HER HONOUR: The accused was indicted in February 2015 on five counts of murder ("the 2105 trial").
On 1 December 2015 the jury were discharged being unable to return unanimous verdicts or verdicts by a majority as provided for under s 55F of the Jury Act 1977 (NSW).
Brenda Lin gave evidence in the 2015 trial that the accused had indecently assaulted her on a number of occasions before the Lin family were murdered in July 2009, and sexually assaulted her on repeated occasions after the murders and before he was arrested and charged with their murders in May 2011.
The admissibility of this evidence as probative of the accused's motive to kill the deceased was the subject of a pre- trial ruling by Johnson J in 2014 (R v Xie (No 10) [2014] NSWSC 1976). There was no application as provided for in s 130A of the Criminal Procedure Act 1986 (NSW) in advance of the 2015 trial, or at any time before Ms Lin gave evidence, to challenge that ruling. The accused makes no application in advance of the trial due to commence on 28 June 2016 to revisit that ruling.
This judgment concerns the admissibility of evidence of complaint.
At the 2015 trial, evidence was led from Ms Lin (without objection) that, before her family were killed, she had complained to Ms BC about the accused's sexual misconduct. Ms BC gave evidence confirming that fact. There was no objection to Ms BC's evidence. Senior counsel then appearing for the accused accepted that Ms BC's evidence was admissible as evidence of complaint.
Evidence was also led from Ms Lin (also without objection) that in May-June 2014 she disclosed to a number of people that the accused had indecently assaulted her before her family were murdered and had sexually assaulted after the murders and before he was arrested in May 2011. Those people included her friend Ms CD and Professor Parkinson, a person from whom she had received pro bono legal advice in Family Court proceedings in 2009/2010. The Crown also led evidence that within the same time frame Ms Lin complained to Ms Greiner, the accused's solicitor, about the accused's sexual abuse of her. Her complaint to Ms Greiner was not specific as to when the sexual abuse commenced and when it ceased.
R v Xie [2016] NSWSC 1923 | Case summary | Zoe
The Crown also adduced evidence from Ms Lin as to the reason she had delayed making complaint about to the accused's sexual abuse of her and the reason she determined to make complaint about that fact in May-June 2014.
At the time Ms Lin gave evidence the parties had not given any, or any sufficient, attention to the basis upon which the evidence of complaint given by Ms Lin was admitted or the directions the jury would need to be given as to its use. In the course of the trial the parties agreed that it was relevant only to the jury's assessment of Ms Lin's credibility. The circumstances in which the Court was invited to sanction the admission of Ms Lin's evidence of complaint for that limited purpose are detailed in a judgment delivered in the course of the trial (R v Xie (No 6) [2015] NSWSC 2119). It was also the agreed position of the parties that neither Professor Parkinson, Ms CD or Ms Greiner would be called by the Crown.
The Crown now intends to adduce the same evidence adduced from Ms Lin in the 2015 trial, save only for the complaint Ms Lin made to the accused's solicitor which is not pressed. The Crown also proposes to adduce the complaint evidence from Ms BC, Professor Parkinson and Ms CD for a hearsay purpose under s 66(2) of the Evidence Act 1995 (NSW), that is, probative of the fact that the conduct complained of occurred. The Crown also seeks to adduce the complaint evidence as relevant to the jury's assessment of Ms Lin's credibility (see IMM v The Queen [2016] HCA 14 at [71]-[72]).
It is common ground that the particular circumstances in which the complaint evidence was adduced in the 2015 trial, and the limited basis for its admission, did not attract a previous ruling on the admissibility of the evidence under s 66(2) and, that being the case, s 130A of the Criminal Procedure Act has not been invoked.
The accused objects to the Crown adducing any of the complaint evidence. As I understand the submission, that objection extends to Ms Lin giving evidence of the fact that she disclosed the sexual abuse, the identity of those to whom she made disclosure and the circumstances in which she did so.
