R v Xie

The execution of a search warrant in 2010

1. In the course of the execution of a search warrant at the accused's home at Beck Street on 11 May 2010, an item described as a "massage device" was located in his bedroom. In another part of the house police located a plastic container containing an assortment of rubber bands of varying sizes, the majority of which were red in colour. The device was photographed in situ and seized by police.
2. The finding of both items was notified to the defence some years ago. While photographs were included in the brief of evidence served prior to the committal, the Crown case statement, served as part of the case management regime in this Court, did not refer to the massage device or the container of red rubber bands as part of the evidence upon which the Crown relied in proof of its case. The Crown did not refer to either item in opening submissions to the jury in the first or second (aborted) trials. Both trials were aborted before the Crown had led any evidence as to what was found at the crime scene or any analysis of the crime scene. Dr Irvine had not given evidence.
3. In a statement dated 4 February 2015, Ms Te detailed her examination of the massage device which was undertaken at the request of the Crown (it would seem for the first time) some days earlier, that is, within days of the accused's trial commencing before me. Ms Te described the device as consisting of a wooden board approximately 25cm by 40cm with four pieces of wood of varying sizes nailed on top of one another. A green non-slip rubber mat adhered to one of the wooden planks on the bottom of the device. A metal bolt, approximately 90mm long, 8mm thick, with a 12mm rounded head was bolted into the top of the wooden device, over which was placed a folded hand towel with a red rubber band securing the hand towel to the bolt head. The red rubber band was wrapped around the bolt head three times. The hand towel was approximately 65cm long and 30cm wide. It had been folded at least twice lengthwise before being folded end-to-end. When the rubber band and the hand towel were removed, the towel was unfolded and laid flat. A number of 1.5-2cm circular depressions were visible on the fabric in a loose symmetrical formation, loosely corresponding with the size of the bolt head.
4. On 5 February 2015, before the commencement of the trial before the jury, the defence were served with Ms Te's statement and advised that the Crown proposed to tender the massage device and the plastic container of red rubber bands, and adduce evidence of Ms Te's examination of them. Although the Crown did not at that time identify the precise basis upon which it sought the admission of the evidence, it was clear to me from the general outline of the Crown's argument at that time, that it was a specie of circumstantial evidence likely to invoke the application of either ss 97 and/or 98 of the Evidence Act 1995 (NSW).
5. The defence indicated its objection to the tender of the evidence on the basis that for the Crown to seek to adduce it for the first time in the accused's third trial was contrary to case management orders made by Johnson J on 25 November 2013 under Part 3, Div 3 of the Criminal Procedure Act 1986 (NSW). (Since then I have ruled that I do not regard myself as bound by the order made by Johnson J on 25 November 2013 (R v Xie (No 8) [2015] NSWSC 2121). Although that ruling was decided in a different factual context, Mr Turnbull did not seek to re-argue the point on the Crown's application to adduce the evidence as coincidence evidence.)
6. I directed that the Crown should not open on the items found at the accused's home and that argument directed to their admissibility should be reserved until later in the trial. The issue has been adverted to by counsel from time to time since then, including before Ms Te was called. She gave evidence over four days from 31 March 2015. It was agreed at that time that since Ms Te was to be recalled at some later point in the trial, the admissibility of her evidence as it related to the examination of the massage device, its admission as coincidence and/or tendency evidence, and the relevance of the evidence to the issues in the trial, could be dealt with at that time.

