Andrew L. Urban, Phillip Chapman
The conviction of Robert Xie for the blood-soaked, savage murder of five members of his wife’s family in 2009 took four trials, including the longest trial in NSW legal history for a single defendant, and over $1 million in costs to the taxpayer. But that conviction – going against his alibi and absent a motive – rests on just a couple of elements that the prosecution urged the jury to accept as reliable evidence, to negate Xie’s alibi. We examine the judge’s role.
Brutally murdered overnight on July 17 & 18, 2009 were 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.
Robert Xie maintained and his wife Kathy Lin swore on oath that after they turned off their computers they went to bed in their Beck Street, Epping, home at around 2am on July 18, 2009. Computer records prove the timing. The prosecution set about establishing the time of the murders after 2am, with no supporting evidence, but it was essential for the prosecution’s narrative if Xie was to be found guilty. The Crown had to negate the alibi.
To overcome this burden, which was foreseen, the police formulated a plan: a criminal awaiting trial in the same facility where Xie was held also awaiting trial, was recruited to try and trap Xie in covert recordings (hoping for some benefit for himself) that would destroy the alibi by confirming pure police speculation that Robert sedated Kathy. No mention of when or how. The result of the recordings by Witness A, scratchy audio that only a profoundly biased ear would accept as evidence beyond reasonable doubt, was the basis of the proposition put to the jury. On such slight ‘evidence’ was this gruesome and violent multiple murder ‘solved’.
Would you believe…?
The Crown was asking the court to accept as crucial evidence to prove the guilt of the accused beyond reasonable doubt, that a man with limited English and with no criminal record, claiming innocence of the murder charge against him, would admit to a stranger, a ‘seasoned criminal’ (as Her Honour put it) in jail, the suggestion that he sedated his wife so he could murder five of her family 300 meters away.
“The Crown does not know exactly what time it was that the murders occurred,” said the prosecution in the opening address, “but our case is that it must have occurred after 2 o’clock in the morning, because you will hear that it is accepted that the accused had been at home with his wife using the internet until around this time. So it is at some point after 2 o’clock and before 5.30am.” In other words, the case had been built AROUND Robert Xie’s alibi. The Crown asked the jury to accept that the deaths occurred after 2am – without any evidence.
Forensic pathologist Dr Rebecca Irvine explained to the court that stomach contents is not a reliable indicator of time of death. When she was asked in the committal proceedings on 19 November 2012 about “some notations in relation to each of the autopsies you performed regarding the presence or otherwise of digested or partially digested food in the systems of each of the deceased. What conclusions can we draw, in terms of time of death from those observations that you made?”
She answered, “Absolutely none.”
Her evidence was that circumstances are the most reliable indicators of the time of death, so logically the five victims could have been killed at different times. “…there is no reliable scientifically defensible way to determine time of death other than circumstances.”
She agreed with defence counsel that Min (the father in the family) could well have been killed any time between 10pm or so (when he arrived home) and 2am.
Bloodstain expert Sergeant Harkins was unable to specify a timeframe between each of the assaults (bloodshed events) that took place in each of three rooms.
The defence in its opening statement (in the final, 4th trial) challenged the Crown case, telling the jury that “It is part of the defence case …… that it is possible that the first execution happened prior to 2am and significantly prior to 2am. That is an important dispute in the trial.”
Her Honour erred?
The Crown did not challenge Dr Irvine’s evidence on the time of death. Therefore it had to prove Robert Xie was at the crime scene sometime between 7:30pm Friday and about 9:00am Saturday.
* Although the following exchange took place with the jury absent (during the defence closing), it reflects Her Honour’s reticence to make it clear to the jury that even if they were simply undecided about Kathy Lin’s alibi evidence they must acquit Xie.
WEBB: So if it may be submitted, your Honour, would your Honour permit
and – would it be permissible for your Honour to say to the jury “if you thought in respect of the evidence of Kathy Lin that there was a reasonable possibility that Kathy Lin was not mistaken and gave honest evidence, that you’d be duty bound to acquit”?
HER HONOUR: I’m not sure that I’d go that far, Mr Webb. If you want me to direct the jury in particular terms, don’t do it on the trot. Put it in writing, put it to me and I can consider it.
