R v Xie

Application for a stay of proceedings: XBL v R (21 November 2013)

1. By notice of motion filed 25 September 2013, the accused sought an order that the proceedings against him be stayed until the senior Crown Prosecutor (the Prosecutor in this trial) was replaced. That notice of motion was heard before Hoeben CJ at CL between 28 October 2013 and 31 October 2013. On 21 November 2013, the motion was dismissed in a detailed judgment.
2. The application was mounted on the basis of an allegation that the senior Crown Prosecutor had not acted impartially, but had acted as an investigator in respect of two matters: the first relating to the NSWCC hearing on 26 September 2011 involving Mrs Lin and, the second, the Prosecutor's dealings with expert witnesses. The submissions advanced by the accused on the application by the Crown for leave to cross-examine Mrs Lin do not involve the second matter but they do involve the first.
3. Given the seriousness of the allegation that the Prosecutor acted in breach of the ODPP Prosecution Guidelines, and the related disputed issues of fact that allegation gave rise to in the hearing of the application for the stay, a number of witnesses were called before Hoeben CJ at CL and cross-examined by Mr Turnbull, including the senior Crown Prosecutor.
4. In his evidence, the senior Crown Prosecutor detailed the consideration he gave to dealing with Mrs Lin as a Crown witness in circumstances where he was aware, from as early as March 2011 when first asked to advise whether there was sufficient evidence to charge the accused, of what she had said in various police interviews, including the hearing before the NSWCC in May 2010. The Crown Prosecutor also gave evidence as to the options he considered were available to the Crown before making application under s 91 of the Criminal Procedure Act 1986 (NSW) that she be called as a witness in the accused's committal proceedings.
5. At [17] of the judgment, his Honour set out the following: The senior Crown Prosecutor believed that there were a number of options open in relation to the further questioning of LK [Mrs Lin]. (i) Waiting until trial (possibly in cross-examination). (ii) Waiting until the committal (possibly in cross-examination). (iii) Getting the police to re-interview LK on these issues. (iv) Having the Crown Solicitor interview LK on these issues. (v) Requesting LK to attend a conference with himself, his junior and his solicitor. (vi) Requesting the police to seek a further interview of LK in the NSWCC.
6. His Honour went on to find that the senior Crown Prosecutor did not request that Mrs Lin be questioned further by the NSWCC and that he had no involvement at all in the further hearing that was conducted on 26 September 2011. His Honour accepted that the Crown Prosecutor's preference was that Mrs Lin be offered the opportunity to be further questioned by police under caution before any application was made to call her in committal proceedings. (I note that offer was made to Mrs Lin and was declined by her on legal advice.) His Honour concluded: [41] I have concluded that there is no evidentiary basis for the submission that the senior Crown Prosecutor directed the police and the NSWCC to interview LK in the NSWCC on 26 September. Other than identifying such a hearing as one of the options open when LK refused to participate in a further interview with the police, I have concluded that the senior Crown Prosecutor had nothing to do with the decision by the NSWCC to conduct a further hearing involving LK. To the extent that some emails suggested the contrary, those emails were based on assumptions which were not grounded in fact and which were inaccurate. [42] I am not satisfied that ODPP Guideline 13 was breached by the Crown Prosecutor. The draft questions to be answered by LK were prepared initially for the police for use in their interview with her, and later for JM for use in the NSWCC's hearing. I do not see this as constituting an investigative role, but rather doing something which was analogous to providing advice to the police at their request. It certainly did not amount to "generating their own evidence". [43] It follows that the further allegation made by the applicant that the Crown Prosecutors used the NSWCC to in part provide a basis for their application to have LK called at committal proceedings has also not been made out. For the reasons already indicated, the initiation and conduct of the NSWCC hearing on 26 September occurred independently and without any request by the Crown Prosecutors. The draft questions and topics provided to the police at their request do not alter that fundamental finding. [44] I accept the evidence of the senior Crown Prosecutor that before receiving any transcript of the NSWCC hearing, he and his junior counsel had decided that they would seek to call LK at the committal hearing. In that regard, the NSWCC provided the Crown with a transcript of LK's evidence at the hearing on 25 November 2011. There was no evidence to the contrary. [45] I can see no impropriety or misconduct in the senior Crown Prosecutor making an application to call LK in the committal proceedings. There were good reasons why this should occur. It was in the interests of both the prosecution and the defence not to be left with uncertainty but to gain a clear understanding of LK's evidence. She was the only eyewitnesses in relation to central aspects of the matter. There was a chance that calling LK at the committal hearing might lead to a narrowing of matters in dispute. The opportunity for both the prosecution and the defence to obtain a final statement of LK as one of the principal witnesses at the committal stage might have dispensed with the need for a Basha inquiry at the start of the trial. It is not without significance that both the Crown and the defence in the committal proceedings relied upon NSWCC transcripts of LK.
7. Of direct significance to the submission advanced before me is the following submission attributed to Mr Turnbull in his Honour's judgment: [46] The applicant submitted that the senior Crown Prosecutor by his participation in the NSWCC hearing created conditions for an attack on LK's credibility in the committal proceedings. In doing so, the applicant submitted, the senior Crown Prosecutor was acting as an investigator not as a prosecutor. [47] I have already found that the evidentiary basis for this submission has not been made out. The NSWCC made its own independent decision to conduct a hearing. Those conducting the hearing, while having knowledge of the questions prepared by the junior Crown Prosecutor, felt no obligation to ask those questions. In any event, only some of those questions (less than half) were asked. Despite the request by the senior Crown Prosecutor that LK not be asked about the shoeboxes, she was questioned on that subject. [48] The senior Crown Prosecutor by approving the list of questions/topics prepared by his junior was doing no more than taking advantage of what was already a fait accompli, i.e. that a NSWCC hearing involving LK would take place.
8. Again, as his Honour noted, Mr Turnbull's submission failed for lack of a factual foundation. Finally, his Honour rejected the submission that it was an abuse of process by the senior Crown Prosecutor to use the NSWCC as "an extension of the prosecution", or as lacking any factual basis that the NSWCC was used by the senior Crown Prosecutor to get information from Mrs Lin in contemplation of the fact that she would ultimately be called as a Crown witness. Again, of direct application to the submission advanced before me, his Honour attributed to Mr Turnbull the following submission: The applicant submitted that the intention of the senior Crown Prosecutor must have been to take forensic advantage of information that was obtained under the coercive powers of the NSWCC.
9. That submission was also rejected by his Honour.
10. His Honour noted that he had dealt, in detail, with a range of specific allegations of serious impropriety by the senior Crown Prosecutor made by the applicant in both oral and written submissions and concluded that there was no substance in any of them.
11. When I read the written submissions of senior and junior counsel on the Crown's application for leave to cross-examine Mrs Lin and, in particular, counsel's assertion, even if it be only implied, that the Crown Prosecutor had made a number of tactical forensic decisions many years in advance of trial (including the exploitation of the compulsory interrogative processes to which Mrs Lin had been subject in 2010 and 2011 as part of that decision-making process), I considered the matter so serious that, before the application was entertained further, the Crown Prosecutor should be asked whether he intended to lead any evidence to meet them. It was only then that the Crown made me aware of the close consideration that Hoeben CJ at CL had given to allegations that he had acted improperly, if not in precisely the same terms as advanced on the application before me then of the same general tenor, and that they were all rejected as lacking any evidentiary foundation in fact such that he did not see the need to call evidence before me.
12. I invited Mr Turnbull to reconsider his position. He did not withdraw the submissions advanced by him and his junior in writing but maintained and developed them orally, tempered only by the submission that I should see the conduct of the Crown Prosecutor, and the Crown's forensic use of the questioning by police and the NSWCC, as being capable of resulting in such grave unfairness under s 192(2)(b) that leave should be refused.
13. The written submissions of Mr Turnbull and Mr Fernandez concerning the conduct of the Crown Prosecutor (personally), and Mr Turnbull's maintenance of the submission that leave should be refused because of his conduct of the Crown case more generally, should not have been pressed on this application given the unsuccessful application for a stay and his Honour's reasons. Neither should the submission have been advanced that the Crown's tender of coincidence evidence was the result of the investigative actions of an investigator. The appropriate time to make a challenge of that kind (if it was a challenge properly grounded in fact and not innuendo) was at the time the evidence was tendered. I also note that despite Mr Turnbull's trenchant criticisms of the involvement of the NSWCC in the investigation, he identified nothing that was said to be ultra vires the Crime Commission Act 2012 (NSW), and nothing in the techniques employed by the NSWCC that was otherwise than in accordance with the legitimate exercise of its statutory powers (see Exhibit 78).

