Xie v R

Arguments on Appeal

1. The appellant's contentions on appeal about the admissibility of Dr Perlin's evidence went beyond the complaint about validation that was raised at the 2016 trial, although they included that complaint. In any event, they have all been addressed. [771] It is only necessary to note two further points.
2. First, the appellant submitted that examination of Dr Perlin and the relevant validation studies "would have shown that Dr Perlin's specialised knowledge" is limited in the way the appellant asserted in Ground 1. The evidence adduced on the voir dire before Johnson J demonstrated to the contrary, as did the evidence in this Court. In light of the confined challenge that was (ultimately) outlined to the trial judge at the 2016 trial, the extensive evidence on the voir dire before Johnson J that her Honour reviewed, and the decision in Tuite, her Honour was correct to determine (or indicate) that further questioning of Dr Perlin about validation was not required.
3. Second, the appellant's submissions under this ground included the contention that "[g]iven the instances where Dr Perlin in fact did not choose the highest match statistic for a particular inferred genotype to rely on, it may be doubted that he even has a subjective belief that picking the highest amongst inclusionary match statistics points to the correct contributor". (It was also contended that "[h]e certainly does not have specialised knowledge that it does".) [772] As noted above, Dr Perlin explained the basis upon which he reported a particular result. He provided a summary of that to the jury at the 2016 trial. [773] He did not articulate a "belief that [simply] picking the highest amongst inclusionary match statistics points to the correct contributor". Otherwise, this submission appears to be attacking Dr Perlin's honesty as a witness on a basis that was not put to him at the 2016 trial or on appeal when the opportunity and the obligation to do so arose.

Conclusion in Respect of Ground 2

1. At least some aspects of this ground reflect an argument raised before the trial judge. Accordingly, we grant leave to raise this ground of appeal but reject it.

Ground 3: Miscarriage of Justice

1. Ground 3 of the appeal contends that a miscarriage of justice was occasioned by the evidence given by Dr Perlin which was said to be "emphasised by the manner in which such evidence was addressed upon by counsel" and the trial judge's summing up. This ground seeks to invoke the third limb of s 6(1) of the Criminal Appeal Act. The written submissions in support of this ground identify a number of "failings" on the part of Dr Perlin which, although not cross referenced, seem to reflect various complaints which have been addressed above and rejected. For the sake of completeness, it is necessary to note them.
2. The appellant's submissions contended that those parts of Dr Perlin's evidence which revealed numerous examples of the prosecutor's fallacy gave rise to a miscarriage of justice. [774] Those contentions are addressed above.
3. The appellant's submissions contended that Dr Perlin's failure to explain that the match statistic "says nothing regarding the comparative likelihood of the relevant genotype matching a related person or someone with an incidentally similar genotype" and his failure to explain the supposedly limited extent of the validation studies in relation to relatives of donors gave rise to a miscarriage of justice. [775] The premise of both complaints has not been established. In relation to the former, the evidence, especially the slides, were clear in explaining that the match statistic involves a comparison to a random person in the (Asian) population. [776] Otherwise, so much of his evidence that involved comparisons to related persons concerned Brenda Lin and shadowing and the limits of that analysis were explained. [777] The latter complaint has already been addressed, [778] as has a related submission that Dr Perlin falsely stated that "TrueAllele had been independently validated for four related individuals". [779]
4. The appellant's submissions contended that Dr Perlin's expression of an "opinion that 'false' inclusions are rarely, if ever, seen with match statistics over 1,000" constituted a miscarriage of justice. [780] It was submitted that opinion was "used to convert a possible association of the reference samples with [Stain 91] to a positive identification". This was said to be "particularly misleading" when the supposedly billions of other potential genotypes "produced for persons who cannot have truly been the contributor to the particular separated out genotype under consideration". [781] As best as can be ascertained, the latter part of this submission is a reference to the alleged superior matching (theoretical) genotypes that the appellant contends TrueAllele ignored by using the distribution of the genotype of the reference sample in the population as the denominator. This contention has been addressed above. [782] It fails to address the statistical methodology that underlies TrueAllele which Dr Perlin repeatedly explained. [783] Otherwise, to the extent that the appellant refers to "false positives", Dr Perlin's evidence on that topic was supported by the validation studies and his evidence was that the concept of false positives include low match statistics, discordant results and results achieved by reason of "shadowing". [784]
5. A similar complaint concerns Dr Perlin's evidence in response to the question of whether "there's no possibility … that neither of them [Irene or Lily Lin] are in there". Dr Perlin said "[n]o, based on what I'm seeing". [785] Complaint is also made about his references to each of Min, Terry and Henry Lin's DNA being included in the sample. [786] It was submitted that he was not qualified to give that evidence and it was disproved by the case packet data produced on the voir dire. Both of those contentions have been addressed and rejected. Otherwise, it was conceded at the 2016 trial that each of Min, Terry and Henry Lin's DNA was present in Stain 91.
6. The appellant's submissions contended that Dr Perlin's failure to explain that "the relevant separate inferred genotypes are not a discrete full genotype but a list for each separated out contributor of alternative probabilities at each locus" occasioned a miscarriage of justice. [787] Dr Perlin did explain that and it was otherwise evident from slides 9 and 10. [788]
7. The appellant's submissions contended that Dr Perlin's failure to explain "to the jury the uncertainty of the data, the limitations of probability reasoning, and the particular problem of application of probability to something which has in fact already occurred (rather than predictive of future events)" occasioned a miscarriage of justice. [789] This submission does not appear to be tethered to any specific complaint. Instead, it simply decries the use of statistical evidence to determine the likelihood of the occurrence of past events. The entirety of Dr Perlin's evidence was devoted to the topic of explaining probability reasoning and uncertainty, as well as quantifying the latter. None of the appellant's complaints about any particular "limitation" on that evidence have been established. Otherwise, the use of statistical evidence in relation to DNA material, as well as the use of probabilistic reasoning to determine the likelihood of the occurrence of past events, is well recognised (GK; Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5 at [34]).
8. The appellant's submissions contended that Dr Perlin's failure to explain "to the jury the great number of applications of the system where multiple inclusionary results were produced, for the same inferred genotype, for multiple relatives" occasioned a miscarriage of justice. [790] This was explained to the jury [791] and no further explanation was warranted as it does not have the significance that the appellant asserts. [792] Similarly, the appellant contended that failing to reveal that in some instances "one person produced the highest match statistic for multiple or even all separated out contributors on the one run, [when there could] only have truly been one such contributor" occasioned a miscarriage of justice. [793] The misconceived premise of this submission has also been addressed. [794]
9. One part of the appellant's submissions under this ground complains that the trial judge disallowed a question where Dr Perlin was asked to confirm he has no basis to say "it was more or less probable that Kathy [Lin] can take her place in the slot of Irene [Lin]". The relevant part of the cross‑examination of Dr Perlin was the following exchange: [795] "[Counsel for the Appellant] Q. How do you know, or upon what basis can you say, that Irene is more probably included in the sample than, for example, Min's sister, Kathy, who you never ran and have no data about? A. Well, I can't because I have never ran her and I have no data on her. Q. Yes, thank you. For all you can say, it is equally probable that that person, Kathy, is in item 550 as Irene? HER HONOUR: Q. Does that follow, Dr Perlin, that the probabilities are on some ‑ by some statistical analysis, equal or is that not an analysis that can be meaningfully applied? A. I don't think there is enough information to answer the question. We do have a sister of Irene who was tested and that was Lily, and empirically we see that her match statistic is about 100‑fold less, so there we have some data. But I can't see speculating about other people who haven't been tested about what their match statistics would be. [Counsel for the Appellant]: Q. That's right, if I could return to this person that I have referred to as 'Kathy', which we could refer to as 'individual K', if Kathy is Min's sister, the fact is you cannot say whether or not it is more or less probable that Kathy can take her place in the slot of Irene? CROWN PROSECUTOR SMITH: Your Honour, I object. The witness has just said in terms of speculating. HER HONOUR: It is highly speculative, [counsel for the appellant], because Dr Perlin has never been asked, indeed there has been no suggestion or reference to date, to Min's sister taking a place as a contributor to the mix that became item 550. The doctor has said he doesn't have the information and any answer as to an assessment of the probabilities of Kathy Lin being in the mix is something that is, from his perspective, wholly speculative." (emphasis added)
10. Counsel did not press the question or seek a ruling. Instead, he proceeded to ask Dr Perlin about the sharing of alleles between Min Lin and his sister. [796] Later in his address to the jury, counsel for the appellant referred to this evidence and submitted that "[t]he issue there is simply that Kathy [Lin] was not run ... but is a person who, … , on the basis of what Mr Walton has told you, has a number of common types or alleles because of the blood relationship with Min [Lin]". [797]
11. The appellant's submissions contended that the emphasised question above was not impermissible and if it was answered that would have served to reinforce the limits of the analysis. We do not accept that the trial judge disallowed the question. Instead, her Honour only queried its utility. Counsel appeared to realise he had secured the evidence he needed then moved on. His address to the jury was based on that evidence. An affirmative answer to the emphasised question would not have enhanced the submission. The above passage does not reveal a miscarriage of justice.
12. The appellant's submissions contended that the failure of Dr Perlin "to reveal the information available to the witness about the possible gender of separated out contributors", as well as specifying "the limitations of probability", occasioned a miscarriage of justice. [798] As already explained, in addressing shadowing, Dr Perlin explained to the jury the significance of the relatively high match statistics for Brenda Lin being associated with even higher match statistics for her male relatives, ie, "shadowing male relatives" and being "carried on for the ride", [799] whereas Lily and Irene Lin were not. [800] Otherwise, to the extent that this is a complaint about the reporting of match statistics, it has also been addressed. [801]
13. The written submissions in support of this ground also repeated the various complaints about Dr Perlin's evidence in relation to shadowing, [802] all of which have been addressed. [803] No miscarriage of justice has been demonstrated. Only two matters should be noted.
14. First, one of the complaints concerns Dr Perlin's answer about whether Brenda Lin was shadowing her female relatives. [804] The only evidence to that effect was ambiguous in that Dr Perlin was asked whether she was either shadowing her female relatives or her male relatives and answered "yes". [805] This could have been an acceptance of both or either. In the remainder of his evidence Dr Perlin only referred to Brenda Lin shadowing her male relatives.
15. A related complaint was made in the oral submissions on appeal as part of the suggestion that Dr Perlin "entirely and inappropriately glossed over" the match statistics of 4.71 in row 13 and 3.16 in row 19, addressed above. [806] In particular, it was contended that a miscarriage of justice was occasioned by so much of the Crown Prosecutor's address that referred to Dr Perlin describing Brenda Lin as shadowing her male relatives for the four contributor runs because that was not the case for the four contributor runs listed in rows 13 and 19 of Annexure 1 [807] which are said to be female fractions. The relevant part of the Crown Prosecutor's address is set out at [179]. The reference in that extract to shadowing the male relatives for four assumed contributors was not tied to a particular inferred contributor on a particular run. The address reflected a sufficiently accurate summary of the overall effect of Dr Perlin's evidence at the 2016 trial. To the extent necessary, the summary of his evidence was confirmed by the evidence that Dr Perlin gave in this Court noted above. [808]
16. It was also contended that a miscarriage was occasioned because the trial judge's summing up repeated the supposed effect of Dr Perlin's evidence that Brenda Lin was shadowing her female relatives when that was said to be "patently wrong" and evidence Dr Perlin was not qualified to give. [809] The complaint of a lack of qualification has already been addressed. As for the balance of the complaint the relevant part of the summing up is set out at [182]. Although that summary refers, as Dr Perlin did in his evidence in this Court, to the similarities in allele pairs between all the relatives, the trial judge did not expressly state that Brenda Lin was shadowing her female relatives, only her male relatives. Again, the summing up reflects a sufficiently accurate summary of the overall effect of Dr Perlin's evidence at the 2016 trial. To the extent necessary, it was confirmed by the evidence that Dr Perlin gave in this Court noted above. [810]
17. Second, the appellant's submissions refer to Dr Perlin's opinion about the absence of shadowing to explain Terry and Henry Lin's match statistics. [811] At the risk of repetition, Dr Perlin rejected the suggestion that they were shadowing each other or their father because of the better separation that was achieved when a higher number of contributors were assumed and that did not occur with Brenda Lin's DNA. [812]
18. The balance of the complaints made in relation to this ground either concern Dr Perlin's approach to reporting match statistics [813] or concern the supposed uncertainty with the positive match statistics derived for Irene and Lily Lin. [814] Again, these matters have been addressed. [815]

Conclusion

1. We would grant leave to raise this ground of appeal, but reject the ground.

Ground 8 and DNA Evidence

1. As noted, Ground 8 of the appeal contends that a miscarriage of justice was occasioned by various "acts and omissions of the applicant's counsel at trial".

Particular (vi): The Concession that Min, Terry and Henry Lin's DNA was Present in Stain 91

1. Six of the particulars to Ground 8 concern the approach taken by counsel at the 2016 trial to the evidence of Dr Perlin. Each will be addressed in turn but it is appropriate to commence with the sixth particular which concerns the concession by trial counsel for the appellant that each of Min, Terry and Henry Lin's DNA was present in the DNA mixture obtained from Stain 91. [816]
2. As framed this ground of appeal seeks to invoke the third limb of s 6(1) of the Criminal Appeal Act. With this ground, the relevant inquiry is whether what occurred or did not occur at the trial occasioned a miscarriage of justice (TKWJ at [79] per McHugh J; Ali v R [2005] HCA 8; (2005) 214 ALR 1 at [18] per Hayne J; "Ali"). In some cases the alleged failings of counsel are of such magnitude that they cause the trial to become unfair, such as a failure to cross‑examine a critical witness or a failure to address the jury (TKWJ at [76]; Nudd v R [2006] HCA 9; (2005) 225 ALR 161 at [19] per Gleeson CJ and [87] per Kirby J; "Nudd"). The alleged failings in this case are not of that kind. Otherwise a determination of whether the alleged failings of counsel give rise to a miscarriage of justice requires a consideration of what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24] per Gummow and Hayne JJ; TKWJ at [31]‑[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J). In assessing the conduct of counsel, the relevant standard is whether or not the conduct was "incapable of rational explanation on forensic grounds" (Nudd at [16]; Hanna v R [2017] NSWCCA 168 at [17]).
3. In Matthews v R [2013] NSWCCA 187 ("Matthews"), this Court observed as follows about that inquiry (at [63]): "… First, there is vested in counsel for an accused person control over and responsibility for the manner in which the trial will be conducted (TKWJ at [74] per McHugh J). Second, relevant unfairness will not be established simply because an "apparently rational decision" by trial counsel produced adverse consequences for the accused (TKWJ at [16] per Gleeson CJ). Third, inquiries into the subjective thought processes of counsel for taking the steps they did at the trial are to be avoided. Instead the question is whether there could be a reasonable explanation for the course that was adopted at trial (Ali per Hayne J, with whom Gummow J agreed at [25]; TKWJ at [110] per Hayne J). If there could be such an explanation then no error or defect in the trial occasioning any miscarriage of justice is shown to have occurred (Ali id). Fourth, although the inquiry into whether there was an explanation for counsel's conduct is an objective one, there are some perhaps limited circumstances in which it is necessary for the appeal court to be apprised of material such as counsel's instructions (Nudd at [10] and [17] per Gleeson CJ)."
4. It is necessary to say something further about the third and fourth propositions and the general issue of the receipt of evidence in support of this ground of appeal. The third and fourth propositions in part reflect the practical problems that confront appellate courts in assessing the performance of trial counsel (Nudd at [10] per Gleeson CJ). Nudd and TKJW nevertheless recognised that in some limited class of cases it may be necessary for the appeal court to receive evidence of why counsel acted in the way they did. In Nudd, Gleeson CJ gave as an example that "it may be material to know that counsel took a certain course upon the instructions of the client" (at [10]).
5. This approach of limiting the receipt of evidence as to why counsel acted is to be distinguished, or is at least distinguishable, from the appeal court receiving evidence about the circumstances that counsel faced as part of an objective assessment of their conduct of the appellant's case.
6. In Nudd, the complaints against trial counsel included that he "failed to take appropriate instructions from the appellant" and "failed to appropriately advise the appellant in relation to giving evidence" (at [149]). The Queensland Court of Appeal received evidence from the appellant as to his version of events surrounding the offence (at [150]). Similarly, in Matthews this Court received evidence from the appellant as to the instructions he allegedly gave to his trial counsel (at [65]). That part of the appeal in Matthews was determined on the assumption that that evidence was accepted and the conduct of counsel was assessed objectively without receiving evidence as to why counsel took a particular course of action (at [69] to [74]).
7. In Vella v R; Siskos v R [2015] NSWCCA 148, this Court referred to the difficulty in addressing a complaint of this kind without, inter alia, evidence "of at least the material available to trial Counsel" (at [91]). In that case, an affidavit from trial counsel was read in response to a complaint that good character evidence should have been, but was not, adduced by trial counsel. So much of that affidavit that recounted "various items of evidence that were potentially available to the Crown to raise in response to any case on good character" and the instructions received from the appellant including his response to the Crown's material, was admitted and considered (at [96] to [97]). However, that part of trial counsel's evidence that involved his recollection of his assessment of the likely strength of the evidence available to the Crown to rebut evidence of good character was not considered (at [98]).
8. In this case, no evidence was filed from counsel who appeared at the 2016 trial explaining why he made the concession noted above. Given the principles outlined above and the nature of the complaints made that was not necessary and arguably such evidence would have been inadmissible. However, no evidence was filed concerning the evidence and material available to counsel which may have informed his decision and more importantly enabled an objective assessment of it to be undertaken. This is of significance to particular (vi).
9. At various times during the voir dire and the 2016 trial, reference was made to the fact that the appellant's legal team had available to them some form of expert in DNA. This was conceded on appeal. [817] It would appear to be highly relevant to an objective assessment of the conduct of counsel in making the concession the subject of particular (vi) to ascertain what expert advice was provided to him or her about Dr Perlin's evidence or TrueAllele. On the appeal, Senior Counsel for the appellant submitted that this material was not relevant because the assessment of counsel's conduct was to be undertaken "objectively". [818] This appears to be a reference to assessing counsel's conduct having regard to the attempt to relitigate the charges against the appellant afresh in this Court. This is not the form of objective assessment of the conduct of counsel envisaged by Nudd and TKJW. Instead, what is to be undertaken is an assessment of the conduct of counsel in the context of the trial that actually unfolded. To conclude otherwise would undermine the "accusatory and adversarial process" that is a criminal trial and to which this ground of appeal is a limited exception (TKJW at [106] per Hayne J).
10. One approach to this issue is to start with the proposition that the onus of proof of any relevant fact in relation to this ground of appeal rests upon the appellant. If an appellant fails to adduce evidence that is highly relevant to this ground then, leaving aside any particular inferences that might be drawn from that failure, it may be that the absence of that evidence will make the ground that much more difficult to establish (Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165] to [168]). To develop that approach would appear to require a conclusion that the raising of this ground of appeal involves a loss of client legal privilege over the subject matter of the ground under s 122(2) of the Evidence Act. In the end result, it is not necessary to decide these issues as particular (vi) fails without the necessity to consider anything that flows from the absence of evidence about what expert assistance was available to any of the counsel who appeared for the appellant at his four trials, including the 2016 trial.
11. In his address to the jury at the 2015 trial, Senior Counsel then appearing for the appellant referred to the evidence of Mr Walton and Dr Perlin and submitted that it "would allow for a comfortable conclusion that it is likely that the DNA on the floor was shed by Terry and Henry". [819] He pointed out that "Brenda, Terry, Henry spent time sweating in the garage" and that the appellant and Kathy Lin could not be excluded as minor contributors. [820] He submitted: [821] "So what we're left with is, you might think: Brenda, potentially; Henry; potentially; Terry, potentiality. There's your three major contributors, two males and a woman; six, seven, eight potentially …"
12. Further, at the 2015 trial, but in the absence of the jury, Senior Counsel appearing for the appellant accepted that the effect of the Yfiler evidence was that Min Lin's DNA may also have been present in Stain 91. [822] Mr Walton's evidence at the 2016 trial strongly supports that conclusion. His evidence pointed strongly to at least three males being present in the major component all with the Y profile of Henry, Terry and Min Lin. [823] Further, counsel at the 2016 trial had the benefit of Dr Perlin's evidence from the voir dire and the 2015 trial, as well as Annexure 1, which contained consistently high match statistics for each of Min, Terry and Henry Lin.
13. It was in these circumstances that trial counsel made his concession at the 2016 trial. It meant that he did not have to challenge Dr Perlin on an issue on which his evidence was particularly strong and which was also strongly supported by Mr Walton, namely the presence of Min, Terry and Henry Lin's DNA in Stain 91. Instead, it meant that counsel was able to focus on the possibility of Brenda Lin's DNA also being present, a contention that had at least some support in the match statistics in Annexure 1. The point is that there was little prospect of anything being gained by trying to eliminate one of the male deceased's DNA from Stain 91. The major goal was to have the prospect of a non‑deceased's DNA being present in Stain 91 as that would render the evidence irrelevant in supporting the Crown's circumstantial case. Given these matters, it follows that counsel's concession was certainly not "incapable of rational explanation on forensic grounds" (Nudd at [16]). This particular is not made out.

Particular (i): Prosecutor's Fallacy

1. The first particular of this ground is that a miscarriage of justice was occasioned by trial counsel's failure "to object to Dr Perlin's evidence engaging in the Prosecutor's Fallacy". As it is not accepted that Dr Perlin engaged in that fallacy, this complaint falls away.

Particular (ii): Expansion of Johnson J's Ruling

1. The second particular of this ground is that a miscarriage of justice was occasioned by trial counsel's failure "to object to Dr Perlin's evidence which went beyond the ruling of Johnson J and the expansion of that in the 2015 trial". Given the above findings about the scope of the ruling by Johnson J, this complaint also falls away.

Particular (iii): Cross‑Examination of Dr Perlin

1. The third particular of this ground is that a miscarriage of justice was occasioned by trial counsel's "[f]ailure to cross‑examine Dr Perlin to expose the limitations of his opinions", being the limitations explained in the appellant's written submissions. The suggested limitations have all been addressed.

Particulars (iv) and (v): Validation Studies

1. The fourth particular of this ground is that trial counsel failed "to understand the relevant validation studies Dr Perlin was cross‑examined about, so as to take issue with Dr Perlin's incorrect evidence about independent validation for four and five related contributor mixtures". A contention that trial counsel failed to "understand" something goes nowhere. In any event, the essence of the particular is a failure to cross‑examine Dr Perlin about his evidence on validation. The fifth particular of this ground concerned the consent given to the tender of "Exhibit GD" which listed the various validation studies under headings. [824] Given the above analysis of this topic these complaints are also untenable. [825] The only demonstrated misdescription in Exhibit GD was the description of the Australia Validation Report as relating to more than three contributors (although Mr Walton's evidence was that it had been validated in NSW for four contributors by the time of the 2016 trial). [826] Counsel's failure to detect and correct the misdescription of that study in Exhibit GD did not occasion a miscarriage of justice.

