R v Xie [2015] NSWSC 2128 | Case summary

(1) Alibi

In the granting of leave to the Crown to cross-examine Mrs Lin on the question of alibi in her evidence in chief, I analysed the evidence bearing on the issue and the contentions of the parties concerning it (see R v Xie (No 16) at [44]-[63]). Her evidence in chief is set out at [49] of that judgment, including, importantly for the purposes of this application, her evidence that she would have known if the accused left the bed after they retired for the night, even if only to use the toilet, because, being a light sleeper, she would hear the toilet flush.
The basis for the further application to cross-examine Mrs Lin on this issue was the Crown's submission that two excerpts of her conversations with the accused over a number of hours on the evening of 22 March 2010, recorded on the surveillance devices installed in their home at that time, reveal, contrary to her categorical evidence in the trial that she "knows" the accused was with her in bed at the time of the murders, that the true position is that she is unable to account for his presence or his movements at all. The two transcripts said by the Crown to exemplify that as the true state of affairs are annexed to this judgment. (They were ultimately tendered over objection as Exhibits CCC-J and CCC-K at the conclusion of Mr Turnbull's cross-examination, as to which see later in this judgment.)
On the application for leave to cross-examine under s 38(1)(c) Mrs Lin on what the Crown submitted were prior inconsistent statements in the surveillance device transcripts, the Crown also indicated its intention to tender the transcripts to establish the additional fact that in the conversation the accused acknowledges that he is aware that his wife will not be able to provide him with an alibi in the event that she is called upon to do so.
The fact that I had rejected the Crown's application to cross-examine Mrs Lin on the same two transcripts when leave was sought to cross-examine her in chief (see R v Xie (No 16) at [65]) was relevant to the question whether the Crown should be permitted a further grant of leave to cross-examine her by reference to the same two transcripts. On the earlier application, although the Crown identified the extracted conversations of 22 March 2010 as prior inconsistent statements, it was not made clear to me that the cross-examination would be limited to referring Mrs Lin to what she said to the accused, without reference to what the accused said to her. As I said at that time, and as reflected in my reasons for refusing leave (R v Xie (No 16)), there was a risk that the jury would not confine their attention to what Mrs Lin was reporting to the accused about whether or not she could account for him being with her in the bed at the time the murders were committed, but instead would use what he is recorded as saying in that conversation adverse to the accused without the evidence being admissible against him. It was because I had rejected the two transcripts, as two amongst a large number of surveillance device transcripts recorded by the surveillance device between January and May 2010 on the basis upon which the Crown had earlier sought their admission earlier in the trial (that is, as an admission by the accused or as evidencing steps taken by him to advance a false alibi with the support of his wife) that I refused the Crown's application for leave to cross-examine Mrs Lin on those two transcripts in her evidence in chief (see R v Xie (No 11) at [42]-[59]).
I note that at the time of the initial tender by the Crown of all surveillance device transcripts (including the excerpt of 22 March 2010), and after lengthy argument as to the use the Crown would seek to put the evidence at that time, the Crown did not seek the admission of an edited form of them (or any of them) in substitution for the voluminous transcripts the subject of the tender (see R v Xie (No 11) at [11]). In rejecting the Crown's tender, I also noted that it was unclear what questions the Crown may wish to ask of Mrs Lin about the conversations she had with the accused on 22 March 2010, either with or without leave under s 38, when she was ultimately called in the trial. However, as I was only considering the basis advanced by the Crown to justify the admission of the surveillance device transcripts against the accused, and since the Crown did not make an application for the tender of the transcripts on a different or more qualified basis, it was not something I needed to be concerned with at that time.
The Crown submitted it should not be deprived of the opportunity to challenge Mrs Lin's veracity on the question of alibi, and in the way proposed by a further grant of leave in re-examination, because it had failed to either clearly articulate the limited basis upon which it proposed to cross-examine her on the transcripts when the original grant of leave to cross-examine her under s 38 was being considered and/or because it had failed to clearly articulate the basis upon which that ought to have been permitted to do so, despite my earlier ruling that the transcripts were not admissible as an admission against the accused.
