R v Xie

Supreme Court of NSW|2015-05-12|Before: Fullerton J

Solicitors: Director of Public Prosecutions (Crown) Kidman Legal (Accused) File Number(s): 2011/147183

Judgment

HER HONOUR: On 18 January 2010, a warrant issued under the Surveillance Devices Act 2007 (NSW) entitling police to install audio and video recording devices in the accused's home at Beck Street, Epping. The visual surveillance device was continuously monitored from 8 February 2010 until 10 May 2010 when it was discovered by the accused and deactivated. The audio surveillance device in the accused's bedroom continued in operation until some later date.
The accused and his wife, Kathy Lin, were interviewed by police at various intervals during the period both surveillance devices were operative in the expectation that they would discuss the questions asked of them, and that in their conversations they would reveal more of the events of 17 and 18 July 2009 than what they had initially disclosed to police.
On 27 April 2010, Kathy Lin was also summonsed to appear at the New South Wales Crime Commission ("the NSWCC"). On 3 May 2010 she appeared and was questioned under compulsion. In the course of her examination she was told, in effect, that the police believed that her husband was the murderer as the shoe print impressions in blood at Boundary Road corresponded with the style and size of sports shoes he was known to wear. That was also done in the expectation that she would reveal this information to the accused.

Interviews in 2009

The accused and his wife were initially interviewed at length within days of the murders. The accused was not a suspect at that time. In the course of those interviews both the accused and his wife accounted for their movements on 17 and 18 July 2009. They said they were both at 55A Boundary Road on the late evening of 17 July 2009 after driving the deceased children home from a family dinner. It is the Crown case that the other three deceased were asleep inside the house at that time. They also both told police that, after leaving Boundary Road, they drove the short distance to their home in Beck Street where they remained until the following morning. They both said they slept together that night. They told police that they rose separately the following morning and that at some time before 9am, they left home to take their son out for breakfast, stopping at Boundary Road en route to see why the deceased Min Lin had not opened the newsagency. They also gave an account of finding Lily Lin, Irene Lin, Terry Lin and Henry Lin deceased inside the house and notifying police. Police located Min Lin concealed beneath bedclothes next to his deceased wife, Lily Lin, later that afternoon.
It is the Crown case that the accused lied to police when he said that he was with his wife and son throughout the late evening of 17 July and early morning of 18 July, and that he did so in the knowledge that his wife would not be able to contradict his alibi, having told a prison informer that his wife was at no risk of revealing that he had left the house as she was sedated. That person, referred to in the trial as Witness A, is also to give other evidence of conversations with the accused probative of his guilt.
When interviewed by police on 22 March 2010 and again to the NSWCC in September 2011 (apparently after Witness A provided the information to police), Kathy Lin denied using sleeping tablets. It is unclear whether the Crown will assert that the accused sedated his wife without her knowledge or that Kathy Lin should not be believed when she denies using sleeping tablets.
Although I am unaware of the content of the affidavit sworn in support of the issue of the surveillance device warrant, it must be that the police did not believe that Kathy Lin was in fact able to account for her husband's presence throughout the evening of 17 July and through to the early morning of 18 July, although it would appear that the police did not at that time have any evidence that that was because she was sedated, even if they might have had suspicions that was the case.
The circumstances in which Kathy Lin discovered the body of the deceased Lily Lin are also in issue in the trial. It is the Crown case that the accused attempted to shield his wife from seeing Lily Lin's body at a time when he could not have seen the deceased's bloodied and battered head and face on the bed or the blood on the surrounding walls. The Crown submits that this conduct evidences a consciousness of guilt since the accused could only have known that Lily Lin's badly beaten and bloodied body was uncovered on the bed because that was how he left her after killing her.
The accused's conduct in leaving his wife at Boundary Road before police arrived is also a matter of controversy and also said to reveal consciousness of guilt. It is the Crown case that he left his wife at the house despite her protestations having just discovered the bodies of four family members, as he knew that she was at no risk of her brother (the deceased Min Lin) being the killer, or another killer being in the area, because he knew that he had killed Min Lin, as he had the four other deceased, and that he had left Min Lin's body concealed under bedclothes.
Between July 2009 and February 2010, as the murder investigation was progressing, the police had gathering suspicions that the accused was the murderer. These suspicions culminated in the application for the issue of the surveillance device warrant. Kathy Lin was not a suspect at that time, or at any time thereafter. The Crown will not allege at the trial that she wilfully provided police with false information when she was interviewed in the immediate aftermath of the murders. To the contrary. To the extent that she gives evidence inconsistent with what she told police at that time about the circumstances in which Lily Lin's body was discovered and the fact that she was unaware that her brother was also in the bed, the Crown has foreshadowed an application for leave to cross-examine her under s 38 of the Evidence Act.

