Robert Xie – an evidence-free conviction

Andrew L. Urban.

There was no direct evidence that Robert Xie viciously murdered five members of his wife’s family in 2009, nor any credible circumstantial evidence. The appeal against his 2017 conviction has been delayed by the Crown, most recently in October this year (2019). This briefing is published to provide the public with information about the case which may be at odds with media-generated perceptions about the man and the murders. 

The timeline below draws attention to the fact that for almost two years after the brutal murders in an Epping (Sydney) home, police had nothing to go on, no clues, no evidence, no weapon, no witnesses … We can infer that there was pressure from senior police and perhaps others, to get a result. Such a major crime could not be allowed to become a cold case when law and order was a central plank of modern politics.

July 18, 2009: Newsagent Min Lin, 45, Mr Lin’s wife Yun Li “Lily” Lin, 44, their sons Henry, 12, and Terry, 9, and Mrs Lin’s sister, Yun Bin “Irene” Lin, 39, are found dead in their North Epping home.

Min Lin’s sister Kathy and her husband Lian Bin “Robert” Xie had gone to the Lin house (just 200 metres from their own) around 9:50am, after receiving a phone call to say the family newsagency had still not opened. They discovered the bodies, which had been bashed so badly their faces were unrecognisable.

Police investigations over the next six months fail to find clues or culprits. The case of a brutal massacre in suburban Sydney is going cold. In January 2010, police set up surveillance on Robert Xie: cameras and listening devices installed in his house and car. Still nothing.

Robert Xie

May 5, 2011: Robert Xie is arrested and charged with five counts of murder. Police tell the media that he emerged as their prime suspect about six months after the killings. Xie is held on remand. It’s almost two years since the murders. 

The prosecution claims that Robert Xie murdered his extended family some time after 2am on Saturday July 18. The time is critical to the Crown’s case because Robert had gone to bed sometime after 2am, a fact corroborated by computer records, which showed activity until then. This is not disputed. Kathy didn’t notice when he came to bed because she was already asleep. There is no forensic evidence linking Xie to the crime scene.

Earlier that evening, the whole family had been together, except Lily and Irene, at the Merrylands home of Kathy’s parents for the regular Friday night dinner; Mrs Zhu’s pork and sticky rice the favourites. They had all left to go home before 10pm. (Lily and Irene were often absent, usually working at the Lin family owned newsagency in Epping.) The Lin family lived at 55a Boundary Road, just 200 metres around the corner from Robert and Kathy Xie in Beck Street.

The autopsy reports state that the victims died “between 17 July 2009 and 18 July 2009”. The murders could have taken place anytime between 10.30pm (when the two Lin boys were dropped home by Robert and Kathy Xie after the family dinner) and 2am, for example, while Robert was still at his computer.

Although four trials were started, the first two (2013-14 & 2014) were both abandoned; in the first trial, new evidence was introduced and thus the trial was aborted. The second trial was aborted when the judge fell ill.

The third trial (2015) went for nine months before Justice Elizabeth Fullerton, and was prosecuted by Mark Tedeschi QC, then senior counsel for the NSW DPP; this trial ended with a hung jury.

At the end of the fourth trial (with a new defence team), on Thursday, February 13, 2017, Justice Fullerton sentenced Lian Bin (Robert) Xie to life imprisonment without parole for the brutal, savage murder of five members of his wife Kathy’s family, in their North Epping home on July 18, 2009. Hearing the sentence, Xie rose to his feet and called out: “I did not murder the Lin family, I am innocent.” His wife Kathy, weeping, echoed his claim of innocence and has never wavered in her support.

An appeal was launched immediately. The grounds of appeal were tendered in court on December 14, 2018. The court was to begin to hear arguments in October 2019 but the Crown has (again) sought a delay.

ANALYSIS

Robert Xie’s prosecutor was seriously misguided when suggesting that ‘saving face’ was a motive for the murders and the very idea makes Ron* annoyed; Ron is Chinese.

