The fifth Red Herring Certificate goes to … Justice Elizabeth Fullerton

In 2016, at the fourth and final multiple-murder trial of Robert Xie, Justice Fullerton was directly offered at least one chance to ensure a fair trial. She refused. She also erred in some of her directions to the jury. 

 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. 

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.

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 200 meters away.

Although the following exchange (during the defence Closing), took place with the jury absent, it reflects Her Honour’s reticence to make it clear to the jury that even if they were simply undecided about the truth of Kathy Lin’s alibi evidence they must acquit Xie.

WEBB (for Xie): 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.

That far? That far? Fullerton J rejects a perfectly valid request from the defence. Reasonable doubt was very much in play.

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 big difference is the omission of the words “as asserted by the alibi evidence”. One would imagine that ‘alibi evidence’ is specifically mentioned in the standard direction because that is how one is expected to determine the accuracy or integrity of the alibi. 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 other evidence that the accused had told Witness A he didn’t commit the murders.

* She 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. In fact, during her summing up, Her Honour repeatedly gave the alibi directions with the embedded timeframe after 2:00am.

Some of her directions were “irrevocably subversive of a fair trial. They undermined the standard of proof and involved the judge intruding into the jury’s task. The case against the applicant (Xie) was largely circumstantial, and questions of inference from observations at the crime scene, and possible alternative explanations, were central to the case and the jury’s task. The impugned directions were remarkable and provoked defence counsel to seek a discharge of the jury,” wrote highly respected barrister Bret Walker in a draft seeking leave to appeal to the High Court. I rest my case.

When in the malicious prosecution case against Mark Tedeschi KC Justice Fullerton admonished him for “straining impermissibly for a conviction”, she clearly knew what she was talking about.