Principles to be applied on an application to cross-examine under s 38

1. In Doyle v R; R v Doyle [2014] NSWCCA 4, the principles to be applied when an application under s 38 of the Evidence Act is brought by the Crown were considered. It was the appellant's case that the leave granted to the Crown in that trial did not fit within any of the three categories in s 38(1). It was also submitted that to the extent that there were inconsistencies between the witness' evidence and his previous statements, they were not sufficient to warrant leave being granted under s 38(1)(c), particularly when the cross-examination was "for a credibility purpose".
2. Bathurst CJ (with whom Price and Campbell JJ agreed) gave close consideration to the operation of s 38 in [291]-[315]. His Honour also referred to Kanaan & Ors v R [2006] NSWCCA 109, and the effect of the section summarised by this Court in that case, with approval: [292] Section 38 of the Evidence Act widens the area in which a party can be given leave to cross-examine his or her own witness compared with the position at common law: see J D Heydon, Cross on Evidence, (9th Aust ed 2013) at [17405]. In particular, it is not necessary to demonstrate hostility. Unfavourable is held to mean simply not favourable: R v Souleyman (1996) 40 NSWLR 712 at 715; R v Velevski (No 2) (1997) 93 A Crim R 420; Kanaan v R [2006] NSWCCA 109 at [83]. However, it may be accepted that evidence is not unfavourable simply because it does not fit a particular case theory of the prosecution: R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 at 461-462. [293] Further, the use of the word "about" in the chapeau to s 38(1) makes it clear that leave may be granted to not only conduct cross-examination specifically directed to one of the subjects referred to in s 38(1), but also to the probability of establishing a factual state of affairs in relation to the matters contended for by the party conducting the cross-examination: R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474 at [67] and [73]. [294] Further, to the extent that the cross-examination was based on prior inconsistent statements, those statements could be admitted as evidence of the truth of their contents if the evidence was relevant to matters in addition to credibility and, having been admitted for purposes which included an attack on the credibility of the witness, the evidence fell within the hearsay rule exception contained in s 60 of the Evidence Act: Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96 at [19], [21] and [23]. The effect of the section was summarised by this Court in Kanaan supra: "[83] Section 38 of the Evidence Act abrogated the common law relating to hostile witnesses, by enabling a party calling a witness to obtain leave to question his own witness as though cross-examining that witness about evidence which is unfavourable to that party - in order, for example, to establish that the witness has made a prior inconsistent statement. The word 'unfavourable' means merely 'not favourable', and it is no longer necessary for the party seeking leave to demonstrate that either the witness or the evidence given is hostile to that party: Regina v Souleyman (1996) 40 NSWLR 712 at 715; or that the unfavourable evidence was unexpected: Regina v Adam (1999) 47 NSWLR 267 at [99]. Leave to cross-examine, once granted, does not permit the Crown to undertake a general cross-examination; it is restricted initially to the ground on which leave was granted: Regina v Le at [55]. However, it may range more widely: Ibid at [59], [63]. In the present case, for example, it would have permitted not only cross-examination on any prior inconsistent statement made by Mrs Zahabe in order to prove that the prior statement was true and that the evidence given was false, and also to suggest that bias in favour of the appellants was the reason for the inconsistency: Ibid at [67]. [84] The greater availability of cross-examination of a Crown witness by the Crown prosecutor pursuant to s 38 has obviously placed more emphasis on the Crown's obligation to call witnesses whose main relevance is the availability of their evidence unfavourable to the Crown case. Section 38 is living up to its potential for transforming the traditional procedure in criminal trials: Regina v Parkes (2003) 147 A Crim R 450 at [81], [141]. In Regina v Ronen [2004] NSWSC 1298 at [32], Whealy J observed that the increasingly common use of s 38 has often demonstrated its value in getting to the truth of the matter, although great care must be taken to ensure that the trial does not become side-tracked by a collateral issue carrying with it the real possibility of prejudice to the accused. That observation was correct, but attention is drawn to the accepted interpretation of "unfairly prejudicial" in ss 135-136 and of "unfair prejudice" in s 137, that prejudice to the accused is not unfair merely because the evidence tends to establish the Crown case: Regina v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [29], [91], [98]."
3. In Kanaan, the Court referred to R v Le [2002] NSWCCA 186; 54 NSWLR 474; 130 A Crim R 44, which was an occasion for the Court to review the operation of s 38. It is not necessary to refer to the consideration Heydon JA gave in Le to the operation of the section in contrast with the concept of "hostility" at common law, or to trace the intended operation of s 38 to the Australian Law Reform Commission Report or the Interim Report. Suffice to say, as his Honour noted: [66] One purpose of a s 38 examination must be to enable counsel calling the witness to demonstrate that the evidence in chief which led to the s 38 order is false. Another must be to enable counsel to demonstrate that any prior statement inconsistent with it is true. That latter purpose is assisted by s 60, which permits a prior inconsistent statement to be considered as evidence of what is represented, not merely as a matter affecting credibility. But s 60 by itself is not wholly effectual unless the questioner is able to interrogate with a view to demonstrating the truth of the prior inconsistent statement. There would be little point in permitting s 38 examinations otherwise and no point in the existence of s 38(3). The purposes described can be assisted by obtaining concessions from the witness about matters tending to indicate the falsity of the impugned evidence. One of these is the lateness with which the impugned story is advanced. Another is the inherent improbability of the impugned story. These purposes must also be capable of being assisted by the eliciting of evidence tending to show the truthfulness of prior statements inconsistent with the impugned evidence, such as the fact that they were made under conditions conducive to accurate recollection and expression and conducive to sincerity. [67] In my opinion, on the true construction of s 38, leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness's evidence on those subjects. In establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness's credibility on the s 38(1) subjects.

The granting of leave

1. In the course of the trial, I granted leave, on specific terms, permitting the Crown to cross-examine Mrs Lin on ten of the 20 subject areas in MFI 269. I advised the parties that I would publish my reasons for granting leave. I also made it clear at that time that I had carefully considered Mrs Lin's position as a witness called by the Crown in her husband's trial, and the various submissions Mr Turnbull had advanced highlighting the risk of unfairness to her and, by extension, to the accused under s 192(2)(b), were I to permit an unrestrained cross-examination by the Crown in respect of the ten areas I was satisfied attracted a grant of leave under ss 38(1)(a)-(c), even accepting that the Crown would be entitled to ask questions with a view to challenging Mrs Lin's credibility in respect of the issues to which his cross-examination might be directed.
2. What follows comprises my reasons for granting leave. In respect of each subject area, I was satisfied that there was no "unfair prejudice" to the accused under s 137 of the Evidence Act. The terms upon which leave was granted (with which, I note, the Crown complied) are clear from the transcript and do not need to be repeated here.
3. The areas which attracted a grant of leave are as follows: 1. The identity of the party who leased Min Lin's investment property in the Genesis building; 2. Alibi/opportunity; 3. What the accused (and Mrs Lin) saw, or were able to see, on entering Bedroom 1; 4. The circumstances in which the accused left Mrs Lin at Boundary Road prior to the arrival of police and emergency services; whether she was "scared" and told him of her feelings; and whether she had an argument with her husband about being left alone at Boundary Road; 5. The information Mrs Lin provided to police and nursing staff as to the whereabouts of Min Lin whilst she was at Hornsby Hospital; 6. The question of the family's safety at 4 Beck Street; 7. The destruction of shoeboxes by the accused on 6 May 2010; 8. The whereabouts of the ASICS shoes worn by the accused in the photographs exhibited AAA-G and where they were purchased; 9. Mrs Lin's knowledge of the accused's toolbox; and 10. The deterioration in the relationship between Mrs Lin and the accused, and her parents.

(1) The identity of the party who leased Min Lin's investment property in the Genesis building

1. The Crown submitted that this issue was of importance to the Crown case (see s 192(2)(c)), it being something Min Lin had reported to his parents at a family dinner the night before he and his family were murdered. The Crown submitted that the temporal connection between the announcement that the commercial unit had finally been leased and the murders reinforces what the Crown submits is the accused's animus towards Min Lin because of his perceived wealth, which, coupled with the accused's "loss of face", motivated the accused to murder Min Lin and his family.
2. In examination in chief, Mrs Lin was asked whether she recalled any conversation at her parents' house in Merrylands on the evening of Friday 17 July 2009 regarding the lease of Min Lin's investment property at Carlingford. She gave the following evidence: Q: That night, that Friday night, at your parents' dinner, was there any mention of Min Lin's investment property at Carlingford? A: I can't exactly recall what things. Probably my mum say something to my brother. Q: Do you remember what she said? A: I can't recall because, probably at that time, my mum asked, I was doing dishwasher. Q: Yes. Do you recall your brother saying anything about the property having recently been leased? A: Maybe my brother say kind of things, but-- Q: Do you remember what he said? A: Probably say, "Don't worry about it." He's - the property. Probably told my parents, but I can't recall exactly what things because I - I was doing dishwasher.
3. The Crown submitted that her evidence was inconsistent with what she had told police in her first interview on 20 July 2009. In that interview, Mrs Lin told the police: Q477: Is the property leased? A: Now is the, yeah, leased. Q478: Now it's leased? A: Friday night, last Friday night, my mums asked how about your property? Did you get it, get it some payment or something because that times I, a dishwasher, I can't hear lots. I just hear my, my brother say, it's OK, already leased --- Q479: Mmm hmm. A: --- and already give, give that, maybe the first payment or something, deposit or something. … Q484: OK. Do you know who is leasing it at the moment? What --- A: Friday night he mentioned a big company. I didn't hear very clear the, the company name. Maybe like a Finnish company, something. I'm not sure. Because I did dishwasher.
4. The Crown had not asked Mrs Lin any questions in her evidence in chief about what she had told police in her first interview. I invited the Crown to explore that with Mrs Lin in a non-leading way prior to consideration being given to a grant of leave to cross-examine her under s 38.
5. When the Crown raised the issue with Mrs Lin for a second time, she gave evidence that she heard the Genesis unit being mentioned by her brother, but said that he was talking with her parents and that she had not heard the substance of the conversation because she was washing the dishes. When asked by the Crown whether she recalled mention being made of a payment having been made by a "big company, possibly a Finnish company", she said "No. No".