Interviews in 2010

Once the surveillance devices were installed in Beck Street and operating, a series of interviews were conducted, first with the accused on 16 March 2010 and then with his wife on 22 March 2010. The questions asked by police in both interviews were no doubt designed to have the accused and his wife reiterate, and perhaps elaborate on their movements on 17 and 18 July, amongst other issues, when they returned home.
On 2 March 2010, police met with Kathy Lin by pre-arrangement. Police then accompanied her to Eastwood Police Station where they had what has been described in the evidence as an "informal conversation", which I take to mean the conversation was not the subject of a formal interview and was not electronically recorded. In the course of that conversation, Detective Maree, the officer in charge, told Kathy Lin that it was the experience of investigators that in murders involving family members, a member of the family or someone close to the family is often involved. She responded to the implied suggestion that the accused might be responsible by rejecting that as a possibility. She said, "It's impossible, no reason he love me, love children, parents and brothers family, maybe you thought he stay at home, nothing to do".
On 5 March 2010, police contacted the accused and asked whether he would be available to be interviewed by police. On 16 March 2010 he met with police by pre-arrangement and was taken to Ryde Police Station. He was not accompanied by a solicitor. He was introduced to the custody manager and placed in the dock but was not under arrest. He was electronically recorded in an interview from 11.53am until 2.38pm. He was cautioned in conventional terms and agreed to participate in the interview voluntarily.
Relevantly for the purposes of this application, the accused was asked by police again to account for his movements after dropping the deceased children at Boundary Road on the evening of 17 July 2009 (see questions 125-176).
He said he could not recall many things in detail and referred police to his earlier lengthy interviews on 20, 21 and 22 July 2009. (I was not provided with copies of those interviews for the purposes of this application.) He did say, however, he was sure that he did not go to bed immediately on arriving home but spent time with his wife watching television or utilising the internet. When asked what time he went to bed, he said he could not remember the exact time but thought it was after midnight. When asked for more precision as to when he went to bed, he was unable to provide it. He said he "normally" went to bed at the same time as his wife but that he could not remember whether he followed that "normal" course on that night. He said, once in bed, he could not say for certain whether he went straight to sleep.
He was also questioned about a range of other matters, including the circumstances in which he and his wife first discovered the deceased Lily Lin. He was questioned in some detail about who entered the bedroom first, where he stood relative to his wife, who saw what first and their reaction to what they saw (see questions 332-379). He also told police that, in effect, it was a joint decision that his wife stay at Boundary Road and wait for the ambulance whilst he went to collect his parents-in-law from Merrylands. He confirmed that he had a spare key to Boundary Road, which was normally kept at Beck Street but sometimes in his wife's car (see questions 804-808).

12 March 2010

An excerpt of the conversation between the accused and his wife on 12 March 2010, four days before the accused was interviewed and ten days after the informal discussions the police had with Kathy Lin, was the first of ten extracts the subject of the Crown tender. The Crown identified the relevance of this excerpt as bearing on the circumstances in which Kathy Lin stayed at Boundary Road whilst the accused went to collect her parents. Although the accused repeated to his wife what he had told police (to the effect that they had both agreed that he should go and she should stay), his wife countered by saying that was not her position initially, reminding him that she had said, "You stay with me. Don't go. I don't want you to go. I am scared". The accused did not respond to that assertion in any way capable of being construed as suggesting to her that she should not repeat that to police or that to do so would be to expose him in some adverse way.
Although in this same extract the accused discussed with his wife the claim by his parents-in-law that he raised the issue of the guardianship with them at Boundary Road, he referred only to their claim that it was said whilst they were in the ambulance as "a lie". The Crown case is that the guardianship issue was raised by the accused with his parents-in-law while they were sitting on the side of the road opposite 55A Boundary Road after the accused had collected them from their home and taken them to Boundary Road.
In the course of argument, the Crown conceded that there was nothing in what the accused said in the extract of 12 March 2010 which amounted to an express or implied admission (being a statement against interest or an implied statement against interest) or anything he said of sufficient clarity to justify the admission of the evidence on that basis. The Crown did indicate, however, its intention to utilise the transcript as part of the foreshadowed application for leave under s 38 of the Evidence Act to cross-examine Kathy Lin when she is called as a Crown witness. As I indicated to both counsel in the course of argument, that question would be reserved until such time as the application was made and submissions were directed to the Crown's entitlement to use the transcript for that purpose.