Balance of Ground 8

1. The balance of this ground is addressed below after a consideration of Grounds 4 to 7.

Rulings on Evidence Adduced on Appeal

1. There remains to be addressed the admissibility of the further evidence from Dr Perlin, Professor Gill and the appellant's solicitor that was admitted provisionally on appeal.
2. The Crown contended that none of that evidence answered the description of "fresh" or "new" evidence and it was all therefore inadmissible. In MRW v R [2011] NSWCCA 260 at [46] ("MRW"), Bathurst CJ identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely: "First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial …; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant."
3. With the first question, where the material in question is evidence that was in existence as at the time of the trial, the relevant issue is whether that material "could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case" (Ratten at 516 per Barwick CJ). If the material does not meet the first of the above tests, that is, if it is not fresh evidence but only new evidence, then there would only be a miscarriage of justice if the appellant satisfies this Court that the new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520).
4. The appellant addressed the admissibility of the further evidence adduced on appeal in a submission dated 8 October 2019. The submission referred to ss 12(1)(b) and (c) of the Criminal Appeal Act which enables this Court "if it thinks it necessary or expedient in the interests of justice" to order any witness who was a compellable witness at the trial to be examined or receive the evidence, if tendered, of any witness who is not so compellable.
5. In those submissions, the appellant sought to identify two classes of cases in which further evidence was received with the first being the receipt of "fresh" or "new" evidence. The second class was said to be typified by the decision of this Court in Cesan v DPP (Cth) [2007] NSWCCA 273; (2007) A Crim R 385 ("Cesan") where evidence was sought to be tendered as to the conduct of a trial judge in falling asleep during part of a trial and the medical condition that caused that to occur (at [21] to [22]). Evidence of the former was objected to by the respondent on the basis that it was neither fresh nor new evidence. Basten JA dissented on the outcome in this Court but that outcome was reversed in the High Court (Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52). For present purposes, it suffices to note the following analysis by his Honour of the basis for the receipt of that evidence by this Court which appears to have been accepted by the other members of the Court (at [178] per Grove J and at [216] per Howie J): "24 The language of s 12(1) [of the Criminal Appeal Act] is curious in some respects, but it was not suggested that the Court did not have power to take the evidence tendered in the present case. Rather, it was said that in accordance with well-established discretionary principles, the Court should only accept the evidence if it could properly be regarded as fresh evidence, that is evidence which was not available at the time of trial and could not with reasonable diligence have been obtained at that time. The Director also argued that the evidence was irrelevant to the case sought to be presented, which at that stage relied on principles analogous to those underlying apprehended bias. As will appear below, the evidence called by the Appellants was relevant to the case as the argument was developed, within the terms of s 55 of the Evidence Act 1995 (NSW). 25 As explained by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520, the manner in which evidence should be considered on a criminal appeal will depend significantly on the issue sought to be raised. For example, as his Honour noted at p 520: 'To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence.' 26 Quite different considerations arise where the new material is put forward, not in contradiction of the jury's verdict, or as inconsistent with the evidence called below, but to demonstrate that for some reason the trial departed from the essential requirements of the criminal process, or was in some other respect procedurally unfair. In some cases, the basis of a complaint may be apparent from the transcript. In other cases that will not be so and in those cases the Court should be slow to exclude evidence which would provide the only proper basis upon which the legitimacy of the challenge could be assessed. In the absence of binding authority to the contrary (and no authority was relied upon) the Court was satisfied that the evidence should be admitted." (emphasis added)
6. This extract confirms that the power conferred by s 12(1) of the Criminal Appeal Act to, inter alia, receive further evidence "if it thinks it necessary or expedient in the interests of justice" to do so is not a free standing power to receive evidence, but one which must be exercised having regard to the particular ground of appeal (which in turn will reflect one of the three limbs of s 6(1)). The "interests of justice" in this context are a reference to properly determining the relevant ground of appeal according to law.
7. Thus, if what is sought to be done is, to use Basten JA's phrase, "contradict … the jury's verdict", that is contend that there was other evidence not adduced at the trial that undermined the Crown case or pointed to the innocence of the accused, then the rules concerning fresh and new evidence are engaged. In this case, to the extent that any of the additional evidence was sought to be deployed on appeal in support of Grounds 1 to 3 then it was only being done for the purpose of attempting to relitigate so much of the 2016 trial that concerned the admission and treatment of DNA evidence concerning Stain 91. Hence to the extent that evidence is sought be adduced on appeal in support of those grounds, then its admission is governed by the rules pertaining to fresh or new evidence.
8. However, the above discussion in relation to Ground 8 suggests that there is scope for the reception of evidence on appeal that is not necessarily fresh or new but which may establish what the position of counsel was when they committed the relevant act or omission said to have caused a miscarriage of justice or which may tend to establish what the effect of that act or omission was on the trial process. It is not necessary to explore the limits of those possibilities on this appeal.

Ruling on Dr Perlin's Evidence

1. As noted, Dr Perlin's report dated 19 May 2020, and his oral evidence, was received provisionally. [827] Even though the Crown retained Dr Perlin to provide his report, it contended that his report and his oral evidence was inadmissible. It follows from the above that, to the extent that this evidence concerns Grounds 1 to 3, then it is only admissible if it meets the test for fresh or new evidence. The evidence was not fresh in the sense that Dr Perlin only either reiterated or expanded upon the evidence he gave at first instance. Otherwise, none of his evidence on appeal came close to demonstrating a "significant possibility that the jury acting reasonably would have acquitted the appellant" (MRW at [46]), much less that the appellant was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 520). To the contrary, the evidence only served to reinforce the effect of the evidence adduced at the 2016 trial. Dr Perlin's evidence on appeal is not admissible in support of Grounds 1 to 3.
2. However, so far as Ground 8 is concerned, Dr Perlin's evidence is admissible in that it addresses what would have ensued had trial counsel for the appellant taken the various steps identified in the particulars to that ground. The fact that it would only have served to reinforce the evidence adduced at the 2016 trial does not mean that it is not admissible on this basis. Accordingly, the evidence will be admitted but subject to a limitation under s 136 of the Evidence Act restricting its use to Ground 8 of the appeal.

Ruling on Professor Gill's Appeal Report

1. As noted, the report of Professor Gill dated 25 October 2019 was also admitted provisionally with its status to be determined in this judgment. In particular its tender was received by the Court subject to it being "determin[ed] whether the evidence is admissible in accordance with the principles concerning the admission of new and fresh evidence on appeal" and the Court being satisfied Professor Gill has the requisite specialised knowledge to express certain opinions set out in the report. [828] It follows from the above that Professor Gill's report is not "fresh". Further, considered by itself or with other evidence it neither establishes a significant possibility that a jury acting reasonably would have acquitted the appellant, much less that the appellant was innocent or that his guilt was not established beyond reasonable doubt. Further, none of the particulars to Ground 8 contend that trial counsel should have obtained evidence from Professor Gill or evidence from another source to the same effect. Accordingly, the tender of Professor Gill's report is rejected.

Ruling on Part of the Affidavit of Frances Low Affirmed 18 June 2020

1. As noted, at the hearing of the appeal an affidavit was read from the applicant's solicitor which, inter alia, annexed the Master's Thesis and the Greenspoon article concerning validation, they being articles referred to in Exhibit GD. Again, this evidence was admitted provisionally. [829] Given that both articles pre‑date the 2016 trial, neither of them amounts to "fresh" evidence. Further, neither of them considered individually or with other evidence demonstrate a significant possibility that a jury acting reasonably would have acquitted the appellant, much less that the appellant was innocent or that his guilt was not established beyond reasonable doubt. It follows that they are not admissible in support of Grounds 1 to 3. However, they have some relevance to particulars (iv) and (v) to Ground 8 in that they represent material that might have been the basis for counsel to contest the accuracy of Exhibit GD and cross‑examine Dr Perlin. They will be admitted for that limited purpose.

Accusations Against Dr Perlin

1. Finally, in relation to these grounds it is necessary to record the fate of certain accusations that were made against Dr Perlin. Various interlocutory applications were made on behalf of the appellant during 2019 which resulted in the procuring and provisional receipt of additional evidence on the appeal, including evidence from Dr Perlin. The submissions made in support of those applications levelled very serious allegations against him. For example, it was submitted that at first instance he had presented his evidence in a manner that was "designed to deflect understanding of the limitations of the [TrueAllele] system in this case" and that the points raised by the appellant were "issues of significance which … [were] ... covered up by Dr Perlin to hinder exposition". [830] During the appeal, Senior Counsel for the appellant confirmed that these allegations were maintained. [831] However, despite Dr Perlin giving oral evidence over two days in this Court, these allegations were not put to him save for the (untenable) suggestion that he deliberately refrained from advising the jury at the 2016 trial of two of Brenda Lin's match statistics listed in Annexure 1. [832] On the last day of submissions, and after the Court observed that these matters were not put to Dr Perlin in cross‑examination, it was confirmed that the allegations of impropriety were not pressed. [833] It suffices to record that no allegation of impropriety was ultimately pursued against Dr Perlin and no basis for such an allegation was apparent on the material before this Court.

PART 7: Ground 4 - the "CSI Effect"

1. Ground 4 of the appeal contends that her Honour misdirected the jury in providing a warning regarding the "CSI Effect".
2. This ground is concerned with directions the trial judge gave the jury about their assessment of evidence pertaining to the crime scene at the Boundary Road home. It was a crime scene of considerable complexity and that was for a variety of reasons including the number of deceased, the way their deaths were caused and the nature of the weapon the Crown theorised had been used. There was evidence from specialists in the examination of crime scenes and experts on aspects deduced or derived therefrom.
3. The directions that are impugned under this ground were described, polemically, in the appellant's written submissions as "a protective CSI warning in favour of the Crown". [834]
4. The directions followed the trial judge first giving a direction about expert witness testimony in unimpeachable terms. [835] That was followed by broad observations about some of the expert evidence in the case. [836] Next, the trial judge summarised the Crown and defence cases relating to the crime scene. [837] Her Honour then allowed the jury a short mid-afternoon break before continuing with the impugned directions. [838] Just before taking that break, her Honour said to the jury: [983] Let me take pause. I am going to give you a direction which is to alert you, this will wake you up, will alert you to what has become a familiar concept for judges working in this division, and that is something called the "CSI effect".
5. Following the short break, her Honour gave the following directions: [986] All right. Ladies and gentlemen, you should be astute not to expect the crime scene evidence in this trial, that is the evidence from the experts to whom I have referred, inclusive as you would understand of the two forensic pathologists, Dr Irvine and Dr Collins, you should be astute not to expect of that body of evidence, adduced as it has been and tested as it has been in this trial, to have anything like the scientific certainty that is reproduced in the crime scene examinations that feature in fictional police or crime scene dramas on television or on film or in crime novels. [987] The forensic treatment of a crime scene examination in a fictional setting is, as you know, only too well, far removed from the reality of a crime scene examination, and certainly far removed from the reality of adducing of the evidence of a crime scene examination in the real time and the real setting of a criminal trial. [988] As viewers of fictional works or readers of crime novels, we have all experienced the comfort of a random hair or an unidentified fingerprint, the mark of a weapon in blood or the mark of a weapon in residue in some other material inadvertently being left behind by a killer and cleverly and quickly identified by crime scene officers in their dramatic roles and usually quickly, at least within the timeframe of an hour-long police drama, a little longer if it is a film, and slightly longer again if you are reading a book, but usually quickly, leading to a suspect being charged and perhaps even convicted or perhaps a person being exonerated. [989] We all may be comforted or intrigued by the way in which evidence, collected and collated from a fictional crime scene, is treated by the script writers providing, as so often it does, the basis for a neat dramatic solution to a fictional plot. Ladies and gentlemen, it bears emphasis, that that is the world of film and television where a narrative unfolds in an hour or more according to the manipulated story-lines, and a carefully constructed script. That is not the real world. [990] Not only does criminal trial process, as you know first-hand, take measurably longer but, ladies and gentlemen, in a criminal trial there are no scripts and there are no story lines. For that reason, when you are considering whether the Crown has proved its case beyond reasonable doubt, you should not penalise the Crown if you think there are questions left unanswered by the crime scene analysts, or if you think the physical evidence in residue, that is, evidence available to be collected in the crime scene itself, does not provide the level of certainty you might have thought it should. [991] What happens in a criminal trial process where the burden of proof rests on the Crown from beginning to end is the Crown presents the available evidence. The Crown does not style the evidence. The Crown does not script a case. The police do not, as Mr Gaitanis [defence counsel] might have suggested it to you in a submission, write, and I quote him, 'write a narrative in search of an author'. It would be quite wrong for you to approach any aspect of your consideration of the police investigation into these murders, including the investigative strategies that were employed, including what Detective Sergeant Maree [officer‑in‑charge of the investigation] said was a considered decision to use Witness A, as if the police were, and I quote Mr Gaitanis again 'writing a narrative in search of an author'. [992] The evidence collected by various crime scene officers, and the challenge they faced in isolating discrete areas within gross areas of bloodstaining for sampling purposes ultimately for DNA profiling purposes, presented particular challenges for each of Detective Harkins, Dr Raymond, Mr Walton and Dr Perlin. The number of deceased people, the amount of blood shed by them, the likely mixture of their blood within the rooms in which they were found and throughout the crime scene, at least in the upper floor of Boundary Road, together with the multiple sites on the deceased's bodies of blunt force and asphyxial injuries, presented real challenges for the forensic pathologist in examining the bodies of the deceased at post-mortem and the collection, collation, ordering and assembling of the samples taken from crime scene. [993] Mr Harkins' analysis of the crime scene - and you know he did not go to the Crime Scene; instead he utilised the photographs, and there are literally masses of them taken by crime scene officers. He also, of course, reviewed crime scene videos and some of the photographs of items taken from crime scene, most recently being the clothes worn by Mr Min Lin. He utilised and drew from that evidence the opinions which were ultimately expressed in his conclusions about various issues. [994] Detective Harkins' evidence was tested by Mr Gaitanis, and quite properly. Mr Harkins' evidence, together with the evidence of Dr Raymond, Mr Walton and Mr Squire, to a limited extent, has been the subject of focused closing submissions by both counsel. Counsel's addresses about the way in which crime scene was interrogated and what it was capable of revealing about the circumstances in which the deceased were killed, had to be, because counsel know their responsibilities, confined to the evidence and the competing inferences that they contend arise from the evidence. Your analysis of the evidence of those witnesses is similarly confined. You should not, therefore, consistent with probably one of the first directions I gave you on Thursday, you must not speculate as to what the evidence might have revealed if the primary crime scene evidence was something more than what it was or is, and even if the work of the primary crime scene officers in sampling various of the blood deposits left questions unanswered in your thinking. You must not, for any purpose, fill in gaps in the evidence. You are bound to apply your analysis to the evidence. [995] Having said that, in giving you that direction and reminding you of it before I launch, tomorrow, into the crime scene evidence, you should not assume that I am suggesting, because I am not, that there are any unanswered questions, or that there are any other lines of inquiry that ought to have been undertaken by anybody. [996] If you consider that the physical evidence collected and collated from the crime scene, which is my way of describing what crime scene officers did, and the analysis given to it by Detective Harkins, Dr Raymond, to a lesser extent Mr Walton and Dr Perlin and Dr Irvine of course and Dr Collins, applying their own particular expertise does, in the end, in your judgment, support the opinions they each expressed about the matters in issue in this trial, including the number of killers, the sequence in which they were killed and the weapons or the primary weapons used to kill the deceased, and that is evidence you are prepared to consider as part of the Crown circumstantial evidence case, then that is the approach you should take to it. And, if you consider that the evidence does not have that force, then that is the opinion that you will have of that evidence. I remind you, however, that you are obliged to confine your consideration to what the evidence is, not what you think the evidence should be. [997] Most importantly, you should not allow your consideration of the crime scene evidence in this trial and how it was maintained, managed, collected, collated, tested and analysed to be influenced by the presentation of evidence in a fictional context where answers are always part of the unfolding plot line or narrative and where there is always an answer. We would not bother reading to the end of a crime novel if we were left completely hanging, neither would we turn the television on again, if a crime scene box set or a full-length movie left too many questions unanswered because we go into the fictional setting for the comfort that the narrative gives us. [998] In giving you that direction, which has come to be styled as the 'CSI direction', as you would understand to be for obvious reasons, it is not something, ladies and gentlemen, that I have invented. It is a direction that I have determined to give in this trial, informed by academically-based research of exiting jurors from other trials in this State, other States of the Commonwealth and other parts of the world where, under the supervision of a disciplined academic analysis, informed researchers endeavoured to determine, from exiting juror polls, whether the CSI effect has in some way, influenced their verdict. [999] In giving you a direction that you should be wary of being influenced by what I call the CSI effect and you now, I am sure, understand what I mean by that, it is not because of any personal view that I hold, as you would gather, about crime scene dramas. As it happens, I quite like them. But because of the academic researches that reflects the fact that there is a recognised danger that exposure to a plethora of TV shows and movies might lead a jury, and I do not want it to lead you, to expect that the real world should match the fictional world.
6. Her Honour proceeded to provide the jury with a broad summary of evidence pertaining to various aspects of the crime scene examination before adjourning for the day. [839] The following morning there was an application by the appellant's counsel for a discharge of the jury on account of the "CSI direction" but it was refused. [840]

Appellant's Submissions

1. The appellant contended that this was a misdirection for the following reasons: [841] "The direction was protective of the interests of the Crown and not the appellant. The direction was not one suggested as appropriate by authority or by legislation and was not sought by either party. The direction (or warning) effectively conveyed to jurors that if they should have a doubt about the cogency of any aspect of the forensic evidence they should realise that, for reasons known to the Court but not the juror, such doubt may not be one they should trust. The direction further conveyed to jurors that if they should have a doubt about the combined effect of the Crown's circumstantial case, because of the absence of clear forensic evidence linking the appellant with the murders, they should realise that, for reasons known to the Court but not the juror, such doubt may not be one they should trust."
2. It was submitted that the direction (or warning) "was not required as an aspect of her Honour's obligation to ensure the fairness of the appellant's trial or that the jury understood the law, the parties' cases, the real issues or the evidence". It was submitted that the direction "intruded into the jury's role in determining facts, and was particularly problematic in such a forensically heavy case, and as it was not a point advanced by the Crown (to which the defence could have responded)". [842]
3. It was accepted at the hearing that the focus of the direction was upon the examination of the crime scene at the Boundary Road home. Mr Walton and Dr Perlin were mentioned in the course of the direction, but the focus was upon the origin of what they analysed rather than the analyses they carried out themselves, particularly in relation to Stain 91. Nevertheless, it was submitted that this did not diminish the complaint that the direction had the effect of diverting the jury from a critical assessment of matters based upon the Boundary Road crime scene that were "hotly contested" by the appellant "such as the order of the killings, whether there was only one person and the like". [843]
4. Submissions were also made about the basis, or lack of basis, for the direction. The appellant's initial written submissions referred to articles it was contended would show that research did not support, but in fact detracted from, the need for a direction in the terms given by the trial judge. [844] In further written submissions filed just before the hearing, it was contended that this ground could and should be upheld without resorting to the articles. [845] Ultimately, at the hearing, the appellant accepted that the articles were irrelevant. As there distilled, the submission was that the ground would be upheld if the Court accepted that the direction had the effect of diverting the jury from any doubt it may have had about any aspect of the forensic evidence components of the Crown's circumstantial case, or the combined effect of the circumstantial case. [846]

Crown Submissions

1. The Crown contended that the direction was limited and introductory to the jury's analysis of the crime scene evidence. It had no application to anything beyond the scene of the murders at the Boundary Road home. [847]
2. It was submitted that the effect of the direction was merely to warn the jury not to speculate about the evidence; in particular about what DS Harkins and Dr Raymond might have been able to give evidence about if the crime scene had been documented differently. [848] It reinforced a conventional direction at the outset of the summing up that "neither speculation, innuendo [nor] guesswork must be permitted to influence your consideration of the evidence". [849]
3. The Crown also argued that the direction must be seen in the context of the jury having sat through 100 days of trial - they were well aware, by that point, of the differences between crime scenes in fiction and reality. This was said to pick up on a suggestion by the defence at trial that the police officer in charge of the investigation was "writing a narrative in search of an author". [850] The trial judge was simply reiterating that the jury should not speculate about the evidence by distinguishing works of fiction in which there is always an answer.

Consideration

1. The "CSI effect" is a concept that has been discussed in the context of a concern about greater weight being attached to forensic evidence than is warranted. The concept has also been referred to as the "white coat effect". See, for example, Morgan v R [2011] NSWCCA 257; (2011) 215 A Crim R 33 at [145] (Hidden J) and R v MK [2012] NSWCCA 110; (2012) 223 A Crim R 672 at [37] (Beech-Jones J). That is not what this ground is concerned with. The appellant's case is the opposite; a concern about the jury being encouraged to dismiss any doubt it might have arising from some perceived deficiency in the forensic evidence.
2. The basis of her Honour's references to a "CSI effect" is not apparent. Nor is it apparent what her Honour was referring to when saying the concept was familiar "for judges working in this division" and that she had determined to give the direction, having been "informed by academically-based research of exiting jurors". Nevertheless, the gravamen of the ground is not whether there was an authoritative foundation for the direction; it is whether the direction may have caused the trial to miscarry because it had the potential to divert the jury from a proper assessment of a significant body of evidence in the Crown case. There is no doubting the significance of the evidence; it related to matters of importance as referred to by the judge: "the number of killers, the sequence in which they were killed and the weapons or the primary weapons used to kill the deceased". [851]
3. It is essential in considering a ground such as the present to consider the summing up of the trial judge as a whole as opposed to focussing upon sentences or parts of sentences in isolation from their context: Selby v R [2017] NSWCCA 40 at [41]; A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174 at [1038].
4. At a very early point of the summing up, the trial judge gave some general directions about the need for the jury to have regard to the evidence. The directions included the following: "[29] In discharging your sworn or affirmed duty as the jury in this trial and, in your role as the judges of the facts - and I will have something to say about that in a moment - it is the evidence which you must consider for what it proves, or what it might leave you in doubt about as to a number of issues, including when the deceased were killed; how they were killed; and of course the ultimate question, whether the Crown has satisfied you beyond reasonable doubt that it was the accused who killed them. [30] In undertaking that inquiry into the evidence - and I mean all the evidence - for what it proves about those issues and what, if anything, the evidence leaves you in doubt about, your consideration of the evidence must be entirely dispassionate and impartial. Your consideration of the evidence must always be anchored, or tethered to a reasoned judgment. [31] When you are considering the many issues in dispute in this trial, some of them very confronting, there is no room for speculation, innuendo, or guesswork about what the facts are, and no room for a capricious, or uninformed rejection of any of the evidence, of any of the witnesses who have given evidence about the facts in dispute in this trial, whether they are lay witnesses, that is ordinary people, police witnesses, or expert witnesses. It would be quite wrong for you to capriciously, or on some basis of emotion, reject or accept, the evidence of any witness. Your analysis of the evidence must be, and I repeat, tethered, or anchored to a reasoned judgment." (emphasis added)
5. These directions were of general application; the impugned direction was specifically based upon the examination of the crime scene at the Boundary Road home. The instruction of general application was carried through to that specific subject with the addition of some other matters. In its essence, the direction conveyed the following:

• The jury should not expect there to be scientific certainty in the crime scene evidence as occurs in fiction. In determining whether the Crown has proved its case beyond reasonable doubt, the jury should not expect the level of certainty in the crime scene evidence as jurors might have seen in fiction. In a criminal trial, the Crown does not "style the evidence" or script a narrative of its choosing. The real world does not match the fictional world. [852]
• The Boundary Road crime scene was complex and challenging. [853]
• The attention of counsel in closing addresses was upon the evidence as it was. The jury must similarly confine itself. If questions were left unanswered, the jury must not speculate about what the answers may have been. The trial judge was not suggesting that there necessarily were unanswered questions. [854]
• If jurors thought that the crime scene evidence supported the opinions of the experts, it was open to them to consider it as part of the Crown's circumstantial case. If jurors thought otherwise, then so be it. There was, however, an obligation to confine consideration to what the evidence was, not what it should be. [855]

1. A major thrust of this ground was encapsulated in the final paragraph of the appellant's initial written submissions, that the trial judge had given a "protective CSI warning in favour of the Crown". [856] It was submitted at the hearing that the directions were "very firmly in favour of not penalising the Crown in connection with this body of evidence" with "nothing to balance that in any way in respect of the interests of the accused". [857] These contentions do not withstand scrutiny, particularly when regard is had to the trial judge having said that if the jury considered that the crime scene evidence supported the opinions expressed by the expects, then that is the view they should take, but: [858] "If you consider that the evidence does not have that force, then that is the opinion that you will have of that evidence." Having regard to the directions as a whole, we are not satisfied that there was a risk of the jury being diverted from a proper assessment of the Boundary Road crime scene evidence, or a risk of the jury being led to believe that they should not trust any doubt that they might have.
2. There may be room for debate as to whether the direction was necessary. We certainly should not be taken as stating that it is desirable that a direction of this nature be given in all cases involving complex scientific evidence. However, for the reasons we have given, whether the direction was necessary or otherwise it did not result in a miscarriage of justice.
3. We would grant leave under s 5(1) of the Criminal Appeal Act to raise this ground of appeal, but reject it.