He questions the validity of a Westerner telling the court that Robert Xie would be motivated to savagely murder five of his extended family because he ‘lost face’ over his brother in law’s success and money. It was said by the prosecutor to have caused him ‘intense bitterness and hatred’ against his victim. Ron’s Chinese friends laughed derisorily when he told them about the claim.

That is so absurd, says Ron, his voice rising. It’s as if the prosecutor had heard something about ‘loss of face’ in a TV documentary, about a culture he doesn’t know and attached it to the accused. And the jury knew no better. They, too, had heard the phrase, and had no idea how ridiculous the prosecution’s claim was; Ron shakes his head. It was like someone had thought they understood China from eating Chinese food and seeing travel posters.

It’s inner city Sydney and we’re sitting in the enclosed back yard of a typical Newtown two-storey, Ron, his friend Phillip and me, around a small table on which an empty mug stands as silent witness to Phillip’s afternoon cuppa. We’re under a flight path, but they’ve got used to the soaring interruptions in the now overcast sky. Ron is reading a book, until we start talking about the case of Robert Xie.

When he first heard about the case, Ron had no opinions “or even thoughts” about Xie’s guilt or innocence. He comes from mainland China – like Xie. Xie had been an ear, nose and throat specialist in China before moving to Australia and his speech reflected his education. His English at the time was fairly good, too, and is even better these many years later.

The media, following the police line, readily turned the false ‘loss of face’ motive into the symbolic reason for the murder victims to have had massive damage to their faces. This makes Ron even angrier. It stretches the insult-by-ignorance beyond breaking point.

In Chinese culture, losing face is bad, says Ron, but not so bad as to generate so much hate that you’d kill somebody – never mind five members of your family. Losing face generates feelings of inadequacy and embarrassment; not hatred.

If only the jury knew …

The prosecution also put it to the jury that Xie wanted to get his hands on the Lin family ‘wealth’ – which didn’t exist. The third (far fetched) motive proposed was that Xie wanted to sexually abuse their 15 year old daughter, Brenda, without her family being around to protect her. This aspect gained much publicity and regardless of its veracity or relevance to the murders would certainly influence anyone’s thinking about Xie, even though he was not charged with any such offence.

Ron’s friend Phillip, has also been a keen observer of this case, attending the trials and making notes. He compiled the following summary of compelling circumstances around the case that deserve a lot more attention than the verdict suggests.

For some considerable time around the Lin murders, an international drug syndicate was using a convenient system to smuggle contraband into Sydney. Many newsagents had installed sets of post office boxes in their front windows. Customers could obtain their mail at any time of the day or night and were not under surveillance. The Lins’ Epping newsagency provided such a service. The post boxes at their Rawson St newsagency had been used by an international drug cartel to smuggle cocaine, MDMA and heroin through the mail from Thailand, Indonesia, Spain, Bolivia, Columbia, Pakistan, Brazil and the United Arab Emirates.

Drug dealers managed to use fake documentation to obtain a number of these boxes. Document checking was left to the proprietor. Letters and parcels of contraband were sent to particular box numbers and collected by the dealers. One dealer had been caught about a year earlier and possessed keys to various boxes all over Sydney.

Border control was aware of what was going on because they would periodically intercept articles and confiscate them. They created lists of box numbers which came under suspicion. It is unknown whether they took into account the difficulty they were creating for the newsagents when an expected article did not arrive.

Several customers of the newsagency testified that they saw heated exchanges between Min Lin and other customers from time to time. One may conclude that an expected parcel (or several) had failed to arrive. Evidence provided by the Australian Federal Police indicated that the amount of contraband confiscated by Border Control was measured in kilograms, so one would expect that Min needed to handle disgruntled customers on a regular basis. One can only guess the amount of contraband that was passing through the boxes.

Clearly not all contraband was seized, or even detected. It was a known fact that some parcels were so big that they could not be squeezed into the post box. They were stored in the back room of the newsagency and handed over to the recipient in due course after a notice was placed in the box. Over time, both Min and Irene would come to recognise regular collectors of such parcels.

