Robert Xie appeal – was he ‘framed’?

Andrew L. Urban.

“I am innocent,” Robert Xie called out in court before being led away to a lifetime in jail for the brutal and bloody murder of five of his wife’s family, with whom he had dinner the night before their deaths. He and his wife Kathy Lin both maintain he was framed – framed by a system they say unfairly pursued and prosecuted him. Written submissions of the grounds of appeal cast some light on why he might think that … here are just two extracts.

The appeal before the NSW Supreme Court began this week with the focus firmly on the DNA evidence – the whole week is devoted to it. The DNA was found in a small sample on the garage floor of Robert and Kathy Xie’s house, 200 metres from where the murders took place, the Lin family home in Epping. The garage is where the two families would play games together … There was no evidence presented at trial as to when or how the DNA was deposited on the garage floor underneath a chest of drawers.

WRITTEN SUBMISSION BY XIE TEAM – EXTRACT 1
During the Crown Prosecutor’s Opening Address the alleged disposal of the murder weapon was addressed in very strong terms. It was submitted that:

You will hear the reason the accused gave for driving off at this point was to pick up the grandparents at Merry/ands and shortly after driving off and leaving his hysterical, scared wife, the accused did ring the grandparents, you’ll hear; so not at the scene, he drives off to ring them, and you’ll hear that the accused spoke with the grandfather, Mr Lin Senior, and told him that something bad happened to the Lin family, however, the accused initially said to Mr Lin Senior, that they should come on public transport to Epping.

 Now Mr Lin Senior told the accused that because it was a Saturday it would take at least two hours by public transport to get to Epping and he asked the accused, “Why don’t you just come and get us in the car and pick us up?” and the accused, after this was said to him by Mr Lin Senior, then agreed to go and pick them up. (Repetition deleted) The Crown case is that the accused did not need to leave the scene in order to make that phone call; as I said, he had other reasons why he had to leave the scene; that’s the Crown case.

 Now the accused did, as I said, agreed to eventually picking up the grandparents and the Crown case is that, on the trip to the grand parents’ place at Merrylands after he left 55A Boundary Road, the accused disposed of the hammer-like object that he had used during the course of the killings …

NOTE 1: Self contradictory argument: the prosecution explains how Xie first asked the grandparents to take public transport, but in the next breath the prosecution claims that Xie went to pick them up by car because he wanted an excuse to leave the scene to dispose of the murder weapon.

NOTE 2: No murder weapon was ever found.

Defence Counsel exercised his entitlement to address the jury immediately after the Crown Prosecutor’s Opening. Despite having made an unsuccessful application for the discharge of the jury after part of the Crown Opening, referring in particular to the first passage quoted above regarding the alleged disposal of a weapon or material on the Applicant’s way to his parents’-in-law as too argumentative, without evidentiary support….

WRITTEN SUBMISSION BY XIE TEAM – EXTRACT 2
The Applicant’s case was that after arriving home following the dinner with family on Friday 17 July he watched television and searched the internet, bathed, then remained in bed all night with his wife Kathy Lin after retiring in the early hours of the morning of 18 July 2009. There was no dispute raised by the Crown regarding his alibi up to the time of going to bed. It was the Crown case that although he and Kathy Lin may have both gone to bed at about 2 am on 18 July 2009 he left her when she was asleep, committed the crimes and did what needed to be done to clean up while she remained ignorant of his absence, before coming back to his family home in time for his wife and son’s awakening.

Kathy Lin maintained certainty at the Applicant’s trial that her husband did not leave their bed, and was extensively cross-examined on this issue by the Crown. She had given this account as early as her first interview of 20 July 2009.

At this time she had no reason to believe (and did not believe) that the Applicant was a suspect (in comparison with the Crown allegation that she tried untruthfully to assist him after she realised he was a suspect and was prosecuted). The Applicant provided these details when first asked about this topic on 22 July 2009 (continuation of interview over the preceding days on different topics), and was closely questioned about the details again in his interview of 16 March 2010.

As discussed in connection with ground of appeal 5, Witness A is a prison informant and career criminal who provided assistance to the police and evidence against the Applicant with the intention of gaining benefits for himself, and in fact gaining benefits for himself.

He gave evidence of a conversation with the Applicant, prior to his face to face contact with the police on 12 January 2012, regarding the Applicant’s wife. He said the first time the topic was raised, he said to the Applicant ‘Any problems with your wife?’ and the Applicant said something along the lines of ‘Not at this stage’ or ‘not now, maybe later.’

The witness said that he then commented that ‘The wife is usually the weak link and the police will target the wife. Any problems with the wife?’ He alleged that the Applicant then said ‘No, no problems. Mild sedation. She was asleep’ or ‘No, no problems, she was asleep. Mild sedation.’

It was the defence case that this evidence was a fabrication. In light of Witness A’s credibility issues, the Crown expressly indicated that its focus was on those aspects of Witness A’s evidence which were supported by a recorded conversation or documents said to have been provided to him by the Applicant.

It was put to him that the Applicant never used the word ‘sedate’; that this was the witness’ word. He responded ‘It is not a word I have used ever. I don’t think I have ever used the word ‘l feel sedated’ or ‘Let’s go and sedate that other person. It’s more of a medical term, I would imagine.’

(Urban: Or a word used by the police?)

Detective Maree gave evidence that according to the records of the Xie family doctor, Dr Goh, neither the Applicant or Kathy Lin had ever been prescribed any sedatives. Defence counsel raised this in closing address.

THE GROUNDS – SUMMARY
Ground 1: Error by Johnson J in admitting the evidence of Dr Perlin (at voir dire)
Ground 2: Error by Fullerton J in disallowing voir dire, and in admitting the evidence
Ground 3: Miscarriage of justice caused by the evidence of Dr Perlin
Ground 4: Error in warning regarding the ‘CSI Effect’
Ground 5: Miscarriage of justice from directions on consciousness of guilt
Ground 6: Miscarriage of justice from directions about alibi
Ground 7: Error in admission of coincidence evidence in massage device
Ground 8: Miscarriage of justice caused by conduct of counsel