PART 8: Ground 5 - Consciousness of Guilt

1. Ground 5 of the appeal contends that a miscarriage of justice resulted from the direction given to the jury in relation to the appellant's alleged consciousness of guilt. In particular it was contended that: (a) The trial judge failed to give an adequate warning about the possible conduct of innocent people; and (b) The summary of relevant factual matters was unbalanced in favour of the Crown.
2. The appellant referred to the Crown relying upon three bodies of evidence as giving rise to an inference of consciousness of guilt: [859] 1. The appellant's conduct in various respects on 18 July 2009. 2. The appellant's destruction of shoeboxes in May 2010. 3. The appellant's discussions with Witness A about a "Plan B".
3. The way the appellant's case was crystallised in relation to this ground made it apparent that there are two different complaints concerning different evidentiary subjects. Ground 5(a) is an assertion that the trial judge failed to direct in accordance with authority about the use the jury could make of (2) and (3) above. Ground 5(b) is an assertion that the summing up was unbalanced in respect of certain aspects of (1) above.
4. The appellant acknowledged that Rule 4 of the Criminal Appeal Rules applied to both sub-grounds because no issue was raised at the trial. It was submitted that the Court should allow this ground because there had been a miscarriage of justice. [860]

Ground 5(a)

1. Ground 5(a) involves the asserted failure of the trial judge "to give an adequate warning about the possible conduct of innocent people". Her Honour failed to give a direction that [861] "there may be many reasons why an innocent man might in the [appellant's] position have destroyed the shoeboxes or discussed Plan B with Witness A - such as to avoid an unjust conviction."
2. It was submitted that the evidence on these subjects invoked reasoning like the lies considered by the High Court of Australia in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63. Accordingly, the protective aspect of the Edwards direction was required to avoid a miscarriage of justice and was not given. [862]
3. The appellant referred to the written directions provided by the trial judge: [863] "Consciousness of guilt 1 The Crown relies upon the conduct of the accused in a number of different ways and in a number of different contexts after the murders as evidence from which you would infer that he was conscious of having killed the deceased and, with that state of awareness, he did things (or said things) which either reveal his guilt, or he did things and/or said things in an attempt to conceal his guilt. 2 You must not draw any inference of that kind from the accused's conduct (whether actions or words) you do not find established by the evidence. 3 If you are satisfied that the particular conduct of the accused relied upon by the Crown as supporting an inference of guilt is established by the evidence, you must only draw the inference contended for by the Crown if you are satisfied that the aspect of the accused's conduct you are giving consideration to cannot rationally be explained other than by the accused's self-conscious awareness that he had murdered the deceased. 4 If you are satisfied that the conduct relied upon by the Crown as evidencing a consciousness of guilt is supported by the evidence, and there is no rational explanation for that conduct other than the accused's self-conscious awareness of his guilt, then that is evidence you can take into account, together with the other evidence in the Crown case, in determining whether the Crown has proved the guilt of the accused beyond reasonable doubt. 5 If you consider that the specific conduct of the accused you are giving consideration [to] might reasonably be explained for reasons unrelated to a self-conscious awareness of guilt, or an attempt to conceal his guilt, then you could not draw the inference that the Crown contends for and you would disregard the Crown's submissions about that conduct in your deliberations to verdict."
4. It was necessary for the written direction to be in broad enough terms to cover two types of conduct that the Crown relied upon for this mode of reasoning: conduct which the appellant admitted but for which he advanced an alternative explanation and conduct which he disputed. For example, he admitted to the destruction of shoeboxes but had an innocent explanation for it, while he denied the Crown's inculpatory characterisation of the Plan B issue.

Destruction of shoeboxes

1. As mentioned in the earlier review of the Crown case, a circumstance relied upon by the Crown was that the appellant owned a pair of ASICS Gel Evation II sports shoes. [864] It was one of only three ASICS sports shoe models capable of leaving 20 sole impressions in blood found in the crime scene in the upper storey of the Boundary Road home. [865] His shoe size was 9.5 and the impressions were thought to be in the range of shoe sizes 8.5 to 10.5. [866]
2. The following summary of the Crown case in relation to the shoebox destruction is derived from the Crown's closing address. [867]
3. Kathy Lin, the appellant's wife, was spoken to at the NSW Crime Commission on 6 May 2010 in the presence of her solicitor. They were told that the investigation had revealed there was a single male killer who was wearing an ASICS sports shoe of a consistent size. The Crown case was that this information was passed on to the appellant by either his wife or the solicitor. That night, a surveillance device in his home captured him destroying shoeboxes. He cut them into small pieces and put them into a bucket of water, which he then poured into the toilet.
4. Kathy Lin had given evidence that the family kept shoeboxes for storing other shoes. She put a blue sticker on the box on which was written the relevant family member's name and the type of shoe. It was the Crown case that multiple shoeboxes were destroyed on this night by the appellant, potentially three because three blue stickers were recovered by police when they carried out a search. They each bore the appellant's name.
5. The Crown argued that, because Kathy Lin was present, the appellant would not have merely destroyed the box that related to his pair of ASICS Gel Evation II shoes. He could not explain in innocent terms why he destroyed the box for a specific pair of shoes; that which he wore during the murders. Consequently, he destroyed multiple ASICS shoeboxes and maintained a façade to his wife that he was doing so out of fear of being set up by the police.
6. The Crown submitted that the appellant destroyed an ASICS Gel Evation II shoebox because it was the last link to his possession of the shoes that he had worn during the murders. He previously got rid of the shoes but, with the information he received on 6 May 2010, he needed to get rid of the shoebox. The Crown Prosecutor anticipated a defence submission that the appellant was under considerable pressure because he was concerned that he was a suspect and was going to be framed for the murders. She submitted that fear of being framed was part of a story he was conveying to his wife. It was the Crown case that the appellant was under pressure, but that was because of his knowledge that he was responsible for the murders.

Witness A and Plan B

1. Another component of the circumstantial case, also supporting an inference of consciousness of guilt, was the appellant's engagement in prison while on remand with a person referred to as "Witness A". The Crown case, which we have previously noted briefly, [868] was summarised in more detail by the appellant's counsel at the hearing: [869] "Witness A set about to cultivate an impression in the applicant that he, Witness A, could assist the applicant by irregular means to deal with his murder charges. To begin with, he falsely told him that a friend had arranged for one of the witnesses in his own case to be approached and a threat or implied threat made such that the person had withdrawn their evidence and the charge was withdrawn. He did this with a plan in mind to get information from the applicant with the intention of passing it on to the police. As time went on, with input from the police, the discussions regarding the prospect of irregular means of dealing with the applicant's charges became more varied and complex with varying degrees of delinquency and some more realistic than others. At one end of the spectrum, a connection of a corrupt police officer would be used to obtain evidentiary items like reports obtained by the prosecution more quickly. At the other end, a person innocent of these charges but a deceased person who was a criminal might be framed by the use of incriminating evidence. All of this irregularity was described by Witness A using a term he said introduced by the applicant as Plan B. The Crown case was that the applicant always maintained a preference for Plan A. [870] He clearly indicated to Witness A in recorded conversations and unreported conversations, so far as Witness A described them, a preference to defend his charges with complete legitimacy. It was, furthermore, the Crown case that the applicant did not ever agree that the more delinquent aspects of Plan B would be implemented. Witness A also made clear that some of the more extravagant aspects of Plan B were regarded by him and by the applicant to his knowledge as farfetched and not at all viable. One aspect of Witness A's account of Plan B was squarely disputed. A series of documents Witness A claimed had been provided to him by the applicant was said to relate to the future possible construction of a key that would allow access to the Lin's family home to be falsely connected with someone other than the applicant. The provision of such documents to Witness A by the applicant was challenged inferentially on instructions. There was some challenge to Witness A's evidence about manipulating an old mobile telephone, however, apart from this reasonably limited factual dispute, there was a significant body of unchallenged evidence, much recorded, supporting the Crown case that the applicant was prepared to discuss with Witness A the irregular options that might be available and what Harry, the funeral parlour manager or the corrupt police officer, might do. The Crown case on consciousness of guilt was not based on an alleged agreement that anything specific about falsely implicating someone take place. It was never contended that the applicant was even open minded about all of the possibilities Witness A raised. It was the failure to shut Plan B down as a possible option that formed the basis of the Crown case."
2. The Crown contended in this Court that it had pitched its case more highly than the appellant's submissions suggested (e.g. "there was active pursuit of Plan B" [871] ) but nothing relevant to the determination of the ground appears to turn on the distinction.

Submissions in relation to Ground 5(a)

1. The appellant submitted in relation to the shoebox and Plan B that it was necessary for the trial judge to direct the jury that innocent people may conduct themselves in such ways for reasons not arising from a consciousness of guilt. There were two parts to the directions said to be necessary by the High Court in Edwards v The Queen, and the trial judge only gave the directions in accordance with the first part. [872]
2. The appellant had advanced a reason for his destruction of the shoeboxes, namely avoidance of an unjust accusation. However, it was submitted that the trial judge was required not only to remind the jury of it being an alternative explanation for that which the Crown contended; her Honour was also obliged to direct the jury that, hypothetically, there could be other explanations.
3. In relation to the Plan B issue, like in Edwards v The Queen, [873] there was no alternative explanation advanced by the appellant at trial but there remained the obligation to direct the jury about hypothetical explanations for conduct of that type.
4. It was also submitted that the second part of the Edwards direction amounted to a warning to avoid a specific type of risk that was like the requirement for there being a warning in relation to certain other types of evidence such as identification. It was submitted (uncontroversially) that in relation to identification evidence, it was not sufficient to direct a jury that it should not be acted upon unless the jury was satisfied it was correct and then simply to remind the jury of the defence submissions as to why it may be unreliable or mistaken. [874]
5. In contrast to the shoebox issue, there was no explanation advanced for the appellant's conduct in relation to the Plan B issue. However, the submission was the same; that the trial judge was required to give a direction as to why an innocent man in the appellant's position might have been prepared to engage with Witness A in the way the Crown contended. [875]
6. The Crown referred to the fact that the appellant had denied that he ever seriously contemplated the plan. Detailed submissions were made by defence counsel in closing address as to why the jury would reject the Crown contention that the appellant was willing to contemplate Plan B. The Crown submitted that in these circumstances it would have undermined the defence case if the judge had suggested reasons why the appellant may have engaged in the conduct alleged. The fact that counsel sought no redirection was said to be consistent with an appreciation of that risk. [876]
7. In response to that submission, the appellant argued that there was an analogy with Edwards v The Queen itself in that there was a dispute about the conduct (alleged lying in evidence in court) but the High Court held nonetheless that the jury should have been directed as to how it should take the asserted conduct into account if satisfied that it had been established. It was submitted that the jury in such a case should be directed to determine whether the Crown had proved that the conduct occurred and "additionally, that there may be many reasons why an innocent person may engage with someone in circumstances such as this or contemplate a possibility of irregular dealing with charges such as to avoid an unjust conviction". [877]
8. The appellant was invited to draft the direction that he contended should have been given to meet the complaint being raised now (but not at trial). A document was filed with leave after the conclusion of the hearing that set out the following directions as to each of the two issues. [878] In relation to the shoeboxes: "You must remember, however, that people do not always act rationally, and that conduct of this sort - destroying potential evidence - may sometimes be explained in other ways. A person may have a reason for engaging in this type of behaviour for reasons apart from trying to conceal his or her guilt. For example, this type of behaviour may result from panic or to escape an unjust accusation." In relation to Plan B: "You must remember, however, that people do not always act rationally, and that conduct of this sort - talking with Witness A and Harry about illegitimate means of dealing with the murder charges, and even taking steps to implement such possibilities if you accept Witness A's evidence about matters such as the provision of the key documents - may sometimes be explained in other ways. A person may have a reason for engaging in this type of behaviour for reasons apart from trying to conceal his or his guilt. For example, this type of behaviour may result from fear or to escape an unjust conviction."
9. At the hearing, it was accepted that fear of an unjust accusation as a hypothetical in relation to the shoebox issue was precisely the same as the possibility actually contended for by the appellant and that there was no other realistic possibility. However, the submission was that the trial judge should have told the jury, as an objective fact, that people may destroy evidentiary material because of a fear of wrongful implication in a crime. [879]

Principles applicable to Ground 5(a)

1. The appellant relied upon the following passage in the joint majority judgment of Deane, Dawson and Gaudron JJ in Edwards v The Queen (at 210-211): "A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect." (Citation of authority omitted) (emphasis added)
2. The second paragraph of that extract is the basis of the "protective" direction as it was described in the appellant's submissions; the component said to be absent from the trial judge's summing up. The essential aspect of this paragraph (which we have emphasised) is the first sentence. The whole paragraph may be broken down to the following components: 1. The jury should be told there may be reasons for the conduct other than realisation of guilt. 2. Examples are given of hypothetical alternative reasons. The judgment does not suggest these examples are applicable and must be mentioned in every case. 3. There is then a statement of the required direction: if the jury accepts that there is another reason for the conduct, it cannot be regarded as an admission. 4. This is followed by an explanation for the direction being necessary; the jury might reason erroneously that the accused lied simply because he is guilty. 5. In some cases of a departure from the truth, it may be that it was not a deliberate lie; there may be reasons why it is otherwise like confusion or a faulty recollection.
3. Broadhurst v The Queen [1964] AC 441 is cited in a footnote to the first sentence of the second paragraph as an authority supporting the proposition therein. In that case, Devlin LJ said (at 457): "It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so."
4. The extract from Edwards v The Queen echoes what was said by Gleeson CJ in R v Heyde (1990) 20 NSWLR 234 (at 236-7): "If, by evidence or admission, it is proved that an accused person has told a lie, that is to say, made a deliberately false statement, in court or out of court, then, provided various conditions are fulfilled, the jury may regard the lie as demonstrating a consciousness of guilt and may treat the lie as corroboration. The conditions in question are discussed in various cases referred to in the judgment of Clarke JA, including R v Lucas, (Ruth) [1981] 1 QB 720. However, commonsense and ordinary human experience indicate that a judgment as to whether a lie reveals a consciousness of guilt, although one which people not infrequently make, may, depending upon all the circumstances, be very difficult. People tell lies for many reasons other than a consciousness of guilt. For example, a person may tell lies to escape a false accusation, just as a person may be put to flight by the threat of unjust arrest. In R v Lonergan [1963] Tas SR 158, Burbury CJ said (at 160): '… As most false statements or denials may also be explicable upon some hypothesis other than the accused's implication in the crime, the judge would do well to point to other explanations and the danger of giving too much weight to a lie. … The jury must clearly understand that it is only within strict limits that false statements and denials may be relied upon as independent proof of the affirmative of the issue.'"
5. Once again, the essential element of what it is said should be conveyed to a jury is that there may be explanations for the conduct aside from a consciousness of guilt.
6. While Edwards v The Queen was concerned with post-offence lies (in fact, lies in giving evidence in the course of Edwards' trial), the principles are applicable, with appropriate adaptation, to other forms of post-offence conduct from which an inference of consciousness of guilt may arise. For example, in R v Cook [2004] NSWCCA 52 the issue was flight, about which Simpson J (as her Honour then was) said (at [25]; [50]): "The principles developed in relation to evidence of lies are readily adaptable to the circumstance where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt. … Where evidence of flight is relied upon as evidence of a consciousness of guilt, the principles of law applicable to directions which must be given to the jury are, in my view, identical to those which govern the directions to be given to a jury where lies are relied upon as such evidence. Those principles are stated in Edwards, Zoneff and [Heyde]. The conventional direction in relation to lies drawn from those, and other cases, requires a degree of adaptation in order to be accommodated to evidence of flight relied upon by the Crown for the same purpose. In particular, it is necessary, in my opinion, to draw attention to the circumstance that an accused person may behave in a way suggestive of a recognition of guilt for reasons other than such recognition of guilt - for example, fear of being unjustly accused. It is also necessary to point out to the jury that the consciousness must be a consciousness of guilt of the specific offence charged, and not, for example, of some other offence or some other discreditable conduct. The flight (or lie) may only be used as evidence of a consciousness of guilt of the offence charged where the jury is satisfied that it points unequivocally to consciousness of guilt of that offence and not some other offence or discreditable conduct." (emphasis added)
7. The emphasised sentence in that extract is clearly an allusion to the essential part of the second paragraph of the extract from Edwards v The Queen discussed above.
8. Simpson J endorsed the need for hypothetical explanations to be given for seemingly incriminating post-offence conduct in R v Cook (at [52]): "The direction on how the jury could make use of the evidence of flight is fundamental. The direction should be given, in hypothetical terms, even where there is no evidence of an alternative explanation. Where there is actual evidence of any alternative explanation, that evidence should be drawn to the jury's attention, and the way it is to be assessed should be explained." (emphasis added)
9. There is uncertainty as to whether her Honour meant to convey that a direction in hypothetical terms should be given in all cases regardless of whether there is an alternative explanation. This arises because of ambiguity in the second and third sentences. The use of "even where" in the second sentence may suggest the direction should be given in hypothetical terms regardless of whether there is evidence of an alternative explanation. If that is what her Honour meant, the use of "even where" would be more logical if the balance of the sentence was in the positive rather than the negative (ie, even where there is evidence of an alternative explanation). On the other hand, the third sentence would fit more logically if the word "even" did not appear in the second sentence (ie, the direction should be given in hypothetical terms where there is no evidence of an alternative explanation and it should be given by reference to any alternative explanation where there is one). We consider it most likely that her Honour intended to convey the first of those possible interpretations.
10. The appellant also referred to a five-judge bench decision of the Victorian Court of Appeal in R v Ciantar (2006) 16 VR 26; [2006] VSCA 263. The case involved an offence of culpable driving causing death arising from a "hit and run" collision in which it was alleged the offender had a high blood alcohol reading at the relevant time. He claimed that the blood alcohol reading was a result of alcohol he consumed after the event. The Crown Prosecutor submitted in closing address that consciousness of guilt could be inferred from either the accused having consumed alcohol after the collision, or his lying about having done so. It was held to be a miscarriage of justice that the trial judge did not give an Edwards direction. Speaking generally, their Honours said the directions that should be given to a jury in relation to consciousness of guilt included (at [86]): "Consistently with Edwards, the judge should direct the jury that there may be many reasons for post-offence conduct apart from consciousness of guilt. For example, it may be the result of panic or fear, or a wish to escape an unjust accusation, or because of guilt of some other lesser criminal offence or moral wrongdoing falling short of criminal behaviour, or to protect some other person or to avoid a consequence extraneous to the offence, and of course the judge should direct the jury on any explanations suggested by the defence."
11. Later in the judgment, when describing how the jury should have been directed in the instant case, it was said that if the jury concluded that the appellant had lied about drinking after the accident, an Edwards direction should have been given including: "[T]here may be reasons for telling a lie apart from realisation of guilt and that if they accepted that a reason of that kind was the reason for telling the lie they could not use the lie as an admission."
12. If the jury concluded that the appellant drank alcohol after the accident in order to mask the fact that he had been drinking before the accident, an Edwards direction should have been given including: "[T]here may be many reasons for that sort of conduct, including panic or alcohol dependence in times of crisis, and that the jury could not treat the drinking as an admission unless they were able to exclude those other possibilities." [880]
13. In the present case the Court was not taken to any direct authority for a proposition that a trial judge must suggest hypothetical explanations that are delivered with a "judicial imprimatur", [881] as was suggested in the appellant's submissions. [882] The assertion that there was such a requirement was derived only by inference from the cases referred to above. However, a case in which such a point was raised is R v Finnan [2005] VSCA 151. It involved an appeal against conviction for offences arising from a violent affray outside a hotel that led to the trial of several accused including Mr Finnan. The Crown relied upon lies he told to police, one being that he had not been at the hotel on the night in question and another that he denied knowing that people left his house with weapons. He did not give evidence, but his counsel submitted to the jury that a possible reason for the first lie was that he was underage and should not have been at the hotel in the first place. It was submitted that he denied knowing about people going in and out of his house because if he had not, then he would be in a position where the police would be asking him who those people were and he may not have wished to implicate them.
14. It was considered by Osborn AJA that the jury had been correctly directed that they needed to be satisfied that the statements were made, they were deliberate lies, and they were told in order to conceal the truth to avoid implication in crimes the accused was aware he had committed. Notably, the direction also included that the jury "must consider other possibilities such as a desire to avoid implication in crimes in which he was not involved or to avoid telling police that he had been present because of the potential consequences of that simple admission" (at [14]). Defence counsel, however, sought and obtained a redirection in which the trial judge repeated in more detail the arguments that had been put by counsel.
15. The complaint on appeal was that the trial judge had simply repeated the arguments of counsel and that this repetition was not given as a direction of law with the authority of the judge's office behind it. Osborn AJA (with whom Vincent and Nettle JJA agreed) responded (at [18] to [19]): "In my view the initial direction given by his Honour was a sufficiently full and complete one as to the principles which the jury were bound to apply. The further direction given the following morning elaborated the possibilities which defence counsel in all the circumstances of the case advanced as being credible potential explanations for the lies if the jury were satisfied they were lies. In my view the jury were clearly instructed that it was as a matter of law essential that they consider the question of whether there were alternative possible explanations for the telling of the alleged lies in the circumstances of the case. The judge introduced his directions by reminding the jury of his previous directions as to inferential reasoning and went on to stipulate within a logical framework that the jury must consider alternative possible reasons for the alleged lies other than those which the Crown advanced. This leaves the fact that the judge did not himself hypothesise possible reasons for the alleged lies other than consciousness of guilt, but put back to the jury the matters advanced by defence counsel. It is said this deprived the possibilities in issue of judicial authority. This proposition confuses the fact of reiteration of the submissions made by defence counsel with lack of judicial direction. The judge quite clearly told the jury that they must consider the possibilities of alternative explanations for the alleged lies. It was no error to then remind the jury of the explanations which had been advanced on behalf of the accused by counsel. As counsel for the applicant have put to the Court on appeal in written submissions, they are the most cogent alternative possibilities in the present case. Indeed, it may be thought that reiteration materially emphasised them and gave them weight. The applicant did not give evidence nor was any evidence called in his defence. In these circumstances the judge's direction can hardly be criticised for emphasising defence counsel's submissions as to the possibilities."
16. It is necessary to make an observation about the cases which suggest a need for hypothetical explanations to be given. As indicated earlier, the purpose of providing them is to illustrate and emphasise the essential aspect of the direction to be given to a jury: people may conduct themselves in a way that might suggest a consciousness of guilt but in reality such conduct may be prompted by something else. The purpose is to avoid the jury jumping to the erroneous conclusion referred to by Gleeson CJ in Heyde v R as "one which people not infrequently make".
17. "Panic" is often cited as a hypothetical example but where there is no urgency attending the conduct it may be inapt, as it may be where the conduct is not momentary but engaged in over an extended period. Even where panic might be apt, it is devoid of meaning unless the reason for the panic is provided. People usually do not panic without reason. In this context, what might often be the cause is fear of being unjustly accused. Consuming alcohol after a motor vehicle collision because of a condition of alcohol dependence in a crisis was suggested in R v Ciantar. If this did not have a foundation in the evidence, providing that as a hypothetical explanation would be to invite the jury to engage in baseless speculation about whether such a condition afflicted the accused.
18. The suggestion in R v Cook of directing a jury that the conduct does not point to "some other offence or discreditable conduct" may risk a jury speculating, potentially to the prejudice of the accused, about what conduct of that description the accused may have engaged in.
19. It is apparent that care is needed whenever a trial judge directs a jury in relation to post-offence conduct from which an inference of consciousness of guilt may arise. There is a need to be wary that any hypothetical explanation given is one that might reasonably arise from the facts and circumstances of the case.
20. A further difficulty with a trial judge giving hypothetical explanations to a jury arises in cases where the accused provides an actual explanation. Trial judges need to be careful not to diminish the force of, or detract completely from, the explanation relied upon by the accused. There is a risk that where the actual explanation is something quite specific and unique, it may be made to sound absurd if a judge were to suggest that people in general might behave in the same way. There is also a need for a judge to avoid any appearance of becoming an alternative advocate for the defence.