Later, she tells the jury:
I direct you that if the Crown is to prove beyond reasonable doubt the first element of the offence of murder, the Crown must remove or eliminate to your satisfaction any reasonable possibility that the accused was at home in bed asleep with his wife at the time the deceased were killed.
If the Crown does not satisfy you beyond reasonable doubt to reject the alibi, it follows that the Crown will have failed to have proved the first element of the offence of murder and you must acquit the accused.
This direction is very close to the standard Alibi Direction outlined in the Bench Book. The only difference is the omission of the words “as asserted by the alibi evidence“. Her Honour’s direction in the end, phrased in the negative terms suggested in the standard direction, does not rise to the level requested by Mr Webb. It is not offering the jury the clear instruction that if they do entertain “a reasonable possibility” of Kathy Lin’s evidence being true, they must acquit.
* Nowhere in her summing up did she remind jurors that Kathy gave the alibi evidence two days after the murders in a recorded interview with police on 20 July 2009, when she did not have any concerns about her husband being accused. Yet Her Honour had included copious details of the prosecution’s claims of unreliability against her, leaving the jury with little option but to mistrust Kathy Lin’s testimony – and convict her husband.
* In the Crown case the covertly recorded sedation conversation was relied on as the accused’s implied admission. Her Honour failed to refer to Witness A’s evidence that the accused had told Witness A he didn’t do it.
* “The Crown does not know exactly what time it was that the murders occurred, but our case is that it must have occurred after 2 o’clock in the morning,…” that was the Crown’s case as stated in the opening address to the jury.
Her Honour directed the jury to take into account the evidence given by Witness A, because in the Crown case, Robert Xie sedated his wife by some means “before they went to bed at about 2am on 18 July.” Her Honour was effectively “giving evidence in the form of a legal direction,” Xie claims.
During her summing up, Her Honour repeatedly gave the alibi directions with the embedded timeframe after 2:00am and she also wrongly directed the jury to disregard Dr Irvine and Dr Collins’ evidence because “you won’t get any guidance …… from the evidence of the forensic pathologists about time of death”. In fact Dr Irvine’s evidence included that circumstances are the most reliable indicators of the time of death, so logically the five victims could have been killed at different times.
* The alibi directions, with the embedded timeframe of after 2:00am were seriously prejudicial, Xie claims, “because there was no evidence indicating all five victims were killed after 2:00am.”
* In her summing up Her Honour tells the jury: “When you consider the question of alibi, you are not obliged to focus on the alibi evidence in some hermetically sealed off part of the evidence, you look at all of the evidence.”
Her Honour seems to be saying that if the (hermetically sealed) alibi evidence does not enable you to decide truth or falsity, examine all the other evidence. If that other evidence convinces you of guilt, then you should reject the alibi.
In other words, all the evidence should be taken into account when deciding whether the alibi has been negatived to the criminal standard. An alibi is the gold standard defence. It cannot be subservient to any other evidence. (If I was not there, I could not have committed the crime.)
Continuing: “And the Crown submission to you, when you have regard to all of the evidence, you will be left with a point of reasoned confidence that there is no reasonable possibility that he was at home in bed with his wife because, on the Crown case, the Crown will have established to your satisfaction that he was where the Crown says he was, that is at Boundary Road inflicting fatal injuries, blunt force and asphyxial injuries, on the deceased in their beds or their bedrooms.” (emphasis added)
Here, the negative slant in her language is clearly prejudicial, even though she frames it in terms of ‘And the Crown submission to you…’
A QUESTION OF LOGIC
The prosecution presented to the jury the allegation by Brenda (Robert’s then teenage niece) that he would ‘on repeated occasions’ go into the bedroom where she shared a bed with another youngster (name suppressed) – and sexually molest her. This, it was claimed, negated Xie’s alibi.
Her Honour directed the jury to take into account Brenda’s evidence of the accused getting out of his bed and going into her bedroom assaulting her without his wife knowing he had left the bed. This, in Her Honour’s mind, made the evidence of Kathy Lin unreliable, because it showed Kathy Lin could often sleep through him getting in or out of bed. This rationale offends logic. (see Remarks on Sentence)
The alleged sexual assaults occurred some time after the funeral of the victims, which was on 8 August 2009, not at the time of the murders, in July. (The alleged abuse wasn’t reported until some months later.) Her Honour’s reasoning relies on behaviour patterns after the traumatic family murders being echoes of behaviour patterns prior.
