Robert Xie – conflict in the jury room

Andrew L. Urban.

Of the 12 member jury at Robert Xie’s third murder trial in 2015, (the longest in NSW history), most voted NOT GUILTY. Some didn’t, resulting in a hung jury and a fourth trial, in 2016/17. Triggered by the 2020 appeal, two of the 2015 jury are voicing their deep concerns following their experience of the legal system. Highly critical of what they saw and heard as jurors, their anger is directed at fellow jurors, the prosecutor, witnesses and the judge in equal measure.

Juror Jane kept detailed notes, which mysteriously disappeared from the jury room; another, Juror John (not their real names), also kept notes for reference while on the jury. He is critical of those on the jury who accepted the prosecution’s arguments.  He says “There was not one single thing… and I’ve had a couple of years to think about it, there was not one single thing about the evidence that I found credible.”

(On 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. Xie was tried for the murders.)

Juror John found that “the main focus of some in the jury was the food supplied…which at the beginning was pretty ordinary.” But what was worse, in his opinion, was that there was no structured discussion of the evidence. “Pretty soon camps were established and any discussion of the evidence was potentially fraught, so days rolled into weeks and then to months. Most of the evidence was not worth discussing anyway as it was all conjecture and circumstance. Basically I can state that no analytical discussion ever took place.”

Juror Jane was confused that “some jurors didn’t seem to fully grasp the English language themselves but thought that Robert (with his limited English at the time) was completely able to comprehend everything that was said to him … especially by (jail police informant) Witness A.” And some just didn’t seem to care or understand the repercussions of our decision – they just wanted to get back to their own lives.”

But there were a few who were “willing and trying to partake in serious discussions so that others could be walked through the rationale of what made them think a certain way.” On the other hand, “some would get mixed up with things from the trial and things that other jury members had spoken about … not the case.”

Then there was “the self appointed DNA expert. What a piece of work.” says Juror John. “He sent questions to Herself (Her Honour the judge) that he wanted to have put to the “expert” witnesses. After repeated whiteboard lectures from him some jurors sent a note to Herself about his behaviour and he was dumped from further participation.”

Juror John and Jane’s experience suggests that jurors should perhaps be better briefed about key aspects of our legal system: “One Juror,” says Juror John, “who was from another ethnic background, had zero understanding of the presumption of innocence and argued that Xie was guilty and was to prove himself innocent.”

This made Juror Jane “confused, disheartened and concerned because if they didn’t even understand this basic direction then what else would they fail to understand in the rest of the trial.”

Towards the end, says Juror John, “any rational discussion was impossible ….. there were those that thought Kathy was a liar….no proof….that the DNA evidence was correct and perfect science…the CSI effect….that Witness A was a paragon of virtue…that Xie was a paedophile or worse. The level of ignorance of some jurors was astounding…. prejudice and worse. There was a level of antipathy that was palpable and by the end of proceedings the atmosphere was toxic.

The jury room conditions contributed to the malaise: “we were made to stay in a tiny room all day with no fresh air for many months – we all couldn’t even fit around the table,” recalls Juror Jane. “And no one ever checked on us to see how our mental health was going – I mean it was nine months locked up with many people that you would not choose to associate with on the ‘outside’…”

Support was lacking in all areas. “We had to ask for access to the trial transcripts and were then given one old computer and USB – for us to ALL share. We were not even able to do a search within this to assist in locating what we were wanting to look up,” says Juror Jane.

Indeed, the technology in the courtroom – the headphones are just one example – was “beyond unhelpful,” she says. “Especially when you are told the evidence is what you are supposed to hear yourself and not what is written as someone else’s interpretation of what they heard.”

Oddly enough, hardly any of the actual police from the crime scene attended the trial to provide evidence, say the two Jurors. And referring to the DNA evidence of US witness Dr Mark Perlin, Juror Jane is still baffled that “the Australian legal system allows ‘evidence’ from an international ‘expert’ which isn’t even approved for use within Australia as one of the prosecution’s main gotcha moments!”

And echoing Juror John’s complaint, she says “in the whole trial there was not any evidence that you could legally associate, link or use to prove that it was Robert who was guilty of this crime.”

For her, “it was a massive personal let down, and failure, after all that time spent in court … to have achieved nothing for anyone.” And cost taxpayers $1 million or so.

Says Juror John, “I was angry then and I am angry now. Angry that I was used by the system to frame an innocent man and that we were treated to a display of bullying and entrapment (by the prosecution) that should have been laughed out of court.”

