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Supreme Court 5 April 2012

R v Xie

[2012] NSWSC 330

Homicide
CRIMINAL LAW BAIL MURDER WHETHER EXCEPTIONAL CIRCUMSTANCES EXIST

Citation: R v Xie [2012] NSWSC 330
Court: Supreme Court of New South Wales
Date: 5 April 2012
Judge: Price J

Background

The applicant faced five counts of murder arising from the deaths of five members of the Lin family, killed in their North Epping home in the early hours of 18 July 2009. The deceased were the applicant's brother-in-law, his brother-in-law's wife, their two young sons (aged 9 and 12), and his wife's sister. The applicant was not charged until May 2011.

The Crown's case was entirely circumstantial. It relied on a range of matters including the applicant's knowledge of the sleeping arrangements in the Lin home, his access to the front door key, his conduct at the scene when the bodies were discovered, and financial and forensic evidence gathered in the years following the deaths.

The applicant sought conditional bail subject to an extensive set of proposed conditions, including electronic monitoring, a curfew, daily reporting, a $300,000 security, a further $100,000 surety, surrender of his passport, and restrictions on telephone and internet use.

  • Whether exceptional circumstances existed under section 9C of the Bail Act 1978 (NSW) sufficient to justify the grant of bail on a murder charge
  • Whether the strength of the Crown's circumstantial case constituted exceptional circumstances
  • Whether the proposed bail conditions adequately addressed the risks of flight and interference with witnesses

Decision

Section 9C of the Bail Act 1978 provides that bail on a murder charge must not be granted unless the court is satisfied that exceptional circumstances justify it. Price J confirmed that this places a heavy onus on the applicant. Exceptional circumstances can arise from a combination of factors, including a weak Crown case, but the assessment is not confined to that consideration alone. All matters in section 32 of the Act remain relevant, including the likelihood of appearance at trial, protection of witnesses and the community, and the likely period of pre-trial incarceration.

On the strength of the Crown case, Price J found the evidence against the applicant was not weak. While the case was circumstantial, the accumulated body of evidence was substantial, including surveillance footage showing the applicant attempting to influence the accounts given by his wife and niece to police, both of whom were important Crown witnesses.

On flight risk, the court found the applicant retained strong connections to China. He was the only member of his family residing outside China, he had returned there regularly before his arrest, and forensic accounting evidence showed significant international money transfers between China and Australia. Facing the prospect of life imprisonment if convicted, the court found the proposed bail conditions did not eliminate a significant possibility that the applicant might attempt to flee.

On the risk of witness interference, the court found the surveillance material demonstrated the applicant's capacity to attempt to influence his wife and niece. Because the proposed conditions would have him return to the matrimonial home, the court assessed the likelihood of interference with those witnesses as remaining high. Taking all relevant matters into account, Price J was not satisfied that the applicant had discharged the high onus of establishing exceptional circumstances, and bail was refused.

Orders Made

  • Bail refused.

Key Takeaways

  • Under section 9C of the Bail Act 1978, a court must not grant bail on a murder charge unless exceptional circumstances are established; this imposes a heavy onus on the applicant.
  • Exceptional circumstances are not confined to the weakness of the Crown case. All matters in section 32 of the Act are relevant, including flight risk, witness protection, and the anticipated period of pre-trial custody.
  • A circumstantial Crown case will not necessarily be characterised as weak merely because it is circumstantial; the overall strength and volume of the evidence is what matters.
  • Refusing bail, the Supreme Court found that strong ties to an overseas jurisdiction, combined with the prospect of a life sentence, can constitute a significant and ongoing flight risk that proposed conditions may not adequately address.
  • Evidence of an applicant's prior conduct in attempting to influence witness accounts is a relevant and weighty consideration when assessing the risk of witness interference.

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW), ss 9C, 32, 32(1)(a), 32(1)(b), 32(7)

Cases
- Memery v R [2000] VSC 945
- R v Connelly (Supreme Court of New South Wales, Hoeben J, 16 February 2006, unreported)
- R v Jacobs [2008] NSWSC 417
- R v Pirini (Supreme Court of New South Wales, James J, 20 April 2010, unreported)
- R v Young [2006] NSWSC 1499