extended to the evidence given by Dr Perlin at the 2016 trial before Fullerton J (at [353] to [354]).
Assuming without deciding that the trial judge refused to allow questioning on a voir-dire about the admissibility of Dr Perlin’s evidence at the 2016 trial, her Honour did not err in doing so. The objection to Dr Perlin’s evidence was confined to a complaint about validation (at [385]) and that objection did not raise any issue under s 79 of the Evidence Act (at [389]).
Otherwise, no miscarriage of justice was demonstrated by reason of the admission and use of the results of TrueAllele and Dr Perlin’s opinions explaining those results (at [412]).

As to issue (iv):

The power conferred by s 12(1) of the Criminal Appeal Act 1912 to receive further evidence is not free-standing but must be exercised having regard to the particular ground of appeal (at [437]). If what is sought to be done by the ground of appeal is “contradict … the jury’s verdict” then the rules concerning fresh or new evidence are engaged (at [438]).

Cesan v DPP (Cth) [2007] NWCCA 273; (2007) A Crim R 385 considered;

Where it is alleged that the conduct of counsel at the trial occasioned a miscarriage of justice then there is scope for the admission of evidence concerning the material available to counsel when they committed the relevant act or omission said to have caused the miscarriage (at [439]).
Nudd v R [2006] HCA 9; (2005) 225 ALJR 161; Vella v R; Siskos v R [2015] NSWCCA 148 considered;
Each of the additional evidence of Dr Perlin, the report of Professor Gill and the reports concerning the validation of TrueAllele were sought to be tendered on appeal to contradict the jury’s verdict. They were not fresh evidence in that they were available at the time of the trial with the exercise of reasonable diligence and were not otherwise “new” in that they did not demonstrate that the appellant was innocent or that guilt was not established beyond reasonable doubt (at [434],[440], [442] and [443]). However, the additional evidence of Dr Perlin and the validation reports were relevant to the allegation that the conduct of the trial by the appellant’s counsel occasioned a miscarriage of justice. They were admitted for that limited purpose (at [441] and [443]). The tender of Professor Gill’s report was rejected (at [442]).
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35; MRW v R [2011] NSWCA 260 applied.

As to issue (v):

To determine whether a miscarriage of justice was occasioned it is necessary to consider the summing up as a whole (at [460]).
Selby v R [2017] NSWCCA 40; A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 applied.
Having regard to the directions as a whole, it was not established that there was a risk of the jury being diverted from a proper assessment of the evidence from the primary crime scene (at [464]).

As to issue (vi):

In directing a jury in relation to post offence conduct said to establish a consciousness of guilt, any hypothetical explanation for the conduct that is specified should be one that might reasonably arise from the facts and circumstances of the case (at [509]) and should not diminish the force of any actual explanation for the conduct provided by an accused (at [510]).
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; R v Cook [2004] NSWCCA 52; R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 considered and applied;
The suggested hypothetical explanations the trial judge should have provided to the jury were either encompassed by the actual explanation the appellant gave for the conduct, did not reasonably arise on the facts of the case or, to the extent the appellant denied the conduct, would have had a real tendency to undermine that denial (at [516] to [518]).

As to issues (vii) and (viii):

The trial judge was obliged to sum up the case presented by each of the prosecution and the accused and to do so accurately and fairly (at [525] and [607]). It was not the function of the trial judge to direct the jury on what was asserted on appeal to be the “real defence case” (at [621] and [636])
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5; Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 applied;
The trial judge complied with this obligation in summing up concerning the conduct of the appellant relied on as consciousness of guilt and the appellant’s alibi (at [683] and [749] respectively).

As to issue (ix):

It is a matter for the appellant court to determine whether coincidence evidence has significant probative value (at [777]).
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 applied.
In determining whether evidence sought to be tendered as coincidence evidence has significant probative value, it is necessary to inquire whether there is evidence capable of establishing the occurrence of two more events and there is evidence capable of establishing similarities (at [780).
R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487 applied
The existence of dissimilarities is not critical to a determination of whether the evidence has significant probative value (at [781]).
Selby v R [2017] NSWCCA 40 applied.
The coincidence evidence was rightly admitted. The various dissimilarities suggested on appeal did not deny the significant probative value of the evidence (at [799] and [807]).

As to issue (x):

In assessing whether the conduct of trial counsel occasioned a miscarriage of justice, the relevant standard is whether or not the conduct was incapable of rational explanation on forensic grounds (at [415]).
Nudd v R [2006] HCA 9; (2005) 225 ALR 161; Hanna v R [2017] NSWCCA 168 applied
Many of the particulars of the alleged incompetent conduct concerned aspects of the grounds of appeal which were not made out (at [427] to [430] and [868]). It was not established that counsel’s conduct was incapable of rational explanation (at [426], [833], [844], [854] and [867]).

CONTENTS

PART 1: Background 11

Friday 17 July 2009 14

Saturday 18 July 2009 20

Location of the Bodies 35

Police Investigation 36

PART 2: The Crown Case 43

PART 3: The Defence Case 72

PART 4: Dr Perlin’s Evidence and Stain 91 87

Discovery of Stain 91 91

Mr Walton’s Evidence on DNA Testing 93

Reporting Results 100

Mr Walton’s Evidence on Stain 91 106

Dr Perlin’s Evidence 115

Dr Perlin’s Qualifications 117

TrueAllele’s Determination of Match Statistics 120

Reproducible Results 141

TrueAllele’s Determination of Contribution Levels 142

Match Statistics for Stain 91 and Minh, Henry and Terry Lin 143

Match Statistics for Irene and Lily Lin 151

Brenda Lin, Shadowing and the Table of Match Statistics 155

The Appellant’s DNA 169

Number of Contributors 170

Validation of TrueAllele 171

Other Aspects of the Cross-Examination 176

Further Evidence of Mr Walton 177

The Addresses 178

Trial Judge’s Summing Up 182

PART 5: Criticisms of the DNA Evidence on Appeal 186

Superior Matching Genotypes Allegedly Ignored 188

Small Probabilities at an Individual Locus and Unreliable Results for Small

Contributions 211

Multiple Match Statistics for Inferred Genotypes and “Separation” 214

Evidence at First Instance 217

Evidence on Appeal 224

Reporting of Match Statistics and Shadowing 226

Dr Perlin’s Approach to Reporting Match Statistics 229

Appellant’s Contention 236

TrueAllele Results for Identifiler and Profiler Plus 253

Dr Perlin’s Qualifications to Express Opinions and Validation 257

Voir Dire Evidence of Validation 259

The 2016 Trial 272

Evidence on Appeal about Validation 279

Oral Evidence on Appeal 284

Complaint made on Appeal: Qualifications, Validation and Admissibility 287

Alleged Incorrect Description of Validation Studies 303

Prosecutor’s Fallacy 307

Professor Gill’s Appeal Report 319

Identification Evidence 331

Inverting the Match Statistic 335

PART 6: Grounds 1 to 3 and Part of Ground 8 – DNA Evidence

Ground 1: Johnson J erred in admitting the evidence of Dr Perlin 345

Scope of the Ruling 346

Basis for the Ruling 355

Applicant’s Contentions: Dr Perlin’s Qualifications and Substantial

Probative Value 356

Appellant’s Contentions: Mistaken Facts and Material Considerations 368

Conclusion on Ground 1 379

Ground 2: Absence of a Voir Dire and Admissibility 380

The Application to the Trial Judge 381

Arguments on Appeal 390

Conclusion in Respect of Ground 2 393

Ground 3: Miscarriage of Justice394

Conclusion 412

Ground 8 and DNA Evidence 413

Particular (vi): The Concession that Min, Terry and Henry Lin’s

DNA was Present in Stain 91 414

Particular (i): Prosecutor’s Fallacy 427

Particular (ii): Expansion of Johnson J’s Ruling 428

Particular (iii): Cross-examination of Dr Perlin 429

Particulars (iv) and (v): Validation Studies 430

Balance of Ground 8 431

Rulings on Evidence Adduced on Appeal 432

Ruling on Dr Perlin’s Evidence 440

Ruling on Professor Gill’s Appeal Report 442

Ruling on Part of the Affidavit of Frances Low Affirmed 19 June 2020 443

Accusations Against Dr Perlin 444

PART 7: Ground 4 – the “CSI Effect” 445

Appellant’s Submissions 451

Crown Submissions 455

Consideration 458

PART 8: Ground 5 – Consciousness of Guilt 466

Ground 5(a) 470

Destruction of shoeboxes 474

Witness A and Plan B 480

Submissions in relation to Ground 5(a) 482

Principles applicable to Ground 5(a) 491

Determination of Ground 5(a) 511

Ground 5(b) 524

The appellant’s broad submissions in respect of Ground 5(b) 528

Topic A – Phone calls to Kathy Lin – Kathy Lin and Appellant have to

Discover the Bodies 532

The issue 533

The summing up 538

Appellant’s submissions 542

Consideration 545

Topic B – XX being Told to Stay in the Car 548

The summing up 551

Appellant’s submissions 552

Consideration 553

Topic C – Entry to Bedroom 1 556

The issue 559

Summing up 579

Submissions 582

Consideration 584

Topic D – Insufficient Effort to Check the Children 593

The issue 594

Summing up 601

Submissions 604

Consideration 607

Topic E – Leaving Kathy Lin 610

Crown case in closing address 615

Defence case in closing address 617

Appellant’s submissions 618

Consideration 627

Topic G – Discovery of Min Lin’s Body 638

The Crown submissions 655

Appellant’s submissions 662

First Aspect   664
Second Aspect   668
Third Aspect   670

Consideration 675

Conclusion in Relation to Ground 5 683

PART 9: Ground 6 – Alibi Direction 684

Crown Case in Relation to Alibi 686

Defence Case in Relation to Alibi 694

Submissions 698

One “yeah” or Two? 702

“Repeated suggestion that Witness A had no means to know, so as to be motivated to make up the unrecorded conversation, that it could be of

interest to the police” 713

Sundry Matters Concerning the Summing Up in Relation to Alibi 732

Discrimination in Treatment of the Evidence of Kathy Lin and

Witness A 733

The Judge Only Referred to Defence Arguments that were Ridiculous 737

The Judge Failed to Refer to Some Evidence Favouring the Defence 742

The Judge Failed to remind the Jury What the Appellant said in

Police Interviews 744

Conclusion as to Ground 6 748

Part 10: Ground 7 – Coincidence Evidence … 751

Evidence 756

The Murder Weapon 757

The Appellant’s Massage Device 768

The Massage Device and Coincidence Reasoning 769

Trial Judge’s Directions 773

The Statutory Provisions 774

Case Law 776

Submissions and Consideration 783

(1) Only two events 785 (2) The obscurity of one of the events 786

(3) The asserted similarities not compelling 794

(4) Differences in uses and other dissimilarities 797

The balancing exercise in s 101(2) 800

Conclusion 807

PART 11: Balance of Ground 8 – Conduct of Counsel 809

Particular (vii): Failing to understand and rationally respond to the Crown Case regarding “Plan A” and “Plan B” 813