Ruling

1. I granted leave to the Crown to cross-examine Mrs Lin in respect of this issue limited to inviting her, in a non-confrontational manner, to reflect upon what she had said to police during her interview on 20 July 2009. The following questions were asked and answered: Q: Do remember saying this in your first police interview about your brother, "Friday night he mentioned a big company, I didn't hear very clear the company name, maybe like a Finnish company something, I'm not sure, because I did dishwasher." Do you remember saying that in your first police interview? A: I can't remember say the Finland company, but as I give the evidence, my brother mentioned something because I can't hear properly because I ‑ I was doing the dish wash. Q: But what you did hear is that he was talking about the commercial unit in the Genesis building? A: Yes, but not clear what things.
2. The issue was not revisited by further questioning. (I note that, during cross-examination by Mr Turnbull later in the trial, the company that leased the property was revealed to be a "Fitness Company" and that other evidence confirms this to be the case.)

(2) Alibi/opportunity

1. The parents of the deceased Min Lin, and the accused's wife, (Yang Fei Lin and Feng Qin Zhu) gave evidence that Min Lin left their home alone at 9.30pm after a family dinner and that the accused and his wife left with Min Lin's two sons, together with their own son, at about 10.30pm. Min Lin was last seen at the Mobil Service Station at Beecroft and Carlingford Roads, Epping, where CCTV footage records him delivering newspapers at 9.46pm (see Exhibit C). Neither Lily Lin nor Irene Lin were at the family dinner that evening. Yang Fei Lin gave evidence that he last saw Lily Lin when he and Min Lin left the newsagency at 7pm on 17 July 2009 to attend the family dinner, and that he last saw Irene Lin at 6pm when, according to him, she left the newsagency. (There is, however, a record of Irene purchasing a bus ticket from the newsagency at 6.29pm.)
2. Mrs Lin told police in her interview in July 2009 that she and her husband delivered Henry and Terry Lin to 55A Boundary Road at about 10.30pm. She gave evidence in the trial to the same effect. She also gave evidence that there was one light on in the downstairs area of the house at 55A Boundary Road, but otherwise the house was in darkness when they arrived to drop off the children and when they left to drive the short distance to their home in Beck Street. Mrs Lin gave evidence that she believed that her brother, her sister-in-law and Irene Lin were asleep upstairs at 55A Boundary Road and she said she told the children to be quiet so as not to wake them.
3. The Crown alleges the accused returned to Boundary Road and killed the five deceased some time after 11.26pm that evening (when Henry turned off the computer he was using to talk on a chat line with Ms DE) and after about 2am the following morning (when Mrs Lin says she went to bed with the accused).
4. Mrs Lin's account of her movements, and those of the accused, at their home at Beck Street after delivering Henry and Terry Lin to their home at 55A Boundary Road, and before going to bed together, was the subject of questioning by the Crown Prosecutor in evidence in chief. There was no application for leave to cross-examine on that aspect of her evidence.
5. It is the Crown case that Mrs Lin was sedated at the time of the murders. Witness A (yet to be called in the Crown case) is expected to give evidence that the accused told him that his wife was (mildly) sedated and that a recording of a conversation between the two men, where the issue of sedation is referred to, is capable of constituting an implied admission by the accused that he did sedate her. Accordingly, the application for leave focused on what, if anything, Mrs Lin could truthfully and/or reliably say as to whether the accused got out of bed after they both retired to bed and, in addition, what she could truthfully and/or reliably say about the accused's whereabouts when she awoke the following morning.
6. Mrs Lin's evidence in chief on these related questions was to the effect that she was a light sleeper and that if the accused got out of their bed during the night she would know. She said she did not take any sleeping medication that night, or at all. She went further and said that to her knowledge the accused did not get out of bed during the night: Q: Do you know whether or not Robert got out of bed that night, the night of the 17th to the 18th of July 2009? A: As I know, no. Q: Did Robert sometimes get up at night to go to the toilet? A: Yes. Q: Are you able to tell the Court whether or not he would sometimes wake up if he went to the toilet? A: If he go ‑ he went to toilet, I know him. Q: You know what? A: I know my husband go to toilet. Q: How would you know? A: Flush toilet, and also I'm not deep sleep. Q: Do you know whether or not Robert left the house that night of the 17th to the 18th of July? A: No, he didn't leave home. … Q: What do you say to the suggestion that you just don't know if your husband got up that night? A: If he get up, I know him.
7. As to the accused's whereabouts on the morning of 18 July 2009 when Mrs Lin woke, the effect of her evidence was that, so far as she was able to recall, her husband rose first and then she got up. She went on to say that she spent some time with her son in his bedroom and then attended to household duties while the accused was outside in the yard.
8. The Crown nominated two inconsistent statements (or series of statements) upon which it was proposed that Mrs Lin be cross-examined on both issues: the first, in a record of interview with police on 22 March 2010 and, the second, during her evidence before the NSWCC on 6 May 2010.
9. In the record of interview of 22 March 2010, Mrs Lin was asked the following questions and gave the following answers concerning her knowledge of the accused's movements after they retired to bed in the early hours of 18 July 2009: Q119: You and your husband were in the same bedroom? A: Yes. Q120: And in the same bed? A: Yes. Q121: Do you remember what time you fell asleep that night? A: No, I can't recall that. Q122: Did you fall asleep as soon as you went to bed? A: I can't recall that. Q123: Did you wake up at all during that night? A: I can't recall. Q124: Is there any reason you can't remember that? A: I don't know. Q125: Did you hear or see anything unusual that night after you went to bed? A: No. Q126: Did your husband Robert get out of bed that night? A: I don't know.
10. Before the NSWCC, she was asked the following question and gave the following answer: Q: Did you wake up at all during the night? A: I can't remember.
11. As concerns his movements the following morning, she said: Q: …So Robert was still in bed when you got up? A: Yes. Q: You sure about that? A: I can't be sure.
12. The Crown also submitted it should be permitted to cross-examine Mrs Lin with a view to establishing that when she said to police on 22 March 2010 and to the NSWCC on 6 May 2010 that she could not recall whether she woke up during the night, and did not know or could not be sure whether her husband got out of bed before she did the following morning, that was the truth, and that her evidence in the trial to the contrary was an attempt to provide her husband an alibi, aware that she was unable to account for his movements at the time the deceased were murdered.
13. The Crown also relied upon conversations between Mrs Lin and the accused on 16 March and 22 March 2010, recorded by means of a surveillance device installed in their home under warrant in January 2010, when the question whether Mrs Lin could account for the accused being in bed at the time of the murders was discussed. Both conversations were excluded earlier in the trial as not constituting admissions by the accused, the sole basis upon which they were tendered by the Crown (see R v Xie (No 11) [2015] NSWSC 2123). The Crown submitted that, were Mrs Lin to be referred to what she said to the accused in one discrete passage only of the conversation on 16 March 2010 (it being a statement inconsistent with her evidence that she recalled waking with her husband on the morning of 18 July after having slept with him, and he with her, all night), it would not be in breach of the prior ruling. That discrete exchange is as follows: R: all the while until dawn. You knew, didn't even know what time I woke up and went out in the morning. K: No, I didn't.
14. Mr Turnbull submitted that there is no material inconsistency between the general terms in which Mrs Lin accounted for her sleeping routine and that of the accused (both generally as marital partners and on 17/18 July 2009) in her first interview with police in July 2009 and the second interview in March 2010. In the first interview she said: Q1794: What time did you go to bed? A: Then I, me and my husband a littler later, around, after 2.00 o'clock, I think so. Q1795: After 2.00am. A: Yeah. Q1796: Did you stay home when you got home until 2.00am? A: Yes. Q1797: And then you went to bed? A: Yeah, me and husband went to bed. Q1798: Is that, what time do you normally go to bed? A: Normally, sometimes around 12.00 o'clock or 1.00 o'clock or something. Yeah, maybe sometimes later. Like maybe we want to watch tennis and yeah. Q1799: What time do you normally get up in the morning? A: Normally I get up around 7.00, 7.00, 7.30. Q1800: On this particular night, on Friday night --- A: Yeah. Q1801: --- once you've got home --- A: Yeah. Q1802: --- did you leave the house at any time during the night before you got up the next day? A: No. No. Q1803: When you got home, did your husband leave the house at any time during the night before you woke up the next morning? A: No. No. Q1804: Did [your son] leave the house at any time during the night? A: No. Q1805: Do you and your husband sleep in the same bedroom? A: Yes. Q1806: Do you and your husband sleep in the same bed? A: Yes. Q1807: What time did you wake up on Saturday morning? A: Around 8.00 o'clock, yeah, around 8.00 o'clock. Q1808: Who was the first person to wake up in the house? A: Most of the times, I first get up, yeah, because I need to prepare my son's lunch and prepare for him and breakfast, yeah, most times. Q1809: So on this occasion on Saturday --- A: Mmm hmm. Q1810: --- you were the first one up? A: But that day, me and my husband same, yeah, same times.
15. Mr Turnbull also submitted that for the Crown to be permitted to question Mrs Lin about the alleged inconsistency between the account to police in July 2009 and in March 2010 (together with the account she gave to the NSWCC in May 2010) in circumstances where her memory has been aggressively tested in those different investigative forums, would be productive of unfairness. He submitted the issue is not whether she slept through the night or where she was when she woke the next morning, but whether the accused had the opportunity, on leaving his wife asleep, to leave the house and kill five people, and then return an hour or so later without his wife's knowledge and resume a normal domestic family morning routine.
16. Consideration as to whether leave should be granted to the Crown to cross-examine Mrs Lin on this question (a central issue of fact in the trial with the Crown obliged to disprove the accused's reliance on alibi beyond reasonable doubt) has to be considered in the context of the Crown's obligation to call Mrs Lin as a witness in the Crown case. It is not suggested that the Crown should not have called her, and neither could it have been. Neither was it suggested that by calling her the Crown was obliged to accept her as a witness of truth or refrain from putting her reliability and veracity in issue.
17. There were a number of issues as to which Mrs Lin could give relevant evidence obligating the Crown to call her as a Crown witness. They included the circumstances in which the bodies of the deceased were found and what police were told about the number of bodies at that time, together with the fact that she is the only witness who gives evidence that the front door of 55A Boundary Road was locked when she left the house after dropping off the children on the evening of 17 July 2009 because she was the one that locked it before she left. In addition, since there is no evidence of forcible entry to 55A Boundary Road and, on the Crown case, no reasonable possibility that the murderer was inside the house when the children were dropped off (either lying in wait to kill all five family members, or lying in wait to kill the two children, the adults having already been killed), it is integral to the Crown case that the murderer had a key to the front door. It is the Crown case that the accused walked the 200 metres or thereabouts from Beck Street to Boundary Road sometime after 2am on 18 July 2009, disengaged the power at the external switchboard of 55A Boundary Road and entered the house, either using a spare key he had access to at his home or with a duplicate of that key he had made as part of his plan to kill the deceased.
18. The Crown submitted that, in her evidence, Mrs Lin departed from what she told police under close questioning on 22 March 2010 to the effect that she could recall nothing of falling asleep or being asleep on 18 July 2009 - the state of affairs which, on the Crown case, is the truth. The Crown submitted her evidence that she knew her husband did not get up and leave the house is unfavourable for that reason. Although the Crown accepts Mrs Lin was sedated by the accused without her knowledge, he also submitted the fact remains that she is unable to account for the accused's presence in the bed at the time the murders were committed and that leave should be granted to cross-examine her with a view to establishing that fact. The Crown also submitted it should be entitled to cross-examine her to both prove her previous statements to police as evidence of that fact, and to challenge her as to the circumstances in which her evidence in the trial is so diametrically different from what she told police on 22 March 2010, including putting to her that she has given deliberately untruthful evidence in the trial to provide the accused with an alibi.
19. As I have noted, Mrs Lin's evidence in the trial that she did not wake after retiring to bed in the early morning hours of 18 July 2009 before waking later in the morning necessarily proceeds on the assumption that she was unaware that she had been sedated. In establishing that fact the Crown relies on what is said to be the accused's admission to Witness A, a prison informer, that his wife was sedated and therefore at no risk of either revealing to police that he left the house or, indeed, of knowing that he left the bed.
20. I have already referred to Mr Turnbull's submission that there was an unprincipled and unfair attack upon Mrs Lin's veracity mounted by investigators from as early as March 2010 and which continued through to a further examination by the NSWCC in September 2011, and the related submission that to allow the Crown to capitalise on that attack in order to portray Mrs Lin as an unreliable and/or biased witness in respect of those aspects of her evidence which do not support the Crown case theory (including the support she gives to the accused's account to police that he slept through the night without leaving his house) is unfair and that leave should be refused for that reason under s 192.