BULLYING

Then Senior Crown Prosecutor Mark Tedeschi QC

Juror John clearly recalls “when he (prosecutor Mark Tedeschi AM QC) had Kathy in the dock, he attacked her, in a most vicious, bullying way, berating her, “Liar, liar, liar,” he’d say to her. Now, Kathy was traumatised by the affair, obviously. Huge trauma. So, one of the big bits of evidence that he used, was this poor woman’s hysterical call to triple zero. (When Kathy and Robert discovered the bloodied bodies.) Of course we’re sitting in the court listening to this hysterical call and the more that was played, the more upset she got. And then he’d start tearing in to her. He’d say, “You’re a liar, you’re a liar.” She said, “No, no, no, no.” And he kept on calling her a liar.

“Now it got so bad that the jury actually sent a note out to the judge, “Is this acceptable?” That’s how serious it was. Who’s representing this poor woman. How can this happen? Strewth. I sort of looked at it all and I’m thinking, You bastard!

Graham Turnbull SC (now District Court Judge)

“It went on and on and eventually (Graham) Turnbull SC (for the defence) got to his feet and said, “Your Honour, you can’t allow this to go on!” And she’d give a little blurby bullshit blurb and said, “No, I’ll allow it.”

I remember lots of times where there was… Turnbull would say, “Hey, come on.”
She’d pontificate and say, “No, no, I’ll allow it.”

Her Honour Justice Elizabeth Fullerton

“I felt that there was antipathy between her and Mr Turnbull. She could get very short with Mr Turnbull… she often cut him off and disturbed his flow.”

ENTRAPMENT
As for Witness A, who had agreed to try and entrap Xie for the police (with covert recordings) while Xie was on remand, he really inflamed Juror John: “How could that woman, Justice Fullerton, sit there and allow a drug dealing, standover man, wife beating, ice seller, thieving rat who’s been paid and done a deal with the prosecution to get a sentence shortened, allowed to sit in that court and to be given credibility as a straight up and down witness, I will never, ever in my… I still don’t understand it. I was repulsed by it. I couldn’t look at him. I couldn’t look… I wanted to jump across and say, You bastard!”

As Juror John points out, “The prosecution, twice, used entrapment on Mr. Xie. They used it with Witness A, in the jail, and they used it with the New South Wales Crime Commission.

“They took Kathy in there, So the New South Wales Crime Commission, which is meant to be an independent body, even if you only look at it on a shallow level, you’d think that the New South Wales Crime Commission and the prosecution were working in league with one another, to give this … fake information to Kathy. Knowing that she would go home, any human being would go home and say to her husband, ‘Jesus, I was in there. I’m not meant to talk about it, but they said they’ve got evidence about the shoes (re footprints at the crime scene), they… like, what the… we’re being framed!’ (See our report Was he framed?)

The shoe boxes played a key role for the prosecution; covert surveillance videos were shown to the court of Xie cutting them up and flushing them down the toilet. It was argued this was proof of guilt, but Xie and his wife maintains he did it in panic after Kathy’s aggressive and accusatory questioning at the Crime Commission. (This issue formed one of the grounds in the appeal – ‘Consciousness of Guilt’ – where Xie’s barrister Belinda Rigg SC, argued that there was established precedent that urges courts to explain to juries that there may be innocent reasons for such acts.)

But Juror John “didn’t trust the prosecution. Not from day one. No, I thought the whole thing was dodgy. The very first witness that was called was a cop. Now this bloke, day one, first witness, he came in and … took the oath. I was watching him, he was shaking and nervous. He was so nervous the judge excused him from the court. I’m sitting there thinking, ‘Hang on a minute, you’re a cop. This is a murder trial! This is a murder trial. You’re meant to be… this is your job.’ In my opinion, I felt that… now I’ve been around a bit, and I looked at him and thought, ‘You’re carrying out a task that you don’t want to be doing.’

THE DNA ‘RUBBISH’
The DNA evidence on which the prosecution relied heavily, he says, was “rubbish. All of it. Not only was it rubbish, I was… offended by it. I was offended in two ways, I was offended that … they’ve got us locked up, feeding us bullshit. They take us out there, we’re given a Power Point presentation on DNA to understand something that these other two experts have studied half of their lives… incredibly convoluted, detailed and highly scientific… evidence which ended up… basically meaningless … “Holy shit this is wild stuff!” I’m thinking, “If anything’s going to nail this bloke,” and I’ve still got an open mind at that stage, if they can prove to me Robert Xie killed these people, I’m happy to go… if they can prove it! But there was not one bit of that DNA that made any sense, and by the way, there was no DNA of Xie, at the murder scene. There was zero.”

