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17
Court of Criminal Appeal 15 February 2021

Xie v R

[2021] NSWCCA 1

Also reported as (2021) 386 ALR 371
Homicide
CRIME MURDER CONVICTION APPEAL LENGTHY TRIAL ACCUSATORY AND ADVERSARIAL PROCESS ROLE OF APPELLANT COURT

Citation: Xie v R [2021] NSWCCA 1
Court: Court of Criminal Appeal
Date: 15 February 2021
Judges: Bathurst CJ, R A Hulme J, Beech-Jones J

Background

The appellant was the husband of the sister of the deceased Min Lin. He lived approximately 300 metres from the Lin family home in North Epping, Sydney. On the morning of 18 July 2009, police were called to that home and discovered five members of the Lin family, including two children aged nine and twelve, who had been killed by blunt force injury to the head and, in most cases, asphyxia.

After a lengthy investigation, the appellant was charged with five counts of murder. He stood trial four times: two trials in 2014 were aborted, a 2015 trial ended with a hung jury, and a 2016 trial before Fullerton J concluded with majority verdicts of guilty on all counts on 12 January 2017. The 2016 trial transcript ran to 6,465 pages and the summing up alone took eight days. The appellant was sentenced to life imprisonment.

The Crown case was entirely circumstantial, built around twelve categories of evidence including the absence of forced entry, distinctive shoe marks, the appellant's familiarity with the home, conduct on the morning the bodies were discovered, conversations with a prison informer, and a blood stain in the appellant's garage containing DNA from multiple deceased family members. The appeal raised eight grounds, principally concerning DNA evidence, aspects of the trial judge's summing up, admissibility of coincidence evidence, and the competence of trial counsel.

Legal Issues

  • Whether the expert evidence of Dr Mark Perlin concerning probabilistic DNA analysis using the "TrueAllele" software was properly admitted, including whether Dr Perlin was qualified to opine on "shadowing" and whether the prosecutor's fallacy infected his evidence
  • Whether the trial judge erred in refusing to allow further voir dire examination of Dr Perlin on the question of validation at the 2016 trial
  • Whether Dr Perlin's evidence as given at trial occasioned a miscarriage of justice
  • Whether the trial judge's "CSI Effect" direction to the jury was a misdirection
  • Whether the summing up on consciousness of guilt was unbalanced or failed to put the defence case
  • Whether the directions on the appellant's alibi were inaccurate or unbalanced
  • Whether the coincidence evidence concerning the homemade massage device was correctly admitted
  • Whether the conduct of defence counsel at the 2016 trial occasioned a miscarriage of justice

Decision

Preliminary principle: The Court emphasised at the outset that a criminal appeal is not a retrial and this Court does not reformulate cases that were not advanced at trial or speculate about how a trial might have been conducted differently. Many of the complaints raised on appeal concerned matters that were never agitated at the 2016 trial and, in several respects, sought to unravel decisions made by trial counsel (at [6]-[7]).

Ground 1 (admission of Dr Perlin's evidence before Johnson J): The Court found no error in the ruling in Xie (No 4) admitting Dr Perlin's evidence. The ruling was wide enough to encompass his opinions on the meaning of match statistics, the concept of shadowing between related contributors, and match statistics derived from TrueAllele runs assuming four or five contributors (at [354]). The substantive complaints underlying this ground had not been articulated before Johnson J and many involved matters that were not raised at any of the trials. Leave to raise this ground was refused (at [379]).

Ground 2 (Fullerton J's refusal to allow further voir dire): The Court treated the trial judge's ruling as a definitive refusal to permit further voir dire examination of Dr Perlin on the question of validation of TrueAllele for related contributors. Assuming that characterisation in the appellant's favour, the Court held the ruling was correct. A lack of validation does not raise any issue under s 79 of the Evidence Act 1995: admissibility under that section turns on whether the witness has specialised knowledge based on training, study or experience and whether the opinion is wholly or substantially based on that knowledge, not on whether a scientific theory has been independently validated (at [293]-[301]). The Court agreed with the trial judge's reliance on Tuite v The Queen (2016) 49 VR 196 and this Court's decision in Chen v R [2018] NSWCCA 106. Leave was granted but the ground was rejected (at [393]).

