Andrew L. Urban.
Two large screens facing the court room show a diminutive Robert Xie, seated at a desk, dressed in black and holding a black pen, linked in from the Lithgow Correctional Facility, where he is serving a life sentence. He was convicted in January 2017 of brutally murdering five members of his wife’s family, including two young boys, back in 2009. His appeal has begun in the grand theatre of NSW Supreme Court’s Banco Court, with its tiered seating, elevated judges’ bench, paintings of red robed Supreme Court justices hung high on the walls, the sombre clerks of the court and three bewigged and red robed judges in the flesh.
Of the eight grounds of appeal, the first three concern the DNA evidence which was always problematic, a tiny sample found on the Xie house garage floor, 300 metres from the crime scene: the Lin family home, both in Epping, Sydney.
Xie’s barrister Belinda Rigg SC, began by advising the court that the argument over the DNA evidence will take all week, with the last two days devoted to expert witness testimony. Dr Mark Perlin’s* expert testimony on the complexity of the DNA material will come under scrutiny, and Rigg foreshadowed it will be shown to be unreliable in fact and badly presented to boot. Dr Perlin “went beyond his expertise” she told the court, giving evidence that was “misleading, confusing and unfairly prejudicial”.
Then Rigg stated what should have been the crux of the DNA evidence: that “expert evidence is silent on the timing of the deposit, or on how it came to be on the garage floor.”
Those two pieces of crucial information were missing from the trial.
By 12.30 on Monday June 22, 2020, two hours after the hearing began, it was evident that the intricacies of the DNA science and as it related to this case, was beyond the grasp of not only the expert witnesses (who had disagreed on the evidence) but the court itself.
It’s going to be a long week – and arguably it is needlessly. If it is not known when the DNA stain was deposited (before or after the murders?), nor how, the whole exercise is futile. It wasn’t at the crime scene, and there is no agreement on just whose DNA is present. It must have been a brazen sleight of hand by the prosecution to present it to the jury with as much fanfare, scientific bravado and over as much time as possible, to make it appear a vital part of the case against Xie. There was scant other actual evidence against him.
* Dr. Mark Perlin is Chief Scientific and Executive Officer at Cybergenetics, in Pittsburgh, USA. Dr Peter Gill, Professor of Forensic Genetics at Oslo University, Norway, will also testify at this appeal.
The other grounds of appeal are:
4 – Error in Her Honour the judge warning against the CSI Effect’
5 – Miscarriage of justice from directions on consciousness of guilt
6 – Miscarriage of justice from directions about alibi
7 – Error in admission of coincidence evidence in massage device
8 – Miscarriage of justice caused by conduct of counsel