Particular (viii): Failing to understand the chronology of Witness A’s disclosure to police about the alleged “sedation” conversation 834

Particular (ix): Putting to Witness A that alleged inculpatory conversations with the appellant had occurred 845

Particular (x): Failure to advance any submission against the Crown argument that the appellant had impliedly admitted to Witness A, in a recorded conversation, that he had disposed of the murder weapon on the way to pick up [the grandparents] 856

Particular (xi): Failure to seek correction to her Honour’s summing up in relation to the issues raised in connection with Ground 5 868

Particular (xii): Failure to seek correction to her Honour’s summing up in relation to the issues raised in connection with Ground 6 868

Conclusion 869

PART 12: Disposition 870

Judgment

THE COURT: On the morning of 18 July 2009, police were called to attend a four‑bedroom home on Boundary Road, North Epping, a suburb in the north west of Sydney. On the second floor of the home they were confronted with a scene of unspeakable brutality. Spread across three bedrooms were the bludgeoned bodies of five members of the Lin family: Min (Norman) Lin and his wife Yun Li (Lily) Lin, Lily’s younger sister Yun Bin (Irene) Lin, and Min and Lily’s two sons, Henry Lin and Terry Lin. At the time of their deaths, Henry and Terry were aged 12 years and 9 years respectively. Their 15‑year‑old sister, Brenda Lin, [1] was not home. She had travelled to New Caledonia on a school excursion. [2]
1. The publication of the name of Brenda Lin is not prohibited by s 15A(1) of the Children’s (Criminal Proceedings) Act 1987 because she has consented to that publication pursuant to s 15D.
2. Trial Tcpt 649.
Min Lin had a younger sister, Kathy Lin. Kathy Lin and her husband, Lian Bin (Robert) Xie, lived nearby on Beck Street, North Epping with their son, XX. [3] Robert Xie is the applicant for leave to appeal against his conviction. (As leave will be granted, he will be referred to as the appellant.) After an intensive police investigation, on 11 May 2011 he was charged with five counts of murder. He stood trial in the Supreme Court before Johnson J and a jury twice in 2014 but both trials were aborted (the first and second 2014 trials respectively). He was tried again before Fullerton J and a jury in 2015 but the jury was discharged after being unable to reach a verdict (the 2015 trial).
3. Pursuant to s 15A(1) of the Children’s (Criminal Proceedings) Act 1987, the publication of the name of the appellant’s son is prohibited.
On 28 June 2016, the appellant was arraigned before Fullerton J and a jury panel. He pleaded not guilty and his fourth trial commenced with a jury of 15 (the 2016 trial). The jury was reduced to twelve persons just prior to deliberations commencing. On 12 January 2017, majority verdicts of guilty were returned on all counts. As an indication of the size and complexity of the 2016 trial, the summing up took place over eight days between 15 December 2016 and 29 December 2016. The transcript of the trial runs to 6,465 pages.
On 13 February 2017, Fullerton J sentenced the appellant to imprisonment for life; that is, for the term of his natural life (R v Xie [2017] NSWSC 63).
The appellant appeals his convictions on eight grounds. The first three grounds of appeal concern the admission and use of certain evidence from an expert witness, Dr Mark Perlin, concerning the likely contributors to a stain containing DNA from multiple persons that was found in the appellant’s garage (“Stain 91”). (The swab taken from Stain 91 became known as “item 550” [4] ). Grounds 4, 5 and 6 complain about aspects of the trial judge’s summing up at the 2016 trial. Ground 7 concerns the admission of coincidence evidence concerning similarities between a homemade massage device and an item the Crown theorised was the murder weapon. Ground 8 contends that, in various respects that mostly correspond with parts of Grounds 1 to 7, the appellant’s counsel at the 2016 trial was incompetent such that a miscarriage of justice was occasioned by his acts and omissions.
4. Trial Tcpt 4022.26.
In considering those grounds it must be borne in mind that a criminal trial is an accusatory and adversarial process in which the prosecution and the defence, not the Court, are responsible for determining the issues in the trial and the evidence to be adduced (Ratten v The Queen (1974) 131 CLR 510 at 517; [1974] HCA 35; “Ratten”; TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [106] per Hayne J; “TKWJ”). Further, the forum for the identification and resolution of those issues is the trial before the jury and not the appellate court. Leaving aside the form of review undertaken by this Court when it is contended that a verdict of guilty is “unreasonable, or cannot be supported, having regard to the evidence” (Criminal Appeal Act1912, s 6(1)), which was not the case here, in addressing whether a trial was unfair this Court does not conduct its own form of retrial, does not reformulate the issues of fact identified by the parties at the trial and generally does not speculate about how the conduct of the trial might have been conducted differently or better. The principles governing an appeal from a conviction to this Court admit of exceptions to this such that, in some circumstances, issues and evidence that were not raised at trial can be raised and adduced on appeal respectively. However, those exceptions are limited.
The evidence the subject of challenge by Grounds 1 to 3 and parts of Ground 8 concerns the outcome and meaning of a computer based probabilistic analysis of a mixed DNA sample. The deployment of such evidence in a criminal trial might be considered novel, even controversial. Whether or not that is so is of no present relevance. This Court was obliged to consider the challenges to that evidence in a context where that evidence was not contradicted by other evidence at the 2016 trial and only partly challenged by other evidence sought to be adduced on appeal. As explained below, the bulk of the complaints raised on behalf of the appellant in relation to this evidence concern matters that were not raised at the 2016 trial and in many respects involve an attempt to unravel decisions made by the counsel who appeared for the appellant at that trial. In this Court, the appellant sought to overcome the difficulties that raises by attempting to invoke the exceptions just noted and otherwise contending that his counsel’s conduct of the trial caused a miscarriage of justice. For the reasons set out below these attempts, along with the complaints about the admissibility and use of evidence from Dr Perlin, must be rejected.
A similar difficulty arises with part of ground 5(b) which complains about the fairness of a factual summary provided by the trial judge to the jury concerning various aspects of the appellant’s conduct that the Crown contended demonstrated a “consciousness of guilt”. One theme of the appellant’s submissions in respect of this ground was that the trial judge failed to put the “real defence case” to the jury. [5] This was not a reference to the case run on behalf of the appellant at the 2016 trial but to a different characterisation of the evidence formulated on appeal. However, it was no part of the trial judge’s function to discern some different case and direct the jury accordingly. In McKell v The Queen (2019) 264 CLR 307 (“McKell”) Bell, Keane, Gordon and Edelman JJ discussed the (limited) circumstances in which a trial judge might comment on the facts of a case in the context of the “duty of a trial judge to assist the jury with a fair and accurate statement of the case presented by the parties” (at [48]). In any event, for the reasons set out below the trial judge’s summing up in this respect was not unfair or lacking in balance.
5. See for example Applicant’s Third Written Submissions filed 1 April 2019 (AWS3) at [76ff], and [618] below.
As explained below, the complaints made in relation to ground 6 which concern the trial judge’s directions to the jury in respect of the appellant's alibi were also not raised at the trial. Even allowing for that we do not consider that any miscarriage of justice was occasioned by those directions or by the directions the subject of complaint by grounds 4 and 5(a). We conclude that the coincidence evidence the subject of complaint by ground 7 was admissible. We reject the contention raised by ground 8 that the conduct of the appellant’s counsel at the 2016 trial occasioned a miscarriage of justice. It follows from these conclusions that the appeal against conviction must be dismissed.
To explain these conclusions, it is first necessary to outline some of the factual circumstances concerning the killings, as well as the Crown and defence cases.

PART 1: Background

Min Lin was 45 years old at the time of his death and his wife Lily Lin was 44 years old. They migrated separately to Australia from the Peoples Republic of China (the “PRC”) in 1989. They were married in July 1995 and had three children: Brenda, born the previous year, Henry, born in 1997 and Terry, born in 2000. Lily Lin’s sister Irene Lin was 39 years old at the time of her death. She entered Australia in 2008 on a student visa and lived with the Lin family. [6] For a number of years Min and Lily Lin operated the Epping Central Newsagency on Rawson Street, Epping.
6. Ex AE.
At the time of the killings Kathy Lin, Min Lin’s sister, and the appellant were 40 years old and 45 years old respectively. They were married in the PRC in December 1998. By that time Kathy Lin had migrated to Australia. The appellant came to Australia on a spouse visa the following year. XX was born in 2000. [7]
7. Ex AE.
Min and Kathy Lin’s parents, Yang Fei Lin and Feng Quin Zhu (the “grandparents”), migrated to Australia from the PRC in 1996. From 2000 they lived in a home in Merrylands purchased by Min and Lily Lin. [8]
8. Ex AE.

Friday 17 July 2009

To all outward appearances the Xie and Lin families were close. Min and Lily Lin purchased their home on Boundary Road in January 2001 (the “Boundary Road home”). Kathy Lin and the appellant bought their home on Beck Street in October 2005 (the “Beck Street home”). The distance between the two houses was 300 metres.
Members of both families attended a regular dinner at the grandparents’ home on Friday nights, including on the evening of Friday, 17 July 2009.
A forensic analysis of a personal computer found by police in the dining room near the kitchen of the Boundary Road home reveals that it was shut down at 6.03pm on the evening of 17 July 2009. [9] About ten minutes prior, Henry Lin sent a message on the computer to his badminton coach saying he was leaving for his grandparents’ home as “I go every Friday”. [10]
9. Ex C at [8].
10. Ex C at [10].
In a recorded interview that Kathy Lin conducted with the police on 20 July 2009 (the “July 2009 interview”) she told them that the appellant drove her, their son XX, as well as Henry and Terry Lin, to the grandparents’ house for dinner. Min Lin arrived at the grandparents’ house separately. [11] Lily and Irene Lin did not attend the dinner. As noted, Brenda Lin was overseas on a school trip in New Caledonia. [12] According to Kathy Lin, Min Lin left the dinner at around 9:30pm. [13]
11. Crown Part A statement (“Part A”) at [247].
12. Crown Part A Statement at [244] to [245] (“Part A”).
13. Part A at [249].
At around 10.00pm the appellant and Kathy Lin drove XX, Henry and Terry Lin home from dinner. [14] Camera footage shows their car travelling towards the Boundary Road home at 10.13pm. [15] At around 10.23pm Henry Lin commenced exchanging computer messages with his badminton coach. [16] Between that time and around 12.02am, a laptop computer in his room and the computer downstairs in the dining room were used to exchange messages, conduct internet searches and play “on‑line” games. Both computers were shut down at around midnight. [17]
14. Part A at [250].
15. Part A at [83].
16. Part A at [65]; Ex C at [12].
17. Part A at [72]; Ex C at [8].
Kathy Lin told the police that, after they returned to the Beck Street home, XX went to bed at around 10:45pm. She and the appellant then read newspapers, watched TV, viewed the internet and went to bed “after 2.00am”. [18]
18. Part A at [254]; Ex S at p 154.

