Andrew L. Urban.
As his appeal hearings draw to a close this week, Robert Xie’s fate lies in the hands of the judges. But how the legal system (mis)treated him over several years is also deserving of scrutiny. Convicted in 2017 of the five brutal murders of his wife’s family in July 2009, Xie has always maintained his innocence, and the case against him was circumstantial – and “not overwhelming” even in the words of the prosecutor.
The first, second and third trials were all aborted: the first to take in new evidence, the second when the judge, Justice Peter Johnson, fell ill, the third with a hung jury.
After the third trial, Amy Dale of The Daily Telegraph reports (December 2, 2013): “It was the longest criminal trial in NSW history involving a single accused, with more than 160 days of evidence and at least $1 million spent on running the case, but a jury yesterday declared they were unable to reach a verdict on whether or not Robert Xie is the Lin family’s killer.
TUNNEL VISION, PSYCHOLOGICAL WARFARE
In the lead-up to that trial, according to Paul Bibby’s report in The Sydney Morning Herald, Graham Turnbull SC (now a District Court Judge), acting for Xie, says the police investigation “has the hallmark of a single-minded pursuit of the accused to the exclusion of all others”, and that it ignored evidence that did not fit with their predetermined explanation.
“There was in fact no DNA from the applicant [Xie] found on any items taken by police from the crime scene … nor any of the victims’ DNA found on any of his items or his property,” Turnbull says.
Bibby reported that Turnbull then claimed that police had subjected Xie to “psychological warfare” including subjecting him to a torrid interview characterised by sardonic and sarcastic comments by the police, and a refusal to allow the suspect to have an interpreter.
THE SYSTEM IN ACTION
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 by Robert Xie and his wife Kathy Lin in their North Epping home, all brutally bashed to death.
Still no leads, no suspects … Police set up surveillance on Robert Xie: cameras and listening devices installed in his house and car.
10 – 14 May 2010
It’s 10 months since the murders. Still no leads, no suspects. Police spend five days searching the Lin home in Beck Street, North Epping, 200 metres from the Lin family home where the murders took place. They find the tiny strip of DNA on the garage floor that is to become a contentious piece of evidence, denied relevance by Xie’s defence. The appeal court heard that “expert evidence is silent on the timing of the deposit, or on how it came to be on the garage floor.”
May 5, 2011
Robert Xie is arrested and charged with five counts of murder.
December 22, 2011
Xie makes an unsuccessful bail application, and remains behind bars.
March 29, 2012
Xie again applies for bail in the NSW Supreme Court. Justice Derek Price denies bail, but acknowledges a jury may find there is not enough evidence to convict Xie.
December 19, 2012
Xie is committed to stand trial for the murders, and his lawyer again applies for bail.
Xie is granted bail by local court magistrate John Andrews, who says the Crown case is not strong. The Crown prosecutor, Mark Tedeschi QC, concedes that the prosecution case ”may not be an overwhelming one”. (Robert’s wife Kathy had told police Robert was in their bed all night after he closed his computer at around 2am.)
December 21-24, 2012
An appeal by the DPP on the bail decision is heard in the NSW Supreme Court. Xie is denied bail by Justice Stephen Rothman.
February 1, 2013
Xie pleads NOT GUILTY for the first time, in the NSW Supreme Court.
December 2, 2015
The trial concludes with a hung jury. Amy Dale of The Daily Telegraph reports: “It was the longest criminal trial in NSW history involving a single accused, with more than 160 days of evidence and at least $1 million spent on running the case, but a jury yesterday declared they were unable to reach a verdict on whether or not Robert Xie is the Lin family’s killer.
After 12 days of deliberations a jury of eight men and four women informed Justice Elizabeth Fullerton that they could not reach a unanimous decision, nor could they make a majority verdict of 11-1.
December 8, 2015
Xie is granted bail, after spending four years and seven months in jail without a conviction. He was arrested on May 5, 2011.
June 29, 2016
The fourth trial begins.
December 22, 2016
Xie’s bail is revoked (on grounds he may be a flight risk, according to the DPP) in anticipation of the jury retiring to consider its verdict. Xie is taken back into custody for the final days of the trial, and the jury’s deliberation.
January 12, 2017
A majority of 11 jurors find Xie guilty on five counts of murder. The Sydney Morning Herald reports that Xie, “his face impassive, rose to his feet in the dock and said: “I did not murder the Lin family, I am innocent.” His wife, supported by a chaplain and dressed neatly in a purple cardigan, sobbed quietly in court with her head bowed after the verdict was delivered.
“He’s innocent!” she cried after her husband’s outburst.
February 13, 2017
Xie is sentenced to life imprisonment without parole.
June 22, 2020
Xie’s appeal against the convictions begins.
July 1, 2020
Appeal hearings conclude, Justices Bathurst, Beech-Jones and Hulme reserve their judgement.
Grounds of appeal:
1 His Honour Johnson J erred in admitting the evidence of Dr Perlin;
2 Her Honour Fullerton J erred in disallowing further evidence and submissions on the voir dire on the admissibility of the evidence of Dr Perlin, and as a result inadmissible evidence was placed before the jury;
3 A miscarriage of justice was caused by the evidence given by Dr Perlin, emphasised by the manner in which such evidence was addressed upon by counsel, and her Honour’s Summing Up regarding such evidence;
4 Her Honour misdirected the jury by providing a warning regarding the ‘CSI Effect’
5 A miscarriage of justice resulted from the direction given to the jury in relation to the applicant’s alleged consciousness of guilt. In particular:
a) The trial judge failed to give an adequate warning about the possible conduct of innocent people; and
b) The summary of relevant factual matters was unbalanced in favour of the Crown
6 A miscarriage of justice resulted from directions given to the jury about alibi. In particular:
a) The trial judge’s summary of the alibi evidence contained material factual inaccuracies; and
b) The directions were unbalanced in favour of the Crown
7 The trial judge erred in admitting coincidence evidence in relation to a folded, blood-soaked piece of cloth found at the crime scene and a “massage device” located at the applicant’s home; and
8 A miscarriage of justice was occasioned by a number of acts and omissions of the applicant’s counsel at trial.
A family of five, including two young boys, were viciously murdered; a crime so terrible the autopsy reports are heart-wrenching to read. Yet the prosecution is content to take to trial a case it confesses is “not overwhelming” against the accused. A case that fails to provide evidence beyond reasonable doubt; a charge that defies common sense. The System has let Robert Xie down and let the community down – not to mention the System itself.
COMING NEXT: ‘Conflict in the jury room’
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