Ruling

1. I granted the Crown's application to cross-examine Mrs Lin on her statements under questioning by police in the interview on 22 March 2010 and before the NSWCC in May 2010 (both undertaken with the assistance of an interpreter). I was satisfied that her statements were inconsistent with her evidence in chief and that her evidence in chief was unfavourable to the Crown. The importance of her evidence is obvious. I was also satisfied that there was no unfairness to Mrs Lin in being cross-examined about the answers that she gave to police or before the NSWCC since, in my view, neither the form nor manner of the questioning in either forum was persistent or aggressive. I was also satisfied on the evidence before me that there was nothing to suggest any interference by the solicitor she had advising her in her police interview which was capable of giving rise to the suggestion that she was answering as she did at the behest of the solicitor. (The Crown did not seek leave to cross-examine Mrs Lin on her election to refuse to answer some questions asked of her on legal advice.) The fact that Mrs Lin knew by this time in March 2010 that police suspected the accused was the murderer, and that she was angry and resistant to that suggestion, has no bearing on whether the police questioning of her concerning the events of 17 and 18 July 2009 was unfair (which I am satisfied it was not), or whether the application to cross-examine her on her answers as inconsistent with her evidence was unfair (which I am satisfied it was not).
2. I refused the Crown's application to cross-examine Mrs Lin on her conversations with the accused in the surveillance device transcript of 22 March 2010, having ruled they were not admissible against the accused as admissions. Were I to permit the Crown to refer to that transcript as a source of inconsistency with Mrs Lin's evidence (assuming it might be capable of being construed in that way), I was satisfied that there was a risk of the jury not confining their attention to what Mrs Lin was saying to her husband about her own state of awareness for the purpose of considering its consistency or inconsistency with her evidence, and use what the accused is recorded as saying to her as an admission, against which directions could not protect.
3. I did permit the Crown to put to Mrs Lin what she was recorded as saying in the transcript of 16 March 2010 and, in the result, the Crown put the following questions in a leading form under the grant of leave: Q: Do you recall having a conversation with Robert on 16 March 2010 after his second police interview and do you remember having this conversation, Robert said this to you: "All the while until dawn you knew ‑ didn't even know what time I woke up and went out in the morning." And you said: "No, I didn't." Do you remember having that conversation? A: I can't recall. … Q: I suggest to you that you have no idea what time Robert got up on the morning of 18 July 2009? A: That day the same time with me. Q: I suggest to you that you just don't know and that you're lying about that? A: No, I give the time ‑ time to the police in my first interview.

(3) What the accused (and his wife) saw, or were able to see, on entering Bedroom 1