Second, the alleged abuses were completely different in practical terms to what Robert Xie would have needed to do if he was the killer, as he points out. He would have had to get out of not only his bed but his house and for a much longer period of time, probably hours. He would no doubt have had to wash down and clean up after the execution-style killings, dispose of the murder weapon (one was never found), before going back inside the house and into bed without alerting his wife. Brenda’s evidence could not prove that Kathy would not wake up in those circumstances.
In what is seen by Xie as another error, Her Honour in her summing up did not refer to Mr Webb’s submission (on Xie’s behalf) and Sergeant Maree’s evidence (for the Crown) that according to the record of Dr Goh, the family doctor of the accused’s family, the accused and Kathy had never been prescribed sedatives.
There was no other evidence from the Crown to disprove the alibi.
(No surprise there: “At committal, Magistrate John Andrews had noted the Crown prosecutor, Mark Tedeschi, conceded that there was no evidence of motive….the prosecution case may not be an overwhelming one”. Andrews pointed to “…weaknesses in the DNA evidence…”; Xie’s lawyer Lester Fernandez called case ‘fanciful'” – Sydney Morning Herald, December 19, 2012)
Kathy Lin was close to her brother Min; she was on good terms with Irene and she loved the two boys, who were close friends of her own family. She provided an alibi to her husband because she knows he is innocent. If she had any doubts, she could not maintain the strong relationship with him over the past 7 years or more, in the face of these brutal killings of her own family members. It was outrageously cynical to paint her as a liar, intent on protecting her husband, in pursuit of a conviction that mocks justice.
Remarks on sentence
In her remarks on sentence, Her Honour revealed the full extent of her thinking regarding the alibi evidence, thinking which, arguably, underpinned her earlier summing up and directions to the jury:
“While I consider it very likely that the offender sedated his wife, I am unable to be satisfied of that fact beyond reasonable doubt.”
Her Honour provided no reasons why she considered it very likely; surely not on the basis of Witness A’s unreliable evidence on the covert recordings? But there was nothing else … in her directions to the jury she listed 13 points on which to doubt his evidence.
“There remains, in my view, a possibility that Kathy Lin simply did not wake when the offender left the house sometime after 2am on 18 July 2009, returning later that morning.
“In coming to that view, I have taken into account Kathy Lin’s evidence that she had never woken to find the offender not beside her in bed and would always wake if he left the bed for any reason.
“Since I accept Brenda’s evidence that the offender entered the bedroom she shared with (another teenager who cannot be named) and sexually assaulted her on repeated occasions between August 2009, when she became a member of the offender’s household, and when he was arrested in May 2011, Kathy Lin’s evidence that she would always wake if the offender left the bed, and that he had never done so and gone into Brenda’s bedroom at night, cannot be accepted as reliable.”
In short, Her Honour is saying: ‘Kathy Lin may or may not have been sedated, but in any case it’s a possibility that she didn’t wake up when Robert left the bed to murder the Lin family. Or when he came back some hours later. Because – I believe Brenda’s story that Robert visited her shared bedroom on repeated occasions and Kathy did not wake up on those occasions, neither when he left the bed nor when he returned. So Kathy Lin’s evidence (that she always woke up when Robert got up at night) is unreliable.’
– Brenda’s testimony was not corroborated and Robert Xie was never charged with sexual abuse of a minor in relation to these allegations.
– It cannot be known whether or not Kathy Lin woke up sometimes, never, always …. whenever Robert got out of bed when allegedly going to Brenda’s bedroom.
– The prosecution had not ‘negatived’ the alibi evidence for July 18, 2009 beyond reasonable doubt.
It is our submission that Her Honour erred – on more than one occasion, as we outline above. “If there was a direction by a judge which was in error, that might well be the sort of issue the High Court would consider,” says Dr Bob Moles, legal academic at Flinders University and author on miscarriages of justice.
The High Court may also take the opportunity, comments Kevin Borick QC, “to impress on courts the importance of Professor Bevan’s observation, as expressed during the murder trial of Frits Van Beelen. Bevan stated that if the legal process is going to use science it should use proper science,” and use science properly,” adds Borick. A question to Her Honour from the jury on the last day of the trial goes to the heart of that issue: “What is DNA?”
In Part 2, we explain how the appeal judges also erred.