The Crown's cross-examination of Mrs Lin in her evidence in chief on the issue of alibi was directed to challenging as untruthful her evidence that if the accused got out of bed during the night she would have known by reference to her answers in police interviews also on 22 March 2010 (see questions 120-126 set out in full in R v Xie (No 16) at [52]). The effect of her answers to those non-leading but direct questions by police was that she did not know whether the accused got out of bed during the night of 18 July and could not recall whether she woke at all during that night. The Crown did not refer her to a further question asked by police (question 128) which she refused to answer on advice. That question was as follows: Q128: Okay. Did you husband Robert leave your bedroom that night after youse went to bed?
The Crown Prosecutor put to Mrs Lin that what she told the police was the truth and that her evidence in the trial to the contrary was designed to provide her husband with a false alibi. She rejected that suggestion.
In cross-examination, Mr Turnbull invited Mrs Lin to reconfirm her evidence in chief with a view to reinstating her evidence that she is able to positively account for her husband's presence with her in their bed at the time the deceased were killed. He then asked her the following questions: Q: Now, you have told us that, as far as you know, he was with you in that bed all night. You have told us that already a few times? A: Yes. Whole night he with me. Q: Have you ever known Robert to get up and leave for a long period of time to leave the house altogether? … HER HONOUR Q: Do you understand the question, Mrs Lin? A: He didn't leave the home, but if he leave and get up and leave home I know, because I'm light sleeper. TURNBULL Q: If he got up for a pee, do you understand me, and was out of the bed for a short period of time, is there any possibility that you may not have realised that he was up or not? A: I know, because the toilet very close my bedroom, I can hear and after, yeah, after he finish he will flush the toilet; the noise very loud in‑house. … Q: You know what the allegation is: That he left your house and gone across the road and gone down the driveway and killed your family. You know that, don't you? A: That's not true. He love my brother and he love Henry and Terry. Q: But in terms of anything that you saw or heard that night, did you see anything at all consistent with him getting up, perhaps preparing, getting up, leaving and coming back an hour or more later; did you? A: No. Q: Did you hear any kind of activity, taps running, flushing, showers, anything consistent, perhaps, with cleaning up or the like at all that night in your home in Beck Street? A: No, just normal Friday night. Q: And the next morning, did you see anything about Robert; did he look sweaty or agitated or upset in any way, on your observation of his demeanour? A: No. He's just normal. We same times get up, he's normal and, yeah, do his normal things. Q: Did you see anything around the house or in the garage over that day or any subsequent days which looked unusual? A: No. Q: When that garage door opens at your house in Beck Street, the tilt‑a‑door, in July of 2009, could you hear it being opened when inside the house? A: Yes, from the house we can hear open the door. Q: And, indeed, the front door and the back door you can hear, you told us, being opened and closed from within your bedroom, isn't that right? A: Yes. Q: Did you hear any beeping or driving or roaring of motors from your driveway or carport that night? A: No beeping, no engine noise.
These questions were doubtless directed to encouraging the jury to accept as truthful Mrs Lin's categorical evidence that she would not only know if her husband got out of bed to use the toilet, but that she would also know if he had left the house, and to accept as both rational and truthful the reasons why she was confident he did not do so, that is, because she would have heard him open the front or back door, or to have heard him leave through the garage, or to have driven the car from the house. Those questions must be taken to have been asked by Mr Turnbull in the full knowledge that the Crown had already been refused leave to cross-examine Mrs Lin on her conversations with her husband of 22 March 2010 in which, on an available interpretation of what Mrs Lin said to the accused, she declared the diametrically opposite position, that is, that she does not know and cannot say that he did not get up out of bed and leave the house on the night of the murders, and the reasons why leave was refused.