1. In the account Mrs Lin first provided to police in her interview of 20 July 2009, she said that, upon arriving on the first floor of 55A Boundary Road (the accused having ascended the stairs behind her), she walked to the bedroom where her brother and sister-in-law slept (nominated as Bedroom 1 in the trial) whilst calling out to her brother as she approached. She went on to say: Q1856: Me, me, I, I went to upstairs first. I took off the shoes and went upstairs first and I saw my brother's bedroom's door is open. I say, oh, they probably in, in the room and then I went in but I can't, because the curtains on, it's a little, that room is a little bit darker so I didn't see anything so my husband told me, don't see anything, don't look. Then he, he hugged me and because I, because I face this way and a little, and then my husband cuddle me, I turn to the right, I saw my sister-in-law lying on the bed and I also saw the, the blood marks and, and on the wall so we quick, went out my brother's room…
2. The Crown submitted that the accused could not have seen either of the deceased on the bed when, as Mrs Lin told police (in the extract above), he hugged her from behind and told her not to look. The Crown submitted that the accused's actions in the bedroom are consistent with his awareness of the horrific injuries he had inflicted on the deceased and that his impulse, in the moment, to shield his wife from witnessing the scene was evidence of a consciousness of guilt.
3. Mrs Lin has given differing accounts to police and investigators of her movements and those of the accused on approach to Bedroom 1 and upon entering it, including how far into the room she walked and where she and the accused stood relative to each other and to the bed when Lily Lin's body was discovered (Min Lin's body being concealed under the bedding). She also discussed the issue with the accused on 29 April 2010 after she received a summons requiring her to appear at the NSWCC on 3 May 2010, which was recorded on a surveillance device installed in their home. The transcript of that conversation was tendered over objection against the accused as capable of constituting an admission by him (R v Xie (No 11), pp 31-33) and admitted as Exhibit AAA-V(1).
4. In her evidence in chief, Mrs Lin gave the following evidence concerning her finding of the body of Lily Lin: Q: Would you tell us what happened when you entered your brother's bedroom? A: Yeah, during that time we call, yeah, we call "brother, brother", and we straight away into his room and my husband behind me and asked me, "Not look" and he hug me, but I already turn ‑ turned around and I ‑ I ‑ I ‑ I saw ‑ I saw blood. I saw my sister‑in‑law. … Q: Before that, did your husband put his arms around you before you saw your sister‑in‑law? A: I can't recall, but just he said ‑ hug me, but I already saw everything. Q: Did he tell you not to look and did you then look and see your sister‑in‑law? A: But as he said, I already look. My husband ‑ my sister‑in‑law, I saw them first. … Q: Can you recall how much light there was in the room? A: No lights, but I can't ‑ I can see the things. … Q: All right. You've told us that you looked into the room. You've told us that your husband put his arms around you and said not to look. Where were you standing when your husband told you not to look? A: The position we already in in my brother's bedroom. I can't ‑ I think ‑ the position around the end of the bed and I can see my sister‑in‑law's face. … Q: You have marked with a red pen where your husband was standing at that time? A: We are together. He just next to me. [The sketch plan marked by Mrs Lin was later tendered as Exhibit BBB-N.]
5. Mrs Lin's evidence, as extracted above, was said by the Crown to be both inconsistent with the account she gave to police in her first interview in July 2009 (extracted at [67] above), and inconsistent with answers she gave to police in a further interview on 22 March 2010 (extracted below), in that in neither did she suggest that she had already seen the deceased before the accused sought to deflect her line of sight towards the bed, or that they were both at the end of the bed at that time in full view of the bed: Q238: Then you said you went upstairs? A: Yes. Q239: Did you do anything else before you went upstairs? A: No. Q240: You say Robert went upstairs with you? A: Yes. Yeah Robert was behind me. Q241: Do you know how far behind you he was? A: Shouldn't be that far. Q242: Then what happened when you got upstairs? A: By the time we got upstairs I saw my brother's bedroom door was open, I call out, I call brother, brother. Q243: What happened then? A: When I approached Robert behind me said to me, don't look and because I was facing that way my husband said, don't look and hug me, hold me, by then I look at my sister-in-law was lying in the bed. Because Robert was holding me in his arms, so we went to another room to have a look, when we pass my sister-in-law's sister's bedroom I saw she was half-lying in bed, yeah half-lying in bed. Q244: I'll just stop there for a minute and just take you back. You said as you were - you went up the stairs and you saw your brother's bedroom door was open, it that right? A: Yes. Q245: You said that you approached the door? A: Yeah I entered the bedroom. Q246: You went into the bedroom? A: Yes. Yeah. Q247: At what point when you went into the room did Robert tell you not to look? A: I don't know how far I, did I go in 'cause there was a photo there, the, the bed. As soon as I got inside my husband told me, wife don't look. Q248: Where was Robert when he told you not to look? A: He was immediately behind me and he hold me in his arm.
6. The following questions were asked later in the interview when Mrs Lin was invited to draw a sketch of Bedroom 1: Q265: Okay, so you went through there, okay? A: Yeah, yeah. Yeah the door was open Q266: The door was open, so you could see through and when you looked through the door, the open door, when you look into your brother's bedroom, what can you see when you look through the door? A: I could only see from here a photo and the children's bed or the kid's bed, yeah. Q267: So is it true to say when you stand at the doorway to your brother's bedroom you cannot see your brother's bed. A: That's correct. Q268: So you walked into the room or you walked to the doorway, is that right? A: Yes, a little bit in, yeah. Q269: Can you tell me anything about the lighting in the room at that stage? A: So you mean lighting? Q270: Yeah, was it dark or light or? A: Yes, pretty dark. Q271: Pretty dark? Okay. Did you try and switch a light on at that stage? A: I didn't know where the switch were. Q272: Can you point to me on there where you were when Robert grabbed you and told you not to look? … Q274: Okay yeah, so she can indicate to me there where she was as best she can … A: I'm not able to pinpoint the location where I was but what I'm saying, I'm just walking a little bit … Q275: Yes? A: … by then my husband you know, hold me in his arms, say don't look. Q276: Perhaps I can ask you this: at the point your husband grabbed hold of you and said, don't look, could you see your brother's bed? A: If I didn't turn around I wouldn't be able to see.
7. The Crown submitted that Mrs Lin's evidence in the trial was also inconsistent with the evidence of Evelyn Edwards, a nurse with whom Mrs Lin spoke at Hornsby Hospital on the afternoon of 18 July 2009. According to Ms Edwards, Mrs Lin said "husband said don't look but I went in anyway and I saw a body in the bed".
8. The Crown's application for leave to cross-examine on the circumstances in which Lily Lin's body was found was based upon both ss 38(1)(a) and (c). The inconsistencies between her evidence and her previous statements were said to be patent, as illustrated by Ms Edwards' evidence and the other materials upon which the Crown relied as extracted above. Her evidence was also said to be unfavourable. It is a feature of the Crown's circumstantial evidence case that the accused's conduct in the bedroom, as Mrs Lin has consistently described it to police and others, is evidence of a consciousness of guilt (as it is in other respects on the morning of 18 July 2009 - see subject areas 4, 5 and 7 below) and that her attempt to understate or misstate the circumstances in which he alerted her to the deceased deprives the Crown of putting that submission to the jury.

Ruling

1. I was satisfied that Mrs Lin's evidence was both unfavourable and that she has given statements, including on the day the bodies were discovered, inconsistent with her evidence. For the reasons set out above, I was satisfied that there was no unfairness to Mrs Lin in the Crown cross-examining her on her interview with police of 22 March 2010. I was also satisfied the Crown was entitled to cross-examine her on the recorded conversation with the accused on 29 April 2010 (Exhibit AAA-V(1)).
2. While I accepted that the Crown's further focus on this issue under a grant of leave was likely to prove distressing to Mrs Lin, I entrusted to the Crown Prosecutor the responsibility of ensuring that the testing of her evidence was conducted with appropriate sensitivity.

(4) The circumstances in which the accused left Mrs Lin at Boundary Road; whether she was "scared" and whether she had an argument with her husband about being left at Boundary Road prior to the arrival of police and emergency services

1. The Crown tendered a recording of Mrs Lin speaking with the emergency services operator in three telephone calls she placed (sequentially) from Boundary Road commencing at 9.47am. The triple-0 calls were made within minutes of the accused and Mrs Lin emerging from the premises after the bodies of the deceased were discovered. It was tendered in the early part of the trial, including the authorised translation of the Chinese words Mrs Lin exchanged with the accused as she was speaking to the operator (Exhibit K).
2. Mr Au, the accredited translator, was cross-examined by Mr Turnbull. He suggested that Mr Au attributed words to Mrs Lin and the accused that could not be heard. He did not suggest an alternative translation. Mr Au maintained the correctness of his English translation of the Chinese words he was able to discern.
3. The transcribed and translated recording of the triple-0 calls attributes to Mrs Lin a number of statements which, together with the tenor, volume and tone of her voice, are relied upon by the Crown as evidencing her terror at the prospect of the accused leaving her alone at the premises and that, despite her terror, he was apparently determined to leave and did so. The sound of his car departing is also audible.
4. The authorised translation of the triple-0 calls (and Mrs Rilen's evidence that the accused and Mrs Lin were engaged in a "loud argument") is relied upon by the Crown to support the submission that the accused had no reason to relent to his wife's entreaties to remain at the scene until police arrived. The Crown submitted that this was because he knew that his wife would not be at risk of being attacked by a killer lurking in the vicinity, or at risk of her brother being that person emerging or returning and doing her harm, because he was the killer.
5. The Crown also relies upon the fact that the accused left his wife at the scene on the pretext of having to collect his parents-in-law from Merrylands, to afford himself the opportunity to dispose of any incriminating evidence, and in order to ensure that he was not in attendance when the police and emergency services arrived. The Crown intends to lead evidence from Witness A that the accused told him he was conscious of the need not to be "the first person on the scene" so as to deflect attention from himself.
6. In her evidence in chief, Mrs Lin gave the following evidence:

• She did not have an argument with the accused during any of the triple-0 calls;
• She was scared and upset because the emergency services operator asked her questions that she did not know how to answer, not because the accused was proposing to leave her at the scene alone because she had asked him to collect her parents;
• She did not tell him not to leave her alone at 55A during the triple-0 calls, but rather she said "quick go and quick back"; and
• She did not call the accused at 9.53am after he left because she was scared.

