The headlines have gone but a lifetime jail sentence remains for Robert Xie for the 2009 murder of the Lin family. (Three adults and his two young nephews.) Xie was convicted without any real evidence. The case was fashioned in the DPP’s office out of unreliable circumstantial material. Hard to believe? Prove me wrong.
The Red Herring Certificate identifies prosecutors and judges who, in our sincere opinion supported by evidence, have helped bring about or retain wrongful convictions. The Inaugural Red Herring Certificate went to Tim Ellis SC, the former Tasmanian DPP whose prosecution of Sue Neill-Fraser led to what is widely regarded as a wrongful conviction. He called every element that didn’t fit his narrative a red herring.
There are people I know who have a rather dark view of Mark Tedeschi’s prosecutorial skills. Those skills are formidable. His critics say they are sometimes misused. Justice Elizabeth Fullerton, for example, admonished him for ‘straining impermissibly’ for a conviction when hearing the malicious conviction case against Tedeschi brought by Gordon Wood, whose murder conviction Tedeschi won but lost on appeal. Tedeschi had convinced the jury – but should he have? (Fullerton J herself will feature in this list of Certificate recipients shortly …)
He is a recipient of the Red Herring Certificate for orchestrating the Crown case against Robert Xie, for the murder of the Lin family. (Three adults and his two young nephews.) At Xie’s third trial, the first that went to completion, Tedeschi was disappointed by a hung jury. Prosecutor Tanya Smith from the DPP’s office led the case in the fourth trial, based on Tedeschi’s work, when the jury convicted him, 11:1.
The volume of impermissible legal straining for a conviction would fill a book … indeed, it does fill my book, FRAMED – how the legal system framed Robert Xie for the Lin family murders
The most despicable aspect of the Crown case was its attempt to negate Xie’s alibi, enough on its own to earn this dishonour. Struggling to solve the murders over two years, police finally scrambled as much circumstantial evidence as they could. They paid a prison snitch to try and trap Xie in remand to some sort of admissions. It is uncontested that he was at his computer until 2am on the night, and thereafter in bed by his wife’s side, as she confirmed to police and under oath, so they searched the house (again) and dug up the Xie garden looking for evidence to support their hypothesis that he had drugged his wife to sneak out after 2am for a spot of multiple murdering, but they found nothing. His doctor testified that he had never prescribed Xie any sedatives. The DPP went ahead anyway, building the case around his ‘availability’; that is, after 2am. No evidence, though.
And “…there was no psychopharmacological evidence that she was drugged,” as Professor Ian R. Coyle, Fellow of the College of Forensic Psychology of the Australian Psychological Society pointed out.
Yet Tanya Smith began her Opening with the admission that there was no evidence as to time of death.
Dr Bob Moles, Flinders University legal academic comments, “Clearly the onus of proof has been reversed in this case and speculation has been presented as if it were ‘evidence’ … Nothing short of a Royal Commission will get this badly damaged ship back on course.”
Xie’s appeal was dismissed. We observed it first hand and in our opinion (as expressed in the book above) those involved failed out of incompetence, not ‘impermissible’ straining.
Whether the trial miscarried on account of the trial judge’s directions on alibi, is one of the questions that would be put to the High Court if it accepted the leave to appeal. More on the trial judge, Fullerton J, coming up in the next Red Herring Certificate citation …coming soon.