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Supreme Court 28 July 2015

R v Xie (No 18)

[2015] NSWSC 2129

Homicide
CRIMINAL LAW ADMISSIBILITY DNA EVIDENCE

Citation: R v Xie (No 18) [2015] NSWSC 2129
Court: Supreme Court of New South Wales
Date: 28 July 2015
Judge(s): Fullerton J

Background

The accused stood trial for the murders of five members of the Lin family. A central piece of Crown evidence was a stain (Item 550) sampled from the floor of the accused's garage. Forensic testing described the stain as "possibly blood," and DNA analysis revealed a mixed profile from at least four contributors, with the deceased family members unable to be excluded as the source.

The Crown sought to rely on evidence from two experts, Mr Goetz and Dr Walsh, that the mixed DNA profiles in Item 550 showed a "high degree" of similarity, in terms of allele numbers and peak heights, to DNA profiles taken from the crime scene at Boundary Road. The Crown's purpose was to invite the jury to infer that the deceased's DNA in Item 550 was in blood transferred by the accused from the crime scene to his garage after the killings.

A pre-trial ruling by Johnson J had previously admitted the DNA evidence. At trial before Fullerton J, a reformulated challenge emerged, focused specifically on whether the similarity evidence from Mr Goetz and Dr Walsh was being deployed for a "coincidence reasoning" purpose under the Evidence Act 1995 (NSW), and whether the requirements of that Act had been satisfied.

  • Whether the evidence of similarity in allele numbers between Item 550 and crime scene DNA profiles constituted admissible expert opinion evidence under s 79 of the Evidence Act 1995 (NSW).
  • Whether that evidence was being led for a "coincidence" purpose within the meaning of s 98 of the Evidence Act, which requires formal notice and a finding of significant probative value.
  • Whether the Crown had complied with the procedural notice requirements of s 98(1)(a) before adducing the similarity evidence.
  • Whether the probative value of the evidence substantially outweighed its prejudicial effect, as required by s 101(2) of the Evidence Act.
  • Whether the earlier pre-trial ruling by Johnson J had resolved these questions with sufficient specificity to govern their use at trial.

Decision

Fullerton J observed that the pre-trial admissibility ruling by Johnson J had not specifically interrogated the precise purpose for which the Crown intended to use the similarity evidence at trial, nor the reasoning it would invite the jury to adopt. Her Honour noted that this was not a criticism of Johnson J, but reflected how the Crown had framed its submissions at the pre-trial hearing.

The accused argued that the Crown's invitation to the jury to find the profiles were not coincidentally similar amounted to coincidence reasoning, triggering the requirements of s 98 of the Evidence Act. Her Honour accepted that if the Crown was indeed inviting coincidence reasoning, the court was obliged to assess the evidence against that standard regardless of how the Crown characterised its own case theory.

Her Honour expressed a preliminary view that, procedural notice issues aside, the similarity evidence would likely satisfy the dual substantive tests under ss 98(1)(b) and 101(2) of the Evidence Act, meaning it would have significant probative value and that probative value would substantially outweigh any prejudicial effect. However, the Crown had sought the opportunity to be heard further on whether the coincidence rule was engaged at all.

Accordingly, Fullerton J reserved a final ruling on the coincidence question, pending further submissions from the Crown. The judgment is therefore interlocutory, with the court declining to make a definitive ruling at that stage.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where a trial judge identifies that evidence may be deployed for a coincidence reasoning purpose, the court is obliged to assess it against the requirements of s 98 of the Evidence Act 1995 (NSW), regardless of whether the Crown accepts that characterisation.
  • A pre-trial admissibility ruling does not necessarily resolve all questions about admissibility if, at trial, the Crown's intended use of the evidence is articulated with greater specificity than it was at the pre-trial stage.
  • The Supreme Court indicated, on a preliminary basis, that similarity evidence in mixed-contributor DNA profiles showing corresponding allele numbers and peak heights may satisfy both the significant probative value threshold in s 98(1)(b) and the balancing requirement in s 101(2) of the Evidence Act, though no final ruling was made.
  • Compliance with the formal notice requirement in s 98(1)(a) is a distinct procedural precondition to adducing coincidence evidence, separate from satisfying the substantive probative value tests.
  • DNA profiles described as showing "high degree" similarity across multiple analytical features can carry substantial probative weight in a circumstantial murder case, but the basis and purpose of that evidence remain subject to careful scrutiny at trial.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 79, 98, 101, 135, 137
- Criminal Procedure Act 1986 (NSW), s 130A(3)

Cases:
- R v Xie (No 4) [2014] NSWSC 500
- Honeysett v R [2014] HCA 29; 253 CLR 122
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
- Aytugrul v The Queen [2012] HCA 15; 247 CLR 170
- Adam v The Queen [2001] HCA 57; 207 CLR 96
- Marsh v R [2015] NSWCCA 154
- Gilham v R [2012] NSWCCA 131; 224 A Crim R 22
- DPP v Tuite [2014] VSC 662
- R v Dlugosz; R v Pickering; R v S(MD) [2013] 1 Cr App R 32