Andrew L. Urban
Recorded and with availability restricted to relevant judges, jury deliberations hold the key to many wrongful convictions.
Of the 12 member jury at Robert Xie’s third murder trial in 2015, (the longest in NSW history), most voted NOT GUILTY. Some didn’t, resulting in a hung jury and a fourth trial, in 2016/17.
Had the 2015 jury reasoning been recorded, it is beyond doubt that it would have been found so flawed as to cause the jury’s verdict to be quashed. This is my informed view, after studying the case for three years prior to publishing the book FRAMED – how the legal system framed Robert Xie for the Lin family murders. There was no direct evidence that Robert Xie viciously murdered five members of his wife’s family in 2009, nor any credible circumstantial evidence.
Robert Xie always 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 confirm 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.
Yet …. his conviction – going against his alibi and absent a credible motive – rests on just a couple of unreliable elements that the prosecution urged the jury to accept as reliable evidence, to negate Xie’s alibi. One was a secret (and preposterously unbelievable) recording made by a jail inmate while Xie was awaiting trial; the other was speculation made out thin air by police and unsupported by evidence that Xie sedated his wife so he could slip away in the middle of the night to butcher her family living 200 metres down the road. Among the five brutally murdered were Robert’s much loved two pre-teen nephews.
Why cheat to negate the alibi if the system is seeking the truth?
The big question for those who have never accepted the jury’s guilty verdict is what reasoning led the 11 who voted guilty to that conclusion? Of all that’s wrong with this conviction, that is the most important. Alibi is a trump card; if Xie was in bed all night, he could not have committed the murders. The failure of that one key assertion destroys the entire Crown case.
Robert Xie’s prosecution is one example of the vulnerability of the legal system to the secrecy of jury deliberations.
One reader, Linda, writes: “I believe juries absolutely need to be recorded to make sure they are making their decision on the evidence. In my partners case there was so much doubt and I just cannot fathom how they found him guilty. He has also lost his appeal so will now die in prison.” Some might say Linda is biased…but that’s a copout.
Reader Steven Fennell (a frequent commenter) provides a thought provoking example (also from personal experience) of why jury deliberations should be made known (to a relevant cohort):
[Appeal] Courts are required to assess whether a jury’s verdict was “unreasonable” in simple terms, whether it was open on the evidence. But because juries give no reasons, appellate courts are left guessing what the jury might have thought. That problem was exposed in Fennell v The Queen.
At trial, the Crown case depended heavily on identifying a hammer as the alleged murder weapon. The High Court later described key parts of that case as “extremely weak” and the identification evidence as “glaringly improbable” (see, for example, [78]–[91]). The conviction was unanimously quashed.
But what matters here is how the Court got there. The appeal run by Andrew Anderson (instructing solicitor), Kate Gover (barrister), and argued by Saul Holt KC—relied in part on principles drawn from Clout v The Queen, particularly the observations of Michael Kirby about the dangers of identification evidence.
Those principles go beyond identifying a person. They apply equally to identifying objects especially where memory is affected by delay, suggestion, or reconstruction. In Fennell, that reasoning was used to challenge how the hammer was identified and relied upon.
Here is the contradiction:
• The jury accepted that evidence without explanation.
• The appellate courts had to reconstruct why.
• The High Court ultimately found that no rational jury could have been satisfied beyond reasonable doubt.
So the system ends up in an awkward position. It says the jury’s reasoning must be respected—but then overturns the result because that reasoning, whatever it was, cannot be supported. You cannot properly test reasoning that was never given.
The most frequently cited concern about recording jury deliberations is that jurors must be able to speak freely and candidly.
If they knew they were being recorded, jurors might self-censor, avoid expressing doubts or some defer to the stronger personalities.
Many judges believe this would damage the deliberation process. But restricting the availability of such recordings to, say, the trial and/or appeal judges, would dismiss such concerns while ensuring that the jury had properly considered the evidence.
The same applies to concerns that since jurors discuss sensitive matters, including credibility of witnesses, moral judgments and personal reactions to evidence, recording deliberations could compromise jurors’ privacy and safety, especially in notorious criminal cases. The flip side of that is the potential upside of self-managing jury behaviour and improved responsibility.
(Other cases we have explored crying out for jury transparency include Sue Neill-Fraser, Marco Rusterholz and Derek Bromley.)
In short, the carefully controlled availability of recordings of jury deliberations would make a considerable beneficial difference to the administration of justice. In other words, record but restrict public access. Reviewing judges would write their decisions concerning the jury deliberations and the reasons for them, providing the necessary transparency without the risks. The reviews of jury deliberations should occur at the request of the judge or the defence, once a guilty verdict is announced but before it is recorded.
This book examines the trials and conviction of Robert Xie. After four trials there are many unanswered questions.
I applaud the author for asking the questions that need to be answered.The introduction issues the challenge “This book sets out to prove he was telling the truth.
Sadly, this is the task every accused who has been subjected to the carefully orchestrated media campaigns now faces. The golden thread our system was founded on “Innocent until proven guilty” no longer applies. Anyone with only access to media reports would have no concerns that Xie’s convictions were unsafe and unsatisfactory.
I am overwhelmed by the conclusion that Robert Xie’s convictions are unsafe and unsatisfactory and my doubt is more than reasonable; it is substantial.
Stuart Tipple
Former lawyer representing Lindy Chamberlain
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