Determination of Ground 5(a)

1. There is no issue about the trial judge having reminded the jury of the actual explanation advanced by the appellant for his destruction of the shoeboxes. Her Honour did so in quite some detail, while also pointing out that it was not for the appellant to prove anything. The essence of counsel's closing submissions was summarised at the outset of this passage of the summing up: [883] "He said the accused's conduct in destroying the shoeboxes you would consider as not supporting an inference of guilt, but as a response to being falsely accused of murder."
2. The appellant raised no complaint about the adequacy or accuracy of the trial judge's review of his explanation for destroying the shoeboxes. The complaint in relation to this issue, and in relation to the Plan B issue, was the failure of the trial judge to point out the hypothetical explanations there may be for an innocent person to have acted in those ways, relying upon the second paragraph of the above extract from Edwards v The Queen.
3. There was no complaint about the extensive general directions given by the trial judge about inferential reasoning and circumstantial evidence. Nor was there any complaint about any other aspect of her Honour's directions specifically directed to the inferences of consciousness of guilt the Crown said arose in relation to the shoebox and Plan B issues.
4. It is evident from the written directions [884] which have been set out in full earlier that the trial judge gave the jury in clear terms the essential direction required by Edwards v The Queen, that is to say that the conduct in question "cannot rationally be explained other than by the accused's self-conscious awareness that he had murdered the deceased". Her Honour also put it the other way around in directing that if the conduct "might reasonably be explained for reasons unrelated to a self-conscious awareness of guilt (etc) then you could not draw the inference that the Crown contends for".
5. When dealing directly with the shoebox destruction issue, the trial judge commenced by describing the Crown's submission as being that "there is no rational innocent explanation" for the conduct other than a belief by the accused that evidence of the shoeboxes would incriminate him. [885] This reinforced the direction she had previously given orally and in writing, that it was a mandatory prerequisite for the evidence to be construed in the way the Crown contended and that there be "no rational innocent explanation". The case for the appellant was that such an explanation existed and the jury was reminded of it: "the accused's conduct in destroying the shoeboxes you would consider as not supporting an inference of guilt, but as a response to being falsely accused of murder".
6. The direction it is now suggested the trial judge should have given includes that "people do not always act rationally" and the possible alternative explanations for destruction of the shoeboxes were "panic" or "to escape an unjust accusation". As just noted, however, escaping an unjust accusation was the accused's actual explanation so it could not have been given as a hypothetical one. "Panic" could only be pertinent if it was the cause of the appellant wanting to escape an unjust accusation, so that did not add anything and the suggestion that "people do not always act rationally" does not sit comfortably with the actual explanation; a deliberate, considered attempt to avoid an unjust accusation. Characterising it as rational or irrational would not have been helpful.
7. In relation to the Plan B issue, again the trial judge directed the jury in direct terms that they must "consider whether the accused's words and conduct might be rationally explained for reasons inconsistent with displaying an awareness of his guilt". [886] Her Honour proceeded to summarise the dispute between the parties as to the factual elements of this issue. [887] Her Honour concluded by referring the jury back to her general directions on the subject of consciousness of guilt, including the written directions. [888]
8. The direction it is now suggested the trial judge should have given again includes that "people do not always act rationally" and the possible alternative explanations are "fear" or "escape an unjust conviction". The suggestion of irrationality does not fit well as a possible explanation for conduct that comprised several components and occurred over a period of time. No actual alternative explanation was advanced in the defence case, no doubt because the conduct in the respects relied upon by the Crown was disputed. No hypothetical alternative explanation was suggested to the jury by the trial judge. The hypothetical explanation the appellant suggested in this Court should have been given by the trial judge, would have had a real tendency to undermine the defence case of denial of the primary conduct. We accept the submission by the Crown that this was a judgment call best left to be made by those in tune with the atmosphere of the trial, namely counsel and the trial judge.
9. The summing up was delivered over eight days. During the many breaks during those days, and often at the beginning or the end of days, counsel for the appellant rose to seek clarification, correction or augmentation of the directions that were being given. This suggests that if he considered that there was any disadvantage accruing to his client about any of the directions her Honour was giving, including about consciousness of guilt, he would have raised the matter with her. The only instance of counsel raising a point about consciousness of guilt and Witness A, to which her Honour responded, and counsel replied, was the following: [889] "HER HONOUR: Would you be content if I do this … The … accused's involvement with Witness A reveals nothing about his guilt, his recorded conversations simply being gaol talk; in particular, the defence contend that the accused did not provide Witness A with any documents to enable a key to be cut, in the belief or expectation it would be planted on an innocent person, and did not admit to having sedated his wife. [Trial Counsel for the Appellant]: I am content with that, your Honour. Thank you."
10. Her Honour subsequently gave that direction and she repeated the essence of it in a wrap up at the very end of the summing up. [890]
11. The absence of any request by counsel for further directions in relation to both issues raised under Ground 5(a) tends to indicate no unfairness or injustice was perceived on behalf of the appellant.
12. We are satisfied that the directions given by the trial judge were both adequate and appropriate in all the circumstances.
13. Leave to raise Ground 5(a) is refused.

Ground 5(b)

1. Ground 5(b) involves the contention that "a miscarriage of justice resulted from the direction given to the jury in relation to the appellant's alleged consciousness of guilt, in particular … (b) the summary of relevant factual matters was unbalanced in favour of the Crown". The "relevant factual matters" were various aspects of the appellant's conduct on 18 July 2009. In the appellant's first written submissions it was said that they "were so finely nuanced that they required careful explanation of all the relevant evidence to place the Crown contentions in perspective, and this did not occur". [891] In a second tranche of written submissions it was said that "because the evidence relevant to the conduct on 18 July 2009 was expansive and diffuse, it takes a long while to set it out - although this did not occur in submission or direction to the jury, which the [appellant] alleges to be the problem". [892] Almost 100 pages followed in the second and in a third tranche of submissions.
2. Before proceeding further into this ground, it is worth observing the requirements of a summing up as explained by the plurality of judges of the High Court of Australia in McKell at [35]: "A trial judge must sum up for the jury the case presented by each of the prosecution and the accused after each side has addressed the jury. In Domican v The Queen (1992) 173 CLR 555 at 561, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed that 'the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury'. In carrying out this task, it is no part of the trial judge's role to 'don[] the mantle of prosecution or defence counsel': Whitehorn v The Queen (1983) 152 CLR 657 at 682. As Gibbs CJ said in Cleland v The Queen (1982) 151 CLR 1 at 10, '[i]t is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused'."
3. The Crown drew attention to a passage in the joint judgment of six judges of the High Court in Domican v The Queen (1992) 173 CLR 555 at 560-561; [1992] HCA 13 (part of which was referred to in McKell v The Queen above) that is very pertinent to this ground. The Crown summarised the passage as involving the following propositions: [893]

• A trial judge is bound to direct the jury as to principles of law or rules of practice but matters of fact and argument are in a different category.
• A trial judge is not bound to discuss all of the evidence or to analyse all of the conflicts in the evidence and by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice.
• Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends on whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence.

1. As with Ground 5(a), the complaints raised under this ground were not raised at trial. Further, and as the Crown pointed out, the summing up by the trial judge came at the end of a very lengthy trial with cases put by the Crown and the defence on particular bases. The closing addresses themselves were lengthy (the Crown's on Days 87 to 91 of the trial and the defence address on Days 92 to 103).

The appellant's broad submissions in respect of Ground 5(b)

1. The appellant contrasted his complaint in relation to the way the trial judge reviewed the evidence of his alleged conduct on 18 July 2009 with the way her Honour put to the jury the two matters the subject of complaint under Ground 5(a). He submitted that the "protective component of an Edwards direction was not by analogy applicable or appropriate for this body of evidence" but that "it was necessary … for the jury to be reminded by her Honour in a neutral fashion of the evidence relevant to the contentions sought to be advanced by the Crown". [894]
2. The appellant submitted that in asking the jury to draw inferences of consciousness of guilt in relation to his conduct on 18 July 2009, "the Crown case relied on tenuous interpretations of evidence, tenuous reasons for rejecting Kathy Lin's evidence, disregard for other important aspects of the evidence, and lack of regard for the complexity of the horrific circumstances faced by the [appellant] and his wife on the morning of 18 July 2009". Further, the appellant submitted: [895] "The Summing Up incorporated in an unbalanced way the charged nature of the Crown contentions, on occasion even more strongly than the Crown, and failed to ensure balance by setting out the evidence and reasons which would tell against drawing the inferences the Crown pressed."
3. As can be seen, the contentions raised under Ground 5(b) are more concerned with whether the summing up was fair and balanced than with any technical or legal aspect of how the jury was directed as to the Crown's reliance upon consciousness of guilt inferences.
4. The Crown addressed the jury about various aspects of the appellant's actions on 18 July 2009. [896] According to the appellant's submissions, there were seven aspects of such conduct that were alleged to demonstrate consciousness of guilt. [897] They were identified in the submissions as Topic A to Topic G, most of which are discussed below. "Topic F" requires no discussion as it is not relied upon in support of Ground 5(b). [898]

Topic A - Phone calls to Kathy Lin - Kathy Lin and Appellant have to discover the bodies

1. This is the first topic that is the subject of complaint. Contrary to other "Topics" referred to under Ground 5(b), and confusingly having regard to it appearing under this ground, the contention here is not that the summing up was unbalanced and unfair. It involves a complaint about the trial judge not having directed the jury not to use the evidence concerning this topic as capable of giving rise to an inference of guilt.

The issue

1. Drawing from the Crown address, it was the Crown case theory that the appellant had anticipated that somebody else would discover the bodies after Min Lin did not turn up at the newsagency at his usual time to organise newspaper deliveries. However, telephone calls were made to Kathy Lin by persons concerned that the newsagency had not opened as usual. She then decided that they would drop by her brother's house on the way to McDonalds where they intended to have breakfast before going shopping. The Crown Prosecutor said that the appellant "would have realised with some dismay at that point that there was no choice: he and Kathy were going to be the ones to discover the bodies". [899]
2. The Crown Prosecutor reminded the jury that in a conversation with Witness A on 19 May 2012, the appellant spoke of some notion that the first person who enters the crime scene is "more than half chance, that's the killer … that's the statistics". A little later, Witness A said, "[i]t's better for you if somebody else find the bodies" and the appellant replied, "[o]f course … I don't have much trouble then". [900] The Crown Prosecutor reminded the jury of the appellant saying, "one old man, Chinese man … don't call police" (a reference to a person who called Kathy Lin rather than the police), "that man make me in trouble". [901] The conversation with Witness A was the basis of the Crown submission to the jury mentioned above, that the appellant would have been dismayed to realise that there was no choice; he and Kathy Lin were going to be the ones to discover the bodies. [902]
3. The Crown Prosecutor concluded by submitting: [903] "So the accused is left in a terrible predicament. He hadn't wanted to be the one to find the bodies, but the Crown says he was left with no choice. He has to drive his wife and his son to … Boundary Road for the purposes of stopping in to see why Min had not opened the shop."
4. Later, in the context of addressing the subject-matter of what is now referred to as "Topic E" (leaving Kathy Lin at Boundary Road), the prosecutor tied the motivation for the appellant leaving the scene at Boundary Road to his concern about a police investigation being imminent giving rise to a need to get rid of incriminating evidence. The submissions included: [904] "He knows, he's the first person at the scene, so he knows the police are going to start investigating. And at that time, they could start investigating in respect of the people that were the ones to find the bodies, which included him."
5. It is notable that the Crown did not submit that the jury should draw an inference of guilt based upon the subject-matter of Topic A on its own.

The summing up

1. The appellant accepted that the trial judge only referred to the evidence on this subject while dealing with other matters. Her Honour did not direct the jury that it was a matter relied upon by the Crown as a circumstance indicating guilt. [905] In the course of discussing the matter her Honour said: "[T]he accused realised that because his wife was directing events that morning in that way, it was impossible to avoid being with her when the bodies were discovered. But as soon as he had the opportunity to leave, he did."
2. The trial judge also referred to the Crown's submissions about the conversation with Witness A regarding calls being made to Kathy Lin on the morning of 18 July 2009, specifically mentioning the "old man didn't ring the police but rung Kathy Lin instead, he [the appellant] said to Witness A, 'That old man' got him into trouble". [906]
3. The trial judge reminded the jury of a defence submission concerning the appellant leaving his wife at the scene at Boundary Road; his conduct was to be explained by his concern to go and get his parents-in-law, and not to avoid being on the scene as the person who would become then the prime suspect. [907]
4. The above are the only matters in the summing up to which the appellant's submissions referred.

Appellant's submissions

1. The appellant's complaint in relation to Topic A is that the Crown relied upon the evidence as supporting an inference of consciousness of guilt whereas the evidence was incapable of bearing that character. [908]
2. The appellant accepted that the trial judge did not direct the jury that his alleged dismay at having to discover the bodies of the deceased was a circumstance indicating guilt. The problem was that the trial judge did not direct the jury that the evidence could not be used as supporting such an inference as the Crown had contended. [909]
3. It was acknowledged that no complaint was raised at trial and that r 4 of the Criminal Appeal Rules applied. [910]

Consideration

1. Topic A may not have been the strongest element of the Crown case as to the availability of inference of consciousness of guilt, but when considered with the other topics, as it was in the summing up, the evidence was not incapable of supporting such an inference. The undisputed evidence was that the appellant and his wife were put into a position where it became necessary for them to attend the Boundary Road home on the morning of 18 July 2009. This had the inevitable consequence that they would be the first to discover the bodies of the deceased. The significant issue for present purposes is that three years later, in a conversation with Witness A, the appellant expressed dismay at having been forced into this position because it possibly gave rise to a perception of criminal responsibility for the deaths. While it may be capable of bearing other inferences, it was also capable of being regarded by the jury as a sign of the appellant being concerned on account of his knowledge that he was in truth criminally responsible.
2. There is also force in the Crown submission that the trial judge dealt with Topic A as being a subsidiary matter informing Topic E. The jury was not directed that it was a matter that gave rise to an inference of guilt on its own. Viewed in this way, it was only a quite small part of the Crown's overall circumstantial case. This is illustrative of the interconnectedness of the circumstantial case. This matter was one of a series of actions by the accused on 18 July 2009 that the Crown relied upon. A direction was not required to be given by the trial judge as to whether individual components of that case could, on their own, support an inference of guilt.
3. There was no requirement in relation to Topic A for the trial judge to direct the jury not to draw an inference adverse to the appellant and trial counsel cannot be criticised for failing to ask for such a direction.

Topic B - XX being told to stay in the car

1. The Crown reminded the jury in closing that the appellant had told police in his 22 July 2009 interview that when he arrived at the Boundary Road home on the morning of 18 July 2009 with his wife and their son, XX, he told XX to stay in the car. The Crown submitted that this was because he did not want his son to see what was inside the home. He told him to stay in the car "because he knows what is waiting inside. … he had to avoid [XX] running in, trying to find his cousins and stumbling across the horror of what was upstairs waiting". [911]
2. The Crown also reminded the jury that Kathy Lin had claimed to have been the one who told XX to wait in the car. It was submitted that she was giving evidence in a way that helped the appellant. She "could not bring herself to say in evidence anything that she perceived could potentially be used against her husband".
3. Counsel for the appellant submitted to the jury that they would not take this into account against him. There was nothing remarkable about telling XX to stay in the car given they were on their way to McDonalds on a Saturday morning. [912]

The summing up

1. At the beginning of the section of the summing up where the trial judge dealt with evidence the Crown relied upon for an inference of consciousness of guilt, her Honour very quickly summarised the topics the Crown relied upon. Her Honour referred to five of the seven topics now the subject of complaint; one she did not refer to was Topic B. [913] Telling XX to stay in the car was referred to elsewhere, but only in passing and in the course of referring to the sequence of events that occurred. [914]

Appellant's submissions

1. It was submitted that the evidence of telling XX to stay in the car was "entirely immaterial and of no probative value". Further, "the summing up should have raised for the jury's counter consideration to the Crown contention of consciousness of guilt ... the explanation that this was an entirely banal parental decision, consistent with the intention of both parents and their child to get to McDonalds breakfast as soon as possible". [915]

Consideration

1. The appellant's written submissions in relation to this evidential topic commenced by describing it as a "relatively minor one". [916] There is no question about that. It was not treated by the Crown as an event that by itself could support an inference of consciousness of guilt. Rather, it was an event that formed part of the sequence of actions of the appellant on 18 July 2009 that the Crown relied upon in its circumstantial case.
2. The trial judge said enough to remind the jury of the defence case: "727 Indeed, it was Mr Webb's [Counsel for the appellant] submission to you that there was nothing that the accused said or did at any time on 18 July which would allow you to find that what he said or did was done or said with a consciousness of guilt. In Mr Webb's submission, you would find the accused's conduct as entirely consistent with a person who found five deceased people, in the house that he entered with his wife, and someone who acted swiftly and responsibly by dropping his son off home and then going to collect his parents-in-law. 728 The need to examine with care the particular conduct that the Crown has submitted to you supports the inference that the accused acted or spoke with a consciousness of guilt is exemplified by the first matter that I am going to remind you of, and that is the circumstances in which the accused entered Bedroom 1 with his wife, having followed her as you know, up the stairs from the downstairs area of the house where he was walking behind her, and after leaving [XX] or telling [XX] to stay in the car."
3. The lack of any application for further direction on the subject is unsurprising.

Topic C - Entry to Bedroom 1

1. As summarised by the appellant, Topic C is concerned with a contention by the Crown that the appellant "grabbed hold of his wife and told her not to look from a position near the entry to Bedroom 1 where he could not possibly have seen the bed, thus demonstrating his knowledge of the horrible vision from which he tried to protect her, because he had caused it".
2. In contrast to Topic B, this Topic does not involve a complaint of the defence case not having been put; the appellant conceded that it was. The complaint was encapsulated at the hearing as follows: [917] "The [appellant's] complaint … is that the evidence, it's really really important to understand in its totality and that it did not support the contention advanced by the Crown, and that the summing-up provided by her Honour, rather than providing a neutral analysis or a neutral instruction to the jury as to what the relevant evidence was, provided direction which, in effect, amplified what was already an overstretched submission in the applicant's contention here."
3. The appellant's written submissions provided a very extensive review of the evidence, the closing address by the Crown and the trial judge's summing up. The review of the evidence included that of Kathy Lin, the police interview of the appellant on 22 July 2009, a covertly recorded conversation between the appellant and Kathy Lin on 29 April 2010, and sundry oral and physical evidence. [918]