It is not difficult to imagine that the dealers harboured suspicions that Min is intercepting some of the packages for his own benefit. They can hardly contact Border Control and make enquires. If the situation persists for long enough, they may decide to take drastic action, especially if they discover that the AFP have convinced Min to contact them when a suspicious package arrives. Min can recognise the regular recipients and is a threat to their operations.

The drastic action of killing the entire Lin family occurs one Friday night. The extreme violence and barbarity makes headlines around the world. What a clear warning to anyone thinking of getting in the way of the syndicate. What a clear motive for the killings.

The judge’s sentencing remarks provide a matching overlay to such a scenario – a perfect fit for a gang of vicious criminals exacting the price for what they saw as disloyalty and theft.

CROWN’S DNA EVIDENCE – UNPROVEN

In the absence of any durable evidence that pointed to Robert Xie, the prosecution made much of a DNA sample (‘stain 91’) taken from the Xie family home garage floor.

JUDGE’S REMARKS ON SENTENCE (extract)

In the course of executing a search warrant over the offender’s residence in May 2010, a small transfer blood stain was located on the garage floor. It was the Crown case at trial that this was the blood of at least four of the deceased inadvertently transferred by the offender onto the garage floor after the murders.

“… after the murders.” ? There is no evidence to that effect. Finding the DNA in 2010 does not provide a time stamp of when it was deposited. At best, all that the DNA smear in Xie’s garage shows is that someone – Xie or his wife or both – was at the crime scene at some stage during or after the crime, either discovering the bodies or committing the crime. The DNA smear does not differentiate between whether they discovered the bodies or whether they committed the crime. We already know they discovered the bodies, so the presence of the smear is meaningless, even if deposited after the murders and even if it is reliable evidence.

Which it is not. The forensic evidence about the DNA – the prosecution’s ‘smoking gun’ – is profoundly unreliable. Despite the judge’s sentencing remarks, it is not at all certain that it is blood. (The test conducted with luminol on the entire floor showed no likelihood of blood being present.)

Expert witnesses provided conflicting testimony, and in the end, none of them could exclude young Brenda Lin from the DNA sample; but Brenda was overseas on a school excursion at the time of the murders.

Stain 91 was “probably the most complex DNA sample ever introduced to a criminal trial in Australia,” the prosecutor, Mark Tedeschi QC was quoted saying in one article. My ‘researcher/observer’ Phillip has this to say: “That stain 91 was blood was the standout fact that the Crown was unable to prove. I recall the evidence vividly and have double-checked with the transcript. They absolutely failed.” He concludes: “If stain 91 is blood, the DNA evidence shows that it didn’t come from the crime scene; we can ignore it. If it is not blood, it didn’t come from the crime scene; we can ignore it.”

A credible explanation for stain 91 (tiny as it was) may be found in the fact that the two families lived within 200 metres of each other and often played games together (eg badminton) in this garage.

* Ron is not his real name.

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2 Responses to Robert Xie – an evidence-free conviction

  1. Phillip says:

    In addition to human analysis, a highly sophisticated computer program developed in the US was used to analyse the DNA in stain91. Any given genetic profile can be checked to see whether it is present in the mixture. (Stain91 is a mixture of DNA from several people.) The program assigns a score to the profile being checked. A person is excluded if their score is less than 1. If a profile scores more than 100, there is a very high probability that the person under consideration is a contributor to the mixture. In stain91 six profiles were found with scores exceeding 4000; they were the six members of the family – yet there were only 5 victims! Since Brenda was out of the country at the time, it is virtually impossible for the DNA in stain91 to have originated from the crime scene. The Crown asserted that stain91 was evidence of the murder weapon having rested on the garage floor, awaiting disposal later in the day.

  2. Tony Brownlee says:

    Until governments accept people off the street no longer represent the wider community as jurors and that the time has arrived to hire professional jurors from which juries are chosen who are educated particularly in the verse: beyond reasonable doubt the court of appeal and court of criminal appeal/S will suffer from overwork!
    The complexity of criminal Trials no longer reflect those of the the 1900’s!

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