16 March 2010

The next excerpt in the body of the surveillance device transcripts tendered by the Crown records a conversation between the accused and his wife on 16 March 2010. That transcript runs to six pages.
There can be no doubt that the accused is aware from what he says to his wife that he believes he is now suspected of killing the deceased. He openly discusses with his wife the need to prove (to police) that he was at home with her at the time of the murders. He also makes express reference to what, it must be assumed, his wife told him after police spoke to her on 2 March 2010, to the effect that the police considered that murders of this kind were usually committed by family members. The following excerpt makes this clear : R: Initially I didn't mind what the police said: for all the murder … (Ind) in Australia the leading reason was money. And I agreed to it. Recently they are gradually changing their point of view and saying no, … (Ind), Saying these crimes were usually committed by family members….Anyway, this is point of view they have come to now. So from what was said today, I could sense … (Ind) that meaning, uh: besides, besides money there are still some other unimaginable motives. There are even such things.
They then discuss their shared belief that Kathy Lin's parents are the source of the renewed police interest in the accused as a suspect. They both speak in this extracted conversation, as in many others the subject of the Crown tender, in very critical and sometimes hateful terms about her parents for that reason. In most exchanges on this subject, Kathy Lin is driving the conversation. It is well established by the evidence already led by the Crown that there was enmity between the accused and his wife on the one hand, and her parents on the other hand at this time. The Crown relied upon the family conflict, not to ground a submission to the jury that the suspicions of the accused's parents-in-law that the accused was the murderer were well founded, but in support of what the Crown alleges to be the accused's desire to secure control over Brenda Lin and his need to secure his wife's cooperation in being appointed her legal guardian at the expense of her grandparents for that reason.
The Crown did not submit that the accused's belief that his parents-in-law had reignited the police interest in him as a suspect or his criticism of them was relevant as a discrete issue. As I see it, the mere fact that he discussed with his wife the interference of his parents-in-law is not, without more, probative of his guilt.
The accused and his wife also speak about the police "framing" them (or him) in this excerpt, a repeated theme in other conversations the subject of the Crown tender. I take their joint use of this term (translated from either Cantonese or Mandarin) to mean a concern that the police have been wrongly inflamed by the intervention of Kathy Lin's parents and that this has given rise to a misplaced suspicion on the part of police that the accused is the murderer, if for no other reason than they have not found the real culprit.
What the accused says to his wife in the following excerpt on 16 March 2010 must necessarily be read in that context: R: but this thing is the truth. This thing, I can say it and you can also say it. But about the other things whatever other people would say, we can do nothing. Ran into us on the road. What can you do about it? Isn't that right?. K: Mm. R: Our car was seen in that place at the night time of 12 o'clock, it emerged, appeared there. For this I really can say nothing, in this case. K: Exactly. R: that is, if the police want to frame me up. I'm just saying. K: Yes, stayed with you, with you that night. R: This Absolutely . . . What else is there to say? Son, where did he sleep? I said, the two slept in the middle. What else is there to say? (Sighs)…to say? [Emphasis added]
It seems to me that the following exchange might be fairly considered to be the high watermark of what the probative value of the accused's conversations with his wife on 16 March 2010. The extract commences at some undefined point in time on that day with the following words: R: To prove it? I'm really unable to do so. I'm really unable to prove it. K: I prove on that night I was with you. R: I can only prove that we two stayed together. What else could be proved? I said I didn't go out. You say that I did, and with witness. Then I can do nothing about it. You have witness, okay. K: Mm. R: Yes, about this I really can do nothing. K: Mm. R: I'm just saying. You, you can even say, Oh, on that night you were seen walk out at 11, 12 o'clock. You, you were seen by two people." [sic] I really can do nothing about it if the witnesses are found. It's only that, I can only, (Laughs) I can only say that we two stayed together. As for other (things), I really can say nothing. Do you understand what I mean? K: I know. R: The bottom line is this. Anything else, I cannot control. K: … (Ind), if I was not staying with you, who was I staying with, then? (Laughs).