The issue

1. "Bedroom 1" was the crime scene designation of the main bedroom where the bodies of Min and Lily Lin were found. They were found lying at an angle with their feet in the middle lower end of the bed and heads on their respective sides of the top of the bed. The body of Min Lin could not be seen because it was completely covered by bed clothes. (That is a matter relevant to Topic G.)
2. To understand the evidence that is referred to below it is necessary to note that the bed, especially the pillow end, was not visible to a person standing in the doorway. If a person turned 90 degrees to the right upon entering the room, a children's bed was against the wall to the person's left, a chest of drawers was against the wall straight ahead, and the deceased couple's bed was to the person's right. (See the diagram provided earlier. [919] )
3. The Crown Prosecutor reminded the jury they had the benefit of attending views of the Boundary Road home on two occasions and: [920] "No doubt you have all made your own assessment of what you can and cannot see if you are standing behind someone who is only a little bit in, or just entered that bedroom."
4. The jury also had the benefit of still photographs and what were described as "a crime scene video so there was a walk-through video and a 3D reconstruction and a 3D representation of the crime scene". [921] The jury must have been well and truly acquainted with the Boundary Road home, sufficient to assist with determination of the facts in relation to the many disputed issues, including what the appellant has now designated Topic C.
5. The appellant and his wife discovered the murder scene when they attended the Boundary Road home on the morning of 18 July 2009. The bedrooms were all upstairs and the first one they went to was Bedroom 1. Kathy Lin led the way; she went through the doorway first. At a certain point (which is controversial), the appellant hugged her and told her not to look.
6. In July 2009, the appellant told police that he followed his wife into the room. He said he saw the body of his sister-in-law and "everywhere is red". Once he saw that, he held his wife and told her not to look, but he believed that she had already seen. [922] In March 2010, he told police that his wife had proceeded into the room, "I'm not sure, two metre" and he was "one metre - I'm not sure anyway, not far away". [923]
7. Topic C concerns the Crown's reliance upon something Kathy Lin told the police in her July 2009 interview [924] that was inconsistent with the above account by the appellant. Based upon what she said, the Crown submission to the jury was that the appellant, being behind Kathy Lin, would not have been able to see the bodies of Min Lin and Lily Lin because Kathy Lin had only just entered the room: [925] "[T]he Crown case is that from where the accused … was standing behind his wife, who was just inside the door, he would not have been able to see what was on the bed, and that the reason he put his arms around her and hugged her, and told her not to look, was because he already knew what was in there. He knew what was in there because he was the one responsible for it. The reason he did it? Well, he probably wanted to protect his wife from seeing the terrible scene that he knew was there, and that circumstances had forced his wife to be exposed to."
8. The Crown relied upon Kathy Lin's initial account in her July 2009 interview to make good this point (see [22]). It therefore had to negate the contrary evidence she gave before the jury, which was to the effect that she was sufficiently inside the bedroom that the appellant would have been able to see the murder scene on and around the bed. The Crown contended that this was "another topic where [Kathy] Lin, when she was giving evidence before you, was clearly not being truthful". The Crown also referred the jury to what it contended were inconsistencies in the versions given by Kathy Lin in her interviews on 20 July 2009 and 22 March 2010. [926]
9. Kathy Lin's evidence before the jury was that upon entering the room she went to "about the end of the bed". Then her husband "told me not to see but I already saw everything … I saw dead bodies". When asked for clarification of what the appellant said she replied, "He asked me not to see and he hugged me tightly … He said, 'Don't look'". Although she had said that he had followed her into the room, she said that when he hugged her tightly, "he's beside me". [927]
10. In her interview with police on 22 March 2010, Kathy Lin was asked questions by police about entering Bedroom 1; relevantly: [928] "Q264. So when you went upstairs that morning and where's the doorway to your brother's room is here, is that right? A. The door's open. 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 look through the door, the open door, when you looked 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." (emphasis added)
11. The Crown Prosecutor reminded the jury that, shortly after those questions and answers, Kathy Lin was asked to mark on a diagram "as best she could" where she was standing when her husband grabbed her and told her not to look. She spoke in Mandarin to her solicitor, saying "I cannot point out where it was". She added a moment later, also in Mandarin to her solicitor: [929] "I can only tell you the rough position, but cannot tell the exact location, the distance as I also cannot remember. During that time, when first entered, I shouted, and my husband held me in his arms and said not to look."
12. The diagram she was being asked to mark had a rather poor quality representation of the layout of rooms. [930] However, if it was the truth that she was "about the end of the bed", the jury might have thought that the question was not impossibly difficult. Moreover, the jury might have recalled her explanation in her trial evidence that the reason she did not mark the diagram was because her solicitor told her that she did not have to. It might have also prompted the jury's recall of Kathy Lin's equivocation at that point of her evidence when pressed to explain why she said "a little bit" in the answer to Q268 on 22 March 2010. [931]
13. The Crown Prosecutor contrasted this with her evidence before the jury in which she was able to mark on a diagram exactly where they were standing. She marked a location about halfway between the doorway and the bed; significantly, a position where both would have been easily able to see the bed and the horrific scene on and around it. [932]
14. As noted, in her July 2009 interview Kathy Lin gave the following account while gesturing, as indicated in the following extract from the Part A Summary of Trial. [933] The appellant accepted that Kathy Lin made a turn to her right, "something that is no greater than 90 degrees, perhaps up to a 90 degree turn or something less than that". [934] 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 husban told me, don't see anything, don't look. The 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 say my sister-in-law lying on the bed: and I also say the, the blood marks and, and on the wall:
15. Kathy Lin gave the same description, orally and with consistent gesturing, a little later in that interview: "Q1906 OK. OK. And you saw your sister-in-law? A I didn't see anything I went in because the curtains are darker, I didn't see anything and that times my husband say, don't watch that, don't look that and hug/held me and I, because I faced this way. Q1907 He was behind you? A Yeah, he behind me and then I turn, turned right and I saw my sister-in-law --- Q 1908 OK. A --- lying on the bed …"
16. Kathy Lin was cross‑examined about her evidence in the 2015 trial in which she had been shown the footage from her July 2009 interview in which she answered Q 1856 above (ie, [572]). The footage was replayed for her. At the 2016 trial she agreed that she had said in 2015 that she only saw her sister-in-law's body after her husband had hugged her from behind and told her not to look. She agreed that this was a truthful answer. [935] But when asked at the 2016 trial to confirm that she only saw her sister-in-law after her husband hugged her and told her not to look, she said: [936] "I - I saw everything. When he hug - when he say, "Hug me, don't look", I already body turn. The movement already turn the side. I can see everything; I saw my brother, I saw my sister-in-law."
17. The cross‑examiner at the 2016 trial reminded her that she had said twice at the 2015 trial that she saw her sister-in-law after the hug and warning. The portion of the July 2009 interview containing the second instance was then played for her and she agreed that she had given the answers as recorded. However, she then explained: "Yes, but that time my English is not can describe it correctly. And today said 'he hug me', he said, 'Don't look', but my body already turn." [937]
18. Apart from how far into the room she and the appellant were and whether she turned before or after her husband hugged and warned her, Kathy Lin had also given different descriptions of where her husband was at the time of the hug. In her July 2009 interview Kathy Lin said he was "behind her" (and she gestured by pointing over her shoulder), while in her 2016 trial evidence she said he was, "beside me".
19. The Crown also relied upon a covertly recorded conversation between the appellant and his wife on 29 April 2010. It contended that it involved the appellant being aware that police were interested in where they were standing when they entered Bedroom 1 and he was "coaching" Kathy Lin as to what to say. [938] The conversation occurred two days after she had been served with a summons to attend at the NSW Crime Commission. The recording and a transcript were before the jury. It was well open to the jury to accept the Crown's characterisation of the conversation as involving "coaching". For example, it included: [939] "RX [ie, the Appellant]: I was here, one metre, enough. KL: That is why … walked to me … RX: Now, the main thing is that he/she still suspects that I was here when I told you not to look. KL: No, you were … RX: But, there is a problem, you have to prove that when I was holding you, you were still able to see. Your older sister was here, those lines of sight, my lines of sight and yours were only a bit different. KL: That is right, I just turned around to that side, and you what, held me, that is, pulled me, not being aware that this piece of fabric/cloth was …"
20. Kathy Lin was cross‑examined by the Crown about this conversation. She gave an innocent account of it, including that she and the appellant were having the conversation because they were worried about the possibility of the police framing them. [940]

Summing Up

1. The trial judge gave general directions about the drawing of inferences as to consciousness of guilt and then dealt with individual matters that the Crown relied upon in that respect. The first item dealt with was the entry of the appellant and Kathy Lin to Bedroom 1. [941]
2. Her Honour reminded the jury of the Crown's contention in relation to the issue, including reference to the Crown's reliance upon what Kathy Lin said in her July 2009 interview. Her Honour told the jury what was and was not in dispute. Although the trial judge had already directed the jury orally and in writing, her Honour nonetheless repeated her direction that the task of making findings of fact was a matter for the jury. Her Honour provided a summary of the submissions that had been made in relation to this issue by the appellant's counsel. [942]
3. The jury was reminded (again) that the accused bore no burden of proof. There was another reminder that in order to draw the inference for which the Crown contended it was necessary to discount any reasonable alternative explanation for the appellant's conduct. After immediately repeating the essence of that direction, her Honour told the jury that if they found in favour of the Crown, they could add this matter to the Crown's overall circumstantial case. Finally, seemingly as an afterthought, the trial judge added reference to the covertly recorded conversation between the appellant and Kathy Lin on 29 April 2010 and reminded the jury of the Crown submission that it was a "rehearsal of the circumstances in which they came upon the bodies in Bedroom 1". [943]

Submissions

1. The appellant's extensive written submissions on this Topic were helpfully digested into the following points at the hearing. [944] 1. The whole issue was "a constructed controversy that didn't exist on Kathy Lin's evidence". There was no dispute that she saw the body of her sister-in-law, whether before or after turning to face in its direction. If she was able to see the body, so too was the appellant. [945] 2. The Crown's submissions to the jury were based on a proposition that was unsupported by the evidence. The Crown had contended that Kathy Lin was "just inside the bedroom door entrance looking straight ahead" in the direction of a photograph on the wall "that can be viewed when one approaches the doorway, and that was said to be consistent with the proposition that [she] was looking straight ahead from the doorway, or … just inside the bedroom door at the point she was hugged by the [appellant]". [946] 3. The problem in (b) was made "considerably worse" by the Crown's description of Kathy Lin's evidence as containing "wildly divergent versions of events". In the written submissions it was put that the summing up "tended to steer consideration of the relevant evidence in an unfair way in favour of the Crown". [947] 4. The trial judge told the jury they could "take into account what the accused said to the police about his entry to the bedroom". However, "there was no reminder of what those answers were, although she did remind the jury of the defence submission that the defence case was that essentially they were both in a position to see what was seen". [948]
2. It was submitted that there was an imbalance in the summing up. This arose from "the context [being] given by the way the Crown had framed its case [with] an absence of any reference to what the evidence actually was, other than the fact that the Crown submission was that there were wildly divergent accounts, [together with] the absence of reference to the evidence of the accused". [949]

Consideration

1. The appellant accepts that there was no complaint at the 2016 trial about the judge's treatment of Topic C.
2. The appellant contended that "the only potential inconsistency between Kathy Lin's evidence at trial and in her interview on 20 July 2009 was whether she turned to the right after her husband hugged her". [950] There was, however, more inconsistency than that: 1. Kathy Lin's trial evidence was that she proceeded into the room to "about" or "around the end of the bed". She marked a plan which became Exhibit DU showing she was at least halfway between the doorway and the bottom of the bed. However, in her 22 March 2010 police interview she said she went "a little bit in". She was able to mark a location on a plan at the 2016 trial but not in 2010. She told her solicitor in the interview in 2010 that she could only say the rough position, not the exact location, and she could not remember the distance. [951] 2. Kathy Lin's physical representation during her July 2009 interview of the extent of the turn to the right that she made (after her husband hugged her) was to the effect that she would not have been facing her sister-in-law's body on the bed before the turn. What she said was also consistent with her not seeing the body before making the turn; for example, she said that her husband hugged or held her, saying "don't watch that, don't look at that", "and then I turn, turned right and I saw my sister-in-law lying on the bed". [952] Having to turn to the right to enable her to see the body is more indicative of Kathy Lin only having entered the room to a minor extent. If she had progressed to where she indicated in her trial evidence, there would have been no need for any turn at all. 3. The less that Kathy Lin and the appellant had proceeded into the room the more likely it would be that the appellant was still behind as opposed to beside her. In her July 2009 interview, she described him as being "behind me" and pointed over her shoulder, behind her, to physically confirm the point. [953] The Crown Prosecutor asked at the trial whether the appellant was behind her when he hugged her and she replied, "He's beside me". [954]
3. These matters, coupled with the "potential inconsistency" that the appellant concedes (turning to the right before, or after, the hug) provided a basis for the Crown's submission to the jury that there was substantial inconsistency between the version Kathy Lin provided in the July 2009 interview and those she subsequently advanced. As the Crown submitted in this Court, there may have been less force in the submission if there were only Kathy Lin's verbal accounts to compare, given her persistent claim that her account in the July 2009 interview could be unreliable because of her poor English language skills. However, it was open to the jury to consider that the gestures she gave during the July 2009 interview diluted the force of that excuse considerably.
4. The extent by which Kathy Lin had entered the bedroom was fundamental to the Crown's proposition that the appellant hugged his wife and told her not to look at a point at which he was not able to see the bodies on the bed. As the trial judge described it, the inference for which the Crown contended was that "in that moment as a matter of impulse, he sought to deflect his wife from what he knew was there to be seen". [955]
5. The appellant contends that, if Kathy Lin was able to see the body of Lily Lin, either before or after she was hugged by her husband, he must have been able to see the body as well. The one does not necessarily follow the other; it very much depends upon how far into the room they had progressed. It must be borne in mind that the pair were unlikely to have been stationary when the hug occurred, and it was open to the jury to accept that the appellant was behind Kathy Lin. (The appellant said in his police interview in March 2010 that he was "a few steps" or "one metre … not sure … not far" behind Kathy Lin. [956] )
6. It was also open to the jury to accept that the appellant and Kathy Lin had rehearsed a version in the covertly recorded conversation on 29 April 2010, two days after she had been served with a NSW Crime Commission summons. The jury could have regarded it as damaging to the credibility of a proposition that if she could see the body of her sister-in-law then he would have been able to as well, given this conversation included the appellant telling his wife: [957] "The main thing is that he/she still suspects that I was here when I told you not to look … You have to prove that when I was holding you, you were still able to see. Your older sister was here, those lines of sight, my lines of sight and yours were only a bit different."
7. Whatever view one might take about the strength of the Crown argument in relation to this issue, it was a tenable argument, given the state of the evidence. There was a real controversy; not a "constructed" one.
8. This ground concerns the way the trial judge directed the jury. The structure of the summing up on this issue has been described earlier. We do not perceive any lack of balance or unfairness. The trial judge summarised the competing cases and reminded the jury of relevant aspects of their task in finding facts and drawing inferences. The latter included that if there was any alternative reasonable explanation for the appellant's conduct the inference for which the Crown contended could not be drawn. Her Honour reminded the jury of the Crown bearing the burden of proof, with the accused not being required to prove anything.
9. There was the one discrete complaint, faintly raised, that the trial judge referred to the appellant's answers in a police interview but did not remind the jury what they were. The short answer to that is that the trial judge was not purporting to engage in a detailed review of the evidence. It was enough to remind the jury as her Honour did. In relation to this, and Topic C overall, it is significant that her Honour was not asked to correct or to augment her directions in any respect.

Topic D - Insufficient effort to check the children

1. The trial judge did not include this Topic when surveying the various activities of the appellant on 18 July 2009 in the context of dealing with consciousness of guilt matters. [958] Her Honour had, however, briefly referred to this earlier in the summing up when outlining matters that formed part of the Crown's circumstantial case and her Honour referred to it again at the end within a very condensed summary of the Crown case. [959]

The issue

1. This Topic is concerned with a short point: the appellant made no real attempt to check whether either of the two boys were still alive because, as the murderer, he knew they were dead. The bodies of the boys were in Bedroom 3, the last of the bedrooms entered by the appellant and Kathy Lin.
2. The Crown suggested to the jury that the bodies of the two boys were not in such a state as to discourage a medical professional from checking for signs of life; indeed, the ambulance officers checked to see if they had a pulse. The appellant was medically trained, [960] and he had a close relationship with the boys. The Crown referred to passages in the appellant's police interviews. On 22 July 2009, the appellant told the police: [961] "We entered the room and we can see both children were lying on the floor, also see very red blood all around, messy. Again I want to touch them because they are just little kids and I really want to know whether they are still alive or not. I remember I tried to reach them by my right hand, but I can't remember. [K]athy held me back and she kept, she kept yelling, 'Let's go, let's go' she was so frightened. I was afraid as well."
3. Later in the same interview he said he "possibly" touched the children's necks. [962]
4. In his interview on 16 March 2010, the appellant said he "want[ed] to try to touch them and see if they … were alive"; he may have attempted to touch the older of the two boys, but "I forgot". [963]
5. The crux of the Crown submission was: [964] "The Crown case is that if the accused was completely uninvolved in these murders, that as a former specialist, medical practitioner, you would have expected that he would have approached the two young boys and made a real attempt to see whether or not they were alive and he would have remembered doing it. Instead, he succumbs to his wife's request to leave and doesn't make any real attempt to see if they are alive. And the Crown case is that this is because he already knew they were dead because he was the one responsible for the killings." (emphasis added)
6. Defence counsel addressed this issue on at least five occasions during a 12‑day closing address to the jury. It was suggested that it was obvious that all the deceased were dead at the time the appellant saw the bodies so that this issue was "completely neutral". Ambulance officers immediately recognised that the deceased were dead so this was not something the jury would hold against the appellant on the question of his guilt. It was submitted that the Crown case "needs to be closely examined, and … utterly rejected" as "it was obvious that those persons were deceased and would have been … more obvious to a medically trained person". This was equally obvious in relation to the children and so it was not something the jury would consider against the appellant. The jury was reminded that one of the first police officers to attend the scene agreed that it was "very obvious" that the people he saw were deceased. [965]
7. Defence counsel made short submissions on several points at the conclusion of his address. This included asking the jury to bear in mind the appellant must have been in a state of shock having witnessed the scene upstairs. He also reminded the jury of what Kathy Lin said in her July 2009 interview, including that the appellant had wanted to check whether the boys were still alive, but she had told him not to. [966]

Summing Up

1. As indicated earlier, this Topic was not included in the consciousness of guilt section of the summing up. It was mentioned earlier, and only briefly, as being a component of the Crown's circumstantial case. In the middle of nominating the various components of that case her Honour said: [967] "The accused made no attempt, in the Crown's submission to you, a matter established by the evidence, to check whether the children were deceased, despite being medically trained and despite what is said in the evidence, it is the view of some, to be his particular fondness for the young boy, Henry." (emphasis added)
2. In a wrap-up summary of the Crown case shortly before the jury retired, her Honour said: [968] "He made no attempt to see whether the children were deceased, despite being medically trained, and despite what he says is his particular fondness for [name]." (emphasis added)
3. There were no other references to this Topic in the summing up.

Submissions

1. The appellant contends that that the trial judge "failed to address this issue with the balance required" by overstating the Crown contention and by referring to none of the evidence regarding the attempts the appellant did make to check on the children. [969]
2. In oral submissions, the contention of there being an "overstatement" by the trial judge was clarified: the Crown had addressed the jury on the subject of checking on the boys in terms of the appellant having made "no real attempt", whereas the trial judge simply said "no attempt". [970]
3. It was also submitted that the trial judge should have reminded the jury of several aspects of the evidence that favoured the defence in relation to this issue. They were matters that neither party had referred to in submissions on this issue. [971]

Consideration

1. Dealing with the last point first, it is not the case that a trial judge has a general and overarching obligation to refer to evidence that favours one party or the other that has not been the subject of submissions, or mentioned at all, in closing address by the parties themselves. We have earlier referred to Domican v The Queen and McKell v The Queen. The following statement from Whitehorn v The Queen (1983) 152 CLR 657 at 682; [1983] HCA 42 (Dawson J), as paraphrased in McKell, is directly on point in responding to this aspect of the appellant's criticism of the trial judge: "It is no part of the trial judge's role to 'don[] the mantle of prosecution or defence counsel."
2. The difference between "no real attempt" and "no attempt" is insignificant in the circumstances. Defence counsel did not apply any qualifying word when referring to the issue in his address. He spoke of "[the appellant] not checking the children". [972] On any view, the appellant made no effective attempt to check whether the boys were still alive. Either description was apt.
3. There was nothing unfair or lacking in balance in her Honour's treatment of this issue. The relative lack of significance of the point is indicated by the brevity with which it was dealt. There was no complaint raised by trial counsel. To the extent that the appellant relies upon a cumulative effect of the various Topics raised under Ground 5(b), this one adds nothing.

Topic E - Leaving Kathy Lin

1. The Crown contended in its closing address that, soon after exiting the Boundary Road home, the appellant left his wife there and drove away. He was absent for the next hour or so. This was after the discovery of the horror within when it was supposedly unknown whether the killer was still present. The Crown argued that leaving in such circumstances was against the wishes of his hysterical, distressed and fearful wife.
2. The appellant first took XX to their home nearby in Beck Street. He then drove back to Boundary Road where he spoke briefly to his wife. He then drove to Merrylands where he picked up the grandparents and brought them back to North Epping. The Crown contended that he took the opportunity to dispose of incriminating items including the murder weapon. It contended that he implicitly admitted this was his purpose in the covertly recorded conversation he had with Witness A on 13 October 2012 [973] noted above (at [63]).
3. The defence case, according to the appellant's written submissions in this Court, was that there was nothing abnormal about the appellant leaving his wife; there was inadequate time to dispose of any incriminating items; and there was nothing found in the car to indicate incriminating items had been in it. Senior Counsel for the appellant was critical of trial counsel for being inconsistent in submissions about the evidence of Kathy Lin's father in connection with this issue. There was also criticism of the failure to make submissions in relation to the Crown's contention that an implied admission was made in the conversation with Witness A on 13 October 2012. [974]
4. Senior Counsel for the appellant submitted at the hearing of the appeal that "the strong and clear inference to be drawn from the evidence is that the [appellant] left his wife because his wife wanted him to go and pick up her parents". [975]
5. The appellant's contention in relation to Topic E is essentially a complaint about imbalance favouring the Crown.

Crown case in closing address

1. The closing address for the Crown on this subject included a detailed review of the evidence it regarded as relevant. That review was interspersed with the following submissions. 1. Kathy Lin did not want her husband to leave when he did. He nevertheless abandoned her. Eyewitness accounts confirmed this. [976] 2. The appellant had no concerns about leaving his wife at the scene. This was because he knew she was not at risk of any harm because he was the person responsible for the murders. He did not need to be worried about her safety. [977] 3. What was so pressing that the appellant was prepared to leave his distressed wife? Her distress was evident from the triple-0 calls that the jury had heard. She was very scared and telling him not to go. His pressing need was to dispose of the incriminating evidence that he had collected from Beck Street when he took XX back home. He was fearful that the police may decide to commence their investigations into him that day because he was one of the people who had discovered the bodies. He could not run the risk of anything linking him to the crime scene being discovered by police. [978] 4. The real reason the appellant left his wife at Boundary Road on her own emerged from the conversation he had with Witness A on 13 October 2012. He implicitly admitted that there "may be" some CCTV footage of him disposing of the hammer on the way to the grandparents. If he did not dispose of a hammer, why would he be concerned at all about CCTV? [979] 5. The defence may submit that the trip to pick up the grandparents did not take any longer than usual. By way of response, it would not have taken very long on the way there to dispose of the incriminating items. [980] 6. The defence would rely on the fact that police found no blood in the car the appellant used. That is explained by the fact the items must have been covered with some sort of protective covering, like a bag.
2. The Crown's concluding submission was: [981] "So overall, you know that the accused left his wife, against her wishes, at the scene, in an extraordinarily distressed state. You know that, supposedly not knowing where the killer was that was responsible for these murders, the accused was, nevertheless, prepared to leave his wife there alone. You know that he didn't even know when the police or the ambulance were going to turn up at that point that he left. And the Crown says, you know from that recording, those parts that we've just played, the Crown says the accused implicitly gave away the reason why he left his wife in those circumstances. He had to. The pressing need was because he was going to dispose of the incriminating evidence, including the hammer. And he has implicitly admitted that because of the fact that he's recognised that there may be CCTV footage of him disposing of that hammer on the way to the grandparents."

Defence case in closing address

1. The appellant's written submissions included a summary of relevant aspects of the defence closing address on this subject: "The Defence Closing Address 57. Defence counsel repeatedly submitted to the jury that there was no abnormality in the Applicant leaving his wife in the busy suburban setting, that there was inadequate time to dump any equipment, and that there was nothing in the car to support the Crown case that incriminating evidence had been in it. He reminded the jury of the distance, in the order of 80 metres, from the house to the roadway where Kathy Lin was left. 58. He initially referred, on the first day of his twelve day address, to the evidence of Yang Fei Lin [father of Kathy Lin] emphasised by the Crown as to his being asked to catch the train on the telephone call from the Applicant, suggesting this meant the Applicant was '..not looking for some opportunity to go and ditch the kit. ' Then again on the following day Defence Counsel submitted that one reason that the Crown case of the Applicant's departure to pick up the grandparents to get rid of the murder weapon was ridiculous was that he didn't want to go and pick the grandparents up anyway - he only went because they said they couldn't get the train timetable or something like that. He continued: 'He goes on that trip in the first place, not because he wants to, but because the grandparents had some difficulty getting the train or sorting themselves out in that regard. That's why he goes and picks them up.' 59. The address on its fourth day changed to incorporate Yang Fei Lin's first account of the conversation. Defence Counsel read out to the jury Yang Fei Lin's first description of the telephone call from the Applicant (asking whether he would like to catch the train or to be picked up), submitting that this completely refuted the Crown suggestion that the Applicant was looking for an excuse to drive off and dump the gear. 60. Defence Counsel did not remind the jury of the Applicant's account to the police on this issue. He did however recommend the three interviews of the Applicant to the jury as not containing a single lie. Later again, towards the end of Defence Counsel's address, he submitted that not a single thing the Applicant had said in his records of interview had been shown to be false. 61. Defence Counsel made no submissions at all in relation to the Crown case that Exhibit FP contained an implied admission that the Applicant had disposed of the murder weapon on the way to collect Kathy Lin's parents. This failure is raised as particular (x) of ground 8 of appeal."