Counsel's primary submission is that the evidence does not qualify for admission under s 55(1) of the Evidence Act because it is not probative of any fact in issue. He submitted that although it is the accused's case that none of the conduct Ms Lin attributes to the accused happened, it will not be put to her that she has made a deliberately false complaint of indecent assault before the murders and sexual assault after the murders. Counsel submitted that the challenge to her evidence will be limited to putting to her that none of the episodes of the indecent touching or the sexual assaults in fact occurred at all (and that she is mistaken when she says it did) and, that being the case, there is no fact in issue (including any issue of credibility), proof of which could be rationally affected by admission of the evidence of complaint.
That submission is fundamentally flawed. Ms Lin's evidence concerning the accused's sexual interest in her is to be admitted as evidence of motive. Whether the Crown is able to establish that the accused had a sexual motive to murder the deceased (or any of them) is necessarily predicated on the jury finding, as a fact, that the accused sexually abused her before and after the murders. That is a fact in issue and self-evidently so. The credibility of Ms Lin as the person who makes the allegations that she was indecently and sexually assaulted is also is a fact in issue. A submission to the jury that Ms Lin is or might be wholly mistaken is a challenge to her reliability and, self-evidently, raises a question of credit. The Crown also submits that a finding by the jury that the accused sexually assaulted Ms Lin at night on multiple occasions over an extended period between June/July 2009 and May 2011 is relevant to proof of the accused's capacity to move around the house at Beck Street without waking his wife and, in that way, Ms Lin's evidence is relevant to the jury's assessment of the reliability of Kathy Lin as an alibi witness.
I am well satisfied that the circumstances in which Ms Lin disclosed the sexual abuse and the terms in which made that disclosure have the capacity to directly affect the jury's assessment of both issues, thereby satisfying the test of relevance under s 55(i) of the Evidence Act.
A further submission was advanced by the accused's counsel to the effect that Ms BC's evidence (and Ms Lin's evidence that she complained to her) failed to qualify as evidence of complaint because of the general nature of the complaint.
Ms Lin's evidence about the accused's sexualised conduct prior to the murders can be summarised as follows:
(i) The first specific incident of sexualised conduct was when the accused took Ms Lin home from Chinese School in Merrylands and she was alone in the car with him. They drove to McDonalds in Parramatta and had some lunch. She said that whilst they were in the car the accused was "just sort of holding my hand or - yeah. I just felt a little bit awkward". Ms Lin said this happened when she was in high school and before her family were killed.
(ii) Another incident was when the accused drove Ms Lin to his home at 4 Beck Street. She sat on the couch in the living room and the accused sat next to her. She said the accused then "started sort of rubbing his hand up my thigh a little bit and I felt quite uncomfortable, so I ended up standing up and then he had both of his hands around my sort of torso/waist area and was rubbing it up and down". She said when he was rubbing his hand up her thigh it was "more towards the upper part [of her thigh]". She thought the accused was breathing heavily as he rubbed her. He then suggested he take her home.
(iii) A third incident was when the accused and his wife came to 55A Boundary Road to take the children to the grandparents for dinner. Ms Lin said that the accused came upstairs on his own and at the top of stairwell he "hugged me really tightly and it was sort of awkward because I could feel his body against me and I could also feel his groin area against me as well", which she described as, "a little bit like bulging out, I guess. So it was hard". She said this occurred "within six months of the murders, at least, or maybe a couple of months".
The circumstances in which complaint was made to Ms BC about this conduct was as follows:
"…it was during school time and she [Ms BC] had been talking to me about how she was sexually abused by I think an extended family member. And then I related to her saying that 'something similar had happened to me'. …. I didn't mention any details."
Ms Lin gave evidence that Ms BC asked her some time later about what she had disclosed but that she "just denied it completely because I didn't want anyone to be getting into trouble or - I didn't want to give any more details".
Ms BC gave evidence that Ms Lin disclosed to her that she had a similar experience of abuse by an extended family member when they were partnered together and sharing a tent on a school excursion in April, May or June of 2009. Prior to going on the excursion Ms BC gave evidence that she had told Ms Lin and a number of other friends that she had been the victim of sexual abuse by her uncle. She said:
I told Brenda and some of my other friends that my uncle touched me in, I suppose, an inappropriate manner. I was, like, I would randomly start crying at school and they would want to know why, so to explain my behaviour I would be, like, "Well, this is what happened, and I guess this is my way of coping", I suppose.