The accused repeated, on a number of occasions, that their joint account to police of sleeping together throughout the night/early morning of 17/18 July was the "bottom line" and the only possibility of that being contradicted would be if people (presumably some putative eyewitness) made "false testimony". In that context the accused said as follows: R: I have already said, this is where the bottom line is. No need to say anything else. That is, get, get to the bottom line, this is the bottom line. K: Mm. R: As to what you said, I, I, I, I uh hire, spent money to hire a killer. You prove it, you prove it. I am unable to prove it. Just saying. You, you should find the proof to prove what I did. Who were hired, how much money were paid, how to pay. You find out the proof. I, I'm unable to prove it. I, I didn't . . . You say I did it. What can I do? I say I didn't, and the only thing I can say is I didn't. Just saying. That is, I didn't do it myself, and neither did I hire, uh, spent money to hire someone to do it. I can only say … (Ind).
In another passage, he said: R: What happened then was we two stayed together. You can say whatever you like. Where saw what. I really can do nothing about that. K: Mm. R: Even if I am beaten to death, I still won't believe any cameras on that night ever captured our car and captured us leaving home. That is to say, at most he/she can find witness, that is, there's someone saying something. Can only do that. (The Crown was unable to attribute any meaning to the accused's reference to the accused and his wife leaving by car or a reference later to cameras at a railway station.)
The fact that the accused and his wife are discussing their movements upon arriving at their home on the night of 17 July through to the following morning, in light of what they genuinely and, as it happens, correctly believe to be the police suspicion that the accused is the murderer, cannot, of itself, rationally affect the jury's assessment of whether he is the murderer. The fact that they are discussing their movements is unsurprising given the renewed police interest in the accused's movements at the time the deceased were killed and whether his wife can corroborate his account. Viewed in that way, the accused's commentary on what his wife can say about it has no probative value at all.
I do not find the Crown's submission that an innocent person would not speak as the accused did about there being no eyewitnesses to him having left Beck Street in the early hours of 18 July and walking to Boundary Road, and thus the need for his alibi to be accepted, or his other references to the police case being deficient of any evidence to incriminate him (assuming that is what he is referring to when he speaks in this excerpt about the lack of "cameras" or his fear of being "framed") as compelling.
It is no part of the Crown case that Kathy Lin conspired with the accused to give him a false alibi, or that she colluded with him to assist him in avoiding being charged, whether because she knew that he was the killer or whether she believed or suspected he might be. Further, as I read the excerpt of conversation on 16 March (again in its entirety since the Crown presses the tender of the entire extract), there is nothing capable of being derived from their conversations as a whole which is suggestive of the accused importuning his wife to either give police a false account of his movements, or for her to give an account that she did not genuinely and independently believe was true. Further, if it be the fact that Kathy Lin was sedated as the Crown alleges (albeit that she may be unaware that she was), it might even be said that the accused had no reason to importune his wife or to direct her, or even to encourage her, to say other than what he expected she would say of her own accord, namely that, so far as she knew, he did not get out of bed through the night. The Crown did not advance the submission that the accused's participation in the conversation with his wife about his "alibi", and the terms in which he expressed himself, was a carefully constructed ruse designed to conceal from his wife that she was sedated by the pretence that they may either have different memories of the same events or should have the same memory of their movements.
For those reasons, in my assessment, a fair reading of what the accused says to his wife in the extract of 16 March 2010, exemplified by the passages extracted above, does not have the capacity to rationally effect the jury's assessment of the probability of the existence of the fact in issue as contended by the Crown, namely as evidencing steps taken by him to maintain a false alibi, with the support of his wife, to ensure he was not charged.