Appellant's submissions

1. The appellant's primary complaint according to the written submissions appears to be, "[t]he real defence case was never left for the jury's consideration". At the hearing, the complaint was described as there having been an over-emphasis of the Crown case and an inadequate treatment of the defence case. [982]
2. The submissions by the appellant were extensive and ranged widely with criticisms of the Crown case and how it was argued in closing address, including assertions as to how it might or should have been argued, as well as criticisms of the trial judge's summing up.
3. The "real defence case" was identified as: "[t]he [appellant] went to collect his wife's parents with Kathy Lin's active encouragement - to support her as she wished to be supported in this moment of trauma". [983]
4. The written submissions for the appellant continued with arguments as to why it should be accepted by this Court that the defence case was as described. This is unusual. A criminal appellate court is entitled to accept that a party's case was as it was presented in the court below. It is not a matter for the court to determine that a party's case was something that is based upon the court's own assessment of the evidence, guided by submissions of the party on the appeal that differ from those which the party made below.
5. Nonetheless, this is what the Court was asked to do. It was then asked to determine whether the trial judge put the case for the appellant to the jury in accordance with what has been determined to be his case by this Court (cf Domican v The Queen at 560-561). The following paragraph from the appellant's written submissions is illustrative of the approach: "79 It is submitted that once the totality of evidence on this issue is considered, the strongest and clearest interpretation of it is that [Kathy] Lin, a woman for whom English is a second language, has tried repeatedly and consistently to explain her overwhelming immediate and visceral need, after discovering the bodies of her relatives, to have her parents there with her at her brother's home as soon as possible, a paralysed inability to bring this about herself, and her turning to her husband to do this for her."
6. It is readily apparent that this emotive advocacy is a plea for this Court to make a finding in relation to the evidence. It is not a statement of what the defence case was. Even less is it a statement of something that was a significant part of the defence case as put to the jury by defence counsel but was not referred to in the trial judge's summing up.
7. Bearing in mind that this ground is concerned with asserted error in the summing up, the following may be identified as submissions pertinent to that aspect: 1. Neither counsel nor the trial judge reminded the jury of Kathy Lin having said in her July 2009 interview: "I said you need to let my mum, my parents know so you, you quick. First, I say, I let mum catch the train and he, I change it, I said, you, you, you go to my mums home, pick up them quicker they catch the train so my husband left and ring, and the, the triple-0 again". [984] 2. Neither counsel nor the trial judge reminded the jury of the appellant saying in both his police interviews that he went to collect Kathy Lin's parents in accordance with her wishes. The trial judge was required to remind the jury of this in putting the defence case on this issue. [985] 3. Neither counsel reminded the jury of evidence about the conversation between the appellant and Kathy Lin when he came back to Boundary Road after having dropped XX home at Beck Street. There was an exchange between them as to whether her parents should be asked to come by train but they settled on the appellant going to collect them. The trial judge referred to this in the summing up but only to suggest why it was wrong. [986] (That is not correct. The trial judge simply reminded the jury that the Crown had submitted that it was contradictory for Kathy Lin to say the appellant left when they had agreed he would pick the grandparents up, rather than them catching public transport, when after driving off the appellant rang the grandparents and spoke about the prospect of them catching the train). [987] 4. It was inappropriate for the trial judge to have repeatedly informed the jury that it was the Crown case that there was "evidence of entreaties to stay, requests to stay, [or] protestations about the [appellant] leaving". [988] 5. The trial judge was incorrect in informing the jury that Kathy Lin had denied saying to the appellant, "I'm more scared than you". The likely impact of this misstatement on her credibility was important. Kathy Lin always agreed that she said, "No, I'm more scared than you". She simply disagreed with the Crown construction as to what it meant. [989] 6. Neither the Crown Prosecutor nor the trial judge mentioned that the appellant had said in an interview that he told Kathy Lin's parents in a phone call that something bad had happened and he was going to come and pick them up. Further, Kathy Lin's father had said that he was told something had happened and was asked if he would like the appellant to come to pick them up or catch the train. [990] 7. Neither counsel nor the trial judge reminded the jury of the continued contact between the appellant and his wife on his trip to Merrylands. [991] 8. The trial judge did not repeat the submissions by defence counsel as to the timing of the appellant's trip to and from Merrylands, nor the evidence upon which they were based. Her Honour did, however, repeat the Crown's counter arguments in summarising the Crown case. [992] 9. The trial judge suggested that the absence of forensic evidence in the car was consistent with the absence of the appellant's DNA at the Boundary Road home, indicative of someone taking great care not to leave evidence. This was circular and a submission not even advanced by the Crown. [993] 10. The trial judge made no reference to the defence arguments about the safety of the environment in which Kathy Lin was located nor the evidence upon which those submissions were based. (She was located at the end of a long driveway from the home of the deceased and there were family sports activities around her.) [994] 11. The trial judge was in error in amplifying the Crown theory about the level of distress demonstrated by Kathy Lin in the triple-0 calls and it being indicative of her not wanting the appellant to leave her. The Crown theory was significantly disconnected from the most natural interpretation of the evidence (Kathy Lin had much to be distressed about) and the amplification of the Crown's theory and failure to remind the jury of the defence case contributed to a miscarriage of justice. [995]
8. The appellant was also critical of the jury having been left with a "highly unbalanced reminder of the evidence relevant to whether [he] admitted to Witness A on 13 October 2012 that he disposed of a hammer on his way to collect his wife's parents". He submitted, "there was so much that needed to be said about this recorded conversation". [996] Submissions were made that were critical of arguments presented by the Crown and suggested arguments that were available to the defence. [997]
9. As to this latter aspect, the conversation with Witness A on 13 October 2012, the appellant acknowledged that the trial judge did not have an obligation to mount arguments that should have been made by trial counsel; but that is an issue raised in Ground 8. It was, however, submitted that the trial judge should have reminded the jury that it was a matter for them to determine if the various propositions for which the Crown contended were made good. Further, the summing up "ideally" would have pointed out certain statements made by the appellant to Witness A which could be construed as exculpatory. [998]

Consideration

1. As the Crown pointed out, much of what the appellant contended should have been put to the jury as the "real defence case" turned largely upon the jury accepting the evidence of Kathy Lin. For the trial judge to have provided a balanced review of Kathy Lin's evidence it would have been necessary to refer to various inconsistent statements she had made. This would have had a bearing upon the credibility of her evidence not only concerning this issue but also in relation to other topics upon which the appellant relied in her testimony. Two topics prominent in that vein were the appellant's alibi [999] and the circumstances of she and the appellant entering Bedroom 1. [1000]
2. The appellant's submissions include an extensive argument as to what conclusion should be drawn as to Kathy Lin's state of mind at the time she was speaking with her husband in person while also on the phone to the triple-0 operator. However, there was an alternative view to be taken based upon the tone of her voice and the content of her utterances as indicated by the recordings. The Crown submission to the jury would appear to have been one that was open to be made. Part of it was: [1001] "What is more important than anything, members of the jury, is what is she telling him. She is telling him, repeatedly, 'I am scared'. And not only 'am I scared', 'I'm more scared than you'. In fact, she goes on and says it again, just before he drives away. What does she say: 'No, I am more scared than you'. She is crying. She is understandably highly distressed. She is telling her husband she's see more scared than him. And what does he do? He drives away. And having driven away, what does she do? She is still yelling, or talking to the car, saying, 'Hey husband, hey husband' It's there. It's on the triple-0 recording. Now, if that is not clear enough to show that Mrs Lin did not want her husband to leave, you have more. And that is: What does she do after that particular part of the recording? She hangs up. She hangs up that triple-0 call and, members of the jury, who does she call immediately? The accused. Straightaway. And you can see it on the telephone summary. You can see it. It's there. It's entry number - you have got the triple-0 call, and then you've got the next entry in relation to Kathy Lin, being the call to [the appellant]."
3. The Crown usefully referred to matters that the appellant submitted needed to be drawn to the attention of the jury by the trial judge which were in fact drawn to its attention or in respect of which there would have been difficulties for the defence case if her Honour had done so. It will suffice to provide the following examples.
4. The appellant contended that the trial judge made no reference to defence arguments about the safety of the environment in which Kathy Lin was located. However, her Honour said, "[t]he fact that he left his wife behind was, in counsel's submission, to leave her behind in a safe place some distance from the crime scene and around other people". [1002]
5. The appellant contended that the trial judge should have reminded the jury about Kathy Lin's evidence of a conversation, after the appellant returned to Boundary Road from having dropped XX at their home in Beck Street, in which she and the appellant first discussed her parents coming by public transport but then agreed on the appellant picking them up. However, Kathy Lin's evidence‑in‑chief in the 2016 trial was that the arrangement when the appellant left to take XX home was for him to continue on to pick up her parents. [1003]
6. There was also the difficulty Kathy Lin had in explaining why, after the appellant returned to Boundary Road and then drove off to pick up her parents as she (apparently) wanted, she immediately rang him. (And she had to terminate a call to triple-0 in order to do so.) First, she said that she "call him because I want - ask him to pick up my parents as soon as possible, and back to my brother's house as soon as possible. That's why I call him". When reminded that she had already told him that, and pressed on why she terminated the triple-0 call and rang him, she then said, "I want him back to help me to talk with the police, ambulance officer … I want him quick, and remind him quick as soon as possible". The proposition that Kathy Lin needed to "remind" the appellant might not have engendered confidence in her credibility. Indeed, none of this would likely have inspired the jury to accept her at her word. [1004]
7. Reminding the jury of the appellant's police interviews in 2009 and 2010 might not necessarily have been helpful to the defence case. His counsel might have shied away from doing so in order to avoid drawing attention to inconsistencies with known facts (such as omitting the fact he went back to Boundary Road after dropping XX home in Beck Street [1005] ) or inconsistencies with Kathy Lin's version(s) (such as her claim that before he went to drop XX home they had agreed that he would go and pick up the grandparents [1006] ).
8. The Crown also pointed out that the trial judge in fact drew the jury's attention to some of the matters which supported what is now described as the "real defence case". [1007] It is notable that her Honour immediately followed that up by reiterating her direction that the jury must only draw the adverse inference the Crown contends is open if satisfied there is no other rational explanation for the appellant leaving his wife alone to deal with police and emergency services in the state revealed by the triple-0 calls. [1008]
9. There was nothing erroneous or inadequate about the way the trial judge dealt with the evidence of an alleged implicit admission made by the appellant to Witness A in their conversation of 13 October 2012. Her Honour referred briefly to the topic of the appellant leaving Kathy Lin at Boundary Road, in conjunction with a number of his other activities on 18 July 2009 that the Crown said gave rise to an inference of consciousness of guilt. Her Honour then gave the jury a direction about the way in which they must approach that general issue, including that inferences could only be drawn from facts the jury found to be established by the evidence. This served to direct the jury in relation to an asserted implicit admission to the necessity first to find that such an admission was in fact made. The trial judge later reviewed the evidence in relation to the Witness A conversation on 13 October 2012, but she had already reminded the jury of defence counsel's submission that there was nothing in any of the conversations with Witness A that revealed guilt; they were simply "gaol talk". [1009]
10. What is contended for by the appellant in relation to Topic E are really a variety of ways in which the case might have been pursued differently by counsel and presided over by the trial judge. This Court is generally concerned more with the case as it was litigated in the trial court than with a theoretical "real defence case" that is created from the armchair of appellate counsel who did not bear the duties, responsibilities and pressures of trial counsel.
11. There is no merit in Topic E.

Topic G - Discovery of Min Lin's body

1. This topic relates to the number of bodies police were told were in the Boundary Road home. The body of Min Lin was not immediately visible because it was in Bedroom 1, on the bed but underneath a doona. The appellant was critical of the Crown theory on this subject. In assessing the validity of this criticism, it is useful first to note the evidence upon which the Crown relied in closing address and then the submissions that were made. [1010]
2. When Kathy Lin rang triple-0 after leaving the house, she was asked by the operator whether her brother was in the house. She said that she was not sure, she did not see him.
3. To the first police officers on the scene, Kathy Lin said, "I think my brother's dead inside". She explained she had been told in a phone call that her brother had not gone to work; she came over and went inside and saw her sister-in-law was dead.
4. Two officers went inside the house and they saw four bodies. As noted, [1011] in the initial period, they considered Min Lin a suspect.
5. Kathy Lin must genuinely have believed that there were four deceased. The telephone records showed that at 10.12am she tried to ring her brother, obviously consistent with a belief that he was alive.
6. In the course of making inquiries about the "missing" Min Lin, police looked into vehicles registered to him. They found that a red Corolla was registered in his name; it was in fact Kathy Lin's car and it happened to be the car that the appellant had used to drive to Merrylands to pick up the grandparents. There was some confusion when he arrived with them back at Boundary Road with police thinking that the suspect had just returned. That was cleared up quickly.
7. The Crown Prosecutor said that the telephone records assisted in determining what time the appellant arrived back at Boundary Road because at 10.45am Kathy Lin was still trying to call him. Accordingly, he must have arrived at some time after 10.45am.
8. The Crown invited the jury to draw the inference that the appellant must have realised from what occurred when he arrived back at Boundary Road that police were looking for Min Lin. There was evidence that the appellant did not say anything to police at that point about how many bodies there were upstairs in the house.
9. Kathy Lin was still of the belief that Min Lin was alive. She told her parents when they arrived at Boundary Road that four people had been murdered, her sister-in-law Lily Lin, Irene Lin and the two children. Her parents asked if she had seen her brother and she replied, "No". Kathy Lin's mother started thinking that her son had been kidnapped and held out hope that he was still alive.
10. So, the Crown argued, it was clear that neither Kathy Lin nor the appellant said anything to the police at Boundary Road about Min Lin being upstairs under the covers. If there had been any suggestion of that by either of them, the police would have entered the premises immediately to look, and that did not happen.
11. The evidence of Kathy Lin's father, Mr Lin Snr, was that while still at the Boundary Road home that morning, the appellant said, "[a]t most we could take Brenda as our adopted daughter". That idea was rejected but the point is that adoption would not be an issue if one of the parents of Brenda Lin was still alive. The evidence of Kathy Lin's mother was consistent with this conversation having occurred.
12. Thus, according to the Crown, the appellant had revealed his knowledge that Min Lin was dead; something that he could not have known if he were not the murderer.
13. Kathy Lin and her parents were taken to Hornsby Hospital by ambulance. The appellant travelled separately and arrived shortly after they did. The police were still unaware of the whereabouts of Min Lin.
14. A Cantonese speaking nurse, Nurse Edwards, had a conversation with Kathy Lin in which the events of the morning were discussed. Kathy Lin included that when she went to her brother's room, she saw a body in the bed and also a lump in the bed. She said, "[w]e didn't look". The appellant said, "[w]e couldn't find the brother, so we think it's the lump in the bed, but we didn't want to look". [1012]
15. Nurse Edwards had commenced work at 12.30pm and saw the appellant and the others soon after. She told police about the conversation she had with the appellant and Kathy Lin who were then spoken to by police. After some time, police returned and told the family that the body of Min Lin had been found.
16. The police account of what occurred at the hospital was that a Detective Nuttall was asking general questions about the family. She said, "[w]e need to find Min" and Kathy Lin replied, "[h]e's in the bed at the house". Kathy Lin was asked whether she saw him, and she replied in an insistent manner, "[t]here's a lump in the bed where he sleeps. I went to the room, I saw the blood and the lump. I went to pull the covers down, but my husband pulled me out and say, 'no, don't look'". According to DSC Wilson, who was present, the appellant did not say anything; he had the appearance of listening but was looking at the floor or the wall at the time. [1013]
17. Police made inquiries about this information. Officers at Boundary Road were disbelieving at first, based on what they had seen in Bedroom 1. However, it was, of course, confirmed to be correct. The news was relayed back to the officers at the hospital where DSC Wilson broke the news to the family.

The Crown submissions

1. The Crown Prosecutor referred the jury to the telephone records that showed that, even as late as 1.45pm, Kathy Lin was still trying to call her brother. The prosecutor asked rhetorically, if she was so definite Min Lin was in the bed, that he was the lump, what was she doing trying to call him at 1.45pm? What happened to make her so sure, so soon after, when talking to police that Min Lin was in the bed? [1014]
2. The Crown invited the jury to infer that there had been some discussion between the appellant and his wife which led to the disclosure to Nurse Edwards. The Crown argued that the appellant had said certain things that had led to the disclosure, but nevertheless, Kathy Lin was still not convinced because she continued to try and call her brother. [1015]
3. The Crown then submitted that the appellant must have said something further to Kathy Lin that had planted the idea firmly in her mind and led her to being insistent by the time she spoke with police that "[h]e is in the bed". [1016]
4. The Crown argued that the appellant was the source of the information about Min Lin that Kathy Lin conveyed to the police. He used her as the conduit for information he had from being the killer because he did not want to draw any attention to himself. [1017]
5. Kathy Lin denied being the source of the information provided to police which led to the discovery of the body of Min Lin. Her evidence was to the effect that the police had found out and announced the news to the family. The Crown submitted the jury would find the evidence of Kathy Lin on this subject to be "not a reliable account". [1018]
6. The Crown made submissions as to why the jury would prefer the evidence of the police over that of Kathy Lin. One was that DSC Wilson became quite emotional when giving evidence about how he told the family that a fifth member of the family had also been murdered. The Crown invited the jury to regard such emotion as a sign of genuine recall of a real event. The jury was also reminded of a question that Kathy Lin was asked in her interview on 20 July 2009 by Detective Nuttall, the officer working with DSC Wilson. She asked, "[y]ou said to me at the hospital it looked like a lump" and Kathy Lin replied, "[y]es, yes, it looked like lump". [1019]
7. The Crown concluded its submission as follows: [1020] "Members of the jury, Kathy Lin was the direct source of the information that led to Detective Wilson contacting Boundary Road. And the Crown says, for the reasons that I have already outlined, the conclusion you would draw from all of those circumstances, is that the source of Kathy's information was the accused. He simply used Kathy as the one to relate to police; because he did not want to draw attention to himself. Clearly, him and Kathy have talked about the issue, before the conversation with the nurse, but Kathy is still not convinced because she made that further call at 1.45. Then something else has happened. Then she sits there and firmly tells the police, without any input from the accused, that she knows Min's in the bed. Members of the jury, it was something that the accused did that firmly planted in her mind that that was where Min was and, she was to be the one that was to relay that information to police without any input from him while he sat there, looked at the wall, and looked at the floor."

Appellant's submissions

1. The appellant argued that this limb of alleged consciousness of guilt reasoning involved "a particularly strained interpretation of the evidence" and that it "also has underlying problems of lack of logic". [1021]
2. The appellant described the Crown's argument regarding the discovery of Min Lin's body as having three aspects.

1st aspect: The appellant's knowledge as the killer that Min Lin was on the bed under the bedclothes

1. The first component concerned the appellant's knowledge as the killer that Min Lin was on the bed, under the bedclothes. An argument was laid out in the written submissions for an inference to be drawn that "Kathy Lin always suspected her brother was deceased under the quilt". There was also an argument as to the flaw in the Crown theory, unfortunately tinged with the emotive language of a jury submission: [1022] "The Crown theory ignores entirely the reality that people, particularly in such incredibly difficult circumstance as here faced by the [appellant] and his wife, do not have black and white realities of knowledge [or] lack of knowledge - they can simultaneously hold conflicting hopes, fears and suspicions, and these fluctuating over time."
2. Submissions of this type appear designed to fill a void in the evidence by attributing thoughts, motives and emotions to witnesses that were not expressly or implicitly reflected in the evidence they gave.
3. The appellant's complaint in relation to this first component is that "the summing up failed to strike the requisite balance between the parties by referring to the relevant evidence supporting the fact that both the [appellant] and Kathy Lin suspected Min Lin was under the bedding from the outset". [1023]
4. The submissions, however, returned to a critique of the Crown's argument.

2nd aspect: No reason was advanced for the appellant doing this

1. The appellant submitted that, assuming he was guilty, the reasoning must be that for some reason at 12.30pm, but not earlier, he wanted police to find the body of Min Lin. He also submitted that no reason why he would have this wish was ever articulated. [1024]
2. There was no explanation provided in the submissions as to how this was relevant to the summing up.

3rd aspect: The appellant's "dreadful mistake" of indicating in his 2010 interview his belief on 18 July 2009 that there were five bodies in the house

1. This third aspect relates to something said by the appellant in his 16 March 2010 police interview. The appellant said, "I saw Min and Lily this side", thereby inadvertently disclosing that he had seen five bodies on 18 July 2009. [1025]
2. At the 2016 trial, the Crown submitted to the jury that this answer was a "dreadful mistake" and that the appellant realised the mistake afterwards. This resulted in him "backtracking" by calling the officer-in-charge, DS Maree, the next morning to claim that he had in fact told an officer at the scene on the morning of 18 July 2009 that he saw five bodies. The officer in question refuted that claim. The Crown submission was: [1026] "So ladies and gentlemen of the jury, the accused is saying that to his mind, after being in the bedroom, he believed or guessed Min was in that bed, that morning, but he never mentioned it to his wife. And this is even, as I said, when he's fully aware that the police are looking for Min Lin, having mistakenly believed he was Min Lin, and he's fully aware that … the grandparents and his wife, are still proceeding on the basis that Min Lin may be alive. You may think it just does not add up. He has made a mistake. He's inadvertently disclosed that he knew perfectly well that Min Lin's body was there and he tried to cover it up by saying that he told the police outside about it. It would be clear to you by now that the Crown case is that the reason the accused knew that Min was there was because he was the killer."
3. The appellant submitted in this Court that rather than being a "dreadful mistake", his disclosures in the 2010 interview were consistent with what he said in his 2009 interview and with his conversation with Nurse Edwards on 18 July 2009. The jury was not reminded of any of that evidence and so it was necessary in the circumstances for the trial judge to do so.
4. It was further submitted that "given the somewhat bizarre nature of this Crown theory on consciousness of guilt it was vital for her Honour to set out neutrally the relevant evidence and what the actual (logical) course of reasoning that could be taken into account was".
5. Nothing further was said in oral submissions about the third aspect. Indeed, the oral submissions were confined to a criticism of the Crown's theory of the appellant using his wife as a "conduit", but otherwise deferred to the written submissions.