In addition, and also no doubt with the intention of being in a position to address the jury as to the minimal weight they should attach to the answers Mrs Lin gave to police in the record of interview on 22 March 2010 (the subject of cross-examination by the Crown), Mr Turnbull invited Mrs Lin to comment upon her attitude toward police in March 2010, and to invite her to explain her apparent unwillingness to participate in the interview (otherwise than by answering questions without elaboration) on the basis that she considered her husband was wrongly suspected of the murders. Mrs Lin was not invited by Mr Turnbull to explain or clarify her answers to questions 120-126 and was not taken to question 128. He did ask her about other answers she had given in the interview inviting her to explain those answers, also consistently with her belief that the police were intent on "framing" her husband for the murders and "tricking" her into providing support for the police case.
With the questions asked by Mr Turnbull in cross-examination in the extract at [27] above, and the import of his questions directed to having Mrs Lin explain her attitude to police in the interview of 22 March 2010, the Crown submitted that it ought to be entitled to take Mrs Lin to the nominated excerpts of the surveillance device transcript of 22 March 2010 in re-examination where, after she returns home from the police interview she makes it clear to the accused, in the Crown's submission, that she is in fact unable to provide him with an alibi. The Crown also submitted it should be entitled to put to her that that was the truth and to tender the transcripts against the accused as constituting admissions by him.
Considerable argument was directed to what Mr Turnbull submitted was the unfairness to the accused were leave granted to permit Mrs Lin to be further cross-examined by the Crown in re-examination, as this would deprive him of the opportunity to ask any questions of her referable to the transcribed conversations. He submitted that, even were I to grant leave to the Crown to reopen his evidence in chief and to grant leave under s 38 for the Crown to cross-examine Mrs Lin concerning the statements or declarations she made to the accused after returning from the police interview, thereby permitting him to ask questions of her in further cross-examination, considerations of unfairness were not displaced and remained engaged, even were the Crown directed by me not to make reference in his questions to what the accused said in the conversation. In Mr Turnbull's submission, the unfairness was said to arise because the two extracts of conversation relied upon by the Crown, when read in the context of the entire conversation between the accused and his wife on the evening of 22 March 2010, are not capable of conveying the meaning attributed to them by the Crown. Mr Turnbull submitted that, properly understood, the extracted conversation are simply musings on the way the accused and his wife feared the police were trying to "trick" them into making admissions or giving different accounts of the evening of 17 July 2009 and the morning of 18 July 2009, and not a statement or declaration by Mrs Lin that she cannot account for the presence of the accused at the time of the murders.
In order to consider that submission, in particular, whether it would be unfair to grant leave to the Crown to cross-examine Mrs Lin on the excerpts of the conversation identified by the Crown, I was invited by Mr Turnbull to read the entire transcript of conversation on 22 March 2010. That document extended over 179 pages.
Upon my review of the entire transcript I was satisfied there was no unfairness in the Crown relying only upon two extracts of the conversation between the accused and Mrs Lin that night. In my view, the excerpts were not only capable of conveying the meaning the Crown attributes to Mrs Lin but, in addition, there are other discrete exchanges between the accused and his wife in the course of their conversation generally that night when the question whether Mrs Lin could in fact account for the accused at the time of the murders is discussed, and rather than declaring she can do so, she at least impliedly acknowledges she could not. The fact that Mrs Lin and the accused appear concerned at the persistence of police questioning and express a concern that police are intent on "tricking" them, does not derogate from what I consider Mrs Lin's words are capable of conveying as to her actual state of mind as to the whereabouts of the accused at the time of the murders in the extracts the Crown seeks to make use of.
I was also satisfied, referable to s 192(2)(b), that the conversation Mrs Lin had with the accused bears directly on a central fact in issue in the trial, the Crown being obliged to prove, as a circumstantial fact, that the accused had the opportunity to commit the murders and that Mrs Lin's evidence concerning the recorded conversations on 22 March 2010 is capable of being regarded by the jury as significant in resolving that issue.