22 March 2010

The next series of extracts (three in number) relate to conversations on 22 March 2010. The first extract extends over five pages, the second over four pages and the third over eight pages.
The time differential between the three transcripts is not evident on the transcripts. It is clear, however, that each record of conversation between the accused and his wife follows an interview in which she participated with police that afternoon, during which she was represented by a solicitor.
The fact that Kathy Lin was legally represented and the accused was not when he was interviewed on 16 March 2010 was the subject of considerable commentary in the recorded conversations on 22 March 2010 and on repeated occasions thereafter. On almost every occasion where it was discussed, Kathy Lin reprimands or chides her husband for not having had a solicitor present when he was interviewed. I am unable to see how his tacit acceptance of her criticism of him is probative of any fact in issue. I am also unable to see the relevance of the fact that Kathy Lin was legally represented during the interview, or the fact that her solicitor intervened on her behalf to advise her that she should not answer questions which focused on whether the accused got out of bed in the early hours of 18 July 2009, which advice she followed.
In the same interview, however, Kathy Lin did answer questions about her movements, and those of the accused, on their return from Boundary Road after dropping the deceased children home some time after 10pm on 17 July 2009. As to that fact, she said she was unable to recall the time that she arrived. Although she recalled turning the television on, she was unable to recall what she watched. She said her husband used the internet, but she was unable to recall any specific internet sites that were visited. When asked what time she went to bed she said, "I can't recall but normally it would be 2 or 3 o'clock", being the "normal time" she went to bed. She also said the accused went to bed first but that he was not asleep when she joined him. She was unable to recall whether she fell asleep as soon as she went to bed and was unable to recall whether she woke during the night. When asked the direct question as to whether her husband got out of bed during the night, or whether it was possible he got out of bed during the night, and questions related to that issue, she either said she did not know or answered "no comment". As I have already noted, in the extracts of conversation following that interview, Kathy Lin is critical of her husband for having gone to the police without a lawyer as contrasted with the legal protection she told him she utilised in the face of police questioning.
Kathy Lin was also interviewed on 22 March 2010 about the circumstances in which she entered her brother's bedroom at Boundary Road and what the accused might have seen, or could have seen, of the deceased Lily Lin in the bed before he sought to shield her from that view. She said in that interview, as she did on 20 July 2009, that he was behind her as she entered.
In the first extract of the surveillance device transcripts of 22 March 2010 (an extract extending over five pages), the accused refers again to the fact that he had been interviewed by police about his movements upon arriving home on 17 July 2009 (presumably in the interview on 16 March). Kathy Lin also refers to having been asked similar questions that day, which she elected not to answer. In recounting to his wife what I interpret to be his answers to police when he was interviewed he said: R: It was admittedly good that he/she asked me that day; but didn't ask about whether you went out in the middle with me. Just asked just me myself. I said don't involve me; I don't know anything, 'normal'. …….. Normal and quiet. Normal. ( words in English) In other words the fact is that I don't wish to … (ind) know er the truth is I really cannot remember about that night if I was unable to fall asleep; how can that be so fantastic eh? … K: … Hmm? R: … They are here to trick up some … K: … Er yes … R: … psychology questions or perhaps use the media to sock you and meanwhile lead us along to trawl for errors you see? Well it can't be helped; they have carefully put together a host of questions, we are just snared off guarded as all is out of a sudden … K: … How would they know eh!? … R: … Well ummm just answering the questions accordingly … …
In the conversation that immediately followed, the accused and his wife appear (again on what I consider to be a fair reading of what is said) to discuss the fact that she would not know, just as he would not know, whether the other got out of bed during the course of the night, at which point the accused expresses his concern, that being the case, that his wife will be unable "to provide prove for me when the time comes": K: … How would we know eh!? Just like for instance eh he is sleeping with his wife; his wife … his wife gets up half way through the night, and would he know that eh!? Won't necessarily definitely know for certain eh… R: … Yeah right … K: … His wife walks to the front door; goes for a walk around and came back again! Would that be noticed!? R: … That's what it is … K: … Which devil knows!? … R: … Now that you're enlightened with this eh; so if I had walked out there alright? You wouldn't know either. There you are you've just said it eh … K: … Aha … R: … That is what I am most frightened of. K: … Yes … R: … You will be unable to provide prove for me when the time comes.
Having elected, on legal advice, not to answer questions directed to her capacity to know whether the accused left the home, she says: K: So that's why he/she er what you all er that's why Lawyer Lo said: "You don't answer, you can refuse to answer." So I did not answer. The main thing is that whether you took a walk outside. How would I have known eh; things like er am I sure of that or not sure. And so I will not answer. A trick. It is a trick eh … (Kathy starts to speak rapidly.) … Just like when he/she said, "Do you know that in Australia cases like this were usually done by family … family members or done by people who are associated with the family." At the time I was already unravelled, didn't want to talk about others/other things. What else … … And so when he/she continued to mention about my things and then I said, "What? Are you talking about Robert eh?" (Ind) that they er (ind) and mentioned Robert again. He/she said, "I have no mentioned Robert's name." This is brought out by you.
The accused is heard to giggle but otherwise makes no response.
Plainly enough, what Kathy Lin says about the wisdom, as she sees it, in electing not to answer police questions cannot be evidence against the accused, unless there is some evidence, or an inference capable of being drawn from the evidence, that the accused suggested, cajoled, entreated or manipulated her into taking that position, concerned that she might say something to expose him as having the opportunity to leave the house and murder the deceased. There is nothing in any of the surveillance device transcripts that suggests that the accused conducted himself in that way, and no submissions were advanced by the Crown that he did. In fact, there is nothing, in the evidence led at trial thus far, so far as I understand it, to suggest otherwise than that Kathy Lin took it upon herself to attend on police on 22 March in the company of a lawyer and that she accepted the lawyer's advice that she not answer some questions about her husband's movements on the night and early morning of 17/18 July 2009. I am unaware as to whether the Crown intends to question Kathy Lin as to why she took a lawyer with her to the police interview on 22 March or whether she discussed this with the accused beforehand. Whatever the Crown may seek to do with the position that Kathy Lin took in the interview, and any relaxing of her position in the evidence she gave at the committal under cross-examination or in her evidence at trial (if there be any), I do not read the extracts of her commentary on the value or virtue of the position she took, relative to the position the accused took, as admissible against the accused.
