AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 18 November 2016

R v Xie (No 24)

[2016] NSWSC 1925

Homicide
CRIMINAL LAW SHEPHERD DIRECTION

Citation: R v Xie (No 24) [2016] NSWSC 1925
Court: Supreme Court of New South Wales
Date: 18 November 2016
Judge(s): Fullerton J

Background

The accused stood trial for the murder of five deceased persons. The Crown's case was entirely circumstantial, relying on a combination of evidence including means, motive, opportunity, consciousness of guilt, and forensic material linking the accused to the killings.

One significant piece of Crown evidence was a stain found on the floor of the accused's garage in May 2010, designated "Stain 91." The Crown alleged the stain was a transfer blood stain containing the DNA of at least three, probably four, and possibly all five of the deceased, and that it had been brought to the garage by the accused after the murders. No confirmatory blood test was performed on the stain, as DNA profiling was prioritised to preserve the limited sample.

At the close of evidence, defence counsel sought a direction that unless the jury was satisfied beyond reasonable doubt that Stain 91 was blood, they must disregard the DNA profiling results and the statistical analysis generated by the TrueAllele computer program.

  • Whether "Stain 91 is blood" constituted an intermediate fact that was an indispensable link in a chain of reasoning towards guilt, requiring a Shepherd direction.
  • Whether the jury had to be satisfied beyond reasonable doubt of that intermediate fact before they could rely on the DNA profiling and TrueAllele evidence derived from the stain.
  • Whether the broader framework of the Crown's circumstantial case meant the evidence about Stain 91 was better characterised as a strand in a cable of evidence rather than a link in a chain.

Decision

Her Honour declined to give a Shepherd direction in the terms sought by the defence. The foundation of that refusal was her characterisation of the Stain 91 evidence as forming part of a broader web of circumstantial evidence, rather than as a necessary and isolated link in a chain of reasoning to guilt.

Fullerton J drew on the Shepherd principle as articulated by Dawson J in the High Court: a formal direction on an intermediate fact is only appropriate where that fact is a necessary link in a chain of reasoning, not where the evidence operates as strands in a cable. The Crown had not presented Stain 91 as conclusive or standalone proof of guilt; rather, it was one element within a complex of interlocking circumstantial evidence.

Her Honour also noted that in the accused's earlier 2015 trial, Senior Counsel then appearing for the accused had accepted that settled authority did not mandate a Shepherd direction in the conventional sense and had at least implicitly conceded that the Stain 91 evidence was not an indispensable link. No authority was placed before her Honour in the present trial that would require a different characterisation.

Fullerton J did leave open one related question: whether the DNA profiling results and TrueAllele likelihood ratios could themselves be taken into account by the jury when determining whether Stain 91 was blood. That issue was reserved for further argument. Her Honour also indicated a willingness to consider giving a Shepherd direction if counsel requested one, to guard against the jury unilaterally isolating and deciding the case only on the Stain 91 evidence.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A Shepherd direction is only warranted where an intermediate fact constitutes an indispensable link in a chain of reasoning to guilt; it is not appropriate where the evidence operates as one strand among many in a cable of circumstantial evidence.
  • The Supreme Court refused the direction here because the Crown had not presented Stain 91 as conclusive or isolated proof, but as one element within a broader circumstantial case including evidence of motive, opportunity, consciousness of guilt, and other forensic material.
  • Concessions made by defence counsel in an earlier trial on the same issue, while not determinative, were treated as relevant context by her Honour in assessing the strength of the defence's position.
  • A residual question was reserved for further argument: whether the DNA profiling results and TrueAllele statistical analysis derived from Stain 91 could themselves bear on the threshold question of whether the stain was blood at all.
  • Fullerton J signalled a willingness to give a modified Shepherd direction if requested, to prevent the jury from treating the Stain 91 evidence as a self-contained route to a verdict, rather than as part of the totality of circumstances.

Legislation and Cases Referenced

Cases:
- Shepherd v The Queen [1990] HCA 56; 170 CLR 573
- R v Xie (No 12) [2015] NSWSC 2124

Legislation: No specific legislation was cited in this decision.