Mr Turnbull also raised a concern that Mrs Lin may have a right to claim privilege in respect of the following statement extracted from the first of the two extracted conversations with the accused and that she should be permitted to seek advice before being asked questions about that aspect of the conversation: (R: … You will be unable to provide prove for me when the time comes.) K: So that's why he/she er what you all er that's why Lawyer Lo said: "You don't answer, you can refuse to answer." So I did not answer. (The main thing is that whether you took a walk outside. …)
Mr Turnbull also submitted that, irrespective of whether the transcript of 22 March 2010 was a prior inconsistent statement upon which Mrs Lin could be cross-examined in re-examination with leave, what the accused said in the extracted conversation remained inadmissible against him, the Crown having failed to articulate any basis upon which I should revise my earlier ruling to that effect.
The leave granted to the Crown to reopen its examination in chief of Mrs Lin to cross-examine her under s 38 was on terms that Mrs Lin's attention should first be directed to the relevant passages in the transcripts of conversation, and that she be then invited to accept that she said the words attributed to her without reference to what the accused said. The grant of leave was also intended to permit the Crown to put to her that she cannot, in fact, account for the accused remaining with her in their home after they retired to bed. I was satisfied that permitting the Crown leave to cross-examine Mrs Lin in that way would afford Mr Turnbull the opportunity in his cross-examination to seek further clarification or elucidation, if he wished, as to the reason Mrs Lin spoke with the accused as she did or what she meant to convey by her statements or declarations to him, assuming, of course, that she conceded the accuracy of the transcribed conversations.
In limiting the Crown's further cross-examination of Mrs Lin in that way, it follows that I accepted Mr Turnbull's submission, consistent with my earlier judgment, that what the accused said to his wife does not constitute an admission by him, namely a previous representation made by him that is adverse to his interest in the outcome of the trial (see the Dictionary in the Evidence Act). It also follows that, at that time at least, I rejected the Crown's tender of the transcripts.

The Crown's further cross-examination with leave

Pursuant to the grant of leave, the Crown Prosecutor invited Mrs Lin to confirm that when she returned home at the conclusion of the police interview on 22 March 2010 she discussed with the accused what had been said during the interview. She denied that that had occurred. She was then asked by the Crown whether she discussed with her husband some of the questions that had been asked of her by police that day, as to which she said she was unable to recall. (I note that Mrs Lin had been afforded the opportunity to listen to the recorded conversations the Crown intended to question her about, utilising the Court equipment and in the privacy afforded her in the courtroom with the English language translation of the recorded conversations available to her in that exercise.)
Mrs Lin repeatedly claimed under questioning by the Crown that there was no specific conversation with the accused about any particular question asked of her by police, but rather their conversation was "just general talking". The Crown then provided her with the transcripts of the two conversations the subject of the application for leave and asked her again to accept that the conversation was about her being questioned by police earlier that day. She did not accept that proposition.
The Crown then put a series of leading questions, asking for Mrs Lin's confirmation that the words attributed to her, as reflected in the English translation of her conversation on 22 March 2010, was what she had said to her husband. In particular, the Crown put to her the following questions: Q: Can I take you to the bottom of the first page. Did you say this: "How would we know, eh? Just like, for instance, he is sleeping with his wife. His wife, his wife gets up halfway through the night and would he know that, eh? Won't necessarily definitely know for certain, eh?" Do you agree that you said that? A: Yes, this is-- Q: Then the next entry for you on page 2: "If his wife walks to the front door, goes for a walk around and comes back again, would that be noticed? Which devil knows?" Do you agree that you said that? A: Yes, but this is-- Q: Please answer my question. A: I answered the question, but I want to explain-- CROWN PROSECUTOR TEDESCHI: Your Honour-- HER HONOUR: Stop. Q: The question was: "Did you agree you said that?" What is your answer to that question? A: Yes. -- CROWN PROSECUTOR TEDESCHI: Q: Now, do you agree that, following that, in this conversation, you acknowledged that, if Robert had walked out that night, that you wouldn't know? A: I'm not agree because I said this is ‑ we are general talking about what police may use to trick question to, yeah, accuse us‑‑
Mrs Lin went on to say that she did not agree with the questions the Crown was putting to her by repeatedly asserting, albeit not responsive to the questions the Crown was asking her, that if her husband got out of bed or left the house she would know about it.