Saturday 18 July 2009

Mr Lakhwinder Sing Hothi was supposed to work at Min and Lily Lin’s newsagency in Epping on the morning of 18 July 2019. He had arranged to meet Min Lin at the newsagency at 6.35am but it was closed when he arrived and Min Lin was not present. [19] He telephoned Min Lin three times between 6.50am and 8.01am but there was no answer. [20] Mr Zhi Liang (Jason) Ge owned the Epping Fruit Market, which was nearby to the newsagency. At around 8:30am, a regular customer of the newsagency told Mr Ge that the newsagency had not opened. Mr Ge obtained a mobile phone number for Min Lin from the real estate agent. At around 9.32am he tried to telephone Min Lin but he did not answer. He then telephoned Kathy Lin. [21]
19. Part A at [108].
20. Part A at [108] to [109]; p 51.
21. Part A at p 51.
In her July 2009 interview, Kathy Lin told the police that she woke up at around 8.00am on Saturday, 18 July 2009. [22] She said that at “[a]round, after 9.30[am]” she received a telephone call from the man who owned the fruit market near Min Lin’s newsagency, who said, “[w]hat’s wrong with your brother’s shop. No one opened the shop and no one deliver the newspaper”. [23] She said she also received a telephone call from a customer of the newsagency, Mr Hua, who asked her why no one had opened the newsagency that morning. [24] That call was made at around 9.36am. [25] She immediately telephoned her brother but again there was no answer.
22. Ex S at p 155.
23. Ex S at p 157.
24. Part A at [257].
25. Part A at p 51.

Kathy Lin told police that at around 10.00am, she and the appellant drove to the Boundary Road home. [26] She said they parked in front of the house and “left [XX] in the car”. She and the appellant knocked loudly on the door but no one answered. After looking in the dining area and the laundry, Kathy Lin and the appellant went upstairs. In her July 2009 interview she told the police: [27]

“… I saw my brother's bedroom's door is open. I say, oh, they probably in, in the room and then I went in but I can't, because the curtains on, it's a little, that room is a little bit darker so I didn't see anything so my husband told me, don't see anything, don't look. Then he, he hugged me and because I, because I face this way and a little, and then my husband cuddle me, I turn to the right, I saw my sister-in-law lying on the bed and I also saw the, the blood marks and, and on the wall so we quick, went out my brother's room and I just worried another person so I went to, we quick went to go to the another, another side, the first room is [Irene Lin’s] room, I saw the, the door is closed and then I pushed the door and leave the door open, I saw [Irene Lin] lie the bed, and the, and then quick went to the boy's room, I saw the two, I'm not, I can't definitely sure, I, I push the door or not but I, I saw, I saw the, the boy, two boys close to the wardrobe. They lie down the, the floor so I'm very scared and then I call my husband, go, we need to call the police. We need to call the police and ambulance so we downstair and I, I, I took my mobile phone and try to ring and then I closed the door and then my husband say, my husband say, I, I need to send [XX] to home first because we don't [XX] to see, see this happen so I, my husband quick drive, drove [XX] home. I went out and call the zero, zero, zero….’” (emphasis added)

The manner in which Kathy Lin told this to the police is of significance to Ground 5 of the appeal. [28]

26. Ex S at p 159.

27. Ex S at p 160.

28. See [572]ff.

In his interview with police on 22 July 2009, the appellant said that after dropping XX at the Beck Street home, he returned to the house on Boundary Road. He said that his wife was standing on the intersection of the driveway and the road making phone calls and kept telling him, “[l]et’s pick up my parents”. The appellant said they decided that Kathy Lin would stay at Boundary Road to wait for the police and the appellant would travel to Merrylands and pick up the grandparents. [29]
29. Part A at [1211].
Three triple zero calls were made by Kathy Lin that morning at 9:47am, 9:48am and 9:54am. [30] They were all recorded and played to the jury. She was distressed throughout the calls. In the second call she told the operator that “maybe someone killed, killed my brother, my brother’s family”. [31] Towards the end of the first call, Kathy Lin and the appellant discussed his taking XX back to the Beck Street home. In the second call Kathy Lin told the appellant in Cantonese, “[d]oesn’t matter, just ring and get [indecipherable] to come here by himself/herself/themselves”. She also told him three times that she was “scared”. After the sound of her husband driving away is heard, she is recorded as saying “[h]ey, husband”. [32]
30. Part A at p 51.
31. Part A at p 47.
32. Part A at p 47.
The appellant’s mother‑in‑law, Mrs Zhu, told the police that “a little bit before 10.00am” her husband, Mr Lin Snr, received a call from the appellant. After the telephone call, her husband told her to stop washing the dishes, that the appellant had said something had happened with Min Lin’s family and that they had to leave in a hurry. [33] She said that the appellant arrived at their home in Merrylands about 10-20 minutes after the telephone call.
33. Part A at [284].
On the morning of 18 July 2009, Senior Constable Kirby and Constable Levins were driving a fully marked police vehicle. At around 9.53am they heard a police radio broadcast about an incident at Boundary Road. [34] They arrived within a “matter of minutes”. [35] Senior Constable Kirby saw Kathy Lin standing at the top of a driveway, waving to them. Senior Constable Kirby confirmed with Kathy Lin that she was the person who had telephoned triple‑0. When he asked Kathy Lin what had happened she said, “I think my brother’s dead inside”. Senior Constable Kirby then asked, “[w]hy do you think your brother is dead?” and she replied, “[t]he real estate called me and said my brother hasn’t gone to work. I came over and knocked on the door. No-one answered so I went inside. I went upstairs and saw my sister-in-law was dead”. [36]
34. Trial Tcpt 341.
35. Trial Tcpt 342.30.
36. Part A at [159].
Senior Constable Kirby and Constable Levins drew their firearms, entered the house and went upstairs. [37] Senior Constable Kirby took a step inside what he described as “Bedroom 2”[38] and located the body of Irene Lin “with extensive trauma to her face lying on the bed”. [39] Constable Levins entered what was described as “Bedroom 1” and called out to SC Kirby. Senior Constable Kirby took a “couple of steps inside” and saw another body “lying on the left side of the bed closest to the window” which at the time he believed to be male but he later learnt was Lily Lin. [40] Senior Constable Kirby then entered “Bedroom 3” but only “one step in” and saw two deceased “children lying on the floor”. [41] Senior Constable Kirby then undertook what he described as a “quick sweep” of the living room and kitchen downstairs [42] before leaving the house and advising the ambulance officers who arrived that there were four bodies inside. [43] Senior Constable Kirby then re‑entered the house with the ambulance officers who checked the children for pulses before leaving the house. [44]
37. Trial Tcpt 343.11.
38. See [35].
39. Trial Tcpt 343.39.
40. Trial Tcpt 344.
41. Trial Tcpt 345.44.
42. Trial Tcpt 346.21.
43. Trial Tcpt 346.46.
44. Trial Tcpt 347.15.
After a short time, SC Kirby’s shift supervisor, Sergeant Crow, arrived. He accompanied SC Kirby back into the house where they ascertained that the body on the left side of the bed in Bedroom 1 was female, that is Lily Lin. [45] At around this time, Sergeant Johnstone arrived at the scene and entered the house with Sergeant Crow. They did not discover Min Lin’s body either. [46]
45. Trial Tcpt 348.45.
46. Part A at p 60.
As the police were unaware that Min Lin was dead at this time, they considered him a suspect. In the meantime, at 10.55am the appellant arrived at the Boundary Road home with the grandparents. [47] Mr Lin Snr’s evidence from the 2015 trial was replayed to the jury at the 2016 trial. [48] He said that Kathy Lin told him that Lily, Irene and the two children had been murdered. [49] Mr Lin Snr said he asked “[d]id you see your brother?” and Kathy Lin replied “[n]o I did not”. Mr Lin Snr said that the appellant then said to Mrs Zhu, “[a]t most, we could take Brenda as our adopted daughter”. Mr Lin Snr said, “[n]o, that’s not possible when grandparents are still around, you are not allowed to take her as an adopted daughter”. Mr Lin Snr said he thought “of that [statement] as a consolation why he [the appellant] said that”. [50]
47. Trial Tcpt 352 to 353.
48. Ex Z.
49. Part A at [383].
50. Part A at [384]; Ex Z at p 16.
Later that morning the grandparents travelled to Hornsby Hospital in an ambulance. The appellant and Kathy Lin dropped XX at a friend’s house and followed them. A friend of the Xie family gave evidence that at around 11.47am on the morning of 18 July 2009 she answered a call to her landline from the appellant, who asked if XX could come to her house to play with her son. [51] About 15 minutes later, the appellant, Kathy Lin and XX arrived.
51. Trial Tcpt 444.
At around midday, crime scene officers arrived at the Boundary Road home. [52] Senior Constable Kirby entered the garage and attempted to turn on a light but realised there was no power at the house. [53]
52. Trial Tcpt 354.38.
53. Trial Tcpt 355.7.
At around 1.45pm, two Detectives attended Hornsby Hospital. The evidence concerning the events of this day that led to the discovery of the body of Min Lin are described below in relation to Ground 5. [54] It suffices to state that the two detectives spoke to a nurse who had previously spoken to Kathy Lin. The detectives then spoke to Kathy Lin with a staff member of the hospital interpreting. At some point one of the Detectives asked Kathy Lin, “[w]e need to find Min. Do you have any idea where he could be?” Kathy Lin replied, “[h]e’s in the bed in the house”. She was asked whether she saw him and responded, “[t]here’s a lump in the bed where he sleeps. I went to the room, I saw the blood and the lump. I went to pull the cover down but my husband pulled me out and said ‘No don’t look’”. [55] Detective Senior Constable Wilson told that jury that this was said in a very insistent manner (“she was making a statement and she actually looked at us like, ‘of course he’s in there’”.) Detective Senior Constable Wilson said that at this time the appellant was sitting next to Kathy Lin and he “gave the appearance of listening”, but he was “basically looking at the floor or the wall”. [56]
54. At [638]ff.
55. Part A at [523]; Trial Tcpt 593.
56. Trial Tcpt 594.1.
At about 2.00pm, Sergeant Johnstone received information about the body of Min Lin being in Bedroom 1 from an officer at the scene who had been in contact with DSC Wilson. Wearing protective suits, he and SC Kirby, inspected Bedroom 1 and located Min Lin’s body under a doona. [57]
57. Part A at [205]; Trial Tcpt 356.15.
The family friend gave evidence that Kathy Lin and the appellant returned at about 6.00pm to pick up XX. When she collected XX, Kathy Lin told the family friend that four members of her brother’s family had passed away. [58]
58. Part A at [249]; Trial Tcpt 1087.