She said one night when she and Ms Lin were in their tent Ms Lin said, "Well, you know what happened with your uncle, something similar … happened to me as well". Thereafter she told Ms BC that she did not want to talk about it.
Ms BC said on other occasions when she raised the subject of their shared experience Ms Lin would not be drawn to discuss it.
Whilst it might be said that the complaint to Ms BC is made in general terms, specificity is not a prerequisite to the admissibility of evidence of complaint. In JB v R [2009] NSWCCA 263 at [46] McClellan CJ at CL observed: "There will be many cases where although a generalised complaint is made a person will not provide precise details of an offender's conduct particularly where, as will often be the case, it may prove embarrassing to do so." His Honour cited with approval R v Colquhoun (Court of Criminal Appeal, 28 October 1992, unreported):
To qualify as evidence of complaint, the words spoken by the complainant may be of a general kind and need not relate with specificity to the material which is later led in evidence to support the counts of sexual misconduct. The words must, of course, bear some characteristic of a complaint of a sexual nature. R v Saunders (1965) Qd R 409.56
The complaint made to Ms BC does not suffer from such vagueness or obscurity as might warrant exclusion under s 55(1) as evidence that is incapable of rationally affecting the jury's assessment as to whether Ms Lin was complaining about inappropriate touching by her uncle (the accused), being the fact in issue. The challenge to the admissibility of the evidence of complaint as it concerns Ms BC as failing the test of relevance is not made out.
The accused further submitted that the Crown had failed to establish as a precondition to the admission of Ms BC's evidence of complaint as an exception to the hearsay rule under s 66(2) of the Evidence Act, that the occurrence of the asserted fact was fresh in Ms Lin's memory at the time she made the complaint.
Section 66 is in the following terms:
66 Exception: criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made,
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:
(a) the nature of the event concerned, and
(b) the age and health of the person, and
(c) the period of time between the occurrence of the asserted fact and the making of the representation.
(3) …
(4) …
The construction of section 66 with sub-section 66(2A) inserted by an amending Act which commenced on 1 January 2009, has been the subject of consideration by this Court in R v XY [2010] NSWCCA 181 and most recently in R v Gregory-Roberts [2016] NSWCCA 92.
In XY Whealy J construed s 66(2A) to accord with the legislative intention that freshness of the memory of the occurrence of the asserted fact should not only be assessed temporally but referable to a wide range of factors reflecting what is recognised as the distinct and complex nature of emotionally arousing crime and its potential to promote a sustained memory of the event even after the efluxion of time. His Honour observed at [78] that s 66(2A) is "an interpretative section" allowing the Court to take into account "all matters that it considers are relevant to the question [of freshness of memory]" and that in undertaking that exercise the matters mentioned in ss 2A(a), (b) and (c) "are not the only matters that may be considered". His Honour observed that the very nature of the alleged events are a factor which "looms large" in interpreting freshness of memory for the purposes of the section.
In Gregory-Roberts Schmidt J, with whom McCallum and RA Hulme JJ agreed, made similar observations. In the circumstances of that case (and in finding error in the approach to the question of admissibility by the trial judge) her Honour placed considerable weight on what she to be the unusual circumstances of the alleged offending as a factor to be taken into account in determining whether the occurrence of the sexual assaults the complainant suffered as a child were fresh in her memory when she disclosed them 28 years later. Her Honour also took into account on the question of freshness the fact that the complainant was able to give police a detailed account of events which allegedly occurred some 28 years previously which was "(c)onsistent with the events being such as to have long remained in the complainant's memory".