In the first extract of 22 March 2010, there is, however, an exchange between the accused and his wife, which, if interpreted literally, might suggest collusion between them to ensure that no "admissions" were made (to police), or "the wrong thing being said" or, as the Crown submitted, that he is seeking confirmation from his wife that she will confirm he was with her at the time of the murders. The difficulty the Crown faces in relying upon this exchange for that reason is that it is no part of the Crown case that the accused and his wife were in fact colluding in the sense of joining together to falsely account for his movements. Were that the Crown case (and it is not) the conversation may have been probative of that fact.
The Crown did not draw any particular attention to the following passage (extracted below), and did not address any submissions as to how the Crown might seek to use it in some other way probative of guilt. I extract it to exemplify that the Crown sought the tender of all of the surveillance device transcripts without any discrimination as to any part, or parts of them, being probative of guilt whilst others, despite a literal reading of what is being said, not being sufficiently probative of guilt to justify admission: K: Just like you said… R: What ? K: We both said the wrong thing… R: Yes, must have said the wrong thing. … (Beeping sound) K: Yes correct (ind) whatever is said (ind) to say it poorly (ind) to frame you… … R: But there is no hard evidence. K: I know, but … R: … Relying on verbal statements alone are insufficient. Unless we have admitted otherwise, relying on the statement itself is insufficient. Unless we admit that oh er we have done all the things at the scene and this and that. Then that would be fine. Otherwise you'll need to have evidence.
In the second excerpt of the recorded conversations of the accused and his wife on 22 March 2010, they speak in general terms about their shared access to a key to Boundary Road. Since it is the agreed position of the parties that a key to Boundary Road was available to the accused, there is nothing in what the accused says about that fact in the recorded conversation that is probative of his guilt. The fact that it is the Crown case that the accused used the key to access the house and commit the murders does not make his bare confirmation that he had access to a key probative of guilt when his access to a spare key is not in issue.
The third extract of 22 March 2010 commences after an indeterminate interval following the second extract. On one reading of what the accused says to his wife in this conversation, it might be thought that he is dictating the way in which she should respond, were she to be spoken to again by police, although even this is by no means clear. The question is whether, on a rational analysis of what is said, the extract admits sufficiently clearly of that construction to justify its admission under s 56 of the Evidence Act. It is necessary to extract that excerpt in its entirety to resolve that question: K: Well if he/she accuse me then I'll accuse you back; and then you will say this that and the other and that you …. R: … I don't feel so That's not how I feel. K: Like saying for instance that you this and that eh. Bring the prove. I'll show to him/her then. R: You, don't you ask me … K: … Ha … R: … Don't ask me if I got up at the middle of the night … K: … Don't ask … R: … To do a pee. Just provide prove that I went out eh. (Sigh). … K: Do you have prove that we got up in the middle of the night; did a pee. R: No. Only whether or not I went out that night. Saves the talk about things that are not related to the case. Whether I do a pee or not is immaterial. K: Yes. R: What's that got to do with the case? I pee tonight and won't pee tomorrow night who knows. K: Who knows? Who can remember? (inaudible). R: Or piddled how much. K: (Giggles). Who can remember waking up or not on that night? He/she asked if that night er woke how many times eh. Sometimes wake up, and sometimes don't. How do I know? R: Hoping that I make mistakes while waiting for me to jump into it.
Later in the same excerpt, the accused and his wife discussed both the time at which, according to Kathy Lin, it was "normal to go to sleep" (namely at 2 or 3 in the morning as she had told police in her interview of 20 July 2009), and what the accused would say if he were asked the same question.
Rather than the accused coaching or dictating, or even suggesting to his wife how she should deal with any further police questions, they seem to agree that any questions that might later be asked of them with the intention that they attribute, with precision, the time they went to bed or to sleep, or the time they rose the next morning, should also be answered in terms of either generalities, or that they should both refuse to answer questions along these lines altogether. K: How to? (Sighs) Just said it was. If it's watching TV then watched TV or surfed the net. I think they are (ind) … R: So, these things can annoy you to death ... K: "At what time was it?" … R: … (Inaudible) … K: … "It was two or three o'clock, it is normal to go to sleep at two or three o'clock." R: If he/she came and asked me, I'll say … ……. K: … He/she said: "What time you rise in the morning?" I said after Sometime past eight o'clock?" … (Loud clashing of crockery) … (Ind) and I said yes. He/she then said: "How do you know?" I said, "Roughly around that time" and that's the truth … R: … Roughly around that time will be right … K: … As my son needed to go to school too. (Ind) routine … R: … Roughly around that time … K: … Every body has an individual biological clock, times up and then bounce up. For instance, now; six o'clock wake up but I wake up even before the alarm clock sounds. R: (Ind) gets up (ind) (ind) formed habit. K: But just wants to know; "How come you knew? Are you sure?" R: Just roughly (ind) ... (Loud squeak.) K: …I know. So picky, those questions; so very difficult to put up with. R: And so; turning this around on its head eh; if this happens at (ind) I will ask him/her. I will say I won't answer anything. You go and prove things yourself. I won't say anymore … K: … Oh … Won't say any more now. Now; question me next time; wont answer. Won't allow you to go. Has to bring a lawyer along if it's necessary to go … R: … Go with lawyer. Was asking such tough questions … K: But now it is like (ind) he/she making it sound so nice today; "You are not a suspect." and so on and so forth … R: … Hmmm. That is to say that, the law has stipulated … … that it had to be done this way, but the police is always circumvent. That is within the law itself, you are questioned like as if you are a suspect while in fact the law makes it clear that you aren't. It is the police assuming that we are. Understand?
While it might be open to the Crown to submit that the accused's manipulation of his wife, with a view to having her conform to how he wants her to answer questions was subtle (so that it does not for that reason resonate in what he actually says), perhaps by directing the conversation (if that is what he is doing) so that his wife determines of her own volition to support his alibi, that is not a submission advanced by the Crown. Even if it were a submission to be advanced by the Crown, in the absence of tone or intonation informing what was said and with the added complexity inherent in a literal translation of Cantonese or Mandarin into English, any suggestion of the accused manipulating his wife in this way may not rise above mere assertion.
On 25 March 2010, five days before the next set of the surveillance device transcripts upon which the Crown relies, police gave Kathy Lin copies of her interview of 20 July 2009. She was also asked by police to facilitate a meeting with Brenda Lin.