The service of notices under ss 97 and 98 of the Evidence Act

1. On 12 May 2015, notices under ss 97 and 98 of the Evidence Act were served in which the Crown sought the admission of the massage device and the container of rubber bands in a composite tender as either coincidence evidence or as tendency evidence. In the course of argument on 15 May 2015 in the absence of the jury, the Crown accepted that if the evidence did not satisfy the test for admission as coincidence evidence, it would fail the test for admission as tendency evidence and, for that reason, the notice served under s 97 of the Evidence Act was not pressed.
2. Sections 98, 100 and 101 of the Evidence Act provide: 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. 100 Court may dispense with notice requirements (1) ... (2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party's failure to give notice under section 98. … 101 Further restrictions on ... coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to section … 98. (2) … coincidence evidence about a defendant, that is adduced by the prosecution, cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. …
3. As Beech-Jones J observed in R v MR [2013] NSWCCA 236: [65] One textual difference between the former s 98 and the current s 98 concerns the location within the section of the reference to "similarities" between the two or more events and the circumstances surrounding the events. Former s 98 was only engaged if the evidence concerned "two or more related events", as defined in s 98(2). Thus in Zhang at [140] Simpson J identified an "anterior step" to considering whether the evidence had "significant probative value", namely "determin[ing] whether two or more events the subject of the tendered evidence are substantially and relevantly similar and whether the circumstances in which they (are alleged to have) occurred are substantially similar" (see also R v Ceissman [2010] NSWCCA 50 at [8] per Latham J). [66] Under the current version of s 98 there is no longer a threshold or anterior inquiry of this kind. This reflects the apparent purpose of the amendment, which was to broaden the body of evidence that engaged s 98 and subject it to the test of having significant probative value. However, although the anterior inquiry identified in Zhang at [140] is no longer applicable, it is still necessary at the outset for the tendering party to identify the reason they seek to tender the evidence in question in order to establish whether it is seeking to invoke the "basis" referred to in s 98(1). As part of that process the tendering party will need to identify the "events" that are said to have occurred, the particular act or state of mind that it is said that the evidence of the events proved, the relevant similarities that are to be relied upon and the reasoning process that is sought to be engaged.
4. The coincidence notice served by the Crown identifies the two events which occurred and the similarities in those events (or the circumstances in which they occurred) as consisting in the accused's construction of the massage-type device, in particular that he secured a piece of folded cloth with a red rubber band around the metal bolt to operate as a cushion against the bolt being applied under pressure to his body, and the folded cloth located at the crime scene secured by a red rubber band, said by the Crown to have been at one time secured over the rounded head of the hammer-like weapon used to attack the deceased. The fact that the cloth on the massage device had circular impressions embossed on it consistent with the general shape of the head of the bolt, and that the cloth at the crime scene also had circular shapes visible in the bloodstains, consistent with it having been placed over a round object and secured in place before it came into contact with blood, was said by the Crown to be a marked similarity such that it is improbable that both events, or the circumstances in which both events occurred, occurred coincidentally.
5. In the Crown's written submissions, the argument in support of the tender of the evidence as coincidence evidence was developed further to draw what were said to be similar qualities between the two items. The Crown submitted that the massage device was a handmade improvised device with cloth folded and then secured to the bolt to soften its impact when applied to the accused's back, and that the hammer-like weapon used to inflict the blunt force injuries identified on the bodies of each of the deceased was also improvised by the addition of the cloth secured to its rounded head for a similar but less benign purpose. The Crown submitted that similarities in the "homemade improvised murder weapon" and "the homemade improvised massage device" focusing, in particular, on the attachment of the cloth with a rubber band to the surfaces on each item designed to be used under pressure or force was also not a matter of coincidence.
6. In the Crown's submission, the accused's construction of the massage device, and his use of a red rubber band in its construction, allowed for an inference to be drawn by the jury that the similarities between its construction, and the cloth bound by a red rubber band found at the crime scene, together with the appearance of both pieces of cloth when unfolded rendered it improbable that the two events (that is, the construction of the two items) occurred coincidentally. In the Crown's submission, that reasoning, when considered with all the evidence in the Crown case, provided a foundation for the jury to infer that the accused was the murderer.
7. The same submissions were advanced by the Crown in support of the requirement, imposed by s 98(1)(b), that the evidence tendered as coincidence evidence have significant probative value, and the further requirement under s 101(2) that it outweigh any unfair prejudice to the accused by its admission.
8. The Crown submitted there is no prejudicial effect in the admission into evidence of the massage device and the red rubber bands, or Ms Te's evidence concerning them, since there is no impermissible reasoning that the jury would be likely to engage in considering its use or its construction, or any risk that the jury will accord the massage device and/or the red rubber bands, as items of circumstantial evidence, any more significance than they consider that they deserve. Further, there is no risk that the jury will engage in impermissible speculation by reason of what the Crown has identified as the legitimate inferences that may flow from the admission of the evidence.