1. When the Crown asked Mrs Lin in examination in chief whether she agreed that she told the accused that she was "more scared than he was" during one of the triple-0 calls, she said "this operator make me upset. I don't know answer the operator the questions. I just want the police and ambulance quick come".
2. The Crown identified a number of prior statements inconsistent both within the evidence already led from her and in evidence sought to be tendered if leave were granted. They include the triple-0 calls themselves, a number of answers Mrs Lin gave to police in her first interview in July 2009, call number 16 in the mobile telephone records (Exhibit AAA-T) and a conversation between the accused, Mrs Lin and Brenda Lin recorded by the surveillance device on 12 March 2010, being one of a number of transcripts excluded on the Crown tender earlier in the trial (see R v Xie (No 11) - I note that in the course of argument at that time the Crown signalled its intention to use the transcript of 12 March 2010 as a prior inconsistent statement, if leave were granted under s 38 to cross-examine Mrs Lin).
3. In that transcript, Mrs Lin is recorded as having the following exchange with the accused on 12 March 2010 (translated from Chinese to English): R: Because I know that all those stuff was made up by Grandpa and Grandma. How can Gugu [the accused] find any evidence or witness? Impossible. Understand? On Saturday morning, including Friday night, you were not there. What ever (sic) they say about us two will be taken as truth. Henry can't prove. Your brother, your dad can't prove. Especially, I went there alone to pick them up the next day. K: Gufu was alone. We didn't… (incomplete) Originally, originally, originally Niangniang [Mrs Lin] didn't want to… (inaudible). I said 'Don't tell Grandma.' After a discussion, Niangniang agreed'. R: You tell me, how was it possible not to tell Grandma about such an important matter? You know that Grandma would have been angry. Do you understand? K: Because Niangniang was scared. I….(inaudible) R: (talks over K) I said no. You now understand what would happen if things are kept from them. I understand their character very well. Luckily, (I) did go to pick them up. You tell me, if nothing had been done, what would have happened after two days? K: No need for two days/ He/she would have called in the afternoon. R: The story would have been even more ridiculous. Do you understand? Fortunately we contacted the police and the solicitor at first instance. Even I knew that and said 'you have to let you mum come.' She understood that too and agreed. She let me go. We both agreed on it. K: Not at the beginning. Niangniang said 'you stay with me. Don't go. I don't want you to go. I am scared'.
4. The Crown submitted that it ought be granted leave to cross-examine Mrs Lin, having regard to the range and extent of her prior inconsistent statements in order to seek to establish that her actual state of mind at the time the accused left her at Boundary Road before police arrived was one of fear and terror at the prospect of her husband leaving her there alone, contrary to her assertions that her fear related solely to her ability to communicate with the operator. In addition to what the Crown submitted was her understandable fear at being left at the scene on one reading of the transcript of the triple-0 call, there was a further question whether, at the time the accused drove away, Mrs Lin had succeeded in alerting the operator to the urgency of the situation.

Ruling

1. I was satisfied that the Crown should be granted leave under s 38(1)(c) to cross-examine Mrs Lin on her previous statements to the effect that she was in fact scared at being left at Boundary Road, including the triple-0 call where that is exemplified, and that she implored the accused to remain with her. The Crown indicated that it did not intend to replay the recording but to cross-examine her on Mr Au's translation of the Chinese words, to the extent that she sought to proffer an alternate translation (which she ultimately provided and was tendered as Exhibit 81). I was satisfied the evidence was important (s 192(2)(c)) and that, while the playing of the recording was a source of distress, there was no unfairness to Mrs Lin in being asked leading questions about the call and the accused's conduct at that time, including leaving her alone at Boundary Road and what she said to him at that time without it being replayed. I informed Mrs Lin that, should she need to be accommodated by breaks in her evidence, this would be allowed.

(5) The information Mrs Lin provided and received as to the whereabouts of Min Lin whilst she was at Hornsby Hospital

1. It is the Crown case that when Mrs Lin first made telephone contact with emergency services outside Boundary Road, she had only seen the bodies of Lily Lin, Irene Lin, Henry Lin and Terry Lin, as her brother's body was concealed beneath the bedclothes not disturbed by her and/or the accused before they left Bedroom 1. The Crown submitted that the fact that Mrs Lin was only aware of the bodies of four of the deceased (or, to put it another way, that her brother was unaccounted for) is further evidenced by what she told police at the scene, and her attempts to contact her brother via his mobile telephone at 9.37am, 10.12am (while still outside Boundary Road) and 1.45pm (at Hornsby Hospital) (see Exhibit AAA-T).
2. Mrs Lin gave evidence that when the police arrived at 55A Boundary Road she gave them the names of the five people who resided there (excluding Brenda Lin). She said she could not recall whether or not she told the police that she did not see her brother's body. She said she accepted, based on what the police told her after their initial search, that there were only four bodies inside the house.
3. Mrs Lin's mother, Feng Qin Zhu, also gave evidence in the trial that she had a conversation with her daughter and the accused at Boundary Road where she asked whether they had seen Min Lin's body inside the house. Mrs Zhu said that both Mrs Lin and the accused said that they did not see Min Lin's body and neither of them said anything to suggest that his body might have been inside the house. She also said that her daughter told her there were only four people inside the house.
4. Mrs Lin agreed that, upon arriving at Hornsby Hospital, she had a conversation with Ms Edwards about what she had seen at her brother's home. She said she told Ms Edwards "little bit what we saw", but could not recall with any certainty what she said she had seen. The following leading questions were asked by the Crown Prosecutor in chief with Mr Turnbull's agreement: Q: See, I suggest to you that this is what was said. You said to Nurse Edwards this? "We went to the house and we went upstairs and we called out his name. We couldn't see that anything had been disturbed and knocked over downstairs, so we went into the house into his room." … "So we went into the house into his room. My husband went into the room and said to me, 'Don't look.' But I went in anyway and I saw a body in the bed, and we also saw a lump in the bed, but we didn't look. We left the room, but we didn't touch anything. We went to the boys' room and saw the bodies dead in the room. We went to the sister's room and found her body and then we left the house." … Q: Do you remember saying that to Nurse Edwards? A: I can't remember. I can't remember exactly what I said to her. As my best memory I said, "We find the body" little bit, but I can't‑‑ Q: Was it something like what I've read to you? A: I can't remember. Q: Did Robert then say to Nurse Edwards, "We couldn't find the brother, so we think it's the lump in the bed, but we didn't want to look in the bed." A: I can't remember the conversation, but we have a conversation with the nurse, but I can't remember now. Q: Did Robert say something like that? A: I can't remember.
5. Mrs Lin also agreed that some time later, whilst still at Hornsby Hospital, she spoke with Detective Nuttall. She said that Detective Nuttall informed her that Min Lin had been found deceased under the doona on the bed, not that she told Detective Nuttall that is where the police should look. The following questions were asked by the Crown, again with Mr Turnbull's agreement, in the form of leading questions: Q: What I want to suggest to you is that there was an earlier conversation with Erica where Erica said to the four of you, "We need to find Min. Do you have any idea where he could be?" And you said, "He's in bed at the house." Do you remember that? A: As I remember, she came and moved whole family to another room. She used the words "deceased" and I don't understand. She says "dead" and I told her ‑ I show ‑ because I don't know ‑ I don't know how to say. I show the lumps and she said "doona" and told my brother's dead. … Q: I suggest that you first told Erica, "He's in the bed at the house", and then Erica went away for a period and then came back and told you that the police had found Min's body? A: No. Erica told me, Erica told "deceased", they find my brother's body and I don't understand the words and later I think that maybe nurse or maybe she used the words "dead", I understand, and I just ‑ yeah, told her it's the doona, the cover, cover my brother's body. She told me, then I told my ‑ I translated to my parents. I said, "The police found the body, my brother's body."
6. The Crown submitted that despite having already cross-examined her (without leave but at that time without objection from Mr Turnbull) it ought be entitled to put the Crown case to Mrs Lin since she has given inconsistent accounts of the people she spoke to and what was said leading to Min Lin's body being found.

Ruling

1. I granted the Crown leave to cross-examine Mrs Lin further but on the limited basis of putting to her that she was the source of information which led to her brother's body being found by police and that she had discussed that with the accused before doing so. The Crown Prosecutor had been afforded latitude by Mr Turnbull to cross-examine her on this subject matter during examination in chief. I refused leave for any further testing on the issue for that reason. It is the Crown case the accused determined at the hospital that police should be told Min Lin's body was concealed under the bed clothes (where he had left him after killing him) and that, properly understood, Mrs Lin's evidence allows that submission to be put to the jury.

(6) The question of the family's safety at 4 Beck Street after their resumption of residence at the accused's home

1. It is the Crown case that after Mrs Lin, the accused, their son, Brenda Lin and Mrs Lin's parents resumed residence at Beck Street in August 2009, Mrs Lin's father raised a concern about the family's safety and suggested the installation of a system of security cameras, a proposal which the accused rejected. On the Crown case, this was because he knew the family was in no danger since he was the killer. Mrs Lin gave evidence that she relied on confirmation she received from police that her family was safe and denied that her father voiced any concerns about the safety of the family: Q: Did you still have any concerns yourself [about their security at Beck Street]? A: No, because police already confirm our safety, move back. … Q: Did you father, Mr Lin Senior, did he have concerns about the safety of the family? A: No. Q: Did he express any concerns about security devices on the doors and windows? A: Because police already told us safety, so we didn't do anything. My dad didn't do - yeah, didn't - yeah, do anything. Q: Were you aware that your father had purchased some security devices for your house? A: No. Q: Were you aware that your father asked Robert to install some security devices at your house?
2. Mr Turnbull objected to the last question asked by the Crown and it was not answered.
3. At some later time during examination in chief, Mrs Lin was asked whether she had concerns for the safety of her family after receiving a letter from the "Yee Yong Triads", threatening the remaining members of her family with the same fate that the deceased had suffered if an outstanding debt of $128,345 owed to them by Min Lin was not paid. Mrs Lin gave evidence that she raised the matter with the police immediately and, again, relied on them to inform her if the safety of her family was at risk. The following exchange took place: Q: Did you and Robert have any discussions, after receiving this letter, about the safety of your family? A: Yeah, police didn't tell us we are not safety, so we think we are safety. So we still living in Epping. We didn't do any security things. Q: So, are you telling us that Robert and you discussed that there was nothing to worry about because the police hadn't said that there was anything to worry about? A: The police can contact me, I can contact police every day and I rely on they tell me we are safety. They didn't tell me I'm not safety. I think that we are safety. Q: I understand that. But I am asking you: Did Robert and you discuss that, that there was nothing to worry about because the police hadn't said that there was any safety concerns? A: We don't have to discuss. We give the police, we rely on their advice, their opinions regarding the letter, so. Q: Were you aware that your father had purchased some security devices for your house? A: No. Q: Were you aware that your father asked Robert to install some security devices at your house?
4. The Crown submitted that Mrs Lin's evidence was unfavourable to the Crown, since it is the Crown case that the accused refused to install the security devices when asked by Yang Fei Lin (and was unconcerned about the letter received from the "Triads") because he was responsible for the murders and therefore knew his family was not in any danger. The Crown Prosecutor said he wished to merely put the Crown case to Mrs Lin. Mr Turnbull submitted that Mrs Lin had already been cross-examined on these issues.

