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14
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: NSW Court of Criminal Appeal
Date: 15 February 2021
Judges: Bathurst CJ, R A Hulme J, Beech-Jones J

Background

The appellant was convicted by majority verdict in January 2017 of five counts of murder following his fourth trial. The victims were his wife's relatives, found beaten to death at their home in North Epping in July 2009. The appellant lived approximately 300 metres away. He was sentenced to life imprisonment and appealed his conviction only.

The Crown case was entirely circumstantial and built around twelve distinct circumstances. Among the most significant was DNA analysis of a stain found in the appellant's garage ("Stain 91"), which the prosecution contended contained the DNA of at least four of the victims. The prosecution relied on probabilistic DNA analysis software called TrueAllele, developed by expert witness Dr Mark Perlin, to support this contention. The Crown also relied on post-offence conduct said to demonstrate consciousness of guilt, a "massage device" found at the appellant's home as coincidence evidence, and evidence rebutting the appellant's alibi that he had been asleep with his wife at the time of the killings.

The appellant had previously stood trial twice in 2014 before Johnson J (both trials aborted) and once in 2015 before Fullerton J (jury discharged, unable to reach verdict). The 2016 trial before Fullerton J resulted in the majority guilty verdicts. The appeal raised ten distinct grounds.

  • Whether Johnson J erred in admitting the TrueAllele results and Dr Perlin's opinions, and whether that ruling extended to the 2016 trial
  • Whether Fullerton J erred in refusing cross-examination on a voir dire about whether TrueAllele had been appropriately validated
  • Whether the admission and use of TrueAllele evidence and Dr Perlin's opinions caused a miscarriage of justice
  • Whether new expert evidence (from Professor Gill, Dr Perlin, and TrueAllele validation reports) was admissible on appeal
  • Whether the trial judge erred in giving a "CSI effect" direction warning jurors not to expect all questions to be answered by forensic analysis
  • Whether the trial judge erred in failing to direct the jury on hypothetical explanations for alleged consciousness-of-guilt conduct
  • Whether the summing-up on consciousness-of-guilt evidence was unbalanced in the Crown's favour
  • Whether the summing-up on alibi evidence was unbalanced in the Crown's favour
  • Whether coincidence evidence about the "massage device" was wrongly admitted
  • Whether conduct of trial counsel occasioned a miscarriage of justice

Decision

TrueAllele DNA evidence. The Court held that complaints about TrueAllele's validation did not raise any issue under section 79 of the Evidence Act 1995 (NSW), which governs the admissibility of opinion evidence from experts. Validation goes to the reliability of the methodology, not to whether the expert is qualified to give the opinion, and is therefore a matter of weight rather than admissibility. Johnson J's original ruling admitting the evidence was not shown to involve any error of fact or law, and its scope extended to Dr Perlin's evidence at the 2016 trial. Assuming, without deciding, that Fullerton J refused voir dire questioning on validation, her Honour did not err in doing so, since the objection was confined to validation and raised no admissibility question under section 79. No miscarriage of justice from the admission or use of the evidence was established.

New evidence on appeal. The Court confirmed that the power under section 12(1) of the Criminal Appeal Act 1912 to receive further evidence is not a free-standing discretion. Where new evidence is tendered to contradict the jury's verdict, the rules for fresh or new evidence apply. The Gill report and TrueAllele validation reports were available at trial with reasonable diligence and did not demonstrate innocence or raise a reasonable doubt, so they were inadmissible to challenge the verdict. However, Dr Perlin's additional evidence and the validation reports were admitted for the limited purpose of assessing the allegation of trial counsel incompetence, since that ground justified receiving evidence about what material was available at the time of trial.

CSI direction, consciousness of guilt, alibi, and coincidence evidence. The Court rejected the complaint about the CSI direction, finding the summing-up as a whole did not create a real risk of diverting the jury from properly assessing the forensic evidence. On consciousness of guilt, no direction about hypothetical explanations for the appellant's conduct was required: where the appellant had himself offered an explanation, a further suggested hypothetical added nothing, and where he denied the conduct altogether, a hypothetical direction carried a real tendency to undermine the denial. Leave to raise the alibi ground was refused, the Court finding no established inaccuracy in the summing-up. The coincidence evidence about the massage device was correctly admitted, given the significant similarities between the cloth-and-rubber-band construction found at the murder scene and that found at the appellant's home, and no prejudice was established.

Trial counsel conduct. The Court rejected the submission that trial counsel's conduct caused a miscarriage of justice. The conduct was assessed in the context of the trial as it unfolded and the material available to counsel at the time. The particular complaints advanced largely mirrored the other grounds already rejected on appeal. No miscarriage of justice was demonstrated.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under section 79 of the Evidence Act 1995 (NSW), challenges to the validation of expert methodology go to the weight of evidence, not its admissibility. A failure to validate a software tool such as TrueAllele does not render an expert's opinion inadmissible.
  • The power to receive further evidence on a criminal appeal under section 12(1) of the Criminal Appeal Act 1912 is not free-standing. Where the evidence is tendered to contradict the jury's verdict, it must satisfy the requirements for fresh or new evidence, meaning it was not reasonably available at trial and either establishes innocence or gives rise to a reasonable doubt.
  • New evidence that does not meet the freshness or innocence threshold may still be admissible on appeal for the limited purpose of assessing a ground alleging that trial counsel's conduct caused a miscarriage of justice.
  • In dismissing the appeal, the Court confirmed that directions about hypothetical explanations for consciousness-of-guilt conduct are not required in all cases. Where the accused has offered their own explanation for the conduct, a further hypothetical is unnecessary; where the accused denies the conduct, such a direction may actively undermine that denial.
  • Coincidence evidence is properly admitted where the similarities between two items are sufficiently specific and significant to establish probative value, and where no real prejudicial effect is established to outweigh that probative value.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 79
- Criminal Appeal Act 1912 (NSW), s 12(1)
- Criminal Procedure Act 1986 (NSW)
- Children's (Criminal Proceedings) Act 1987 (NSW)
- Criminal Appeal Rules, r 4

Cases
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Aytugrul v R (2012) 247 CLR 170; [2012] HCA 15
- Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
- Cesan v DPP (Cth) [2007] NSWCCA 273
- GBF v The Queen [2020] HCA 40
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
- Ali v R [2005] HCA 8; (2005) 214 ALR 1
- Chen v R [2018] NSWCCA 106
- A2 v R;