The question of reasonable notice under s 98(1)(a)

1. Mr Turnbull did not concede that the Crown's indication of its intention to adduce the evidence of what was found in the accused's home before the trial commenced before me, coupled with the service of the coincidence notice in the course of the trial, constituted reasonable notice for the purposes of satisfying the first statutory requirement for the reception of the evidence as coincidence evidence under s 98(1)(a).
2. The Crown accepted that service of the coincidence notice on 12 May 2015 does not constitute "reasonable notice" and, that being so, it was necessary that it apply for a direction under s 100(2) that it be permitted to adduce the evidence despite the late service of the written notice.
3. In R v Harker [2004] NSWCCA 427 at [34]-[35], Howie J held that the matters specified in s 192(2) are to be considered in determining whether a direction under s 100(2) should be given, the most important considerations being the importance of the evidence (s 192(2)(c)); the nature of the proceedings (s 192(2)(d)); and and any prejudice to the accused by the failure of the Crown to give reasonable notice (s 192(2)(b)). I note that the matters specified in s 192(2)(a)-(e) are not exhaustive.
4. Mr Turnbull submitted that for the Crown to be permitted to adduce the evidence as coincidence evidence at this time, in support of what he described as the Crown's entirely speculative case theory that the cloth found at the crime scene was at one time attached to a hammer (or the hammer-like weapon), and what he described as a "pseudo theory" that it was then carried into the children's bedroom and left there inadvertently by the accused, was productive of "inherent prejudice". He submitted that the general unfairness to the accused in the Crown's late service of the written notice, together with what he submitted was the lack of any sufficient evidential foundation for the Crown's assertion of a similarity in the events (or the circumstances in which they occurred) identified in the coincidence notice and developed in the Crown's written submissions, should result in the application for a direction under s 100(2) of the Evidence Act being refused.
5. When invited to address the extent to which it would be unfair to the accused to allow the Crown to adduce the evidence, Mr Turnbull initially submitted that he was compromised by the late service of the coincidence notice in obtaining instructions and generally by time pressures in having to deal with another feature of the Crown's circumstantial evidence case in the course of the trial. He declined the invitation to defer the question of admissibility until his instructions were clarified. Mr Turnbull also submitted that in the passage of time since the accused's arrest and the seizure of the items from his home, and being notified of the Crown's intention to lead them in evidence under s 98 of the Act, the defence have had no opportunity to undertake any useful comparison of the rubber band utilised by the accused in the construction of the massage-type device (which he conceded on the accused's behalf was designed to cushion the pressure of the bolt when he lay on the device), and the red rubber band binding the bloodstained cloth found at the crime scene, or any comparison of the cloth used in both events. The Crown's coincidence notice does not identify any relevant similarity between the type of fabric used in both scenarios. Insofar as the cloth is concerned, the similarities identified in the notice are limited to what are evident on both pieces as impressions resulting from the cloth being folded a number of times and secured on some round or circular-shaped item by a red rubber band.
6. The red and blue rubber bands in the container found at the accused's home were examined at the request of the Crown in April 2015 for the purposes of a comparison with the rubber band segments at one time comprising the red rubber band used to secure the blood soaked cloth found at the crime scene. In the opinion of Catherine Fleay, the team leader from the Chemical Criminalistics Unit of the NSW Forensic and Analytical Science Service, further examination of the segments was not considered likely to yield any meaningful results due to the inability of the analysts to conduct a "full class characteristic examination" on the segments due to their physical state on the one hand, and because the container of rubber bands found at the accused's home was not considered a "unique batched source" such that any examination of the rubber bands in the container with the segments of the rubber bands found at the crime scene, with each other, would be meaningless. Ms Fleay's opinion was disclosed to the defence.
7. Insofar as Ms Fleay's opinion bears upon whether a direction under s 100(2) should be given, it seems to me that the ubiquitous nature of red rubber bands and, as Ms Fleay recognised, the fact that those found at the accused's home were of various sizes and width and not from a "batched" source, would have been unlikely to have yielded any meaningful results either before or after the red rubber band securing the cloth at the crime scene was cut into segments.
8. On the question of whether a direction under s 100(2) should issue, Mr Turnbull relied upon the tests Dr Raymond performed in an attempt to replicate the pattern or marks on the cloth from the crime scene, and her opinion that it was unlikely the cloth was attached to a hammer. Dr Raymond's opinion, coupled with Dr Irvine's evidence that the cloth was small enough to fit inside the mouth of Min Lin and Lily Lin as a makeshift gag, was also relied upon by Mr Turnbull on the separate question whether the evidence satisfied the test for admission as coincidence evidence.