Ground 3 (miscarriage from Dr Perlin's evidence as given): The Court rejected the proposition that Dr Perlin's evidence committed the prosecutor's fallacy in relation to Min, Terry and Henry Lin. Their DNA in Stain 91 had been conceded by defence counsel at trial, so any complaint about those match statistics concerned an agreed fact (at [333]-[343]). Dr Perlin's statements expressing the inverse of the match statistic as an upper bound on the probability of a false positive were not shown to be fallacious, and the only qualified statistical expert before the Court, Dr Perlin himself, explained and defended the approach (at [342]). The complaints about the reporting of match statistics for Brenda Lin, the concept of shadowing, and alleged misrepresentations of validation studies were all rejected on the evidence. Leave was granted and the ground was rejected (at [412]).

Ground 4 (CSI Effect direction): The Court found no miscarriage of justice arising from the trial judge's directions warning the jury not to expect that all issues would be answered by forensic analysis or that the absence of an answer indicated a shortcoming in the investigation. The direction was confined to the crime scene evidence, was preceded by orthodox directions on expert evidence and did not divert the jury from considering whether guilt was proved beyond reasonable doubt (at [445]-[457]).

Ground 5 (summing up on consciousness of guilt):

Ground 5(a): The trial judge's directions concerning the destruction of shoeboxes and conversations with the prison informer were challenged as requiring a further direction about hypothetical innocent explanations. The Court held no such direction was required in circumstances where the appellant had provided his own explanation for the shoebox destruction and denied the relevant conduct in other instances (at [541]-[558]). No redirection had been sought at trial.

Ground 5(b): The complaint that the summing up failed to put the "real defence case" on consciousness of guilt evidence was rejected. The Court held the trial judge's obligation was to summarise the case as the parties actually presented it, not to formulate a different characterisation of the evidence generated on appeal. The summing up accurately reflected the cases as run. Leave to raise this ground was refused (at [683]).

Ground 6 (alibi directions): The complaints about the accuracy and balance of the summing up on alibi were not established. Specific complaints, including the trial judge's misreading of "yeah … [indistinct]" as "yeah, yeah" in a transcript passage, were found to be trivial in context given the jury's extensive exposure to the recording itself and repeated directions to rely on what they heard (at [707]-[712]). Leave was refused (at [750]).

Ground 7 (coincidence evidence, massage device): The Court upheld the admissibility of evidence concerning the homemade massage device found at the appellant's home. The similarities between the blood-soaked cloth and rubber band found at the crime scene and the construction of the appellant's massage device, both involving folded cloth secured by a red rubber band over a hard object in a handmade device, were sufficient to establish significant probative value under s 98 of the Evidence Act (at [796]). No prejudicial effect warranting exclusion under s 101(2) was established (at [806]). Leave was granted and the ground was rejected (at [808]).

Ground 8 (trial counsel incompetence): The Court assessed each particular of the ground by reference to whether the conduct was incapable of rational explanation on forensic grounds and whether it caused a significant possibility of affecting the outcome. The concession by trial counsel that Min, Henry and Terry Lin's DNA was in Stain 91 was not incapable of rational explanation: it allowed counsel to focus on the possibility of Brenda Lin's DNA also being present, which was the more defensible point, rather than contest evidence that was very strong and already accepted by Senior Counsel at the 2015 trial (at [426]). No particular concerning Dr Perlin's evidence, the evidence of the prison informer, or the failure to seek redirection on grounds 5 and 6 was made out. Leave was refused (at [869]).

Admissibility of appeal evidence: The Court rejected the report of Professor Gill as neither fresh nor new evidence capable of demonstrating a significant possibility of acquittal, and also rejected the attached validation articles to the extent they bore on Grounds 1 to 3. Dr Perlin's appeal evidence was admitted but limited under s 136 to Ground 8 (at [440]-[443]).