Insofar as concerns the evidence of Ms BC (and accepting for present purposes her evidence as to when Ms Lin told her that she had experienced "something similar" to the inappropriate touching Ms BC had experienced), the incident at Boundary Road at the top of the stairs (the last in time) occurred within 6 months of Ms Lin making the complaint and the incident of hand holding a maximum of 3 years and 3-5 months earlier. I am satisfied that the relative proximity of the last incident of indecent assault to the making of the complaint to Ms BC, together with the indelibility of what Ms Lin described in her evidence as feelings of awkwardness and discomfort at the accused's increasingly overt sexualised conduct towards her, satisfies the requirement of "freshness" allowing for the admission of that aspect of the complaint evidence upon which the Crown seeks to rely for a hearsay purpose under s 66(2) and as evidence relevant to her credit.
Turning now to the evidence of complaint as it relates to the sexual assaults Ms Lin describes as occurring in the accused's home after she became a member of the household following the murder of her family.
Ms Lin gave evidence at the trial in 2015 that within a couple of weeks after she moved into the accused's home after the murders the accused indecently assaulted her. She alleged that while she was asleep in the bedroom she was sharing with the accused's son, the accused came into the room during the night and, without saying anything, put his hand under the blanket, under her underwear and on her skin above her vagina. She pretended to be asleep. She said the accused hesitated a bit and then he took his hand out and walked out of the room.
Ms Lin gave evidence that the following night the accused came into her bedroom again and inserted a finger inside her vagina. After a period of time he withdrew his finger out and walked out of room. She pretended to be asleep.
Ms Lin gave evidence of three other specific occasions of sexual or indecent assault which included the accused ejaculating between her breasts, using a torch to shine at her genitals, sniffing his fingers after digitally penetrating her vagina, and a further occasion when the accused was in her bedroom sexually assaulting her and left hurriedly because her grandfather was going to the bathroom and the accused went out and spoke to him. (Mr Lin Snr gave evidence of corroborative of encountering the accused in the hallway outside the bathroom which is very close to the room Ms Lin was sharing with the accused's son). Ms Lin also said there was an occasion when she was having a shower and the accused was outside looking in at her through the slightly open bathroom window.
More generally, Ms Lin said sexualised conduct generally and sexual assaults specifically occurred with varying frequency up until the accused's arrest. She said the sexual assaults occurred sometimes every night for a week and then it would stop for a couple of days or a week or so and then start up again. She said it became "more intrusive" over time, with the accused putting his finger in and out of her vagina more frequently and "faster" and it became "really uncomfortable" and sometimes it hurt. Initially she pretended it was not happening and pretended to be asleep. As the sexual assaults became more intrusive she said she would move or struggle by kicking out at the accused or that she tried to move away from him.
Ms Lin gave evidence that the first person to whom she disclosed the fact that the accused had been sexually assaulting was her friend Ms CD a week after the accused's 2014 trial commenced on 8 May 2014. She said she decided she wanted to speak with her friend about the quandary she found herself in with the prospect of giving evidence on oath about the accused at his trial. She said:
If I didn't disclose the sexual abuse, I'd only be telling half the truth because how I saw [the accused], there were two sides to him: one side that was during the day which was really fun that I really loved; and one side that was sexually abusing me.
She said in her evidence:
I remember I kept on saying to her [Ms CD], 'There's something I want to tell you, but I just don't feel comfortable telling you' or 'I just don't know how to tell you'.
She did not disclose the sexual abuse at that first meeting as her friend needed to leave. She said they met again on 22 May 2014 and "I disclosed to her what happened to me".
Objection was then taken by senior counsel then appearing for the accused to what was said at that meeting. The evidence was not pursued. Ms CD was not called by the Crown, it being agreed that the evidence of complaint would not be led for a hearsay purpose.
In the pending trial, the Crown proposes to lead evidence from both Ms Lin and from Ms CD about the two meetings in May 2014 and what was said. In Ms CD's police statement, obtained after Ms Lin made a formal statement to police about the accused's sexual abuse, she said that a month earlier (on a Thursday in May), she had met up with Ms Lin at a café which was a regular routine for the two friends. Ms CD said Ms Lin had mentioned to her at an earlier meeting "that she wanted to tell me something but that she wasn't comfortable telling me or anyone". Ms CD encouraged Ms Lin to tell her when she was ready. On this particular Thursday she said that Ms Lin had said to her, "What I am going to tell you now is going to change the whole case around" and she told Ms CD "that Robert had been sexually abusing her" and that she started crying (the Crown does not seek to lead the italicised statement).