Consideration

1. There is no merit in the complaint about an imbalance in the summing up in relation to these issues. Nor is there merit in the criticism of the Crown theory.
2. The Crown theory has been summarised in detail above. There does not appear to be any problems in terms of its logic or rationality. The appellant described certain aspects as "nonsensical" but that criticism is overblown.
3. That the Crown theory was capable of being regarded by the jury as valid can be demonstrated by some examples. One is that it was incontrovertible that Kathy Lin attempted to call her brother at 10.12am and 1.45pm. The Crown case was that this indicated she held a belief that he may possibly be alive. The Crown was not contending that she had "black and white realities of knowledge [or] lack of knowledge". However, notwithstanding Kathy Lin may have held that belief at 1.45pm, it was only a short time afterwards that she told police that Min Lin was in the bed at the house and that she had seen the lump.
4. Kathy Lin's evidence on this subject was not consistent. For example, she agreed (after prevaricating) that at no time did she tell police that Min Lin's body might be upstairs in the bedroom; yet she later said that as early as the time the appellant was driving away to take their son home she believed (and had good grounds for believing) her brother was upstairs dead in the bed: [1027] "Q. At no time, whilst you were at Boundary Road, before leaving, did you at any time suggest to the police that Min's body was upstairs, did you? A. WITNESS: They didn't tell me. They just saw me I'm shaking, I'm shocking. They suggest me I go to hospital. HER HONOUR: Q. Could you answer the question the Crown asks you please Mrs Lin? A. (No verbal response) CROWN PROSECUTOR SMITH: Q. I will say it again: At no time, whilst you were at Boundary Road, before leaving, did you at any time suggest to the police that Min's body was upstairs? A. WITNESS: No. … Q. Did you then observe [the appellant] do that, or drive off towards your house with your son in the car? A. WITNESS: Yes Q. Now, ma'am, in and about that time did you believe, or not know what was the situation as to the whereabouts of your brother, Min? A. WITNESS: That time I believe my brother, and my sister-in-law, Lily, Irene and the two boys in the house. Q. Ma'am, when you say that, why did you think that your brother, Min, was in the house? A. WITNESS: His van parking in front of house, his watch on the bench, and also I saw the bedroom next to my sister-in-law, and the bed's messy, and also the level is same as my sister-in-law's body. Q. Okay? A. WITNESS: And also I saw the wall next to my brother side is lots of blood. Q. Are you saying, ma'am, that you saw lots of blood on both sides of the bed? A. WITNESS: I say is I saw my brother's side, the wall is lots of blood."
5. Kathy Lin's credibility was also brought into question by her denial of the conversation with police at the hospital. She claimed that she said nothing to police until they told her that Min Lin was dead. To be weighed against that, however, was the evidence of Nurse Edwards, DSC Wilson and that police at Boundary Road had not checked under the doona in Bedroom 1 until after receiving a call from the hospital. Kathy Lin's denial was also contradicted by an answer in her July 2009 interview in which she agreed that she had told Detective Nuttall at the hospital that she saw a lump in the bed. [1028]
6. The appellant's complaint about deficiencies in the summing up are groundless. Her Honour included a reasonable and fair review of the defence case on this issue. Her Honour told the jury: "[805] Mr Webb [trial counsel] submitted to you that it was, and I quote him, 'Clear from the earliest time on 18 July that Kathy Lin believed that her brother might be inside the house', and he reminded you in that connection of what [Kathy] Lin said to Constable Kirby when he first spoke to her as one of the two officers who first arrived at the scene and met with [Kathy] Lin, the accused not being there at that time because he was en route either to or from Merrylands. [806] Mr Webb reminded you that [Kathy] Lin said to Constable Kirby - and this was repeated a number of times in the course of Mr Webb's submission - that [Kathy] Lin said, 'I think my brother is dead inside'. [807] Let me just remind you of the evidence. It is quite true [Kathy] Lin said that, as reported by Mr Kirby and confirmed by Constable Levins, but the conversation goes on and it may be it is helpful for you to understand it in context. The officer understandably confirmed that [Kathy] Lin was the person who made the triple-000 call and she confirmed that that was her. Then he said: Q. 'What happened?' She said, 'I think my brother is dead inside'. At that stage we were walking down the driveway, which is a battle-axe block, down to the house, and I said, 'Why do you think your brother is dead inside?' She said, 'The real estate called me and my brother hasn't gone to work. I went upstairs and saw my sister-in-law was dead'. That's the full context of that exchange. [808] In Mr Webb's submission you will accept Kathy Lin's evidence, which I will remind you of in a moment - perhaps I should remind you of it now. Mrs Lin was asked questions by Mr Webb on this issue and the issues that radiate out from it, namely, what happened at the hospital and this is what she says in answer to Mr Webb's questions. She says [the appellant] drove off and she gave an explanation that her husband was taking their son home and Mr Webb asks: Q. In and about that time, did you believe or not know what was the situation as to the whereabouts of your brother, Min? A. That time I believe my brother and my sister-in-law Lily, Irene and the two boys in the house. Q. When you say that, why did you think your brother Min was in the house? A. His van parking in front of the house, his watch on the bench and also I saw the bedroom next to my sister-in-law and the bed's messy and also the same level, is same as my sister's body, and also I saw the wall next to my brother's side is lots of blood. Q. Are you saying that you saw lots of blood on both sides of the bed? A. I say is, I saw my brother's side, the wall is lots of blood. Q. What happened after that during the course of that afternoon in relation to the question or otherwise in your mind about where Min was? A. That afternoon we went to Hornsby Hospital and the police officer Erica came with another police officer and told me police found my brother's body. Q. Who told you that? A. Erica. She used the word 'deceased'. At that time, I don't understand, she already maybe change another word there, so I understand. Then I show my sister-in-law next side messy part and yes, they say 'yeah', they found my brother's body. Q. At any time that day or that afternoon, did you suggest to anyone to have a look under the covers or the doona in the main bedroom, did you ever say something to that effect? A. No, I didn't say that. Erica came to hospital and told us, yeah told us. [809] In Mr Webb's submission, you will accept Kathy Lin's evidence to the effect as I have read it and you will remember Mr Webb's submissions, that she all along suspected Min was under the doona and that eventually her thoughts about that were confirmed when police came and told her that's where he was found, even though she didn't raise it with them."
7. Her Honour also gave a firm "protective" direction, cautioning the jury about their approach to evidence of this type: "[810] Ladies and gentlemen, consistent with the directions by which you are bound, you must give careful consideration to the facts which bear upon the timing of the finding of Min's body and the terms upon which that became known, before you could move to consider whether there is anything in [Kathy] Lin's evidence, or in the accused's conduct, inclusive of his answers to police in the interview of the following year, that enables you to draw the conclusion, or draw the inference - which you know just is another way of describing a conclusion - that the accused was at all times aware of the fifth body, not only because he had killed Min Lin, but because he had draped the bedclothes so as to completely conceal his body upon leaving the house, leaving only Lily Lin's body exposed [811] If you come to the view, and this follows logically from the direction I have given you, that you are unsure whether the evidence supports what the Crown submits are a series of demonstrable ways in which the accused's conduct on 18 July, both entering Bedroom 1, leaving Boundary Road, and the terms upon which, or the circumstances in which, Min Lin's body was found, if you are uncertain about any of the facts that underpin those issues, you would necessarily disregard the Crown's submissions concerning the accused's words and conduct, being another feature of what the Crown commends to you as the Crown's circumstantial case, in part, but of course not solely, a case based on circumstantial evidence, in determining whether the Crown has proved the accused's guilt beyond reasonable doubt. [812] If on the other hand, some part or parts of the accused's conduct that day, in the context of all of the evidence bearing upon the issue and, indeed, in the context of all of the evidence in the trial, persuade you that the only rational inference for what the accused did as the conduct attributed to him, is that he was aware that all five bodies were in the house because he had killed them, then that is evidence available to you to take into account, together with all of the other evidence in the case, in determining whether you are satisfied the Crown has proved guilt beyond reasonable doubt."
8. There is no merit in Topic G of this sub-ground.

Conclusion in relation to Ground 5

1. There is no merit in the appellant's complaints about, and of, the aspects of the trial judge's summing up with which this ground is concerned. We are not persuaded that a miscarriage of justice occurred as a result of any of the individual aspects or of their cumulative effect. Leave to raise this ground is refused.

PART 9: Ground 6 - Alibi

1. Ground 6 of the appeal contends that a miscarriage of justice resulted from directions given to the jury about alibi. In particular, it was contended that: (a) the trial judge's summary of the alibi evidence contained material factual inaccuracies, and (b) the directions were unbalanced in favour of the Crown.
2. Both the appellant and his wife maintained in their interviews with police in July 2009 that he was at the Beck Street home after arriving back from the family dinner on Friday, 17 July 2009. He bathed, watched television and searched the internet. He was in bed with his wife from about 2.00am until waking in the morning at about 8.00am. [1029]

Crown Case in Relation to Alibi

1. The Crown case was that, while the appellant may have been in bed with his wife from about 2.00am, he left at some point, committed the murders, attended to whatever was required to clean up, and was back in the family home in time for his wife and XX's awakening.
2. Circumstantial evidence in the Crown case that the appellant committed the murders would inferentially establish that he must have left the family home in order to do so. Another item of circumstantial evidence was the alleged sexual abuse the appellant regularly perpetrated upon Brenda Lin while she was living at the Beck Street home. As the Crown submitted to the jury, if the appellant was sexually abusing Brenda Lin at night and Kathy Lin had no knowledge of it, then she "could hardly be in a position to provide an alibi to her husband for the night of the murders". [1030]
3. The Crown also relied upon direct evidence in two forms. First, there was the evidence of Kathy Lin having said in out-of-court statements (and contrary to her in-court testimony) that she did not know if her husband left the bed after retiring at about 2am and before they both awoke at about 8am. [1031] Second, there was evidence of admissions alleged to have been made by the appellant in conversations with Witness A.
4. The second form of direct evidence was an admission by the appellant to Witness A of having administered a mild sedative to his wife, having the effect that she was oblivious to his departure. Witness A's credibility was dubious, and the Crown frankly told the jury that it only relied upon his evidence where there was some confirmation in recordings or in documents. [1032]
5. According to Witness A (in evidence the Crown did not rely upon in itself), in an unrecorded conversation about the appellant's case sometime in December 2011-January 2012, Witness A said, "[t]he wife is usually the weak link and the police will target the wife. Any problems with the wife?" The appellant responded, "[n]o, no problems. Mild sedation. She was asleep." [1033]
6. That conversation occurred before the police began using Witness A in the investigation. In a conversation recorded on 19 May 2012, Witness A sought confirmation from the appellant that he had made the admission. It included the following: [1034] "Wit A: Believe me. The weak, the strong thing for police in your case, believe me is always the wife. Always. And your wife is no problem, you told me before, your, when the murder happened, your wife sedated, so that's forget about it. App. Yeah … [ind]… Wit A: There is nothing they can do. App. Nothing, nothing." (emphasis added)
7. The Crown submitted to the jury that the "[y]eah" was an implied assent, or confirmation, by the appellant to having previously admitted to the sedation of his wife. Otherwise, it would be expected that he would have responded to the proposition by saying something like, "What are you talking about? Sedated my wife? I never did such a thing. I never talked to you about such a thing". [1035]
8. There was a further conversation on 16 June 2012. It was not contemporaneously recorded but Witness A made notes soon afterwards and he was permitted to read from them when giving evidence in order to refresh his memory. In this conversation, Witness A attempted to engage the appellant about sedation, but his evidence was that the appellant could not be drawn, and he indicated by gesture at one point that he did not want to talk in the location they were at. [1036]

Defence Case in Relation to Alibi

1. The defence case as to alibi was simply that he was at home in bed at the relevant time. This was based upon what the appellant had said to police and upon the testimony of Kathy Lin. [1037]
2. The defence contended that the allegations of sexual misconduct were denied so that the reliance the Crown placed upon that evidence to disprove the alibi was of no moment. [1038]
3. The defence case was that the jury would reject any evidence given by Witness A not confirmed by a recording. The appellant contended he did not make any reference to sedating his wife in an unrecorded conversation. Uttering "[y]eah" in the recorded conversation on 19 May 2012, after Witness A had said "you told me before, your, when the murder happened, your wife sedated" was not agreeing with the proposition. There were a few utterances of "[y]eah" in the conversation and it was "just going along with the flow of the conversation", or "just a sort of a catch-all, give away speech sound". [1039]
4. The defence also relied upon evidence that the family doctor's records indicated the appellant and his wife had never been prescribed sedatives. [1040]

Submissions

1. The appellant's written submissions described "two major complaints regarding the trial judge's treatment of the evidence regarding alibi": [1041] "Her Honour's misquotation of the recorded conversation, and repeated suggestion that Witness A had no means to know, so as to be motivated to make up the unrecorded conversation, that it could be of interest to the police. This is submitted to be incorrect as a matter of fact and principle."
2. Although sub-grounds (a) and (b) appear to relate to both complaints, the complaints themselves are quite distinct and will be discussed separately. First, however, it may assist to provide the context in which the impugned passages of the summing up occurred.
3. The trial judge commenced to deal with the topic of "alibi" at [243] of the summing up. It neatly followed from the directions as to the elements of murder as it was a negative proposition that the Crown was required to disprove beyond reasonable doubt in order to establish that deliberate acts of the appellant caused the deaths. The directions on alibi continued until [391].
4. Her Honour dealt with the evidence of Witness A and the suggestion of sedation from [339] to [386]. The first subject of complaint concerns something her Honour said in [360]. The second subject of complaint concerns something said at [346] and [373] (and repeated at [444] to [446]).

One "Yeah" or Two?

1. The first asserted error relates to the response by the appellant in the second line of the quoted extract from the recorded conversation on 19 May 2012 (see above at [691]). While reading a much lengthier passage from the transcript of that conversation, instead of reading "[y]eah … [indistinct]" her Honour misread it as "[y]eah, yeah". [1042]
2. The appellant submitted that the misreading "dramatically [changed] a vague and indistinct assent to a firm acknowledgment". The "[y]eah … [indistinct]" was submitted to be "important in the flow of the conversation, particularly given the [appellant's] limitations in English at the time, and the prospect that the one particular word 'sedated' had not been heard, not understood or misunderstood". [1043]
3. Pausing at this point, it is not at all clear why one "[y]eah" should be regarded as "vague and indistinct assent" while repeating the word should be regarded as "firm acknowledgment". Senior Counsel for the appellant replayed at the hearing of the appeal the relevant part of the audio recording of the conversation and it has been available to us in chambers. We do not consider there to be anything vague or indistinct about the way the appellant uttered the word "[y]eah". More concerning is the second part of that submission (the word "sedated" not being heard, etc) which appears to be no more than sheer speculation.
4. It was submitted that "the whole tenor of the 1 hour 24-minute conversation on 19 May 2012 that was recorded … is inconsistent with someone admitting guilt in any way". [1044]
5. That type of submission could be made to a jury. It is not a submission that supports a ground of appeal asserting factual inaccuracy and a lack of balance favouring the Crown in a trial judge's summing up. It has nothing to do with whether there was any miscarriage caused or contributed to by the trial judge misreading "[y]eah" as "[y]eah, yeah" from a part of the transcript in Exhibit FM. There could be a miscarriage if what occurred had the capacity to mislead the jury in a material respect. A submission that some evidence should have been seen in a different light is not to the point.
6. If there could be any doubt that the trial judge's misreading of "[y]eah … [indistinct]" as "[y]eah, yeah" in Exhibit FM was nothing other than trivial inadvertence with no material consequence, the following reasons dispel it entirely. [1045]
7. First, the misreading occurred during a reading of a lengthy extract from the transcript of the conversation. The extract comprised 27 utterances by either Witness A or the appellant. Seven of the contributions by one speaker or the other were merely utterances of "[y]eah", or "[y]eah, yeah", or "[n]o", or "[n]o, no". In this context, it is moot whether any juror would have noticed a "[y]eah, yeah" instead of a "[y]eah … [indistinct]", even as a response to the critical "you told me before … when the murder happened, your wife sedated" proposition.
8. Second, when the first of the covert recordings of conversations between Witness A and the appellant was tendered, the trial judge gave the jury a direction in clear and unremarkable terms about the audio recording being the primary evidence. [1046] In summing up, the trial judge repeated this direction, both orally and in writing, eg, "it is what you hear that is the evidence in this trial". Her Honour repeated it at some length later, immediately before reading the extract from Exhibit FM, including directing the jury to make its own judgment about what was said and with what inflexion and intonation. [1047] The trial judge could not have done more to ensure the jury was aware of the need to listen carefully to all audio recordings, including Exhibit FM, and make their own assessment of what was actually said.
9. Third, nothing more could have been done to ensure that the jury was familiar with this recording. It was played in its entirety during the evidence‑in‑chief of Witness A. Relevant parts were played during the re-examination of Witness A as well as in each of the Crown and defence closing addresses. [1048] It was, of course, available in the jury room to be listened to as much as jurors desired.
10. Finally, immediately after the reading of the extract from Exhibit FM with the inadvertent, "[y]eah, yeah", her Honour reminded the jury of some cross-examination of Witness A in which he was challenged about that exchange with the appellant. The correct, single "[y]eah" response by the appellant was mentioned five times: [1049] "Witness A was cross-examined about that conversation by Mr Webb. Mr Webb put this series of propositions: Q. What I am raising with you, [Witness] A is that [the appellant] never discussed on any terms with you that he sedated Kathy or that he caused her to sleep in any way? A. Well again I say, Mr Webb, that's why I raised it during the recorded conversation and the accused admitted it and acknowledged it. It is there. It is clear. It is clear as a bell. Q. Now, in the recorded conversation you are referring to, you asked a long question and says 'yeah', that's the best you could do - Mr Webb said to [Witness] A: - was to try and load him up with one of your long-winded questions? A. No, I think I said, 'You remember when you told me Kathy was sedated during the murders' and he went 'Yeah'. After that you wouldn't say 'yeah' to it, you would say 'what are you talking about, wouldn't you'. Q. Well, you well knew in your mind that he wasn't agreeing there to anything you said? A. It is there in black and white. Q. And what's raised with you, is that following your question, which assumes he's been talking about sedation and he says 'Yeah', you well know he was not agreeing, you just ripped it in for a cheap shot because that's you? A. No, I did not. It is ridiculous - said [Witness] A in response: it is ridiculous, in the sense that a clear and concise question was put to the accused and he agreed with it. Now if he didn't know about it he would have said 'What the hell are you talking about?', he wouldn't have said 'Yeah' and acknowledged and agreed with it. That's why your comment, I believe, was ridiculous." (emphasis added.)
11. The jury could have been in no doubt that the appellant's response to Witness A's proposition was a single "[y]eah" followed by something indistinct. In all these circumstances, the possibility that any juror could have been led into thinking that the response was "[y]eah, yeah" is extremely remote. Even assuming a juror was so misled, it is impossible to conceive that a juror might have thought there was any material difference. The crucial point was more whether there was an acceptable explanation for the appellant not saying something in response like, "What are you talking about?"

"Repeated suggestion that Witness A had no means to know, so as to be motivated to make up the unrecorded conversation, that it could be of interest to the police."

1. The appellant's submissions referred to the following extract from [346] of the summing up: [1050] "There is no evidence, ladies and gentlemen, as to how Witness A could have had access to any information about the police investigation before he first spoke with police at the end of 2011. There is no evidence as to how Witness A had any information as to the time of the death of the deceased or that the accused would assert an alibi in defence of the charges." (emphasis added)
2. This was said to support Witness A's evidence regarding the sedation conversation and was not a submission that had been advanced by the Crown. It was repeated by her Honour in the summing up at [373] and at [444] to [446]. [1051] Moreover, it was submitted to be inconsistent with the evidence because the appellant had previously conveyed to Witness A that he was asleep at the time the murders were alleged to have been committed and that he had a wife. [1052]
3. It can be accepted that Witness A had prior knowledge that the appellant had a wife. It would otherwise be unlikely that he would have commenced the first conversation in which sedation was mentioned (the first "sedation" conversation) inquiring whether she might be a problem.
4. However, whether the appellant had previously told Witness A that he was asleep at the time the murders were alleged to have been committed is not entirely clear. The only source the appellant relied upon for this assertion was the following passage in the cross-examination of Witness A: [1053] "Q. Can I raise this with you sir that, not only, and you disagree, that not only did he tell you that he was innocent of the charges on more than one occasion, but in the third trial at T 7032 you were asked this question: 'Q. When you told him about the opportunity, did he say anything about his opportunity to commit these murders? A. At the time when I brought it up the first time I think he said "No, not me, I'm at home sleeping".' Do you remember saying that? A. That's correct. Q. That was something that [the appellant] said to you? A. Yes." (emphasis added)
5. This may be in conflict with some earlier evidence in which Witness A said he was "pretty sure" but "not a hundred percent" that the appellant had not told him that "he was asleep with his wife that night in the sense that he wasn't at the place where the murders happened". [1054]
6. Witness A's reference to "the time when I brought it up the first time" is temporally unclear. It might be a reference to the first "sedation" conversation because that reference was preceded by Witness A asking, obviously in the context of talking about the appellant's case, "[a]ny problems with your wife?" It may be that in Witness A's mind, this was him first asking the appellant about his opportunity to commit the murders. It might also be that Witness A had in mind some subsequent conversation. It appears unlikely to have been an earlier one because the general tenor of his descriptions of those conversations [1055] suggest it was unlikely that such detail would have been raised.
7. Whatever the above analysis may indicate, the more significant issue appears to be, as the Crown has contended, that the impugned passages of the summing up concerned Witness A's knowledge of the police investigation.
8. There was no suggestion that Witness A would have had any information about the police investigation prior to his first contact with them. According to him, the first "sedation" conversation was prior to that first contact. The chronology of relevant events was as follows: [1056]

• The first contact between Witness A and police was made through his solicitor in December 2011. The first direct contact was when two officers visited him at Long Bay Correctional Centre on 12 January 2012. They obtained a statement from him on 18 January 2012.
• Witness A said that he recalled a news report in December 2011 about the appellant having had a bail application refused. He recalled there was mention of the disposal of a shoebox. He subsequently had a conversation with the appellant about that news and they continued to have discussions about his case. There was a discussion prior to Witness A's first contact with police in which he raised the issue of the appellant's wife. He then recounted the conversation in which he claimed that the appellant referred to Kathy Lin being asleep, "mild sedation".

1. The Crown contends that in the impugned passages of the summing up, her Honour was mindful of evidence about whether police provided Witness A with relevant information about their investigation. [1057]
2. As noted above, [1058] Detective Sergeant Maree was the officer-in-charge of the case. The Crown adduced evidence through him that Witness A was only provided with very limited information by police: [1059] "Q. Sergeant, if I could move on briefly to Witness A. You have given evidence about the approach that he made to police and your communications with him thereafter. You also gave evidence that certain information was provided, through Harry to Witness A, certain topics that could then be raised in conversation with the accused? A. Yes. Q. Apart from that, what sort of information, if any, about the investigation and the stages of the investigation, the details of the investigation, did you or your colleague, Sergeant or Senior Constable Gardiner provide to Witness A? A. He wasn't given any other information. Q. What instructions did you give him from time to time in relation to his interaction with the accused? A. In terms of it was just to keep his relationship going, the way he had previously, in terms of the recorded conversations. It was to let the accused lead the conversation where he could or, if he discussed topics with him previously, to bring those topics back up again. Q. But the topics, apart from those specific areas, that you had informed him about, in order to, as you gave evidence, give credibility to Witness A, in his assertion that he had a connection with a corrupt police officer, did you give any other instructions as to specific topics to cover? A. There was one period of time where we asked him to specifically try and cover the sedation of Kathy again. I think that from memory that may have been the only other specific topic."
3. Counsel for the appellant picked up on this topic in cross-examination of DS Maree: [1060] "Q. Mr Maree, Witness A would have been apprised of the nature of the case against [the appellant] by the police, is that right? A. No. Q. Is it the case that he was briefed in his role in terms of the upcoming operation? A. It depends which part of the operation you're talking about and which meeting you're talking about. Q. Well sir, you indicated to Witness A didn't you, that he needed to speak to [the appellant] about this issue of sedation, because you told Witness A that there was a problem with the case because of an alibi that had been provided to [the appellant] by Kathy Lin? A. No I didn't. Q. And did you tell - so you're saying that you didn't tell anything to Witness A about this issue of sedation? A. That's correct. HER HONOUR: At what time? GAITANIS: When he was meeting. HER HONOUR: In February? GAITANIS: Yes, your Honour. WITNESS: No I didn't. GAITANIS Q. What were you discussing with him over the course of all those meetings? A. There wasn't 'all those meetings'. I said I met with him once in 2012. Q. What about Detective Gardiner and Detective Senior Constable Wright, what did they discuss with him? A. At that point in time, the discussion was in relation to the listening device, proposed listening device operation that we were trying to operate. Q. So, are you suggesting that [Witness] A was not told anything about the nature of this matter, or what had happened or what evidence was important and what wasn't? A. That's correct. HER HONOUR Q. Is there a reason for that, Sergeant? A. That - specially [sic] early on in that point of time your Honour, to gauge the reliability of Witness A, we didn't give him any information in relation to the investigation because that would compromise whatever reliability he may or may not have had at that point in time."

