Citation: R v Xie (No 12) [2015] NSWSC 2124
Court: Supreme Court of New South Wales
Date: 21 May 2015
Judge(s): Fullerton J
Background
The accused stood trial for the murders of five members of his extended family at a residential property in Earlwood in July 2009. The Crown case was that the accused used a "hammer-like weapon" wrapped in cloth and secured with a rubber band to inflict fatal blunt force injuries on the deceased.
At the crime scene, investigators found a folded piece of cloth bound with a red rubber band, bearing DNA from two of the deceased. The Crown alleged the cloth had been wrapped around the rounded head of the murder weapon and was inadvertently left behind in one of the children's bedrooms.
During a 2010 search of the accused's home, police located a massage device in his bedroom with a metal bolt head over which a folded hand towel had been secured with a red rubber band, in a manner similar to the cloth found at the crime scene. A container of predominantly red rubber bands was also found elsewhere in the house. The Crown sought to tender this evidence as coincidence evidence under s 98 of the Evidence Act 1995 (NSW). The defence opposed the tender, in part on the basis that the Crown had failed to give reasonable notice of its intention to rely on it.
Legal Issues
- Whether the Crown's failure to give reasonable notice of its intention to rely on coincidence evidence under s 98 of the Evidence Act 1995 (NSW) should nonetheless result in leave being granted under s 192 to adduce that evidence at trial.
- Whether the massage device and rubber bands found at the accused's home satisfied the significant probative value threshold required for admission as coincidence evidence under s 98(1)(b).
- Whether any prejudicial effect of the coincidence evidence warranted exclusion under s 101 of the Evidence Act.
Decision
Fullerton J granted the Crown leave under s 192 to adduce the evidence despite the failure to give reasonable prior notice. Her Honour found that while the Crown's notice was late, the defence had been aware of the existence of both items for years through the served brief of evidence, and the items had been photographed and included in materials well before trial. The lateness of the Crown's formal reliance on the items did not, in the circumstances, cause the kind of unfair prejudice that the notice requirement in s 98 is designed to prevent.
On the question of significant probative value, her Honour applied the test articulated in the case law: the trial judge must take the evidence at its highest and assess its capacity to contribute to the resolution of the disputed fact, without weighing it against competing hypotheses or predicting how a jury would ultimately evaluate it. The relevant question is whether the evidence, if accepted, would have the capacity to be of importance or consequence in establishing the fact in issue.
Her Honour was satisfied that the coincidence evidence carried significant probative value. The configuration of the massage device, with its metal bolt head wrapped in a folded towel secured by a red rubber band wound multiple times, closely mirrored the cloth and rubber band found at the crime scene. The existence of alternative explanations for the crime scene cloth did not diminish the probative value of the coincidence evidence to a point requiring exclusion.
The defence did not submit that any prejudicial effect from the tender was incapable of being cured by appropriate jury directions, and no argument was advanced that the evidence should be excluded under s 101. Accordingly, Fullerton J permitted the Crown to adduce the evidence.
Orders Made
• The Crown is permitted to adduce the evidence (the rubber band bound cloth found at the crime scene as coincidence evidence)
Key Takeaways
- Under s 98 of the Evidence Act 1995 (NSW), coincidence evidence is admissible only if it has significant probative value, assessed by taking the evidence at its highest and examining its capacity to contribute to the resolution of the disputed fact, rather than by predicting how a jury will weigh it.
- Where a party has failed to give reasonable notice as required by s 98, a court may nonetheless grant leave under s 192, particularly where the opposing party had long-standing awareness of the existence of the relevant items through prior disclosure.
- The existence of alternative hypotheses that might explain physical evidence found at a crime scene does not automatically diminish the probative value of coincidence evidence tendered under s 98, provided that evidence retains an independent capacity to implicate the accused.
- Coincidence evidence may draw its significant probative value from a combination of physical similarity between items found at the crime scene and items found in the accused's possession, considered alongside other evidence to be adduced at trial.
- A failure to raise any submission that prejudice from coincidence evidence cannot be cured by jury directions is relevant to whether exclusion under s 101 of the Evidence Act is warranted.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 98, 101, 192
- Criminal Procedure Act 1986 (NSW)
Cases:
- DSJ v R; NS v R [2012] NSWCCA 9
- R v Gale; R v Duckworth [2012] NSWCCA 174
- R v Harker [2004] NSWCCA 427
- R v Xie (No 8) [2015] NSWSC 2121
- R v Zhang [2005] NSWCCA 437; 158 A Crim R 504