Orders Made

  • The tender of Professor Gill's report (Exhibit C1) is rejected
  • Dr Perlin's report (Exhibit A1) is admitted but its use is limited under s 136 of the Evidence Act 1995 to Ground 8 of the appeal
  • Dr Perlin's oral evidence given on 25 and 29 June 2020 is admitted but its use is limited under s 136 to Ground 8 of the appeal
  • Paragraphs 1 to 4 of the solicitor's affidavit (affirmed 19 June 2020) and their annexures are admitted but their use is limited under s 136 to Ground 8 of the appeal
  • Leave to raise Grounds 1, 5, 6 and 8 is refused
  • Leave to raise Grounds 2, 3, 4 and 7 is granted
  • Appeal dismissed

Key Takeaways

  • An absence of validation studies addressing the precise factual circumstances of a case does not defeat admissibility of expert opinion evidence under s 79 of the Evidence Act 1995. The section requires specialised knowledge based on training, study or experience and that the opinion be wholly or substantially based on that knowledge; reliability and validation are not conditions of admissibility under that provision, following Tuite v The Queen and Chen v R (at [293]-[301]).

  • Probabilistic DNA analysis software such as TrueAllele may yield inclusionary match statistics for multiple related reference samples against a single inferred contributor without that outcome being inherently problematic. This arises because an inferred contributor produced by probabilistic genotyping is a probability distribution, not a single set of allele pairs, and the phenomenon of "shadowing" in related donors can be addressed through expert analysis and additional runs assuming more contributors (at [216]-[218]).

  • The Court of Criminal Appeal confirmed that it is not a forum to retry facts, reformulate a defence case that was not run at trial, or speculate about how the trial might have been better conducted. Appellate grounds built on a "real defence case" different from the one actually presented have significant foundational difficulties (at [6]-[8]).

  • In assessing whether trial counsel's conduct occasioned a miscarriage of justice, the relevant standard is whether the conduct was incapable of rational explanation on forensic grounds, assessed in the context of the trial as it actually unfolded and the material available to counsel at the time — not in the light of a different case theory constructed on appeal (at [415], [422]).

  • Coincidence evidence under s 98 of the Evidence Act 1995 does not require a large number of similar events. Where the item in question is sufficiently unusual, a single comparable item may carry significant probative value. Dissimilarities between the two items do not necessarily foreclose the availability of coincidence evidence reasoning; the existence of meaningful similarities is the central inquiry (at [785], [795]-[799]).

Legislation and Cases Referenced

Legislation
- Children’s (Criminal Proceedings) Act 1987
- Criminal Appeal Act 1912
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986
- Evidence Act 1995 (NSW)

Cases
- A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
- Ali v R [2005] HCA 8; (2005) 214 ALR 1
- Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
- Aytugrul v R (2012) 247 CLR 170; [2012] HCA 15
- Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
- Broadhurst v The Queen [1964] AC 441
- Cesan v DPP (Cth) [2007] NSWCCA 273; (2007) A Crim R 385
- Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
- Chen v R [2018] NSWCCA 106
- Doheny and Adams [1997] 1 Cr App R 369
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- GBF v The Queen [2020] HCA 40
- Hanna v R [2017] NSWCCA 168
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Matthews v R [2013] NSWCCA 187
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- Morgan v R [2011] NSWCCA 257; (2011) 215 A Crim R 33
- MRW v R [2011] NSWCCA 260
- Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573.
- Nudd v R [2006] HCA 9; (2005) 225 ALR 161
- Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
- R v Atkins (2009) EWCA Crim 1876
- R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
- R v Cook [2004] NSWCCA 52
- R v Denis Adams (No 2) [1998] 1 Cr App R 377
- R v Denis Adams [1996] 2 Cr App R 467
- R v Finnan [2005] VSCA 151
- R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487
- R v Galli [2001] NSWCCA 504; (2001) 127 A Crim R 493
- R v Gardner [2004] EWCA Crim 1639
- R v GK [2001] NSWCCA 413; (2001) 125 A Crim R 315
- R v Heyde (1990) 20 NSWLR 234
- R v Keir [2002] NSWCCA 30; (2002) 127 A Crim R 198
- R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174
- R v MK [2012] NSWCCA 110; (2012) 223 A Crim R 672
- R v Robinson [2003] NSWCCA 188
- R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167
- R v Xie (No 12) [2015] NSWSC 2124
- R v Xie (No 4) [2014] NSWSC 500
- R v Xie [2017] NSWSC 63
- Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
- Selby v R [2017] NSWCCA 40
- Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5
- The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Tuite v The Queen (2016) 49 VR 196; [2015] VSCA 148
- Vella v R; Siskos v R [2015] NSWCCA 148
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88