9. Mr Turnbull submitted that Dr Raymond's evidence, coupled with Dr Irvine's evidence, deprives the Crown of the necessary evidential support for the Crown case theory that the cloth was at one time used on the rounded head of the hammer-type weapon and, for that reason, a direction permitting the Crown to adduce the evidence should not be given.
10. In considering that submission it is necessary to examine Dr Raymond's evidence with some care. Dr Raymond was asked by the investigating police to undertake a number of tests in order to determine whether the round circular shaped patterns in blood on the cloth from the crime scene could have been caused as a result of the fabric being wrapped around the head of a hammer with a rubber band during contact with blood or, in the alternative, as a result of the cloth simply being wrapped in a ball and blood-soaked, as it was found in situ. It is not clear from her evidence what hammer or hammers she utilised in the course of her testing.
11. In testing those hypotheses, she tested two variables: the first, by placing the cloth on a hammer secured by a rubber band folded on itself twice; and, secondly, by folding the cloth twice and securing the cloth with a rubber band into a ball. The various actions she then employed were dipping the cloth ball directly into blood, rolling it on its side into blood, leaving it in blood for less than 10 seconds, leaving it in blood for 5 minutes, striking a hammer with the cloth attached into a pool of blood three times on the laboratory bench, leaving the cloth on the hammer for 30 minutes prior to removing it after blood contact, and removing it immediately from the hammer after blood contact. None of these tests resulted in any replication of the impressions on the cloth found at the crime scene. The largest number of times that she struck the bench top into a pool of blood with the hammer was three times as the cloth became detached from the hammer under additional strikes. There was no evidence as to how much blood was pooled for that purpose.
12. Contrary to one of the submissions Mr Turnbull relied upon as supporting the alternate hypothesis that the cloth bound in rubber bands was taken to the scene by the murderer to be used as a gag, it was not Dr Raymond's evidence that the cloth had to be moist or wet (presumably with saliva on the defence case) before it could absorb blood, but rather, that when it was moistened with water, whether before or after contact with blood, the blood patterning was more diffuse through the fabric as distinct from it being less diffuse when the item was not wet or moist. It is not clear from Dr Raymond's evidence whether she used new cloth or used cloth in her experiments, whether they had different absorption capacities or whether blood, in sufficient quantities, would serve to moisten the fabric.
13. What Dr Raymond concluded from that regime of testing was that it was unlikely that the cloth was attached to a hammer in the way proposed (or at least to any hammer that she had access to for the purpose of the experiment) because the cloth, and I assume the rubber band, became detached, again, I assume, before any or sufficient blood penetrated the fabric. In the result, she was also unable to replicate the pattern on the cloth from rolling or dipping the cloth in its bound form into blood.
14. The fact that Dr Raymond was not able to replicate the pattern utilising the variables she set for testing purposes, and that she concluded, so far as the testing allowed, that it was unlikely the cloth was attached to a hammer, leaves open the question as to how the pattern on the cloth from the crime scene was formed and how Min and Lily Lin's DNA was deposited on it. That question remains to be considered in the context of all the evidence, including, for the purposes of the Crown's application to tender the evidence as coincidence evidence, what the jury may accept the accused revealed to Witness A about the hammer as the murder weapon and what they consider his motivations were in seeking, with the pretence of Witness A's complicity, to have a hammer purchased and foreign DNA placed on it, to implicate someone else as the murderer.
15. Having regard to the matters specified in s 192 of the Evidence Act, I am satisfied there is no inherent or actual prejudice to the accused in allowing the Crown to adduce the evidence at this time in the trial. I am fortified in that view by the fact that Mr Turnbull cross-examined Dr Raymond and Dr Irvine in a way that indicates to me every consideration has been given by the defence to dealing with the Crown's intention to adduce the coincidence evidence, despite late notice in the formal service of the written coincidence notice as required by s 98(1)(a). He will also have the opportunity to cross-examine Ms Te when she is recalled.
16. I am also satisfied that there is a sufficient foundation in the evidence led to date, and what I anticipate will be adduced through Witness A, for the Crown to seek to make out the Crown case theory that the hammer-like weapon was initially constructed with cloth attached to the rounded head, but that it became detached upon it being struck on or at the heads of Min and Lily Lin and that it became blood-soaked in that process.
17. Finally, I am satisfied that in the overall presentation of the Crown case, the evidence is of importance as part of the Crown case that the accused murdered the deceased and that a direction should be given under s 101(2) for that reason.