The Crown Prosecutor then asked her the following questions: Q: Did you say this: "That's why Lawyer Lou said, 'You don't answer. You can refuse to answer.' So I did not answer. The main thing is that whether you took a walk outside, how would I have known, eh? Things like, er, am I sure of that or not sure and so I will not answer." Did you say that to Robert? A: Yes. Q: And by that, did you mean that you had not answered the question asked of you earlier that day in the police interview because you had no idea whether or not Robert had taken a walk outside. A: It's not ‑ in my first interview I already told the police in my knowledges Robert stay with me and Robert did not get out of the house. It's not ‑ I didn't answer the question based on my solicitor instruction and another is we don't know how to prove, because I told the truth, I tell the police my husband stay with me, but I don't know how to prove. Q: Did you mean, by what you said to Robert, that you had not answered the question asked of you earlier that day because you had no idea whether or not he had taken a walk outside on the night of the murders? A: In my first interview I already told the police in my knowledge my husband stay with me. He didn't get out of the house. The questions in second times as we ask the solicitor how we prove, but we can't prove the solicitor instruction, we not give the answer.
The Crown Prosecutor then referred Mrs Lin to the second extracted conversation. She confirmed that this conversation involved a discussion between her and her husband about whether or not either of them would know if the other had got out of bed to use the toilet. After a series of questions where she was repeatedly asked whether she heard herself say to her husband: Who can remember waking up or not on that night? He/she asked if that night woke, how many times, eh? Sometimes wake up and sometimes don't. How do I know?
Mrs Lin agreed that she heard those words on the tape but again said it was "just general talking".
When the Crown asked Mrs Lin to concede that she was referring to the fact that police had earlier that day asked questions about whether she recalled waking during the night of 17/18 July, she denied her use of the words "that night" was a reference to the night the deceased were killed. She went on to say: Q: No, no, please answer my question. Were you referring to the night of the murders? A: No, it's not mention that night. As I say, after interview I'm not talking with my husband's particular question for daytimes. We just general talking. This is I say, like, how supposed me to prove, like, today you ask me one year before the same night I wake up or I get up, so I can't prove, I can't remember. This is a general talking. It's not particular based on the police asked me question and discuss with my husband. Q: When you said to Robert, "He asked if that night woke how many times, eh?", what night were you referring to? A: As I say, we are not talking about the‑‑ Q: What night were you referring to? A: Just general, like you ask me now one years before the same night and two years before I can't remember, I can't tell you how many time I get up, how many times I go to the toilet or wake up. This is just talking and the police maybe use this trick question to trick us.
The Crown Prosecutor then put a series of propositions to Mrs Lin that her evidence to the general effect that she had no specific conversation with the accused concerning the night of the murders, but that they merely spoke generally about their sleeping patterns, was untrue and that she was lying about that in an attempt to protect her husband. She disagreed with those propositions.
Mr Turnbull's cross-examination of Mrs Lin then resumed. He asked her a number of leading questions, inviting confirmation that the topic of conversation with the accused after she returned home after the police interview was, as it had been on many other occasions in their home, the lack of any evidence to support the police's suspicion that the accused was the murderer. He also invited her to confirm that in those general discussions and the conversations she had been cross-examined about, she (and the accused) expressed "some kind of disbelief" that the police investigation was focused on him when, as far as she was concerned, he had been with her throughout the night. She accepted that proposition.
Mr Turnbull questioned her upon part of the transcribed conversation that immediately followed that part of the conversation the Crown had cross-examined Mrs Lin about and had her confirm that the following words were said: How would I have known eh; things like er am I sure of that or not sure. And so I will not answer. A trick. It is to trick you. It is a trick eh ... (Kathy starts to speak rapidly.) ... Just like when he/she said, "Do you know that in Australia cases like this were usually done by family ... family members or done by people who are associated with the family." At the time I was already unravelled, didn't want to talk about others/other things. What else ... ... And so when he/she continued to mention about my things and then I said, "What? Are you talking about Robert eh?" (Ind) that they er (ind) and mention Robert again. He/she said, "I have not mentioned Robert's name." This is brought out by you.