(NOTE: The DNA – a complex mix of several family identities which experts struggled to identify with certainty and clarity – was found in a 6cm x 2mm deposit on Xie’s garage floor, 200 metres from the crime scene. The prosecution did not present any evidence to show it was connected to Xie and/or the crime. It was on that basis that Turnbull argued in front of Justice Johnson at the second trial, to have it dismissed. Johnson, however, allowed it to be admitted and this remained as a judgement for the subsequent trials.)

THEATRE
It was a very long trial, with plenty of time for observing the players – including Justice Fullerton. “Now I found that… some days I thought, “You’re good.” Then… because we were there for nearly a year, other days I used to think to myself, ‘This woman’s as crazy as a loon like the rest of them.’ It’s all theatre, she’s sitting up there in her little bib and brace and pontificating and calling people up and sending the jury away while they argued the toss over some arcane legal matter.”

“All theatre … a mad construct. It was like Monty Python meets the Sex Pistols.

“I am still angered by it … because a man was being framed. He was not only being framed, but he knew he was being framed. Kathy told the court ” … we were frightened, we were being framed.”

EDITOR’S COMMENT: It would no doubt incentivise the legal system to do a better and swifter job of self correction if the media in general paid as much attention to wrongful and unsafe convictions, not to mention improper behaviour by the practitioners, as it does to lenient sentencing, weak bail processes and cold cases. Such scrutiny would also better serve the community. Judges, too, must remember that with the unassailability of their great power comes great responsibility.

RELATED
 Can juries get it wrong?

Exonerated by autopsy evidence

The System v Robert Xie

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2 Responses to Robert Xie – conflict in the jury room

  1. Phillip (name supplied) says:

    Since Mr Xie has offered an alibi, the Crown is obliged to disprove it beyond reasonable doubt. It is definitely not up to Kathy Lin to prove the truth of the alibi. The ‘sedation’ scenario is introduced by the Crown to bolster their disproof. The judge gives a direction regarding alibi evidence. There is historical legal argument about this.

    R v Amyouni NSWCCA 18/2/88 unrep. BC8802201 Roden J at 5-6 (Street CJ, Slattery CJ at CL concurring):

    “It seems to me that in every case where that situation is met, there are three possibilities, all three of which should be explained to the jury.”
    “One is that they accept the alibi, in which event they would be obliged to acquit. The second is that they reject the alibi, in which case they would not necessarily convict but must assess the evidence as a whole. The third possibility is that although they do not accept the alibi, they also do not reject it in the sense that they regard it as something which could reasonably be true. In that event also, in such a case, they must acquit.”

    Now, it would seem to me, that the very first task of the jury is to decide whether they accept the alibi or consider that it could be true. (Anyone who is unsure whether it is true or not is, in effect, admitting that they think it could be true.) If 12 jurors think it is or could be, then there is nothing else to consider. They must acquit. Return a verdict on day 1.

    As we know, a (lack of) verdict in Trial 3 took many days, so there must have been a juror who found that the alibi had been negated. Think about Trial 4. There must be at least 11 jurors who are sure the alibi has been negated. I find that fact hard to believe. They must have seen something that was opaque to the public gallery. The ‘sedation’ story was simply rubbish. Kathy Lin is possibly mistaken, but that is not proof of error.

    Andrew, I have no reason to imagine that the jurors in Trial 4 were skilled in avoiding the shambles you describe in Trial 3. If any Trial 4 juror sees this article and writes in, I am sure their views would be welcome. More to the point, any juror who returned a ‘guilty’ verdict yet thought the alibi could be true has erred. Such error needs to be corrected. There are remedies available which incur no penalty to the juror.

    I understand that the Alibi Direction given by Justice Fullerton was slightly different and certainly less clear than what is quoted from the Amyouni judgment. This unclarity has very likely led to a terrible outcome. I know for a fact that the importance (and time efficiency) of considering the alibi evidence as Topic 1 was certainly not made clear. If the jury has failed in this regard, it certainly comes as no surprise, for reasons I have just outlined. The subsequent injustice visited upon Mr Xie is unspeakable.

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