Ruling

1. I granted the Crown leave to cross-examine, again on the very limited basis of putting the Crown case, after which the following evidence was given: Q: What I want to suggest to you is that your father bought some security devices which he wanted Robert to install and Robert refused to install them. What do you say to that? A: No.
2. There were no further questions on this issue.

(7) The destruction of shoeboxes by the accused on 6 May 2010

1. Mrs Lin was served with a summons on 29 April 2010 to appear before the NSWCC on 3 May 2010. On that day, her examination was adjourned part heard. It resumed on 6 May 2010. On that occasion, she was informed by the Commissioner (through Mr O'Connor, who was asking the questions on the Commissioner's behalf) that, following forensic examination of carpet from 55A Boundary Road, the investigators had concluded that there was only one killer, that the killer was a man, and that he was wearing ASICS sport shoes. Mr O'Connor went on to comment that the shoes worn by the killer were the same brand as that worn by the accused. Mr O'Connor also asserted (wrongly as it transpired) that the killer wore the same size ASICS shoe as her husband. He further informed her that the shoe prints were directional, in the sense that they showed the killer walking from her brother's bedroom to Irene's room and then to the children's room, suggestive of the order in which the deceased were killed. He also observed that, because no footprints went to or into Brenda Lin's bedroom, investigators were of the belief that the killer knew that she was not at home.
2. There is controversy in the evidence as to whether that information was communicated to the accused by Mrs Lin or by Daniel Sheen, the solicitor who accompanied her to the NSWCC and who was in attendance during the hearing, contrary to the Commissioner's directions. Both denied telling the accused what they learnt.
3. Later on the evening of 6 May 2010 and into the morning of 7 May, the surveillance device installed in the accused's home showed the accused cutting up shoeboxes and mixing the paper remnants with water in a bucket to create a slurry, which he then flushed down the toilet. The video recording shows that activity was undertaken over a number of hours in Mrs Lin's presence. The recording was tendered with an accompanying transcript of what was capable of being discerned from the conversation passing between the accused and Mrs Lin. Such conversation as was discernible did not attribute to her any conversation about the accused's activity or her thoughts about it.
4. After the video recording and accompanying transcript were tendered, the accused made admissions of fact under s 184 of the Evidence Act that on the night of 6 May and into the morning of 7 May 2010 he cut up a number of shoeboxes; removed blue stickers bearing his name from shoeboxes which he put in the rubbish bin; and that he put the cut-up shoeboxes into a bucket with water and flushed the contents of the bucket down the toilet. (I was informed by Mr Turnbull that, so far as he was aware, Mrs Lin was not told that the accused had made those admissions.)
5. Mrs Lin was first confronted with the video recording in committal proceedings in August 2012. In those proceedings, in answer to questions asked of her by the Crown Prosecutor, she denied seeing her husband on the video with a shoebox in his hand or seeing him cutting up any shoeboxes. In answer to leading questions asked by Mr Turnbull in the committal, she gave completely contradictory evidence. In answer to a leading question on the issue put by him, she agreed she did see the accused cutting up shoeboxes that night.
6. In her examination in chief in the trial, she was asked whether the accused did anything in relation to "shoeboxes" or "a bucket" on the night of 6 May and into the morning of 7 May 2010, after she had been to the NSWCC, to which she answered "I can't recall". She agreed she had seen a video recording of what happened in her home on her return from the NSWCC and that it was shown to her in the committal proceedings. When the Crown Prosecutor asked what her husband was doing in her presence as revealed in the video, she said "he doing his stuff, I doing my stuff". When the Crown Prosecutor asked what she was referring to when she said "his stuff", she said "that times we sorting out our - the paper, lots of - the paper, but I can't recall, too many things to do". At that point, I formed the distinct impression that Mrs Lin was not making a genuine attempt to give evidence about her husband's actions or, for that matter, her knowledge of why he was doing what he did, and that any further questions could only be asked with leave and the Crown desisted from further questioning until the application for leave to cross-examine was determined.

Ruling

1. The admissions the accused has made as to the fact of his destruction of shoeboxes do not identify the shoeboxes as ASICS shoeboxes. His admissions do not extend to any reasons why he destroyed shoeboxes. In those circumstances, the number and kind of shoeboxes that were destroyed by the accused remains a fact in issue in the trial. Mrs Lin is the only witness in the Crown case who can give evidence about that issue and whether her husband said anything to her as he was cutting up the shoeboxes as to why he was destroying them in that way. Her evidence is important for that reason.
2. Mrs Lin's evidence in chief devolves to a simple and repeated statement that she is unable to recall her husband doing what he has admitted to doing and that she is unable to recall what she admitted seeing him do under oath in the committal. I was satisfied that it was a matter about which she was not making a genuine attempt to give evidence. I was further satisfied that she may be reasonably supposed to have that knowledge. It is clear, beyond question, that her evidence at the committal in answer to Mr Turnbull's leading question is inconsistent with her evidence in this trial (as it was with her evidence in chief at the committal).
3. I granted leave to the Crown to cross-examine Mrs Lin on her knowledge of her husband's destruction of "shoeboxes" to permit the Crown to establish, as a fact, that she did see her husband cutting up shoeboxes (consistent with the evidence she gave on oath in answer to questions asked of her by Mr Turnbull in the committal proceedings) and, to the extent that she admitted that to be the case, to seek to have her identify what shoeboxes were destroyed and why. Were she to persist in claiming no recall of the accused cutting up shoeboxes, or were she to deny seeing her husband cutting up shoeboxes, the grant of leave also allowed the Crown to cross-examine her in order to seek to establish that she was trying to protect the accused, well knowing that on 6/7 May 2010 he was intent on destroying evidence relevant to the investigation into the murder of the deceased. To the extent that line of questioning went only to her credit (about which I did not receive submissions from either party), I was satisfied leave should be granted to the Crown to cross-examine her on her motivations.
4. Mrs Lin's credibility is a matter in issue in the proceedings generally. Since the Crown intends to invite the jury to disregard her evidence because she is an unreliable and partisan witness whose veracity they should find questionable, the Crown is obliged to put to her that she is being untruthful generally or in particular respects.
5. I also permitted the Crown to replay any part of the surveillance device video which shows the accused's destruction of the shoeboxes or to invite Mrs Lin's consideration of still photographs extracted from that product in the course of the cross-examination with leave.

(8) The whereabouts of the ASICS shoes worn by the accused in the photograph exhibited AAA-G and where they were purchased