Mr Turnbull asked Mrs Lin, referable to that extract, what concerns she had about being "tricked". She said "They will use misleading the question or came my home, maybe plant the evidence … Anything that they know the ways to trick us or to frame us". He then asked the following leading question: Q: Just in terms of your use of the word "trick" and the conversations that you were having or aspects of the conversations that have been put to you today, can I suggest to you that, in relation to the first conversation, which you said was hypothetical and you used the word "wife", you've thought that that line of questioning was a trick; it was designed to trick you; isn't that right? A: Yes.
Later in the cross-examination, Mr Turnbull suggested to Mrs Lin that what she and the accused were talking about at that time (part of the total conversation, as he described it) was her concern about being tricked by police questioning, which she accepted.
In dealing with the second extracted conversation, Mr Turnbull suggested it was in the spirit of light-hearted bemusement. He said: Q: … can I suggest to you, you and Robert were saying, "Well, how on earth, after all these months, do we remember whether or not anyone gets out of bed from their wife or their husband to do a pee, how can you remember that because of the passage of time"; isn't that right?
Mrs Lin accepted that proposition. He then asked the following questions: Q: And can I suggest to you that that was a relatively light‑hearted and bemused discussion with your husband of over a decade about how on earth, eight months later, you and he could really prove whether you got up for a pee or didn't get up for a pee on that night? A: Yes, just general talking about like today, if you asked me question one years before, I can't remember how many times I wake up; how many times I get out of the bed. Q: Because there was absolutely nothing, was there, about that night of the 17th or the 18th of July that tipped you off about its importance in recollecting and being detailed until the horrible discovery the next morning; isn't that right? A: Yes. Q: And all you can say is, as you've said to my learned friend, said to me, and said, can I suggest to you, on a number of other occasions, including at the Crime Commission, as far as you know, you and he went to bed together, you are not aware of him getting up and leaving the house and you and he woke up the next morning together; isn't that right? A: Yes. As I told police, Robert with me the whole night and he didn't get out of the bed and didn't get out of my house and then next morning we same times get up ‑ wake up.
After the Crown had re-examined Mrs Lin in accordance with s 39 of the Evidence Act and Mrs Lin had been excused, a fresh application was made by the Crown to tender the transcripts of the conversations upon which she had been cross-examined by the Crown with leave and Mr Turnbull. The Crown did not tender the transcripts as admissions by the accused but limited the tender to "credibility of her (Mrs Lin's) assertion" that the conversations were not about the night of the murders and whether she could account for the accused's whereabouts, but a general discussion about the state of affairs in which he was suspected of being the murderer.
Mr Turnbull renewed the submission that there was an artificiality in the Crown's submission that the conversations were directed solely, or even largely, to that subject matter isolated from the wider context of their discussions that night. He also submitted that there was generalised unfairness to Mrs Lin by the Crown's challenge to her candour and honesty that the tender of the transcripts would serve to exacerbate. By a series of page numbers referable to the entire transcript, Mr Turnbull nominated specific parts of the conversation that he submitted deprived the Crown of the right to tender the two extracts upon which Mrs Lin had been cross-examined. I re-read those passages but came to a different view than that contended for by Mr Turnbull. He did not seek to develop the submission further.
Were the jury not given the transcript (including what the accused says to his wife in the conversation) I was satisfied the dispute between the Crown and the defence that crystallised after Mr Turnbull's cross-examination concerning whether Mrs Lin's conversation with the accused was a "general conversation" and not in any way related to his movements in and out of the bed or the house on 18 July 2009 and/or whether those same discussions were unrelated to the police questioning that day and simply a reflection of their shared concerns that the police were intent on tricking them in some way, could not be meaningfully resolved. I was also satisfied that to resolve that dispute, the jury should be permitted to know what the accused said in the course of the conversation, not as amounting to any admission by him but in order to assist them to determine the subject matter or focus of the conversation in which Mrs Lin was engaged.

R v Xie

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (1)

Cases Cited (3)