AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Supreme Court 30 April 2014

R v Xie (No 4)

[2014] NSWSC 500

Homicide
CRIMINAL LAW PRETRIAL RULINGS OBJECTIONS TO EVIDENCE OVERRULED

Citation: R v Xie (No 4) [2014] NSWSC 500
Court: Supreme Court of New South Wales
Date: 30 April 2014
Judge: Johnson J

Background

The accused faced five counts of murder arising from the deaths of five members of his wife's family, who were killed in their home at North Epping in the early hours of 18 July 2009. The victims, who ranged in age from nine to 45 years, were killed while sleeping by blunt force trauma and asphyxia. The accused's wife was the sister of the adult male victim, and the Beck Street premises where the accused lived were approximately 250 metres from the crime scene.

The trial was scheduled to commence on 8 May 2014 with a four-month estimate. Before trial, the accused brought a Notice of Motion seeking the exclusion of several categories of evidence the Crown proposed to lead.

The pre-trial hearing was extensive, spanning numerous sitting days across November 2013 and March to April 2014. It included a Basha inquiry (a procedure allowing the defence to cross-examine prospective Crown witnesses before trial to obtain information needed for preparation) and a ruling on legal professional privilege involving the accused's former solicitor.

  • Whether evidence of a possible blood stain (Stain 91) found on the garage floor at the accused's premises was relevant and admissible under s 55 of the Evidence Act 1995
  • Whether expert DNA analysis of Stain 91, including likelihood ratio (LR) opinion evidence, was relevant and admissible, or should be excluded under ss 135 or 137 of the Evidence Act 1995
  • Whether evidence of the accused cutting up shoe boxes on the night of 6-7 May 2010 was improperly or illegally obtained and should be excluded under s 138 of the Evidence Act 1995 (or alternatively under ss 135 or 137)
  • Whether the Crown should be granted leave to rely on supplementary material from DNA expert Dr Mark Perlin, served on the accused on 3 March 2014
  • Whether surveillance device evidence raised a question of motive requiring further argument (this issue was reserved for further submissions)

Decision

Johnson J dismissed the accused's Notice of Motion and overruled all pressed evidentiary objections.

On the DNA evidence, the Court held that evidence concerning the location, examination, and testing of Stain 91 was relevant within the meaning of s 55 of the Evidence Act 1995. The Court also declined to exercise the discretionary exclusion powers under ss 135 or 137. The DNA analysis evidence, including likelihood ratio opinion evidence, was therefore admissible.

On the shoe box evidence, the Court found that evidence of the accused cutting up shoe boxes on the night of 6-7 May 2010 was not improperly or illegally obtained for the purposes of s 138 of the Evidence Act 1995. The Court also declined to exclude it under ss 135 or 137.

On the Crown's leave application, Johnson J granted the Crown leave to rely on Dr Perlin's supplementary material served on 3 March 2014. The Court noted that the accused had completed a detailed cross-examination of Dr Perlin during the pre-trial hearing and identified no concrete area of prejudice. Given that DNA evidence would likely not be called until some weeks into the trial, the Court was satisfied there was adequate time for the accused to meet the additional material.

Orders Made

  • Order 1 (exclusion of Stain 91 evidence on relevance grounds): refused
  • Orders 2 and 3 (exclusion of DNA analysis evidence on relevance or discretionary grounds): refused
  • Order 4 (exclusion of shoe box evidence as improperly obtained, or under ss 135 or 137): refused
  • Order 5: not pressed
  • Order 6 (exclusion of surveillance conversations): withdrawn by agreement between the parties prior to judgment
  • Leave granted to the Crown to rely on Dr Perlin's further material served on 3 March 2014
  • The accused's Notice of Motion dated 18 November 2013: dismissed
  • The question of whether a suggested motive (an alleged relationship between the accused and one of the deceased) could be relied upon by the Crown was reserved for further submissions

Key Takeaways

  • Under s 55 of the Evidence Act 1995, evidence of a stain found at an accused's premises and its subsequent DNA analysis was held relevant in a murder prosecution, even where the connection to the alleged offending required inference.
  • Likelihood ratio opinion evidence from a DNA expert was found admissible and not excluded under the discretionary provisions in ss 135 or 137, following extensive pre-trial examination of multiple forensic witnesses.
  • Where the defence completed thorough cross-examination of an expert during a Basha inquiry and could identify no concrete prejudice from late supplementary material, the Supreme Court was prepared to grant the Crown leave to rely on that material ahead of trial.
  • Evidence obtained in circumstances challenged under s 138 of the Evidence Act 1995 (the provision governing improperly or illegally obtained evidence) will not be excluded merely on the basis that the obtaining was challenged; the Court must be satisfied the obtaining was actually improper or unlawful.
  • The pre-trial hearing extended beyond the original Notice of Motion to encompass a Basha inquiry and a privilege waiver ruling, illustrating the breadth of issues that can arise in complex multi-accused murder trials before jury selection.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 55, 135, 137, 138
- Criminal Procedure Act 1986 (NSW)
- Jury Act 1977 (NSW)
- New South Wales Crime Commission Act 1985 (NSW)

Cases
- R v Basha (1989) 39 A Crim R 337
- Aytugrul v The Queen [2012] HCA 15; 247 CLR 170
- Dasreef Pty Limited v Hawchar [2011] HCA 21; 243 CLR 588
- De Gruchy v The Queen [2002] HCA 33; 211 CLR 85
- Evans v The Queen [2007] HCA 59; 235 CLR 521
- Festa v The Queen [2001] HCA 72; 208 CLR 693
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- R v Xie (No. 3) [2013] NSWSC 1840
- Armstrong v R [2013] NSWCCA 113
- BJS v R [2013] NSWCCA 123; 231 A Crim R 537
- R v Burton [2013] NSWCCA 335; 237 A Crim R 238
- Davidson v R [2009] NSWCCA 150; 75 NSWLR 150
- Aytugrul v R [2010] NSWCCA 157; 205 A Crim R 157
- R v Clark [2001] NSWCCA 494; 123 A Crim R 506
- Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219
- R (Cth) v Petroulias (No 8) [2007] NSWSC 82
- Dyldam Developments Pty Limited v Jones [2008] NSWCA 56