Location of the Bodies

A layout of the second floor of the Boundary Road home showing the location of the bodies is as follows: [59]

59. EX A, Tab 6 and Ex A, Tab 8.

Police Investigation

The officer‑in‑charge of the police investigation was Detective Sergeant Maree. As noted, both the appellant [60] and Kathy Lin [61] voluntarily participated in interviews with police in July 2009.
60. Ex DF, DG and DJ.
61. Ex S.
Detective Sergeant Maree gave evidence that after November 2009, the appellant became the focus of the police investigation because the police had received information that he was seeking custody of Brenda Lin and had involved himself in the estate of Min and Lily Lin. [62]
62. Part A at [2226].
The NSW Crime Commission became involved with the police investigation in the latter part of 2009. On 9 December 2009, warrants were obtained to access the appellant’s landline and mobile telephone.
In early 2010, DS Maree arranged for an application to be made to the Supreme Court for a warrant authorising police to place covert surveillance devices in the Beck Street home. On 19 January 2010, police officers covertly entered the home and installed the devices. On 8 February 2010, police officers commenced recording conversations at the home.
On 16 March 2010, the appellant was again interviewed by police [63] as was Kathy Lin on 22 March 2010. [64]
63. Ex DN.
64. Ex GJ.
On 10 May 2010, some of the covert surveillance devices were discovered by the appellant and stopped working. As a result, police obtained and executed a warrant to search the Beck Street home. The search of the home was completed on 15 May 2010. Late in the afternoon on 13 May 2010, Stain 91 was discovered on the floor of the garage. [65]
65. Part A at [1492] and [1506].
On 11 May 2011, DS Maree arrested the appellant at the Beck Street home. Thereafter he was remanded in custody until he was released on bail on 8 December 2015 after the 2015 trial concluded. Between early 2012 and February 2013, the appellant was placed in custody in close proximity to a police informer, “Witness A”, who was later called by the Crown to give evidence of his conversations with the appellant. Transcripts of six recorded conversations between Witness A and the appellant between May 2012 and November 2012 were tendered at the 2016 trial. [66]
66. Part A at pp 626 to 627.

PART 2: The Crown Case

The following precis of the Crown case and that of the appellant is taken from the summing up of the trial judge delivered to the jury at the 2016 trial. Save for the matters raised by the grounds of appeal, it is not suggested that her Honour failed to put either case fairly or accurately.
The Crown case against the appellant was circumstantial. It had three overall steps. First, the Crown sought to exclude the possibility that the murders were the result of a robbery, theft, or sexual assault “gone wrong”. Second, the Crown sought to prove that they were the work of a single assailant. Third, the Crown sought to prove that the appellant was the single assailant.
In relation to the first step, the Crown relied on the fact that there was no evidence of drawers or the like having been disturbed and that there were valuables in the house left untouched. A forensic pathologist, Dr Rebecca Irvine, found no evidence of sexual assault on any of the deceased. [67] The Crown also submitted that the lack of friction ridge detail on finger marks in blood suggested that the killer was wearing gloves, a matter pointing to this having been a well‑planned, rather than spontaneous, crime. [68] The Crown also led evidence of the breadth of the police investigation in order to establish that all other lines of inquiry had been pursued. [69]
67. Trial Tcpt 4976.
68. Trial Tcpt 4976.
69. Summing Up (“SU”) [483] to [489].
In relation to the second step, the Crown relied on the evidence of Dr Irvine as well as two crime scene experts, Dr Jennifer Raymond and Detective Sergeant Shawn Harkins.
The effect of the evidence of Dr Raymond and DS Harkins was that there was evidence at the crime scene of only one murder weapon. [70] The evidence of Dr Irvine was that Min, Lily, Terry and Henry Lin were all killed by a combination of blunt force injury to the head and asphyxia. [71] Irene Lin was killed by blunt force injury to the head. Blunt force injury to the head and asphyxia can both cause rapid incapacitation. [72] All five deceased showed signs of having been attacked with the same hammer-like implement. [73]
70. Trial Tcpt 4991; Trial Tcpt 5007.
71. Trial Tcpt 5656; SU [1207].
72. Trial Tcpt 5650; SU [1212].
73. SU [1197].
Dr Raymond’s analysis of the shoe marks at the crime scene indicated that 20 of 41 shoe marks identified bore an unusual and distinctive sole pattern. [74] Of the remaining 21 shoe marks, there were only three that Dr Raymond was unable to eliminate conclusively as having been caused by crime scene contamination. [75] These included a Nike TN Air Max shoe mark that was not in blood and found partially under the “red car bed” in Bedroom 1, [76] a shoe mark that was possibly in blood in the foyer [77] and a shoe mark in dust in the foyer. [78] The Crown contended that the shoe marks in dust were unlikely to have had anything to do with the murders. The shoe mark that was possibly in blood was pointing towards the stairs, suggesting it was a contamination mark. [79] It followed, according to the Crown, that the only shoe marks at the scene attributable to the crime were worn by a single person.
74. Trial Tcpt 4978.
75. SU [1064].
76. Trial Tcpt 4982.
77. Trial Tcpt 4982.
78. Trial Tcpt 4983; SU [1064] to [1085].
79. Trial Tcpt 4982 to 4983.
In relation to the third step, namely demonstrating that the appellant was that sole killer, the Crown relied on twelve circumstances.
The first circumstance that the Crown relied on was the absence of evidence of any forced entry into the Boundary Road home. A locksmith, Mr Ross Squire, told the Court that there was no evidence of the lock to the front door having been interfered with and he had never seen a lock that had been picked without leaving a trace. [80] The appellant had access to a key to the Boundary Road home. [81] This key was handed over to police by Kathy Lin and examined by Mr Squire, who found evidence that it had been used to cut another key. [82]
80. Trial Tcpt 4975; SU [1035] to [1036].
81. SU [1677].
82. Trial Tcpt 4424.
The second circumstance that the Crown relied on was that the electricity to the house was turned off before the murders in order to prevent any of the victims from turning any lights on if they awoke. It would follow that the murders occurred in the dark, which the Crown contended meant that the killer must have been familiar with the layout of the house, as the applicant was. [83]
83. SU [1678].
The third circumstance that the Crown relied on was that the crime scene photographs showed Bedroom 4, Brenda Lin’s room, to be completely undisturbed. By contrast, there were marks in blood, not only on the carpet but on doors and also walls of the other three bedrooms from what seemed to be a hanging rope, suggesting that the killer had moved between them. [84] The appellant knew that Brenda Lin was not at home that night. [85]
84. Trial Tcpt 5002.
85. SU [1680]; SU [420]; Trial Tcpt 5026.
The fourth circumstance that the Crown relied on was that the 20 shoe marks left by the killer, noted above, were an “ASICS”-brand sole pattern type that the company had used on only three models of shoe, including the Gel Evation II. [86] That sole pattern had not been used by ASICS since 2005. Dr Raymond’s opinion was that the size of the relevant ASICS shoe was between 8.5 and 10.5. [87] The appellant had owned a pair of Gel Evation II ASICS sports shoes[88] and his size was a 9.5. [89]
86. Trial Tcpt 5028.
87. Trial Tcpt 5033; SU [1090].
88. At least in 2006: SU [1094].
89. SU [1685]; SU [423]; Trial Tcpt 5033.
The fifth circumstance that the Crown relied on was that a folded piece of cloth, soaked in Min and Lily Lin’s blood and bound with a red rubber band, was found in Bedroom 3 (ie, the children’s bedroom). The Crown case was that it must have been affixed at one point to the murder weapon and had come loose possibly during an intense struggle with Terry Lin in Bedroom 3. Although the murder weapon was not found, on the evidence of DS Harkins it must have been a highly unusual handmade device involving rope attached to a hammer-like object. [90]
90. Trial Tcpt 5034.
Police found a massage device at the appellant’s home that was also a highly unusual, handmade device. [91] It included a long steel bolt to which a folded piece of cloth had been attached with a red rubber band. In both cases, the pieces of cloth had been placed over a hard, cylindrical object, so as to create circular depressions in the cloth. The Crown relied on the similarity between these two devices and the pieces of cloth affixed to them by means of red rubber bands[92] as coincidence evidence connecting the appellant to the murders. [93] The admission and use of this evidence is the subject of complaint by Ground 7.
91. Trial Tcpt 5036.
92. SU [1682].
93. SU [422]; SU [1156] to [1184]; SU [1225]; Trial Tcpt 5040.
The sixth circumstance that the Crown relied on was that all of the deceased, apart from Irene Lin, showed evidence of neck compression. [94] The appellant had trained as a doctor in PRC, specialising in the ear, nose and throat. According to the Crown, the appellant would have had knowledge of the structure of the neck and the ability to inflict rapidly incapacitating injury by means of neck compression. [95] The Crown relied on a covertly recorded conversation between the appellant and “Witness A” in which, according to the Crown, the appellant acknowledged having shown Witness A how to incapacitate someone with pressure points on the neck. [96] The Crown also relied on evidence of the appellant’s high level of fitness and arm strength from playing badminton as demonstrative of his ability to inflict the sorts of injuries suffered by the deceased. [97]
94. SU [1214].
95. SU [423]; Trial Tcpt 5042.
96. Trial Tcpt 5042.
97. Trial Tcpt 5044.