1. In evidence in chief, Mrs Lin was shown a series of photographs taken in 2006 (Exhibit AAA-G) where the accused is shown wearing ASICS sports shoes of the style/type as that worn by the killer. In her evidence before the NSWCC, Mrs Lin was unable to recall when or where the accused purchased the shoes worn by the accused in the photograph or how long he retained possession of them thereafter. In her evidence, however, she said that she remembered throwing those particular shoes in the rubbish bin a couple of years after the accused had purchased them, "before July 2009", "perhaps in 2007".
2. In her evidence in the committal on this issue, she gave the following answers: Q: Well, do you remember did he throw them away, did you throw them away? Do you remember what happened to those shoes when they were no longer used? A: He never threw those shoes. Q: What I suggest to you when the police searched your home in May 2010 those shoes that are seen in this photograph were not found, do you agree with that? A: I don't agree.
3. It is the Crown case that Mrs Lin did not throw the shoes the accused was wearing in the photograph in the bin and that the true position is that she has no idea what happened to them, and that it ought be permitted to cross-examine her to establish that fact. It is the Crown case that the ASICS shoes the accused was wearing on the morning he entered 55A Boundary Road with his wife when the bodies of the deceased were discovered (the shoes he gave to police within days of the killing at their request) is not the only pair of ASICS shoes he had available to him in July 2009. It is the Crown case that the ASICS shoes he wore when he killed the deceased were the shoes he was wearing in the photographs (or a pair of the same style and model) and that they were disposed of by him after the murders.
4. Although the shoes have not been found, it is the Crown case that the accused's destruction of the shoeboxes was to ensure that the box that pair of shoes were either purchased in or kept in was destroyed, lest the police find ASICS shoeboxes (including the box which had formally held the shoes he disposed of or destroyed) and he was asked to explain his possession of multiple pairs of ASICS shoes, the whereabouts of which he could not account for.
5. On 25 May 2015, during the course of her evidence in chief in the trial, Mrs Lin was asked the following questions about the photographs of the accused wearing ASICS sport shoes in 2006 in Exhibit AAA-G. She gave the following answers: Q: Do you remember when he purchased them? A: I can't remember. Q: Do you remember where he purchased them? A: I can't remember. … Q: Do you remember when was the last time you saw him wearing those shoes [in the photo]? A: You mean this pairs of shoes or another-- Q: That pair of shoes? A: He - normally it's around a couple of years he just change to another shoes, so I think probably 07 something, yeah. Q: 2007? A: Yeah, if general, maybe 2007 I threw the bin to that. … Q: Do you know if there was a box that contained those shoes that had been provided when the shoes were purchased? A: Sometimes when we bought the shoes from oversea, if we bought the shoes from oversea, normally we not keep the shoe box, yeah. The shoe box in Australia we keep it, but sometimes I would put different shoes in the box. Q: Do you remember if those shoes in those photographs was purchased in a box? A: Sometimes they have a shoe box, sometimes no shoe box. Q: Those shoes. Those precise shoes? A: So I can't - I can't remember if these the shoes that have a box with it, the time we bought it. Q: Was there a particular shop where Robert would buy his ASICS sport shoes? A: No. Most of the shoes my husband bought it from oversea. Q: What about did your husband ever buy shoes from Paul's Warehouse? A: Yes, this is after police took off all of our - all the shoes from our house after their search. So we - my husband only have on pair of shoes, yeah. Q: Those shoes that are in the photographs, did your husband purchase those in Australia? A: Before police took off all our shoes from our house, most the shoes we bought from China or Hong Kong. Q: Those shoes that are in that photograph, were they purchased in Australia or in China? A: If this year, 2006, then my husband's bought the shoes mostly from Hong Kong or China.
6. Having initially said she could not recall where the accused purchased the shoes, on the following day Mrs Lin gave what the Crown Prosecutor described as "firm and unqualified evidence" that the shoes depicted in the photographs were purchased overseas, as exemplified in the following extract: Q: The shoes that are in those family photographs, exhibit AAAG, were they purchased in Australia? The family photographs. Were they bought in Australia? A: You mean that pair of shoes with family, 2006. Q: Yes? A: From oversea. Q: Bought overseas? A: Yes. Q: You specifically remember him purchasing those shoes overseas? A: Before police search, my husband bought shoes from oversea. Q: So, are you saying that all the shoes that your husband purchased, before the police search, had been bought overseas; is that right? A: As I remember, yes.
7. In the Crown's submission, Mrs Lin has not only given conflicting evidence about this issue over successive days in her evidence in chief, but her evidence is also inconsistent with answers she gave at the NSWCC in May 2010 and at the committal in August 2012 to the effect that she had "no idea" when or where the accused purchased the shoes depicted in the photographs.

Ruling

1. On the analysis in [113], I am satisfied of the importance of this evidence in the Crown case and that Mrs Lin's evidence is both unfavourable under s 38(1)(a) and that, under s 38(1)(c), she has given prior inconsistent statements concerning the issue, on one view at a time when the significance of how many pairs of ASICS shoes the accused owned relative to the number of shoeboxes he had and destroyed was not necessarily obvious to her. I can see no unfairness to Mrs Lin or the accused in allowing the Crown to explore the issue with Mrs Lin in cross-examination with leave.

(9) Mrs Lin's knowledge of her husband's toolbox

1. During the course of examination in chief, the Crown Prosecutor asked Mrs Lin one question in relation to her knowledge of the accused's toolbox: Q: Did Robert ever tell you what you should say to the police about your knowledge of his tool boxes? A: No.
2. In the Crown's submission, her evidence was inconsistent with a conversation between her and the accused on 6 May 2010, which had been recorded by the surveillance devices in the accused's home (and tendered over objection earlier in the trial as Exhibit AAA-V(2) - see R v Xie (No 11)). That conversation was transcribed as follows: R: … … problem … … [Ind] [R whispered. Contents not clear]. K: Hm. R: That is right. … R: Asking you if I had tool box/boxes, how did/will you answer? K: I don't remember. Oh, it's not that I don't remember, but it seems, it seems to be ….. [Ind] R: How does it matter? K: As I would not … … [Ind] him/her ….. [Incomplete] R: [Laughing] K: Roughly … … [Ind] R: It doesn't matter, in fact, you don't even know what constitutes a tool box. [Sighing] "What is a tool box?" Isn't that right? You talk about these, and I have a lot of very reasonable … … [Ind], I have many small boxes ….. [Ind] can be seen from here. K: … … …. [Ind] Those? R: What? K: Oh, … …. [Ind])

Ruling

1. As I understood it, the Crown's submission in support of a grant of leave to cross-examine Mrs Lin on the content of the conversation recorded on the surveillance devices as extracted above was based upon s 38(1)(c), Mrs Lin having denied in her evidence that her husband ever told her what she should say to police concerning his "toolbox", and, in addition, that it reveals a willingness on her part to agree with the accused that they should coordinate their answers were they, or she, to be questioned further about it, a matter going to her credibility generally under s 38(3). Given the Crown case that a "hammer-like" weapon was used to kill the deceased, and the accused's admissions to Witness A (as I understand them to be) that a hammer was used by him and later disposed of, the existence of a "toolbox" in which a hammer, or the hammer, might have been kept, and the accused's sensitivity to his wife saying anything about it, is of sufficient importance to warrant leave being granted to the Crown to cross-examine about her conversation with the accused referable to the transcript, or the audio recording, or both.

(10) The deterioration in the relationship between Mrs Lin and the accused, and her parents

1. The Crown submitted that Mrs Lin's evidence in respect of her and the accused's relationship with her parents was inconsistent with what she told police during an informal conversation on 2 March 2010. The following exchange took place during the course of examination in chief: Q: Now, prior to your brother's death, did you believe that your parents favoured Min and his wife over you and Robert? A: My parents were trying to be equal, but sometimes they want me to help my brother. … HER HONOUR Q: Could you perhaps say it in Cantonese for the interpreter? I'm not quite sure whether we understood you? A: INTERPRETER: My parents tried to be equal, but they always help my brother. CROWN PROSECUTOR TEDESCHI Q: Did you think they were being unfair in helping Min more than you? A: What, you mean my parents? Q: Your parents, yes? A: Parents help, no. Q: Did Robert think that they favoured Min and Lily over you and Robert? A: No.
2. The Crown returned to the issue some days later, when the following questions were asked: Q: Also on Monday, before you left the Court, I was asking you questions about whether you and Robert thought that your parents were favouring Min and Lily over you and Robert; do you remember me asking you some questions about that? A: My parents tried to treat us equal, no special, no special favours someone or someone, but my parents, yes, they living in Sydney most of the time and my dad, yeah, help my brother in his ‑ the newsagent's shop. … Q: Mrs Lin, what do you say to the suggestion that Robert was not happy because your parents did not treat you equally like your brother? A: My husband know this kind of thought. … Q: Mrs Lin, had Robert ever said anything to you about your parents favouring Min over you? A: No. … HER HONOUR Q: The question is: Had your parents ever done anything that suggested to you that they favoured Min over you? A: No, but as parents they would try to help the children if they think that they ‑ yeah, they can do. … Q: Had you ever said to Robert that you thought your parents were favouring Min over you? A: No.
3. The Crown referred to what Mrs Lin told police during her conversation with them on 2 March 2010, extracted below: Detective Sergeant Maree: Do you want to ask something? Kathy Lin: you have heard some rumours about my husband, you can ask Brenda, before my parents treated Robert better than my sister in law. My husband's not happy because I did lots of things for my parents because they don't treat me equal like brother. After when Brenda picked me to be the guardian, Solicitor told parents to accept Brenda's decision. Robert, same, yeah he not care, he didn't care that I spent lots of money on my parents, pay for parents holiday. He didn't say 'why my brother not pay'. My parents not happy, that Brenda chose me. They told my aunty, they weren't happy with me. I'm not angry, I can survive myself. They are hard on themselves. My parents carry soft drinks when they take children out. They have their own character. Robert doesn't care about money, I spend on my parents. When we went to Melbourne Robert didn't care, he didn't say why your brother didn't pay. 1998 we went to China, we didn't ask brother for money because I spend a lot of money on children. Robert doesn't care about money, he was to enjoy lifestyle, he is not very rich, he has car, just want to do his own things, once every two weeks into yard, trim trees and mow lawn.
4. The Crown submitted that it ought be entitled to put to Mrs Lin that she had understated the degree of animosity between her and the accused on the one hand and her parents on the other in that the dispute was not limited to a dispute about the guardianship of Brenda Lin, but that it extended to the control of Min Lin's assets and, further, that the accused went to great lengths, both through her and individually, to actively pursue securing control of the estates and the guardianship of Brenda Lin.

Ruling

1. I granted the Crown leave to put that proposition to Mrs Lin.

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