30 March 2010

The Crown relied upon three discontinuous excerpts of conversation between the accused and his wife on 30 March 2010. The first extended over six pages, the second over ten pages and the third over eleven pages. Given the discontinuity of the excerpts (as with the discontinuity in the excerpts of 22 March), it was not suggested there was any textual or contextual sense that could be derived from reading the separate excerpts as a whole in order to enhance an understanding of what is being discussed in either of them. Accordingly, each excerpt needs to be separately considered for admission as bearing relevantly on a fact in issue as provided for in s 56 of the Evidence Act. The first excerpt on 30 March was most recently revised by the interpreters within days of the argument concerning admissibility. In this conversation the accused and his wife again refer back to Kathy Lin having had the assistance of a lawyer when she was interviewed on 22 March while the accused did not, as to which the accused said: R: If your lawyer wasn't there you would die too. K: I am (ind) … … R: … … How dangerous it was with what was said at that time eh! Are you able to testify … you can testify whether you woke up or not … whether s/he got up or not? Do you know that or not? I'm unable to vouch for myself … K: … (Ind) … R: … On that day s/he asked me; did you go straight away fall asleep? I said normal. Did you go out in the middle? No … K: … And that is why I … R: .. Did wake up or not? No. K: … That is why … hey! That's why that day when s/he asked me those questions I then realised that something is not right … … R: … Very … very unsettling honestly … … K: … … And that's why I have to look look … look look for Lawyer Shen and that's the reason why. R: S/he is bent on doing away with me. This is laid bare and clearly on display. even when Jimmy came back, he/she said it is so that it is the will to do away with me. K: It is … R: … Almost done away and dead eh wifey. If I and you get into another disaster … just another; if you had not brought your lawyer, during that additional interview session where I didn't bring a lawyer with me; an instant death, an immediate arrest might have eventuated. Enough evidence based on the face of it could have been established then. Besides that we would be deemed to have made certain admissions … K: … Becomes our own doing … R: … Very simply put, you too did not provide verbal testification that I wasn't here K: You too have no way of testifying that I wasn't there … … R: … I also have no way to testify that I myself wasn't here. I also have no way to testify that you were not here. No one can prove it. "You said it all yourselves." Says the police. "It is not me who forced you. Comes from your own mouth" … K: Yes, comes from your own mouth, yes. R: Shows that there are problems with you guys that night. … … K: … … But now they are using those questions to trick us.
The Crown Prosecutor identified passages within the second and third excerpts of conversations on 30 March 2010 as "crystallising" what he submitted was the accused's position in relation to alibi (a submission which I understand to be directed to the accused making an implied admission that he had none). The following excerpts are expressly relied upon by the Crown as exemplifying that position: R: … You, basically from the start eh; that night you … were together with me that entire night. In order for the police to prove that I wasn't here … K: … He/she has to find (ind) … R: … First of all, s/he/they has/have to gouge open your mouth; secondly find someone … K: … Has to find someone … R: … To provide prove against me, that I was seen there … K: … Yes eh saw you … saw you at such and such a place … R: .. That will be strife … K: … Yes … R: … If back then, you fouled up and make a slip of the tongue; that not even you can provide prove for me; game over … cheerio (chuckles) … K: … Soooo crazzzyyy … R: … (Laugh) (Sigh) So that day he/she asked myself; "Whether … whether did go outside er in the midst? No. … I definitely said no. Did drive a vehicle or not or whatever the devil it was. No! A strong no from me as soon as words of these sorts were mentioned. No … K: … (Ind) (Chokes) … R: … An emphatic no … K: … Hmmm … … R: … Good ……. (sigh) oh kind blessings. (sigh) K: So eh. Er er umm umm listen to wifey. Henceforth … Number one, right now lawyer says not to meet. We're … R: … Not to meet … K: … Not going … not meeting … not chatting. Us and them er are opposites er in other words we stand face to face in opposition … … R: … Yes … K: … In other words er in other words … R: … If you have the ability then charge me eh … K: … Because (ind) find me … I'll do my things, no need to worry about him/her. If he/she he/she, he/she has the ability and do have any suspicions about you well formalise it … make it formal. R: … Make it official, put me on formal charge/s on me. K: Yes. Formal charge and when that time comes well fight then… … R: … Court prosecutions then … K: … Fight then … R: … Legal battle then … K: … You … You bring … bring out the evidence … R: … Get the evidence out … K: … As evidence to prove …
In the third excerpt, the accused and his wife revisit the fact that they understood the police had no evidence to contradict their joint account of being together from the time they arrived home late in the evening on 17 July 2009 through to the time the bodies of the deceased were discovered the following morning - an account with which Kathy Lin emphatically agrees, albeit, on the Crown case, in ignorance that she was sedated and could not actually account for her husband's movements for that reason. R: (Laugh) (Ind) well charge me. If you have the ability, charge me at once. Even if I'm beaten to death, I still won't believe that evidence could be produced it's that simple. K: if there were any it would have been available early on … R: … Is there any? If any, I would already have been dragged away like hell eh. … K: Why now? Several … R: … Already eight months later. K: Yes correct. Forcibly … forcibly …
The Crown submitted that what the accused says in these two excerpts on 30 March 2010, properly and fairly interpreted, are eloquent of his guilt: …what the Crown submits is that those are the words of a man who knows that he wasn't at home. If he knew that he was at home he wouldn't be suggesting to his wife that there is any risk at all of the police "gouging her mouth open" or finding someone who says that he was there. … He would not have been conjecturing that the police could conceivably find somebody, some witness, to say that he wasn't at home and that he was there. … He is acknowledging the reality that the police could conceivably find a witness who can prove that he wasn't at home but he is expressing his belief that they have no such witness because, if they did, he would have been arrested months earlier.
Further, the Crown submitted: It is the ruminations of a person who is acknowledging the risk that he has of a witness having emerged or emerging to give evidence of him having been seen out of the house that night. He is implicitly acknowledging that he has that risk of a witness coming forward and saying, "I saw him out of the house that night". That's what he is acknowledging the possibility of. He is saying it is unlikely because the police would surely have charged him, but he is acknowledging that the only danger he faces, in light of his wife's support of his alibi, is if the police find such a witness. Now, that acknowledges, implicitly, the fact that he was out of the house that night.
I am unable to see that what is contended for by the Crown, in short, an implied admission that the accused does not have an alibi, is open. Although the accused repeats, perhaps with increasing emphasis, that there is no case against him, there is nothing in what he says that is suggestive of him importuning his wife to confirm that is the case, or that she should take that position against her genuine (albeit mistaken) belief that her husband was with her throughout the night, and nothing at all to suggest any collusion on her part to join with him in advancing a false alibi. There is nothing that I can discern which might rationally enable a jury to conclude otherwise.