The seventh matter that the Crown relied on concerned various aspects of the conduct of the appellant on the morning of 18 July 2009 which were said to be evidence of his guilt. Some of this conduct is considered later in relation to Ground 5(b). The conduct included him telling XX to wait in the car and then his following closely behind Kathy Lin as she moved around the house. [98] It also included him hugging Kathy Lin and telling her not to look into Bedroom 1. [99] The Crown contended that, having regard to the configuration of that bedroom, this displayed a prior knowledge by the appellant of the presence of bodies in that room. The Crown contended that a surveillance device later captured the appellant telling Kathy Lin what to say about where they were standing and what they could see. [100]
98. SU [1689]; SU [426].
99. SU [1690]; SU [427].
100. SU [1691]; SU [428].
The Crown also contended that the appellant’s insistence on collecting the grandparents, even though his wife was hysterical and scared, indicated that he was aware that there was no ongoing danger in the Boundary Road home and he used the journey to the grandparents’ home as a pretext to dispose of the murder weapon. The Crown relied on a recorded conversation between the appellant and Witness A in which the appellant disclosed a belief that the person who found the bodies would become the main suspect and another conversation which the Crown contended contained an implied admission by the appellant to having disposed of the murder weapon while travelling to collect the grandparents on the morning of 18 July 2009 (see [63]). [101]
101. SU [1694]; SU [431].
The Crown also contended that on 18 July 2009 the appellant made no real attempt to check to see if the children were still alive, notwithstanding his medical training and particular attachment to Henry Lin. [102] It also referred to his offer to the grandparents to adopt Brenda Lin before Min Lin’s body had been discovered. [103] Further, the Crown contended that, at some point during 18 June 2009, the appellant told Kathy Lin that Min Lin’s body was under the doona on the bed in Bedroom 1, knowledge the Crown contended he must have acquired from being the murderer.
102. SU [1690]; SU [427].
103. SU [1695]; SU [432].
The eighth circumstance that the Crown relied on was that, after the murders, Mr Lin Snr was concerned about the safety of the surviving family members living in the Beck Street home and bought security devices, but the appellant told him that this was unnecessary. [104]
104. Trial Tcpt 5080.
The ninth circumstance that the Crown relied on was a statement made by the appellant in an interview with police on 16 March 2010 in which he said that when he entered Bedroom 1, he “saw Lily and Min this side”. [105] The following day, he called the officer‑in‑charge and told him that he always said that there could be four or five bodies in the house and that he had told a Chinese-speaking police officer at the scene the same thing. That officer, Mr Andrew Ting, denied that the appellant had told him this. [106] The Crown contended that the appellant inadvertently disclosed that he had seen Min Lin’s dead body in the bed and then tried to cover up his mistake. [107]
105. Q&A 374, Ex DN.
106. Trial Tcpt 5082.
107. SU [1695]; Trial Tcpt 5081.
The tenth circumstance that the Crown relied on was surveillance evidence of the appellant destroying shoeboxes on the night of 6 May 2010. This occurred immediately after Kathy Lin appeared at the NSW Crime Commission, during which she was told by investigators of their belief that the killer had been wearing ASICS shoes in the appellant’s size. The surveillance footage showed the appellant, later that night, cutting up shoeboxes into pieces, soaking them in a bucket of water and then flushing them down the toilet. [108] The appellant admitted that was what he was doing in the footage. [109] The Crown contended that this evinced a consciousness of guilt. [110] This and the next matter are relevant to Ground 5(a).
108. SU [434]; Trial Tcpt 5085 to 5086.
109. Trial Tcpt 2605 to 2606.
110. SU [828] to [853].
The eleventh matter the Crown relied on was the appellant’s interactions with Witness A, which were also said to evince a consciousness of guilt. [111] This included recorded conversations in which the appellant accepted offers from Witness A to obtain inside information from a supposedly corrupt official involved in the police investigation. For example, one of the recorded conversations took place on 13 October 2012 and involved Witness A discussing with the appellant the possibility that inside information could be procured as to whether the prosecution had obtained incriminating CCTV footage. [112] Witness A referred to the possibility of the prosecution obtaining footage of the appellant travelling to the grandparents’ house on the morning of 18 July 2009. [113] Later, Witness A refers to the appellant preparing something to respond to any CCTV footage or having it “removed”: [114]
111. SU [829].
112. Ex FP.
113. Ex FP at pp 4 to 5.
114. Ex FP at p 21.

“[Witness A]: … you can prepare something or work something out …
[The Appellant]: I understand.
[Witness A]: … to have the evidence removed.
[The Appellant]: Like you say footage that morning.
[Witness A]: Yeah.
[The Appellant]: On the way to the grandparents I stopped the car and disposed of the hammer or something.
[Witness A]: Yeah.
[The Appellant]: ... they have footage that is the killer one.
[Witness A]: Yeah.
[The Appellant]: But I don’t think this but anyway I don’t think sort of thinking that they will but I don’t think ...[indistinct] …” (emphasis added)

The Crown contended that this and the balance of the conversation was an implied admission by the appellant that he disposed of the murder weapon when he collected the grandparents on the morning of 18 July 2009.
The evidence from Witness A relied on by the Crown also included evidence that the appellant pursued a plan with Witness A to plant incriminating evidence in the house of a deceased person to frame that person for the murders (referred to in the trial as “Plan B”). In pursuit of this plan, the Crown contended the appellant gave a number of documents to Witness A, including handwritten notes that could have been used to have a key cut to the Boundary Road home and put in the home or in the belongings of an interested person. [115]
115. SU [1697]; SU [435]; SU [876] to [910].
Lastly, the Crown relied upon the discovery of “Stain 91” in the appellant’s garage on 13 May 2010. The (extensive) evidence concerning Stain 91 is summarised below in relation to Grounds 1 to 3. At this point it suffices to state that, based on the evidence of an expert DNA analyst, Mr Clayton Walton, and Dr Perlin, the Crown contended that Stain 91 was a blood stain that contained DNA from each of Min, Terry, Henry and Irene Lin. The evidence from Dr Perlin included the results of the application of the “TrueAllele” software that he developed. TrueAllele performs a probabilistic analysis of mixed DNA samples. The Crown submitted that the presence of DNA from each of Min, Terry, Henry and Irene Lin in Stain 91 was only explicable on the basis that it was brought back to the Beck Street home by the appellant on the night of the murders and transferred from some item to the garage floor. [116] ”
116. Trial Tcpt 5141.24.
Two further matters should be mentioned about the Crown case. The first matter concerns alibi. Kathy Lin gave evidence that she and the appellant went to bed at around 2.00am on 18 July 2009. She said her husband “didn’t get off the bed” that night. She agreed she could not recall if she woke, but said that if her husband woke up she would know (“he’s next to me, if he wake up, he will move, and he will walk”). She said she did not feel sedated before going to sleep. Kathy Lin said she woke up at around 8:00am on the Saturday morning and her husband rose from his bed at the same time. [117]
117. Trial Tcpt 2620 to 2648.
The evidence relied on by the Crown to disprove the appellant’s alibi is summarised below in relation to ground 6. [118] At this point it suffices to state that in order to disprove alibi, the Crown relied on the contents of Kathy Lin’s interview with police on 22 March 2010. In that interview she was asked, inter alia, whether “your husband, Robert, get out of bed that night?” and she replied “I don't know”. [119] The Crown also relied on a transcript of a surveillance device recording of 22 March 2010, [120] in which she stated “[w]ho can remember waking up or not on that night? He or she asked if that night, er, woke up how many times, huh, sometimes wake up and sometimes don't. How do I know?”. [121] The Crown submitted that Kathy Lin was untruthful in her evidence in saying that she was sure the appellant had never left the bed and that she was tailoring her evidence to assist him. [122]
118. See [686ff]
119. Part A at [1584]; MFI 65.
120. MFI 66.
121. Part A at [1586]; Trial Tcpt 2651 to 2653.
122. SU [149].
The Crown also relied on evidence from Brenda Lin, who lived with the appellant’s family after the murders, to the effect that the appellant regularly sexually assaulted her at night. [123] This was said to be evidence that the appellant could leave his wife’s bed without her knowledge. The Crown also pointed to evidence from Witness A that the appellant had told him that he had sedated his wife on the night of the murders. [124] The Crown relied on a recorded conversation with Witness A in which Witness A said, “[t]he weak, the strong thing for police in your case, believe me, is always the wife. Always. And your wife is no problem, you told me before … when the murder happened your wife sedated, so that’s, forget about it”. The appellant said, “[y]eah …”. Witness A said, “[t]here is nothing they can do” and the applicant replied, “[n]othing, nothing”. [125] The trial judge’s directions in relation to alibi are the subject of Ground 6.
123. SU [387].
124. SU [257]; SU [336]; SU [419].
125. Ex FM(1) at pp 27 to 30.
The second matter concerns motive. The Crown relied on the appellant’s sexual assault of Brenda Lin as evidence of a possible motive. [126] It also led evidence of possible motive via the recorded conversations with Witness A in which the appellant spoke in highly disparaging terms about Min Lin[127] and of his own perceived subordinate status within the family (“they tell Kathy she can get better husband more beautiful than me, more success”; “they believe their son smartest”). [128]
126. SU [465].
127. SU [1696].
128. SU [464]; SU [480]; SU [526]; SU [531]; SU [533]; Ex FL; Ex FQ.
The evidence of Dr Irvine indicated that the injuries to Min and Lily Lin were far more severe than the injuries inflicted upon Irene Lin and the children. The Crown relied on this evidence to submit that Min and Lily Lin were the primary victims of the killer, [129] and that Irene Lin and the two boys were only killed when they woke up and it became necessary to silence them. [130]
129. Trial Tcpt 5022.
130. SU [467] to [468].