Should the evidence be admitted as coincidence evidence

1. As observed by Simpson J at [25] in R v Gale; R v Duckworth [2012] NSWCCA 174 (a view with which Basten JA and I agreed): At its heart, s 98 is a provision concerning the drawing of inferences. The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is: two or more events occurred; and there were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and having regard to those similarities, it is improbable that the two events occurred coincidentally; therefore the person in question did a particular act or had a particular state of mind.
2. Her Honour went on to emphasise that it is important to recognise that the process of reasoning and the drawing of inferences (in this case that the accused is the murderer) is for the jury. Her Honour said at [26]: … this process of reasoning and the drawing of the inferences (that the person did the act or had the state of mind) is for the tribunal of fact … Part of that process involves findings of fact. Did the two (or more) events occur? Were there relevant similarities? Where the party tendering the evidence relies upon a number of asserted similarities, the tribunal of fact must identify which, if any, of those similarities have been established. Before asking itself the penultimate question - is it improbable that the two events occurred coincidentally? - it must discard any asserted similarities not established.
3. The admissibility of evidence tendered as coincidence evidence under s 98 requires an assessment of the following factual underpinnings:

1. Is there evidence capable of establishing the occurrence of the two events identified by the Crown?
2. Is there evidence capable of establishing similarities in the two events?
3. Are the similarities capable of supporting a conclusion that the coincidental occurrence of the events is improbable?
4. An evaluation as to whether the evidence will, either by itself or in conjunction with other evidence, have significant probative value and whether the probative value, as assessed, substantially outweighs any prejudicial effect by the admission of the evidence, the balancing exercise required by s 101(2) of the Evidence Act.

1. As to issues 1-3 above, it is no part of my function to do more than determine whether the evidence is such that the jury, acting reasonably, might make a comparison of the similarities between the accused's construction of the massage device, and the use to which the cloth was put (or was reasonably likely to have been put) by the murderer in fashioning the murder weapon, and to conclude that they were not constructed as a matter of coincidence and whether, if a finding of that kind is made, it is capable of rationally effecting the probability that the accused is the murderer. I am satisfied the evidence has that capacity.
2. Issue 4 requires that I make an evaluation, and an informed prediction, of the probable weight of the coincidence evidence, taken at its highest and from its coexistence with other items of circumstantial evidence in the Crown case. That exercise is encapsulated by the approach of Whealy JA in DSJ v R; NS v R [2012] NSWCCA 9 (with whom Bathurst CJ, Allsop P, McClellan CJ at CL and McCallum J agreed) where, at [62], his Honour approved, subject to three qualifications, the approach of Simpson J in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504: It appears that Simpson J had earlier analysed the processes by which the tender of tendency evidence under s 97 of the Act was to be determined: R v Fletcher (2005) 156 A Crim R 308 at [32]-[35]. In Zhang , having referred to the earlier decision, her Honour (at [139]; p 573) said: The analysis is no different in the case of evidence tendered under s 98. The principles are these: (i) coincidence evidence is not to be admitted if the court thinks that evidence would not, either by itself, or having regard to other evidence already adduced, or anticipated, have significant probative value; (ii) probative value is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (see the Dictionary to the Evidence Act ); (iii) the actual probative value to be assigned to any item of evidence is a question for the tribunal of fact - here, the jury; (iv) the probative value actually to be assigned to any item of evidence cannot finally be determined until all of the evidence in the case is complete; (v) the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly , to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted.
3. At [72] his Honour reformulated the second part of the fifth proposition above as follows: As I perceive it, the point being made by her Honour is simply this: if a hypothetical jury would think it unlikely that the evidence were important in relation to the facts in issue then the trial Judge might the more readily conclude that the evidence lacks the capacity required for admissibility. Simpson J's formulation recognises that the trial Judge has no part to play in the evaluation of the actual weight to be given to any of the evidence or to its ultimate assessment. The substance of her Honour's formulation is that the trial Judge is required to take the evidence at its highest, and to determine whether it has the capacity to be of importance or of consequence in establishing the fact in issue. In undertaking that task, the statute also requires, as her Honour recognised, that the evidence may be examined on its own account, or by having regard to other evidence adduced or to be adduced by the tendering party. As I have said, the trial Judge does not make any evaluation of the actual weight of the evidence nor does he or she make any prediction about the weight that will actually be assigned to the evidence by the jury in the trial. As stated in Mundine , what must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution.

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