6 April 2010

The transcripts of 6 April 2010 relate to discussions, at this time involving Brenda Lin, as to how she might deal with questions the police may wish to ask of her concerning her various family relationships and the financial situation of her parents relative to the financial situation of the accused and his wife. The accused relates to her the detailed and repeated questions that police have asked him and her aunt about his movements on arriving home at Beck Street and openly complains about what he sees as a police strategy to test his reaction to their questions and their disinterest in his answers, as the following excerpt exemplifies: R: S/he asked me, Da [familiar name for Brenda Lin], do you know how many questions s/he asked me about what time I went to bed? S/he said: "What time did you go to bed?" I said I forgot but for sure it was after 12am. "What time?" I said I really forgot. "What were you doing at that time?" "I was watching TV". "What kind of program were you watching?" "It seemed ……sports or a weekend movie." … "Do you still remember what it was about?" "I don't remember." "Do you wear a watch?" I said I never wore a watch. "Didn't you say you were using a computer, there was a time indication on your computer, right?" K: Didn't you look at the time? R: I said the time on my computer was China time. Apart from that, I normally didn't look at it, nor could I remember. "What time was it exactly?" "Was Kathy going to bed first or you?" "What time was it?" "slept on the left hand side or right?" You don't know how to answer these questions. Da. I do have a concern that these questions will be put to you… I mean some similar questions that they force you to answer and then, not care what your answers are, but to check your memory, check your response, check your reaction. These things are very annoying you understand? …(Ind) K: …..(Ind) s/he also asked about "what do you normally do on Friday night" ……(Ind). R: In fact I had told him/her long before, … I said "it was about 2 o'clock." But this time, I dare not say it anymore. K: I don't remember, really don't. R: I really don't remember. What if s/he say to me that "Hay, how come you remembered the 2o'clock but forgot everything else? K: …………..(Ind) just said 2o'clock then 3o'clock. R: And then s/he asked me "Do you remember that you sent any email at that night? I said "I usually don't send any email." "What about receiving any email?" S/he forced us to make sure on time. … (Ind) used so many questions to force me to make sure…It is very annoying… ..(Ind) I hope the questions to you would not…..(Ind) I've said the stress that we two have been going through… no one could understand. Da, you know. Why we hate your Grandma so much …? We never used to talk about "hatred". Now, it's indeed "hatred". I never used to mention "hatred" to you, you know? …..(Ind). K: ……..(Ind). R: ….asked: "On that night, did you make any phone calls, send any emails?" … that is, s/he wanted you to recall when you did what. K: ….(Ind). R: As for sleeping, "Did you go to bed first or Kathy? I said I went to bed first. "How much earlier did you go to bed?" (laugh) It is so annoying. Da, what a hell this means? You don't even know which one supposed to be the correct answer. You don't even know if if you could be tricked by him/her or not. It is very very annoying. Do you know? Such as, Da, … "Why you remember your sleep yesterday……" "Why you remember a specific thing yesterday?" Then s/he will say "Did you deliberately not to tell that…" or "Did you make it up to keep the same…?" ……. They …(Ind) not a real…(Ind) psychologist.
The accused's recitation of what he had told police (and his wife's commentary), and his concern that Brenda Lin might be questioned in a similar vein, does not advance proof of the accused's guilt in any relevant sense.
In the same conversation, the accused also openly discusses the explicit or implicit suggestions of her grandparents that he had killed her parents. Both the accused and his wife at separate times, in the same conversation, discuss the contentious issue of Brenda's guardianship and advise her that she should be cautious about any police questions on that issue. At repeated points in that conversation, the accused says she must "tell the truth from her point of view … but that any questions that she feels she cannot answer she may choose not to answer". He poses the following example: "Would it be possible that your Gufu [a nickname for the accused] might have killed your dad? How will you answer? It's very difficult for you to answer isn't it". He went on to say, again as I fairly interpret it, that that is not a question that she should be required to answer and that any questions of that kind that she finds difficult to answer, she should simply refuse to answer. He also advised her that he had legal advice to the effect that the police were endeavouring to "trick" her aunt (the accused's wife) with similar questions.
I am unable to discern from any submissions advanced by the Crown any basis upon which the advice the accused gave Brenda would or might be probative of his guilt, if for no other reason than it is not suggested that she had any information which might be adverse to his interests. I note that the Crown eschewed any reliance of the accused's advice to Brenda that she could or might refuse to answer the police questions, or might refuse to be interviewed altogether, because he was concerned that she might take the opportunity to reveal to police his sexual abuse of her.

29 April 2010

The final extract of the surveillance device transcripts tendered by the Crown over objection was the transcript of 29 April 2010. That conversation relates to what I am satisfied, on a fair reading of it, is a reconstruction or re-enactment of the circumstances in which the body of Lily Lin was discovered, together with the accused's directions to his wife as to how that occurred and what she should say about it. I am satisfied that this extract does have the capacity to rationally affect the jury's assessment of the probability that the accused well knew what his wife would see were she to have walked, unchaperoned, into her brother's bedroom and at a time when he was either not in the room or not in the room in a position to be able to see the bed, and that he was actively seeking to encourage her to the view that they both saw the body at the same time to deal with what he was aware police had concluded from his wife's account of finding the deceased in that room. Whether the accused's actions in seeking to shield his wife from the horror of Lily Lin's grossly battered face and head was genuine or a pretence does not impact the admissibility of his recorded conversation with his wife where he either directs or encourages her to tell the police that their lines of sight were similar or the same. The following (discontinuous) extracts evidence that attitude: R: What I mean is that you already had moved in for one meter [sic]. K: Here is … [Ind] R: Just happened to be, hm, you then K: Hm. R: You were there, you were here K: Hm, hm R: And I was here. K: Yes R: Saw the whole view K: I was still … [Incomplete] R: Right at here? K: Yes, that's right. … R: Very simple, as long as you came in … … [Incomplete] K: But ….. [Incomplete] R: One step, you, hm, two steps, then ….. [Ind] three steps …. [Ind] could be ….. [Ind] K: Saw everything, because you were, during that time, were in this position R: Well, I was at here. K: Yes, if, if ….. [Ind] R: The door was like this. K: Hm, hm, I was running like that. [Walking steps heard] R: And then, you walked, and I walked after you, I was just like that, I had already, it was okay. K: Yes R: I was here, one metre, enough.
In those circumstances, despite the limitations to which I have referred, I am not persuaded that the probative value of the evidence is outweighed by the danger to which s 135 of the Evidence Act contemplates, or the unfair prejudice to which s 137 refers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2017

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