PART 3: The Defence Case

On behalf of the appellant it was contended that it was manifestly improbable that one person could have killed all five deceased given the difficulty involved in incapacitating such a large number of people. [131] The defence pointed to the different types of injuries inflicted on the five deceased (and their varying severity). [132] The defence relied on unidentified shoe marks in the house, an unidentified fingerprint on the front door, unidentified DNA on the electricity box and unidentified DNA on some cigarette butts in the driveway as giving rise to the real possibility of a second assailant. [133]
131. SU [1700].
132. SU [1699]; SU [1231]; Trial Tcpt 5016 to 5020.
133. SU [1701]; SU [978]-[980]; SU [1343] to [1344].
The defence submitted that DS Harkins’ opinions were limited to blood-letting injuries and there remained the possibility that non blood-letting injuries could have been inflicted elsewhere in the house. [134] It was also submitted that the evidence left open the possibility that Lily and Irene Lin were killed while the other family members were at dinner at the grandparents’ house, and that the killers lay in wait at the Boundary Road home for the other family members to get home. [135] The defence relied on evidence of shouting heard by neighbours at around 10.00pm, which was said to be consistent with an assault on Min Lin upon his arrival home. [136]
134. SU [1337] to [1338].
135. SU [1346].
136. SU [971].
The defence contended that the killer or killers intended to kill all five family members. [137] It was submitted that Irene or Lily Lin may actually have let the killers in earlier in the night, thereby explaining the lack of forced entry. [138] Alternatively, it was submitted that a light tap on a “bump key” could have been used without necessarily leaving any traces. [139] It was submitted that the appellant would not have been as foolish to have used his own key to the house. [140]
137. SU [470].
138. SU [1031].
139. SU [1046].
140. SU [1048].
It was submitted that the appellant’s ownership of “ASICS Gel Evation II” shoes was not incriminating, in circumstances where many other people in Australia had also purchased those shoes (or had purchased the other two ASICS models that had also used that sole pattern). [141] The defence case was that the appellant had destroyed the shoeboxes not out of a consciousness of guilt but out of a fear of being framed. [142]
141. SU [1708]; SU [450].
142. SU [1711]; SU [854] to [860].
Contrary to the Crown case, it was submitted that there was nothing about the appellant’s conduct on 18 July 2009 that was incriminating. [143] Instead, it was submitted that his conduct was neutral, [144] especially having regard to the extreme shock and horror he must have been experiencing at that time. [145]
143. SU [1710]; Trial Tcpt 5210.
144. Trial Tcpt 5211.
145. Trial Tcpt 5328.
It was submitted that Kathy Lin had always believed Min Lin’s body might be inside the house. [146] Photographic evidence demonstrated that the appellant was substantially taller than Kathy Lin, so he could well have been able to see over her in order to see the body of Lily Lin before she did. [147] The defence contended that when the appellant left the scene, his wife was in no danger, being some distance away from the house and in the midst of a busy Saturday morning in Epping. [148] The appellant did not “take the opportunity” of disposing of the murder weapon by going to the grandparents’ house. He did not want to go to pick them up but, instead he called them and suggested they come by train. [149] The defence submitted that there was also no time to travel there, return and dispose of the murder weapon. [150] The defence noted that police did not find blood in the red Corolla he had allegedly stashed the weapon in. [151] It was also submitted that the conversation about adopting Brenda Lin never happened. [152]
146. SU [805].
147. Trial Tcpt 5209.
148. Trial Tcpt 5211.
149. Trial Tcpt 5323.
150. Trial Tcpt 5210.
151. AB 6000.
152. SU [827].
The defence submitted that the Crown had not succeeded in disproving the appellant’s alibi beyond a reasonable doubt. [153] It was submitted that Kathy Lin was a witness of truth. [154] It was submitted that it was inconceivable that the appellant could have been sexually assaulting Brenda Lin at night without her noticing. [155]
153. SU [1705].
154. SU [384].
155. Trial Tcpt 5220.
The defence pointed to the very short timeframe in which, on the Crown case, the appellant had to commit these murders given that he and his wife went to bed at 2.00am and, on Brenda Lin’s evidence, Min Lin could rise as early as 4.00am. [156]
156. Trial Tcpt 5235.
The defence relied on evidence that the appellant had a good relationship with the Lin family, especially his particular fondness for 12-year-old Henry, who shared his passion for badminton.
It was submitted that the recorded conversations with Witness A did not contain admissions and were no more than “gaol talk”. [157] It was submitted that he never actually pursued “Plan B” (and never gave the “key documents” to Witness A). [158] In particular, it was contended that the response “yeah” in the conversation with Witness A was not an acknowledgement of having sedated his wife. [159] Otherwise, it was submitted that Witness A was a liar and a seasoned criminal whose evidence should not be accepted. [160] As far as the Plan B evidence is concerned, it was submitted that the appellant was an intelligent man who would never have contemplated such an absurd plan. [161]
157. SU [1712]; SU [453].
158. SU [1712]; SU [453].
159. Cf [69] above.
160. SU [375].
161. SU [910].
The defence submitted that the murder weapon and massage device were not relevantly similar[162] and that if the appellant had left the cloth at the crime scene he would not have left the massage device in plain sight in his house at a time when he knew he had become a suspect. [163]
162. SU [449].
163. SU [1707].
It was submitted that Brenda Lin had invented the sexual assault allegations in order to provide the Crown case with evidence of motive[164] and that her fondness for the appellant, as expressed in some cards to him, was inconsistent with her allegations. [165]
164. SU [1706]; SU [613].
165. SU [672] to [673].
As to Stain 91, the defence submitted that the Crown could not establish that it was blood. [166] It was contended that substances that might give rise to false positive results could well be in a garage,[167] and there had been some false positive reactions that day. [168] As explained below, at the 2016 trial the defence accepted that DNA from Min, Terry and Henry Lin was present in Stain 91,[169] but submitted that Brenda Lin’s DNA was also present in the stain or at least that was a reasonable possibility. It was submitted that, if there was any (reasonable) chance that Brenda Lin was a contributor to Stain 91, then this meant that the Crown had failed to prove that the stain was blood or was otherwise incriminating. [170]
166. SU [1359].
167. SU [1430].
168. SU [1431].
169. SU [1466].
170. SU [451]; SU [1360].
Further, it was submitted that innocent secondary transfer was a real and not speculative possibility to explain the DNA evidence, given the connection between the Lin and Xie families. [171] It was pointed out that the swab taken from Stain 91 for DNA testing may have been taken from outside the borders of the stain, raising the possibility that the DNA detected was not from the stain. [172] It was also submitted that the jury should be disinclined to accept Dr Perlin’s evidence about match statistics given that a report by the (US) President’s Council of Advisors on Science and Technology [173] (“the President’s Report” [174] ) did not accept that TrueAllele had been validated for more than three contributors. The defence also relied on the fact that Dr Perlin was a “privateer” with a financial incentive to insist on TrueAllele’s accuracy. [175]
171. Trial Tcpt 5237.
172. SU [1359]; SU [1375].
173. Trial Tcpt 4479 (or “PCAST”: Trial Tcpt 4435).
174. Trial Tcpt 5498 to 5499.
175. Trial Tcpt 5500.
Finally, the defence submitted that the appellant’s interviews with police demonstrated his willingness to assist,[176] even when he had become a suspect. [177] The defence called character witnesses and relied on good character. [178] It was suggested that what was known of the appellant was inconsistent with the nature of these crimes.
176. SU [134].
177. SU [1702].
178. SU [1627] to [1656].

PART 4: Dr Perlin’s Evidence and Stain 91

The first three grounds of the appeal all concern Dr Perlin’s evidence. They provide:

1136. Trial Tcpt 5660.27.
1137. Trial Tcpt 5659-60.

Trial counsel here indicated that a finding that there was no agreement with Harry was indicative of the appellant having never intended to carry through with Plan B. None of the discussions with Witness A that preceded the appellant’s refusal to proceed with the plan, or to speak with Harry again, supported an inference of consciousness of guilt.
The trial judge came to understand the point when she again queried the logic of counsel’s submission at the next break. After initially speaking critically as her Honour had previously, the trial judge said, “I am sorry, I see what you mean”. [1138] Her Honour said she now understood counsel was making the point that, if the jury was satisfied there was no agreement with Harry, “it is a matter for the jury, you say, as to whether that neutralises all the steps up to that point”. [1139]
1138. Trial Tcpt 5671.22.
1139. Trial Tcpt 5673.1.
Ultimately, the defence case in relation to Plan B was encapsulated by her Honour in summing up:[1140]

“In [counsel for the appellant’s] submission, he only ever talks about Plan B at the urging of Witness A, and [counsel] submitted that you will conclude he never agrees with Witness A that Plan B should go to the next stage, that is, taking a positive objective step to further the plan; or to put it in preparation for execution.”
1140. SU [885].

Other instances of counsel misunderstanding this evidence were said to be his contention that a Shepherd direction would be needed requiring proof beyond reasonable doubt that the appellant agreed to join Plan A or Plan B and a suggestion that s 137 of the Evidence Act was relevant. [1141] These were matters discussed in the absence of the jury with counsel’s suggestions being relatively quickly rejected by the trial judge. It is what was said in the presence of the jury that is pertinent to whether the conduct of counsel may have caused or contributed to a miscarriage of justice.
1141. AWS1 [531]; Trial Tcpt 4964.37; 5413.2.
Another criticism was counsel comparing the likelihood of the appellant agreeing with Plan B to receiving assistance from an “alien spaceship”. [1142] This was something of a rhetorical flourish but counsel’s essential point was that there were some “exceedingly odd” and “pretty unbelievable” aspects to Plan B. That was a fair point.
1142. AWS1 [533].
The appellant ultimately submitted that, because of the various failings of defence counsel, “there was effectively no meaningful submission on this topic before the jury”. Having regard to the way in which the trial judge encapsulated the defence case as indicated above, we reject that submission.
The written submissions for the appellant then advanced an alternative case that might have been made on his behalf. [1143] We are satisfied that the approach taken by counsel represented a rational and legitimate choice. The fact that different counsel considers another argument to be a better one is beside the point. In this regard it is of interest that Senior Counsel who appeared for the appellant at his third trial in 2015 adopted precisely the same case theory in relation to this issue as counsel at the 2016 trial. [1144]

Particular (viii): Failing to understand the chronology of Witness A’s disclosure to police about the alleged “sedation” conversation

1143. AWS1 [534].

1144. See summary in CWS [761].

The appellant’s submissions in relation to this particular make an assertion similar to one made in relation to the previous particular; there was a “loss of authority” caused by a misunderstanding by counsel about some evidence. The Court was not referred to any principle or authority in relation to such an assertion. We take it to mean that the credibility of the appellant’s counsel was adversely affected and that this in turn negatively impacted the jury’s assessment of the defence case to the point that it caused or contributed to a miscarriage of justice.
Particular (viii) is relevant to the Crown’s allegation that the appellant told Witness A that he had given “mild sedation” to his wife so he could leave the house undetected and commit the murders. The evidence has been reviewed earlier in the context of Ground 6 under “Crown case in relation to alibi”.
In cross‑examining Witness A, defence counsel put that the appellant had never used the word “sedate”; it was Witness A’s word. Witness A responded: [1145]

“It is not a word I have used ever. I don’t think I have ever used the word ‘I feel sedated’ or ‘Let’s go and sedate that other person’. It’s more of a medical term, I would imagine.”
1145. Trial Tcpt 3908.37.

