Our wrongfulconvictionsreport ‘sleuths’ have helped investigate this case in the past (see here and here). PHILLIP CHAPMAN, DR ROLAND ZHANG and DR PETER YOUNG are helping us again, with references to evidence from the autopsies and a secret phone.
There was no primary evidence that Robert Xie viciously murdered five members of his wife’s family in 2009, nor any durable circumstantial evidence. The Crown case was a construct of the prosecution, often elevating normal responses to suspicious actions. Such as, for example, the significant matter of Xie disposing of shoe boxes, recorded on covert surveillance cameras, presented by the prosecution as consciousness of guilt. But it was out of innocent panic, after Kathy’s aggressive and accusatory questioning at the Crime Commission, and claims that the police had proof of his guilt because they had shoe prints at the crime scene that could be matched to his shoes. The shoe boxes might match the brand, he rightly feared, and he was terrified that would implicate him, despite his claim of innocence. That is a normal reaction, even though shoe boxes leave no prints, the brand-match would likely influence the jury.
The evidence of different footprints at the crime scene was obscured from the jury. But the likelihood of a single killer is also challenged by forensic evidence.
Disinterested observer Dr Peter Young writes in an email that while Xie was convicted as the sole murderer, murdering first Min Lin and his wife Lily in their main bedroom, then Lily’s sister, Irene, in the second bedroom, and lastly young Henry and his brother Terry in their bedroom, about 70 blood samples collected from the boys’ bedroom all failed to identify trace DNA matching Irene.”
multiple weapons, multiple killers
“The defence barrister pointed out in court that this is evidence that Irene and the two brothers were killed by different persons, that a sole murderer allegation was wrong. The prosecutor‘s answer was that this can be explained by the sample collectors failing to collect samples from every inch of the murder scene! This is terribly wrong, as DNA labs nowadays apply technology like PCR, which would identify even an extremely tiny trace amount of DNA, as small as a drop of blood in the Pacific Ocean. And 70 samples collected by trained crime scene technicians, all failed to find Irene’s DNA, is overwhelming evidence against the allegation.”
“So most important for this case are the autopsy reports; so many items of evidence point to multiple tools and multiple people involved in this killing,” says former neurosurgeon Dr Roland Zhang. But the jury didn’t hear such testimony.
Xie was convicted (in the fourth trial, after the first two trials had been abandoned and third trial ending in a hung jury) and sentenced to life imprisonment.
Why is the missing secret phone proof of Robert’s innocence?
It is uncontested evidence that Lily (Robert Xie’s sister-in-law) had a secret phone. It was not found at the crime scene – or anywhere else. As Phillip Chapman says, the only possible explanation is that the killer/s took it. Why? The only possible explanation is that the contents would implicate one or more of the killer/s as having had contact with Lily. None of the surviving family members – Robert, Kathy, Brenda, the grandparents – knew the phone number. It was an established fact throughout the family that Lily did not disclose the number of the secret phone. Not only that, she also refused to give out the number of her regular phone!
Hence police could not investigate the secret phone’s logs, to establish any contact between Lily and any strangers to the family. Her regular phone was not stolen. How would the killer locate the secret phone? By dialling the number.
“So there is a killer who knows the secret phone number, and Robert who doesn’t. Logic dictates that we must be talking about two different people. Robert, therefore, is ruled out as being the murderer.” His phone log was investigated. In any event, he would not have needed to contact Lily on a secret phone; their relationship was, of course, legitimate and open.
How the DNA was ‘sold’
Andrew L. Urban comments:
By contrast to the implications of the above evidence that was missing from the prosecution’s case, there was enormous effort and tortured argument about a DNA sample, referred to as ‘stain 91’, presented as absolute proof of Xie’s guilt.
An international scientists was called, presenting vast amounts of (controversial) testimony that no judge or jury could really understand.
The prosecutor made sure the jury thought the DNA testimony was really important. He succeeded in elevating the role of the stain 91 to such an extent that at the appeal, three full days were devoted to trying to discredit the testimony that suggested guilt.
Robert Xie’s barrister at the appeal, Belinda Rigg SC, spent most of the hearing trying to pull apart the expert evidence around the DNA, arguing to the appeal court that the uncertainty of forensic testing outcomes were never properly and clearly put to the jury. The evidence presented had “the capacity to mislead the jury”. She also called another international expert.
It was not made clear to the jury at the trial, Rigg told the court, that the DNA of Brenda Lin could not be excluded from the DNA mix, a crucial factor since Brenda (the daughter of the murdered couple) was overseas at the time of the killings, hence the DNA mixture could not be relevant to the crime. Statistician Chapman says, looking at Lily’s statistics in the DNA testimony. “She’s not there! She’s even less there than Brenda! How did the ‘blood’ of one of the victims disappear from the ‘weapon’ on the way to the garage? Please explain. This HUGE anomaly was hidden in plain sight throughout trial 4! High Court please take note.”
By concentrating on the DNA testimony, the appeal (dismissed 15/2/2021) effectively conceded that it mattered. In my view that was a grave mistake.
The DNA was a (monstrous) red herring. Here is why:
The DNA sample was in a small deposit (2cm x 6 mm) of uncertain material on Robert Xie’s garage floor, 300 metres from the crime scene at the Lin family home.
I suggest that it was impermissible speculation by the prosecution to claim that the DNA stain somehow helped to prove Xie’s guilt. THAT is the basis for an appeal.
There was no evidence to link it to the crime scene or how it got to the garage floor. (The prosecution speculated, again impermissibly, that it must have been from the murder weapon being placed on the floor. That is a desperate and feeble attempt to overcome absence of evidence. No murder weapon was ever found.) There was no evidence to show that it was deposited AFTER the murders.
Furniture from the Lin family home in Boundary Rd was stored in the garage after the murders. At exactly the spot where the DNA was found.
But there is another perfectly innocent and rational explanation for it as the garage was the place where the two families often played badminton.
* Putting aside the evidence obtained from the autopsies and the ramifications of the missing secret phone, the use of irrelevant DNA evidence to convince a jury of guilt – irrespective of the truth – brings the whole justice system into disrepute. And we haven’t even referred to Robert’s alibi ...
Above: Kathy Lin and Robert Xie