Ms CD asked Ms Lin how long the abuse had been happening for and Ms Lin said "for a long time ever since she was a child but that it had got worse since she moved in with [the accused]". She said that she was very scared at night having to keep quiet and not wake anyone in the house and that it was uncomfortable and awkward making eye contact with the accused the following morning. Ms CD said Ms Lin spoke about feeling "really conflicted as she liked [the accused] as a father and being part of a family again" and that "her Aunt Kathy was her main priority".
Ms CD said she and Ms Lin exchanged text messages over the next week where they discussed whether Ms Lin would make a formal disclosure of the sexual allegations. The Crown does not intend to lead evidence of the meeting that was arranged with Ms Greiner and attended by both young women where a further disclosure was made by Ms Lin of the accused sexual abuse of her or the text messages with Ms Greiner that preceded and followed that meeting.
Ms Lin gave evidence at the 2015 trial that on Sunday 25 May 2014 she went to Professor Parkinson's home for lunch. Professor Parkinson and his wife took her for a walk after lunch and she said that during that walk she disclosed to them that the accused had been sexually abusing her. After talking further with Professor Parkinson over subsequent days and ultimately resolving to inform the Court of the full extent of her relationship with the accused before and after the murders, inclusive of his sexual abuse of her, she said that Professor Parkinson assisted her to prepare a formal statement. The Crown proposes to lead this evidence from Ms Lin and unlike the approach taken by the Crown in the 2015 trial, to lead evidence from Professor Parkinson of the fact that Ms Lin had disclosed to him that the accused had sexually abused her. The Crown also intends to lead evidence from them both that the abuse was disclosed to the Kathy Lin but not what Kathy Lin said in response (to wit "I'm sorry this has happened to you").
The Crown proposes to lead evidence from Professor Parkinson confirming that Ms Lin had come to lunch on Sunday 25 May 2014 and that they went for a walk after lunch, and that while walking Ms Lin was soliciting his views about the Crown case and in particular the question of motive, when she volunteered, "I know the motive. I don't want you to tell anyone. [The accused] was sexually abusing me". She said that she had been abused "a little bit before the murders but more afterwards". She told Professor Parkinson that this was the first time she had seen the possible connection between the murders and the sexual abuse. The Crown intends to lead the evidence of complaint without reference to Ms Lin's attribution of a motive or possible motive for the murders being the accused sexual interest in her.
The Crown submits that whilst the complaint to Ms CD and Professor Parkinson is of "sexual abuse" and that no detail of the nature or extent of the abuse was sought or provided (save for that fact that Ms Lin tells both people that it occurred before and after the murders with, an escalation in the seriousness of the abuse after the murders), consistent with the authorities earlier referred to, a generalised complaint of sexual abuse does not impact of the admissibility of the evidence. What the Crown emphasises as the feature that affords Ms Lin's assertion that she was sexually abused by the accused the "freshness" that is a statutory precondition to admissibility under s 66(2) are the circumstances in which the serialised sexual abuse occurred, including in the house of her de facto family after the horrific killing of her own family and by a person who was standing in loci parenti to her at that most traumatic and unsettling period of her life as a young adolescent. The Crown also relies (and does so permissibly) on the features of the offending as rendering her memory of he sustained abuse "fresh" despite the passage of three years within which no complaint was made. In the Crown submission those features (all of which are properly encompassed by the generic phrase "sexual abuse") include:
the abuse occurred in the presence of the accused's sleeping son;
the abuse occurred in the bedroom adjacent to where the complainant's aunt was sleeping;
on one occasion the abuse occurred in very close proximity to her grandfather as he was making his way to/from the toilet;
on one occasion the abuse involved the use of the torch and on one occasion the accused ejaculated on her breasts;
the penetrative assaults caused discomfort and pain.