In closing address, counsel reminded the jury of the recorded conversation between the appellant and Witness A in which the word “sedate” was first used by Witness A. (The conversation has been set out earlier in relation to Ground 6.) The appellant’s submissions note that her Honour intervened to explain that Witness A was only using the word to police on the basis that he was attributing it to the accused. [1146]
1146. This would appear to be a reference to what occurred at Trial Tcpt 5696.31.
We note that the trial judge merely said, “[b]ut it is a word he attributes to the accused Mr [counsel]”. Counsel responded by repeating his point that it was incorrect for Witness A to claim that “[i]t is not a word I have used ever” as the recorded conversation revealed. As the Crown pointed out[1147] , it may have been a weak point to be made about Witness A’s credibility, but it did not indicate a misunderstanding of the evidence. In any event, it was such a mild incident that it cannot have had much if any impact upon counsel’s “authority”.
1147. CWS [769].
Next the appellant referred to counsel submitting that “the issue of sedation had its genesis in prompts from the officer‑in‑charge, [DS] Maree”; the Crown Prosecutor pointing out in the jury’s absence that this was a misunderstanding of the evidence. The appellant submitted that there was then “something of a correction, although not a retraction about [DS] Maree”. [1148]
1148. AWS1 [536] to [537].
The appellant’s description of “something of a correction” could more correctly be described as defence counsel providing the jury with a complete and correct summary of the evidence as to how and when the topic of sedation first arose: [1149]

“Before that conversation on 19 May 2012 [Exhibit FM] and, according to Witness A, before he spoke to the police on any terms about the issue of [the appellant] informing the police, Witness A attributes to [the appellant] his having said to Witness A, ‘No, no problems, mild sedation, she was asleep’ in relation to Kathy, and in my submission you would reject it. In my submission, Witness A's unrecorded claims in relation to [the appellant] are not reliable, and they are part and parcel of his attempt to put forward a particular view of the evidence which you are invited to reject.”
1149. Trial Tcpt 5706.23.

This removed the suggestion of the sedation topic having its genesis in prompts from DS Maree and correctly reminded the jury that the Crown case was that “sedation” had been first mentioned by the appellant but in an unrecorded and disputed conversation prior to the police involvement with Witness A. The implied criticism of defence counsel is not borne out. The Crown did not seek a retraction and none was required.
The next matter raised by the appellant is that the trial judge intervened to correct the reading of transcript during subsequent submissions by counsel. [1150] The submissions reference a passage of five transcript pages [1151] but nowhere in that passage is there any intervention in relation to transcript correction. There were two interventions by her Honour in that passage; one was to ask counsel to repeat something and the other was to respond to something counsel appeared to at least partially direct to her while he was reading some transcript. (In the course of reading from transcript, counsel said, “[t]hen at 3976, subject to her Honour’s learned ruling”). The trial judge said something about whether it was necessary but told counsel to keep going. [1152]
1150. AWS1 [537].
1151. Trial Tcpt 5706-5710.
1152. Trial Tcpt 5709.18; 5710.4.
The appellant then asserted that a “submission was advanced on the basis of this misunderstanding that the police use of Witness A was ‘a story in search of an author’ and was criticised by her Honour in the Summing Up”. [1153] It appears that the “misunderstanding” related to how the topic of “sedation” arose. As indicated above, ultimately (at least) there was no misunderstanding.
1153. AWS1 [538].
One theme that permeates the appellant’s case is criticism of the competence with which the defence case was conducted. It is notable in relation to this particular that counsel pursued with the jury its most significant aspects. Counsel referred to there being no explicit admission made by the appellant that he had sedated his wife, aside from the dubious evidence of Witness A of an unrecorded conversation. He referred to the Crown relying upon a mere “[y]eah” in a recorded conversation which was just something said in the flow of the conversation.

Particular (ix): Putting to Witness A that alleged inculpatory conversations with the appellant had occurred

The appellant’s submissions in relation to particular (ix) raise criticisms of trial counsel for putting to Witness A that several inculpatory conversations occurred. It is significant to bear in mind that these were conversations not introduced by counsel. They were conversations adduced in evidence by the Crown.
Witness A said there was the following conversation on 16 June 2012. It was not recorded but he gave evidence with the assistance of a note he had made after the event. [1154]

“[Witness A]: Tell me, if I want to sedate somebody, what is a medication that isn't too dangerous?
[Appellant]: What you mean dangerous?
[Witness A]: Okay, I remember reading in the paper before about somebody sedating someone and the medication was too strong, and the person died accidentally.
[Appellant]: I don't know about this subject.
[Witness A]: No, I understand, but the reason I ask is because when you say before Kathy was sedated during the murders, obviously the medication you used was a safe one because she had no problems. Maybe I can use this method in the future.”
1154. Trial Tcpt 3781.28.

Witness A went on to say that according to his note, there was no verbal response, but the appellant “shook his head and waved his hand, indicated strongly he would not comment on this subject”. Witness A said he replied, "[n]o, no, I understand, my apologies …”.
The appellant submitted that this conversation was inculpatory for the following reasons:[1155]

“Had the disputed original sedation conversation not occurred, there would be no logical reason for Witness A on a subsequent occasion when his interaction with [the appellant] was not being recorded, to raise with him the untrue proposition that [the appellant] had previously told him he had sedated his wife at the time of the murders.
Witness A had nothing to gain from doing so, and stood the risk of jeopardising completely if not his safety (exposing himself as a likely informant) then at least his whole plan to gain benefits from his connection with [the appellant].
Had the disputed original conversation not occurred, there would be no reason for [the appellant] to react with such strong body language, allegedly taken (understandably if it had occurred) by the witness to indicate that [the appellant] was not prepared to discuss the topic with people around.”
1155. AWS1 [541].

It is difficult to see merit in these submissions when one considers that the suggested reasons for characterising the conversation on 16 June 2012 as “inculpatory” apply equally to the recorded conversation that had occurred four weeks previously, on 19 May 2012. [1156] (This is the conversation that included the appellant saying, “[y]eah” in response to Witness A saying, “you told me before, your, when the murder happened, your wife sedated”.)
1156. Ex FM.
Faced with the 19 May 2012 conversation being in evidence in recorded form, and Witness A having given evidence of the subsequent conversation based on notes he claimed to have made soon after, defence counsel had to deal with the latter conversation in some form. He chose to pursue a course of portraying Witness A as continually fishing for an admission and the appellant consistently refusing to take the bait on every occasion.
Taking advantage of the lack of corroboration by way of recording and contending that the conversation on 16 June 2012 did not occur would have been fraught with the problem of it being in similar terms to the one on 19 May 2012.
Another difficultly, seemingly not considered by the appellant’s counsel in this Court, is that trial counsel may have been bound by instructions. It may not have been a matter for counsel to choose whether to dispute that the 16 June 2012 conversation occurred in the terms deposed by Witness A. We have already addressed the evidence that can be adduced in relation to complaints of this nature. [1157]
1157. See [417ff].
This leads to a further criticism by the appellant that trial counsel raised with Witness A other occasions in which he had tried to talk to the appellant about having sedated his wife but would get a response by way of the appellant getting “toey” or “touchy”. This approach included raising occasions that were not the subject of evidence adduced by the Crown. The appellant contended that this “was only damaging to the defence case”.
The overall submission by the appellant was that “there is objectively no rational explanation as a matter of forensic choice for this path being embarked on. … The path undertaken as set out in this particular of this ground only acted to enhance Witness A’s credibility in this respect”. To the contrary, we are satisfied that there was an objectively rational explanation for trial counsel to have adopted the impugned approach to this aspect of the evidence of Witness A.
As with particular (viii), it is of note that the impugned approach taken by trial counsel was mirrored in the approach taken by Senior Counsel who appeared for the appellant in the 2015 trial. [1158]

1158. CWS [779].

The Crown alleged the real reason the appellant left his wife at Boundary Road on her own after the discovery of the bodies was that he wanted to dispose of the incriminating evidence he had collected from the Beck Street home when he took XX there. This proposition was partly based upon what the Crown contended was an implicit admission in a recorded conversation with Witness A on 13 October 2012, [1159] in which he expressed concern that there “may be” some CCTV footage of him disposing of the hammer on the way to pick up the grandparents. [1160]
1159. Ex FP.
1160. Trial Tcpt 5060.17; 5062.19ff; see [63].
The appellant’s written submissions provided extracts from the Crown’s opening address to the jury in which reference was made to this topic. It was submitted that it was a topic that “stands out” in that address, along with the contention of there being evidence of the blood of four or five of the deceased being found on the appellant’s garage floor. [1161]
1161. AWS1 [550] to [552].
The appellant noted that defence counsel made an application for the discharge of the jury because part of the Crown’s opening address on this topic was “too argumentative, without evidentiary support and ‘a bridge too far’”. We note that this application was concerned more broadly with the Crown address and that this topic was cited as one of four examples. The application was summarily rejected without the Crown being called upon. [1162] However, the appellant’s point is that nothing was subsequently said in the defence opening address as to whether the implied admission to Witness A was or was not in dispute. The appellant referred to s 159 of the Criminal Procedure Act 1986 that allows for a defence opening following the opening address of the prosecutor, provided it is “limited generally to an address on the matters disclosed in the prosecutor’s opening address, including those that are in dispute and those that are not in dispute” (as well as matters to be raised by the defence). [1163]
1162. Trial Tcpt 81-83.
1163. AWS1 [553].
The appellant contended that in closing address the Crown referred to this topic in “even stronger terms” (than in opening), but in the lengthy defence closing address there was nothing said about the recorded conversation with Witness A. (The Crown accepts the latter to be the case. [1164] ) Counsel did submit that the jury should not accept anything said by Witness A that was not recorded. He also submitted that, in relation to the recordings, the jury “will make of them what you make of them”. [1165]
1164. CWS [783].
1165. Trial Tcpt 5644.36; AWS1 [554] to [555].
The appellant’s submission was “there was much able to be said against the construction of this conversation urged by the Crown”. There was “no objectively rational explanation for such failure as a matter of forensic choice, and the jury [was] left with a one-sided argument about potentially one of the most important pieces of evidence in the trial”. We accept that this matter was a significant circumstance in the Crown’s case, but many of the circumstances could be described as “important”.
We are satisfied that defence counsel was presented with a conundrum as to how to deal with the issue of the alleged implied admission to Witness A. The trial judge also acknowledged the difficulty defence counsel faced during an exchange with him in which she expressed concern about the prospect of her reminding the jury of another recorded conversation with Witness A: [1166]

“[F]or me to go back into it, it carries - it is an area, as you say, you're sensible to recognise Mr [counsel], that with there being no evidence as to what was actually motivating the accused to speak at length and in the way that he did, in some respects, and I took this approach in preparing the summing-up, the less that I take the jury in summing-up to the materials, the easier it might be for the jury to make their own judgment. And in your address you, if I may make the observation, seemed to me to take a not dissimilar approach because it's one of those areas of evidence, difficult for the accused as you've acknowledged on his behalf, that the more you go into it, the more interpretation is applied to it and it is material that does not advance his case.”
1166. SU pp 271 to 272.

