Robert Xie murder appeal failure compounds the errors

The dismissal in February 2021 of the appeal by Robert Xie against his 2017 conviction for the 2009 murder of five members of his wife Kathy Lin’s family compounds the incompetence – or the malice – of the police investigation and the subsequent prosecution. 

The conviction at the fourth and final trial rests largely on 1) a sleight of hand about DNA evidence; 2) evidence not found at the crime scene; 3) evidence not probative of Xie’s guilt; 4) evidence lacking expert agreement; 5) evidence that ultimately misled the jury.

In this overview, we examine how and why the DNA evidence was both crucial to the prosecution AND wholly irrelevant to the accused or the murders. The appeal judges, Bathurst CJ, R A Hulme J, Beech-Jones J, had the opportunity to recognise how badly the introduction of the DNA evidence via ‘stain91’ skewed the perception of the jury, prejudicing the trial.

1 SLEIGHT OF HAND
The prosecution regarded the DNA evidence found in ‘stain91’ its ‘smoking gun’. The Crown presented the DNA to the court with much fanfare and at considerable expense and importing international expert Dr Mark Perlin (who runs Cybergenetics in Pittsburgh, US), because it was ‘probably the most complex DNA sample ever introduced to a criminal trial in Australia’ as former Senior Crown Prosecutor Mark Tedeschi QC described it. It was the Crown’s WOW factor.

But it was all for show.

2 DNA NOT AT CRIME SCENE
December 20, 2012
The Sydney Morning Herald reported: Xie is granted bail by local court magistrate John Andrews, who says the Crown case is not strong. Andrews had noted that the prosecution had described the murder of Xie’s brother-in-law, Min ”Norman” Lin and four members of his family, bludgeoned and strangled in their beds, as a crime of extreme violence and personal hatred but was unable to establish a clear motive for the crimes.

”It was effectively conceded by the prosecutor that there was no evidence of motive. On the contrary, the evidence indicates a very close relationship between the families.” He also noted that there were weaknesses in the DNA evidence from what may have been a spot of blood found on Xie’s garage floor.

The prosecution said it contained a mix of at least three different kinds of blood, at least one of which had virtually identical characteristics to one of the victims. But the court has heard that the female DNA contained within the sample may not have matched the two female victims of the murders.

”There is no doubt that the total exclusion of Lily [Lin] and Irene [Lin] as major contributors puts the prosecution case based on DNA evidence in a different light, and makes it a weaker prosecution case,” Andrews had said. The Crown prosecutor, Mark Tedeschi, conceded that the prosecution case ”may not be an overwhelming one”.

***

Discovered in 2010, the stain was located on the Xie family’s garage floor, 300 metres from the Lin family home, where the murders took place. A credible explanation for stain91 (tiny as it was, at 2cm x 6mm) may be found in the fact that the two families often played games together (eg badminton) in this garage. There is no evidence as to when the material was deposited. Belinda Rigg (for Xie) stated at the appeal what should have been the crux of the DNA evidence: “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 (Justice Fullerton presiding).

In any case …

3 DNA EVIDENCE NOT PROBATIVE OF XIE’S GUILT
As we reported, Phillip Chapman observed: “That stain91 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 stain91 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.”

Not to mention …

4 DNA EVIDENCE LACKING EXPERT AGREEMENT
By 12.30 on Monday June 22, 2020, two hours after the appeal 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. Xie’s team had engaged Dr Peter Gill, Professor of Forensic Genetics at Oslo University, Norway, disputing Perlin on the analysis.

5 DNA EVIDENCE THAT ULTIMATELY MISLED THE JURY
There was in fact no DNA from 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.

April 5, 2012: Justice Derek Price denies Xie bail, but acknowledges a jury may find there is not enough evidence to convict Xie.

Kathy Lin and Robert Xie outside court

5a Robert Xie had an alibi: after turning off his computer at 2am, he went to bed and his wife Kathy testified under oath that he did not get up until the morning – he never got up without her noticing. Police and the prosecution tried to disprove this.

5b Certain aspects of the autopsy reports do not support the prosecution’s narrative about either the time of the murders or how many killers were involved.