Defence counsel submitted that the quality of freshness as a prerequisite the admission of the evidence under s 66(2) is diminished to the extent of it being neutralised altogether where the trigger to Ms Lin's claimed recall or recounting of the sexual abuse is said not to be a genuine recall of the fact of abuse but the result of her considering what might have motivated the accused to murder her family, and the impact of motive generally in the Crown case against the accused in what was then his pending criminal trial.
In counsel's submission, Ms Lin's search for a motive at the time she makes complaint of sexual abuse, a fact which counsel submitted was an "intervening event" or an "intervening decision" deprived her memory of the asserted fact of sexual abuse of the quality of freshness. He further submitted that on a proper reconstruction of the evidence the Crown seeks to lead as evidence of complaint under s 66(2), the asserted fact, the occurrence of which must be fresh in the memory of the person who made the representation, is not the fact of sexual abuse but the identification or attribution of motive, and since Ms Lin's musing about or attribution of a motive to the accused for killing her family is irrelevant, the evidence should be excluded as irrelevant under s 55(1) for that reason.
That analysis of the evidence under challenge does not bear scrutiny. It does not follow as a matter of fact or of law that the circumstantial trigger to the making of a late complaint, or the context in which a disclosure is made of earlier sexual abuse (even historical sexual abuse), has any necessary bearing on the question whether the occurrence of the episode or episodes of abuse was fresh in the memory of the person making that assertion as provided for in ss (2A) for the purposes of the operation of the exception to the hearsay rule in s 66(2). The context in which complaint is made may, in an appropriate case, be a matter relevant to the credit of the person who made the previous representation (and in this case it may be that counsel elects to explore that issue with Ms Lin in cross-examination) but I am unable to see that it has any impact on the determination of the issue of freshness for admissibility purposes.
For defence counsel to attribute to the Crown an intention to lead evidence of Ms Lin's attribution of motive as part of the Crown case under the guise of seeking the admission of the evidence of complaint under s 66 is also an argument without substance.
In my view, the unique circumstances in which the Ms Lin claims to have been serially assaulted by the accused (conduct which was an extension of his sexual interest in her before her family were killed); the fact that the assaults commenced almost immediately after the murders and in the accused's home, and the repeated nature of the incidents all support a positive finding that her memory of these events would endure and, for that reason, meet the test of freshness in s 66(2) of the Evidence Act. I am also satisfied that the events she experienced (and which she aptly and accurately described as sexual abuse) were memorable, complex and emotionally disturbing, as is clear from the evidence of Ms CD and Professor Parkinson as to Ms Lin's demeanour and disposition when she recounted the fact that the accused had sexually abused her, thereby enhancing the quality of the freshness of the assaults in her memory.
I am well satisfied that the relevant representations are admissible for a hearsay purpose under s 66(2) of the Evidence Act.
Defence counsel sought the exclusion of the evidence under s 137 of the Evidence Act. He submitted that the probative value of the evidence of complaint is outweighed by the risk of unfair prejudice in that the jury will accord it undue weight in considering whether the Crown has established that the accused had a sexual motive to kill the deceased (or some of them). For this submission to succeed, it necessitates an assessment be made of the probative value of the complaint evidence. In my view, the evidence admitted both for hearsay purposes under s 66(2) of the Evidence Act and as capable of supporting Ms Lin's credit is strongly probative of the fact that the abuse occurred. The question whether the jury, under direction, are satisfied that it motivated or might have motivated the accused to kill is a question for the jury in the context of all of the evidence the Crown proposes to lead probative of the accused's guilt.
Since the evidence bearing upon proof of the accused's sexual motives to kill has been admitted, I can see no unfair prejudice of the kind with which s 137 of the Evidence Act is concerned by the admission of evidence that might, in the judgment of the jury, render that motive more acceptable because the complaint evidence is supportive of the primary allegation of sexual abuse by the accused of Ms Lin both before and after the murders.
The complaint evidence the Crown proposes to lead will be admitted.
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Decision last updated: 23 April 2018