On the appellant’s case now, trial counsel should have referred to the evidence and made submissions as to why the jury would not accept the Crown’s contention. If this approach was taken, it would have been necessary to remind the jury of the detail of the evidence. That would carry the risk of the jury calling to mind the quite valid argument of the Crown: [1167]

“[T]he most significant thing about this conversation in respect of this topic is that the accused does not at any point say to Witness A, ‘What are you talking about? I didn’t stop the car and dispose of any hammer on the way to the grandparents. There can’t be any CCTV because I didn’t dispose of any hammer that morning. You don’t need anybody to go and find out about that. It doesn’t exist. Don’t waste your time’.”
1167. Trial Tcpt 5062.4.

It is significant that despite the assertion that “there was much able to be said against the construction of this conversation urged by the Crown”, there is no suggestion as to what counsel should have submitted.

The issue of the alleged implied admission to Witness A was a component of a broader topic discussed earlier under the heading “Topic E – Leaving Kathy Lin” in relation to Ground 5(b). Other components of that topic included the content of the various triple-0 calls and the evidence of people who saw the appellant and Kathy Lin at Boundary Road. There was also the evidence of the grandfather and Kathy Lin to consider. The jury was left in no doubt that the appellant disputed there was anything incriminating about any of his conduct on 18 July 2009, including that he left Kathy Lin at Boundary Road in order to dispose of the murder weapon. As summarised in the Crown’s submissions, defence counsel developed the following points in his address to the jury:[1168]

(a)   The appellant did not want to go to the grandparents’ home in the first place.
(b)   The appellant had returned to Boundary Road with the grandparents so quickly that there was not time for him to have disposed of the murder weapon.
(c)   There was no blood found in the car he used.
1168. CWS [790].

What the appellant said to Witness A on 13 October 2012 was clearly not an explicit admission and the Crown did not suggest otherwise. Defence counsel did not need to tell the jury that the Crown relied upon it to make a particular interpretation of what was said. The prosecutor submitted to the jury, “[t]he Crown says … that the accused has, in that recorded conversation implicitly admitted to Witness A …”. [1169] The trial judge made it abundantly clear in her summing up that it was necessary for them to consider counsel’s submissions in the light of their own judgment of what the evidence established. [1170]
1169. Trial Tcpt 5062.17.
1170. For example, at the conclusion of directions about consciousness of guilt matters, which included leaving Kathy Lin at Boundary Road, at SU [912].
In all of the circumstances, it was appropriate for the defence case in relation to the conversation with Witness A on 13 October 2012 to be left to the jury in the fashion summarised by the trial judge to the jury:[1171]

“[T]hrough his counsel, it is put that the accused’s involvement with Witness A as a prisoner at Long Bay Gaol, when they were sharing the same wing or in the same wing, reveals nothing about his guilt. His recorded conversations, it is said, are simply quote ‘gaol talk’.”
1171. SU [453].

We are not satisfied that a miscarriage of justice was occasioned by this aspect of the conduct of the appellant’s counsel.

Particular (xi): Failure to seek correction to her Honour’s summing up in relation to the issues raised in connection with Ground 5

Particular (xii): Failure to seek correction to her Honour’s summing up in relation to the issues raised in connection with Ground 6

It follows from our determination of Grounds 5 and 6 that there is no substance to these grounds. There was no correction needed in relation to the summing up on those issues.

Conclusion

There is no merit in the appellant’s criticisms of defence counsel in any of “Particulars” (i) to (xii). Leave to appeal pursuant to s 6(1) of the Criminal Appeal Act in respect of this ground is refused.

PART 12: Disposition

At the hearing of the appeal, Senior Counsel for the appellant submitted that, if the Court were to uphold any of the grounds of appeal, then it should receive further submissions on whether to order a retrial or enter acquittals. It follows from the rejection of all the grounds, that circumstance does not arise and the appeal must be dismissed.
Accordingly, the Court orders that:

The tender of Exhibit C1, being the report of Professor Peter Gill dated 25 October 2019, is rejected;
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;
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;
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;
Leave to raise Grounds 1, 5, 6 and 8 of the appeal is refused;
Leave to raise Grounds 2, 3, 4 and 7 of the appeal is granted;
Appeal dismissed.

**********

Annexure 1 (71205, pdf)

Endnotes

Amendments

15 February 2021 - [140] the words "divided by" were inserted where divided symbol had been removed.

18 February 2021 - [1] ... North Epping, a suburb in the north east of Sydney, corrected to read "north west of Sydney".

11 March 2021 - [12] - Ages of appellant and his wife amended.

[66] - Mark Walton, corrected to Clayton Walton.

[95], [97]-[100], [102], [106], [108], [110], [121]-[124], [126], [130], [132]-[134], [136], [138], [142], [189], [196], [210]-[212], [217], [244], fn 233, fn 426 - various corrections to the singular/plural of locus and loci.

Decision last updated: 11 March 2021

Medium Neutral Citation:	Xie v R [2021] NSWCCA 1
Hearing dates:	22 June 2020 to 1 July 2020
Date of orders:	15 February 2021
Decision date:	15 February 2021
Before:	Bathurst CJ R A Hulme J Beech-Jones J
Decision:	(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 79 of the Evidence Act – assuming trial judge refused to allow questioning on voir dire about validation then trial judge was correct to do so – prosecutor’s fallacy not established – misleading nature of evidence not established - new evidence not “fresh” and did not establish innocence of accused or give rise to reasonable doubt – evidence not admissible in relation to challenge to admission and use of DNA evidence “CSI” DIRECTION – contended that trial judge erred in directing jury not to expect all issues to be answered by forensic analysis – whether direction had tendency to divert jury from considering evidence and whether guilt established beyond reasonable doubt – HELD – no miscarriage of justice established – ground rejected CONSCIOUSNESS OF GUILT – prosecution relied on conduct of accused on day of killing and period thereafter as consciousness of guilt – contended that trial judge erred in failing to direct jury about the hypothetical reason he might have engaged in the alleged conduct – in one case accused provided reason and in other case accused denied the conduct – no application made to trial judge for further direction - HELD – direction not required – where accused provided reason for engaging in alleged conduct suggested hypothetical reasons added nothing – where accused denied conduct suggested direction had real tendency to undermine denials – as for balance of conduct said to support consciousness of guilt contended that trial judge’s summing up was unbalanced in favour of the Crown - contended that trial judge failed to put the “real defence case” – no redirection sought- HELD – no miscarriage of justice established – summing up accurately reflected parties case as presented at the trial – leave to raise ground refused. ALIBI – appellant contended that he was asleep with his wife when killings occurred – alleged that trial judge’s summary of the alibi evidence was inaccurate and directions were unbalanced – no redirection sought- HELD – complaint not established – leave to raise the ground refused COINCIDENCE EVIDENCE – Crown contended that murder weapon was “hammer like device” – folded cloth and rubber band found at crime scene covered in victims’ blood – Crown contended that it covered murder weapon – “improvised massage device” found at appellants’ premises – covered with folded cloth and rubber band – similar depressions on each cloth – contended that evidence of massage device wrongly admitted as coincidence evidence – HELD – evidence correctly admitted – sufficient similarities to establish evidence had significant probative value – conclusion not rebutted by dissimilarities – no prejudicial effect establish – ground rejected MISCARRIAGE ARISING FROM CONDUCT OF TRIAL COUNSEL – contended that conduct of appellant’s counsel occasioned miscarriage of justice – conduct to be assessed in the context of the trial as it unfolded and the material available to counsel – particulars of ground reflected other grounds – HELD – no miscarriage of justice demonstrated
Legislation Cited:	Children’s (Criminal Proceedings) Act 1987 Criminal Appeal Act 1912 Criminal Appeal Rules, r 4 Criminal Procedure Act 1986 Evidence Act 1995 (NSW)
Cases Cited:	A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 Ali v R [2005] HCA 8; (2005) 214 ALR 1 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Aytugrul v R (2012) 247 CLR 170; [2012] HCA 15 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Broadhurst v The Queen [1964] AC 441 Cesan v DPP (Cth) [2007] NSWCCA 273; (2007) A Crim R 385 Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 Chen v R [2018] NSWCCA 106 Doheny and Adams [1997] 1 Cr App R 369 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GBF v The Queen [2020] HCA 40 Hanna v R [2017] NSWCCA 168 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Matthews v R [2013] NSWCCA 187 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 Morgan v R [2011] NSWCCA 257; (2011) 215 A Crim R 33 MRW v R [2011] NSWCCA 260 Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573. Nudd v R [2006] HCA 9; (2005) 225 ALR 161 Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 R v Atkins (2009) EWCA Crim 1876 R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 R v Cook [2004] NSWCCA 52 R v Denis Adams (No 2) [1998] 1 Cr App R 377 R v Denis Adams [1996] 2 Cr App R 467 R v Finnan [2005] VSCA 151 R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487 R v Galli [2001] NSWCCA 504; (2001) 127 A Crim R 493 R v Gardner [2004] EWCA Crim 1639 R v GK [2001] NSWCCA 413; (2001) 125 A Crim R 315 R v Heyde (1990) 20 NSWLR 234 R v Keir [2002] NSWCCA 30; (2002) 127 A Crim R 198 R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174 R v MK [2012] NSWCCA 110; (2012) 223 A Crim R 672 R v Robinson [2003] NSWCCA 188 R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167 R v Xie (No 12) [2015] NSWSC 2124 R v Xie (No 4) [2014] NSWSC 500 R v Xie [2017] NSWSC 63 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Selby v R [2017] NSWCCA 40 Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5 The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46 Tuite v The Queen (2016) 49 VR 196; [2015] VSCA 148 Vella v R; Siskos v R [2015] NSWCCA 148 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88
Texts Cited:	D Hodgson, “A Lawyer looks at Bayes Theorem” (2002) 76 ALJR 109
Category:	Principal judgment
Parties:	Lian Bin Xie (Appellant) The Crown (Respondent)
Representation:	Counsel: B Rigg SC; T Quilter (Appellant) AM Mitchelmore SC; CB Curtis (Crown) Solicitors: Legal Aid NSW (Appellant) Director of Public Prosecutions (Crown)
File Number(s):	2011/147183
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Criminal Citation: [2017] NSWSC 63 Date of Decision: 13 February 2017 Before: Fullerton J File Number(s): 2011/147183