Sundry matters concerning the summing up in relation to alibi

1. The written submissions for the appellant referred to some discrete aspects of the summing up. It may be that the appellant was inviting the Court to find error and to consider these matters in their cumulative effect in causing a miscarriage in the manner contended for in relation to this ground. We proceed with that assumption, although the point was by no means clear.

Discrimination in treatment of the evidence of Kathy Lin and Witness A

1. The appellant contended that, as compared to the "support for Witness A's evidence, Kathy Lin's evidence was subject to significant scrutiny". This submission was not developed and all that was said at the appeal hearing was that a review of the whole of the summing up demonstrated "very, very significant criticism of Kathy Lin's credibility". Paragraph 377 was said to be an example. No other examples were provided. [1065]
2. In [377] of the summing up, her Honour told the jury: "377 On the question of how Kathy Lin might have been sedated without her knowledge, if that be a matter that you are giving consideration to, or whether she was telling the truth when she told you she did not take sedatives of any kind, the Crown reminded you of Kathy Lin's evidence here where she said she definitely had nothing to eat or drink between 10.30pm and 2am which, the Crown submits, is in stark contrast to her evidence in the trial last year on precisely that same issue, where she told the Crown prosecutor in that trial that she could not recall whether she ate or drank anything after returning to Beck Street from Boundary Road after dropping the children off and before she and the accused went to bed."
3. What was said in this paragraph was a summary of a Crown submission. It was not said to be, or is self-evidently, wrong, inadequate or excessive. As to balance between discussion of Kathy Lin's credibility and that of Witness A, the trial judge gave a quite detailed warning about the potential unreliability of Witness A's evidence at the conclusion of it and her Honour gave a further, and very extensive, warning during a relatively early stage of the summing up, supplemented by a two-page written summary. Her Honour made further references to the question of Witness A's reliability thereafter. At one point her Honour reminded the jury of defence counsel's submission that Witness A was "a manipulator, a liar, seasoned criminal, interested only in the benefits and rewards he saw for himself and that [the jury] would place no reliance on anything that Witness A said". [1066]
4. It may be said as briefly as the submission was made; there is no merit in it.

The trial judge only referred to defence arguments that were "ridiculous"

1. The appellant submitted that to the extent that the trial judge referred to arguments that had been advanced by defence counsel, they were arguments that were "patently ridiculous and had been appropriately criticised either when advanced or otherwise in the summing up: for example at SU [364]". [1067] The point was not further developed in writing or orally.
2. The defence arguments referred to [364] of the summing up in which her Honour told the jury: 364 Mr Webb's submission is that the accused's response to Witness A was, and I am quoting Mr Webb here - you will, of course, give his submission what you consider it is worth, in light of all of the evidence - Mr Webb submitted to you that Witness A's evidence bearing upon this issue, that is, what was said in the conversation, was, and I quote him, 'a catch‑all give away speech sound'. Mr Webb submitted that when Witness A volunteered in his evidence that he had never used the word 'sedation', and you will remember that cross‑examination, he said 'it's a word I would not use, that's a medical term'. Mr Webb submitted that Mr A has been caught out telling a lie, because the word 'sedation' is used by Witness A in the recorded conversation. Ladies and gentlemen, it is a question for you whether you consider Witness A's use of the word 'sedation' in that recorded exchange reveals Witness A is telling a lie or whether, when Witness A said in his evidence he had never used the word 'sedation' because it is a medical term, he should be taken to mean that he never used it before he recited the accused's words back to him in an attempt, as you know, under direction of police, to see whether the accused would admit to having sedated his wife."
3. There were two defence arguments mentioned in this passage; one was perfectly legitimate and the other may have suffered from a logical fallacy in that a premise assumed the truth of the conclusion.
4. As the Crown submissions indicated, [1068] the trial judge reminded the jury of many defence arguments and, as might be expected, some were more cogent than others. The defence characterisation of the reliability of Witness A quoted above is not self-evidently without merit.
5. "Patently ridiculous" is a severe criticism. The assertion that it applied to all (or even many) defence arguments referred to by the trial judge cannot be made good by citing a single example.

The trial judge failed to refer to some evidence favouring the defence

1. There was implied a criticism of the trial judge for making no reference to the evidence that the appellant and his wife had never been prescribed sedatives. [1069] We say "implied" because this was stated in a single sentence without any more being written or said about it.
2. The brevity of the submission was in keeping with the extremely minor significance of the issue at the trial. There were two questions in cross‑examination of DS Maree, the officer-in-charge, in which he confirmed there was no record of the family doctor having prescribed sedatives. [1070] The appellant's counsel reminded the jury of this three times, each time in a single sentence, in the course of a closing address that went for a great many days. [1071] More significantly, the evidence was far from definitive on the question of whether the appellant had in fact administered a mild sedative to his wife on the morning of 18 July 2009.

The trial judge failed to remind the jury what the appellant said in police interviews

1. There was also implied criticism of the trial judge for reminding the jury that the appellant's police interviews were not sworn and not tested, with the weight to be given to them a matter for the jury, but without reminding the jury what the appellant had said in those interviews about his movements on the night of 17 and morning of 18 July 2009. [1072]
2. We note that the "not sworn" and "not tested" characterisation was presumably based upon Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573. It is not contended that her Honour erred in this respect.
3. The answer to the criticism of failing to refer to the content of the interviews lies in what the trial judge in fact told the jury. This came at the end of a day, after the trial judge had provided the legal directions on the issue of alibi, and was foreshadowing the evidence on the subject she would review the next morning: [1073] "I will go to [Brenda Lin's] evidence but in summary only, because her evidence requires me to take you through quite a lot of issues; also I don't propose to remind you of the questions and the answers the accused gave to questions that police asked the accused, as to where he was, because in any number of ways he has said, and said to police, he was in bed. But you know where that evidence is, because it is in his interviews, and they are before you. Mr Webb has taken you to them in recent times, and I don't propose to go back through those questions and answers, suffice for me to remind you that it's there in the interviews."
4. Counsel in this Court did not identify any passage of the appellant's police interviews about which the jury should have been reminded.

Conclusion as to Ground 6

1. The appellant's written submissions conclude with the assertion that r 4 of the Criminal Appeal Rules was overcome on the basis that the asserted errors and unbalance in the summing up on the topic of alibi were so serious and significant as to have caused a miscarriage of justice.
2. We are not satisfied that any of the individual or sundry complaints raised under this ground, even when considered for their cumulative effect, give rise to a miscarriage of justice.
3. Leave pursuant to r 4 is refused.

PART 10: Ground 7 - Coincidence Evidence

1. Ground 7 of the appeal contends that the trial judge erred in admitting coincidence evidence in relation to a folded, blood-soaked piece of cloth found at the Boundary Road crime scene and a "massage device" located at the appellant's home.
2. The Crown case was that the murder weapon had not been recovered; its theory being that it was disposed of by the appellant on the morning of 18 July 2009 after the murders. It theorised that the weapon was an improvised homemade device.
3. A homemade "massage device" which had been constructed by the appellant was found by police at his home in 2010.
4. The Crown alleged that certain features of the homemade massage device and what it theorised were features of the improvised murder weapon - particularly the attachment of a piece of cloth to each of them - were so markedly similar that coincidence was an improbability.
5. The appellant accepted that the evidence of the massage device was adduced to prove that he "did a particular act", namely attached the piece of cloth to the hypothesised murder weapon. He accepted that if this was established, it tended to prove that he was the murderer. [1074]

Evidence

1. Before reviewing the relevant evidence, it is useful to reiterate that according to the forensic pathologist, Dr Irvine, the cause of death in each case was blunt force injuries to the head, in addition to (except in the case of Irene Lin) asphyxia. [1075] It should also be remembered that it was the Crown case that the perpetrator first killed Min and Lily Lin in Bedroom 1, then Irene Lin in Bedroom 2, before killing the two children in Bedroom 3. Supporting this theory was the discovery of DNA consistent with that of Min and Lily Lin on bloodied items found in Bedrooms 2 and 3.

The murder weapon

1. The Crown contended that the murder weapon must have been an improvised homemade device involving a hammer or hammer-like object, rope, cloth and a red rubber band. The cloth, soaked with blood and bearing DNA consistent with that of Min and Lily Lin, was found on the floor in Bedroom 3. Also found in that bedroom was a piece of black rubber that the Crown theorised might have been wrapped around the handle of the murder weapon. It had blood on it with DNA also consistent with Min and Lily Lin's DNA. [1076]
2. Dr Irvine gave evidence of seeing in the head injuries of the victims "a very distinctive pattern that is very typical and familiar to forensic pathologists and that pattern is from the head of a hammer-like instrument". She believed that the injuries she observed "are good enough to be shown in a textbook as an example of a pattern [of] injury from a hammer-like instrument". [1077]
3. The Crown adduced important evidence about the crime scene from two crime scene officers: Dr Raymond, who was also an expert in relation to shoe, rope and other marks, and DS Harkins, who was also an expert in bloodstain pattern analysis. [1078] They gave evidence on a number of topics, including about blood stains found at the scene that had been made by rope. (Many of these were linear stains on the walls and bedding in Bedroom 2 and Bedroom 3.) Dr Raymond said that the marks indicated that the rope was approximately 4mm in width and had been looped or coiled on itself and tied in a knot. [1079] Testing was carried out in a room set up to replicate Bedroom 2. Detective Sergeant Harkins said he was unable to replicate the marks found in Bedroom 2 with a free hanging rope, only with one that was attached to an assumed weapon (a hammer). He expressed the opinion that "the weapon itself is, by my experience, incredibly unique". [1080]
4. Detective Sergeant Harkins considered that the lack of any rope marks in Bedroom 1 (aside from at a light switch and the entry door) indicated that the rope was at that time secured, whether wrapped around the handle of the weapon, around the wrist of the assailant or otherwise, and came loose after the assaults on Min and Lily Lin. He opined that it came in contact with the blood of both Min and Lily Lin during those assaults, explaining their DNA being within blood stains caused by the rope elsewhere. The rope marks on the light switch and door would have been made as the assailant exited the room with the rope and the implement. [1081]
5. A fibre expert determined that the blood-soaked cloth bound by a red rubber band found in Bedroom 3 was a mixture of colourless cotton and cellulose-based man-made fibres, most likely rayon. Possible sources of such fabric included underwear, clothing, bed sheets, blankets and other furnishings. The cloth when unfurled after removal of the rubber band measured approximately 12 x 8 cm. It was found to have DNA consistent with the profiles of Min and Lily Lin. [1082]
6. The fabric had been folded twice. Circular depressions were evident in each quadrant, variously concave and convex, measuring approximately 1.5cm x 2cm. These depressions were suggestive of the cloth having been tightly secured over something hard. [1083]
7. It was the Crown case that the folding of the cloth and its circular depressions suggested it had been wrapped and secured with a red rubber band over a round solid object, namely part of the head of a hammer or hammer-like implement. The Crown also suggested that the purpose of the cloth may have been to "perhaps cushion the impact of the weapon, or for some other reason, perhaps absorb the amount of blood spatter". [1084]
8. Dr Raymond tried to test the theory that the cloth had been wrapped around a hammer. In tests conducted in 2012 it was difficult to keep the cloth secured to the hammer but on that occasion, she was striking a pool of liquid blood. In 2016, the cloth was secured to the hammer and soaked in bovine blood. A target of foam blocks with rubber on top was then struck. On this occasion the cloth stayed in place for up to 50 strikes, except if it became caught in cracks that started to emerge in the target material. [1085]
9. Dr Raymond was unable to obtain fabric that was identical to that which was found at the crime scene; it was only possible to obtain fabric that was all cotton or all rayon. [1086] The result was that the Crown was unable to say precisely how the blood-soaked cloth had been used. [1087] It submitted to the jury: [1088] "It had been folded twice … and the circular depressions in it suggested it had been put over around [sic - a round] solid object and secured with a red rubber band. It was left there at the scene, and the Crown suggests that it was also part of the self-constructed murder weapon. … It may have been wrapped around one of the heads of the hammer-like weapon and inadvertently dropped or left in Bedroom 3 by the single assailant, its purpose may have been to perhaps cushion the impact of the weapon, or for some other reason, perhaps absorb the amount of blood spatter. It certainly had been used in some way, so as to contact with the blood in Bedroom 1, because it was blood-soaked with blood matching the DNA profile of Min and Lily Lin. Perhaps it fell off or came off in Bedroom 1, and the assailant, not wanting to leave it at the scene, brought it with him to Bedroom 2 and on to Bedroom 3, where perhaps he inadvertently dropped it during what was obviously a struggle with Terry Lin."
10. Nothing of significance for this ground turns on the finding of the piece of black rubber in Bedroom 3 except that it supported the Crown's description of the murderer having used an improvised home-made device. The piece of rubber was bloodstained and had DNA consistent with that of Min and Lily Lin. An expert was of the opinion it had not come from a tool commonly found in a home such as a hammer. One side had been cut with a Stanley knife and two sides had been torn. The size was consistent with it having been wrapped around the handle of a hammer. [1089]
11. There was controversial evidence of conversations between the appellant and Witness A that were capable of being interpreted as admissions by the appellant that he used a hammer as the murder weapon which he disposed of later that morning en route to collect the grandparents. (The defence case was that the conversations with Witness A had an exculpatory interpretation.)

The appellant's massage device

1. While executing a search warrant at the appellant's home, police found a homemade item, described as a massage device, in his bedroom. Kathy Lin identified it as a "massager" that her husband had made for his back pain. [1090] There was no dispute that he constructed it. [1091] It was described in the Crown's submissions as follows: [1092] "The device consisted of four planks of wood screwed together, with a large metal bolt protruding through the middle. A rubber, non-slip mat was affixed to the bottom of one of the planks of wood. Lying over the bolt was a piece of fabric, which had been folded three times and secured to the bolt at the top with a red rubber band. When unfurled, the fabric measured approximately 65cm x 30cm. It had been folded twice along its length and then in half again. Circular depressions were evident in the unfurled fabric from the bolt, with the depressions variously concave or convex consistently with how the fabric had been folded. The diameter of each of the circular depressions was approximately 1.5cm-2cm." Exhibit BB, photo 3 Exhibit BB, photo 8

The Massage Device and Coincidence Reasoning

1. The trial judge admitted the evidence of the massage device as coincidence evidence in the 2015 trial (R v Xie (No 12) [2015] NSWSC 2124). A further objection to admissibility was raised in the 2016 trial but the ruling remained. Despite the trial judge indicating that a judgment would be published, that has not occurred. [1093]
2. The ultimate submission made to the jury by the Crown was: [1094] "The Crown relies on the similarities in the construction of the home-made massage device found at the accused's home with what the Crown says was part of a carefully home-made constructed murder weapon, and that part, having been left at the scene, namely, the folded piece of cloth secured with the red rubber band. The Crown submits that there is a marked similarity between those two items, such that it is improbable that both constructions occurred coincidentally; that is, the Crown's case is that both were constructed by [the appellant]. It is just one further circumstance that the Crown relies upon to link the accused, [the appellant], with this murder scene."
3. The defence case was summarised by the trial judge: [1095] "Mr Gaitanis submitted you would not find any relevant similarity in the accused's construction of the massage device which is admitted and the form in which the dropped or discarded cloth was found at the crime scene because you would not be satisfied that the cloth was ever attached to the hammer-like weapon which, it is common ground, was used to inflict the distinct pattern of lacerating injuries and the distinct pattern of skull fractures. In Mr Gaitanis' submission, the Crown is merely surmising, that is hypothesising, as to the actual or intended use of the cloth which was found at crime scene. Mr Gaitanis also submitted that the cloth at [the] crime scene was different from the cloth on the massage device, or that much is objectively the case, one is rayon largely, according to Dr Raymond, the other is terry towelling, and in his submission to you, there was none of the accused's DNA on the red rubber bands used to bind the folded cloth at crime scene that was soaked in blood. … Mr Gaitanis also submitted that even if you were to find the blood-soaked cloth at [the] crime scene was implicated in the murders for some reason, then because only Min and Lily's blood was identified in the samples taken from the fabric, you would conclude it was only used in Bedroom 1 and that it was a different hammer-like weapon that was used to inflict the injuries on Irene because there is none of her blood on the cloth. He also invited you to consider the metallic transfer material on Min and Lily's skull fragments and identified, by Dr Irvine in post-mortem; the appearance of that metallic transfer material, in Mr Gaitanis' submission, raises questions as to whether the cloth was ever attached to the hammer-like weapon that inflicted the injuries on Min and Lily because there was metal left behind on their skull fragments."
4. The Crown's suggestion to the jury that the cloth became detached from the murder weapon during the attack upon Min and Lily Lin in Bedroom 1, but was dropped by the perpetrator during the violent struggle in Bedroom 3, would appear to have been made by the Crown in anticipation of the defence raising the latter points which her Honour summarised in the above extract.

Trial Judge's Directions

1. The trial judge reviewed the evidence relating to this issue and summarised the competing submissions that were made, neither of which attracted any criticism by the appellant in this Court. Her Honour concluded on the subject with the following directions: [1096] "Ladies and gentlemen, whether there are similarities between the accused's construction of the massage device with the cloth folded and bound to the bolt with red rubber bands for its intended use, and the use to which the Crown submitted you would be satisfied the bound and folded cloth at crime scene was put, is a question of fact for you; that is, whether there are similarities is a question of fact for you. If you are not satisfied there are similarities between the two items of the kind contended for by the Crown for any reason, including, that you are not satisfied that the blood-soaked cloth was ever attached to the hammer-like weapon, the accused's possession of the massage device should be disregarded by you as having any weight at all in proof of the Crown case, remembering, as you will, that when you are coming to consider the fact of similarity, which is a question of fact for you, you are not obliged to come to any level of satisfaction, aside from a point at which you can each arrive at a finding that there are similarities in the construction of the two items. The question of similarity between the two items is one for your judgment. The extent of the similarity and any features of dissimilarity, if you find they exist, are questions for you. If you are satisfied that the evidence supports the Crown submission that there is a discernible and distinct similarity in the way the accused has fashioned the cloth attached to the massage device, including the way it was folded, and including the way it was attached to the bolt of the massage device for its intended use on the one hand, and the use to which the blood-soaked cloth might have been put in fashioning the hammer-like weapon for its intended use, including, if you are of the view that it was implicated in the improvised hammer-like weapon and you consider the way the cloth was folded and the way it was or might have been attached to the hammerhead, that is, by use of the red rubber bands which were binding the cloth when it was found, and you are satisfied that such similarities cannot reasonably be explained as a matter of coincidence, then the next question, again a question for you, is whether such similarities, as you are prepared to take into account, support the Crown case that the accused is the murderer. The issue of the massage device is one of the many features of the Crown's circumstantial evidence case. You would understand from the direction that I have given you, both in writing and in an expanded form orally, the Crown is not obliged to prove to any standard of proof any of the individual facts or features or circumstances that form part of the Crown's circumstantial evidence case, but you need to be satisfied, of course, that those facts and circumstances are established or supported by the evidence. Once you have reached that point of satisfaction, if you do, you are then to look at the combined force of all the facts and circumstances which you are satisfied are established by the evidence and then ask yourself whether the combined weight or the unity in those combined facts and circumstances, compel a finding that guilt has been proved beyond reasonable doubt."

The Statutory Provisions

1. The provisions of ss 98 and 101 of the Evidence Act governed the admissibility of the evidence of the massage device as coincidence evidence. [1097] Section 98, in the form it took at the time of the trial, was as follows: 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.
2. In 2016, s 101(2) provided: (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

Case Law

1. It is convenient to note some matters derived from the case law on the subject (without any attempt at being exhaustive). None of this was contentious between the parties.
2. It was held in The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [61] that it is a matter for an appellate court itself to determine whether tendency evidence (Evidence Act, s 97) is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was. It was the joint position of the parties that there is no reason to doubt that the same applies to the question of the significant probative value of coincidence evidence. As the concept is identical for both forms of evidence, we see no reason to doubt the correctness of this proposition.
3. The assessment of probative value in the determination of admissibility must be made on the assumption that the jury will accept the evidence, without considering matters of credibility and reliability (IMM at [49]-[52]). In the present case, no questions of credibility or reliability arise in any event as the evidence is concerned with inanimate objects and the inferences that might arise in relation to them.
4. The term "significant probative value" as used in ss 97 and 98 has been held to mean a probative value which is "important" or "of consequence". The assessment of this depends upon the nature of the facts in issue to which the evidence is relevant and the significance or importance the evidence may have in establishing those facts (R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174 at [77]-[78] per Bathurst CJ).
5. Simpson J (as her Honour then was), with the concurrence of McClellan CJ at CL and Fullerton J, said in R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487 at [30] that the factual underpinnings of a decision to admit or reject coincidence evidence are that there is evidence capable of establishing the occurrence of two or more events and there is evidence capable of establishing similarities in those events, the circumstances in which they occurred, or both the events and the circumstances in which they occurred. Her Honour continued: "[31] In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows: • the first step is to identify the 'particular act of a person' or the 'particular state of mind of a person' that the party tendering the evidence seeks to prove; • the second step is to identify the 'two or more events' from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the 'particular act' or had the 'particular state of mind'; • the third step is to identify the 'similarities in the events' and/or the 'similarities in the circumstances in which the events occurred' by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events; • the fourth step is to determine whether 'reasonable notice' has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement); • the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, 'have significant probative value'; • in a criminal proceeding, if it is determined that the evidence would have 'significant probative value', the sixth step is the determination whether the probative value of the evidence 'substantially outweighs' any prejudicial effect it may have on the defendant (s 101(2)). • the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two."
6. The existence of dissimilarities is not critical to a determination of probative value under s 98. This Court said in Selby v R [2017] NSWCCA 40: "[23] … [I]t is not to the point merely to identify various dissimilarities. One way of explaining why this is so is to observe that one incident occurred on a Monday, the other on a Friday. That particular dissimilarity has no bearing whatsoever on the process of inferential reasoning that it permitted. [24] The questions posed by ss 98 and 101 ultimately turn on a mode of reasoning based on the improbability that something was a coincidence. That mode of reasoning is not displaced by the fact that the two (or more) events bear some dissimilarities. Two (or more) events will always be dissimilar in some respects. The question is whether the dissimilarities undercut the improbability of something being a coincidence. [25] This point was made in El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [74], in a passage which concluded '[t]he question is whether the similarity is explicable by coincidence, not whether there are other points of difference.' The same point was made in Page v The Queen [2015] VSCA 357 at [59]: '[O]nce the identified similarities can be said to raise the improbability of coincidence - and hence give the evidence its probative value - the existence of dissimilarities will not diminish that probative value. For it is the similarities on which coincidence reasoning rests. If the nature and/or extent of the similarities is such that coincidence is improbable as an explanation, the existence of dissimilarities cannot alter that position.' [26] The question instead is whether the dissimilarities are relevant in that they detract from the strength of the inferential mode of reasoning permitted by s 98. In El-Haddad the reasons continued: 'True it is that relevant dissimilarities may dilute the probative value of the evidence: see for example the quite different tendency evidence considered in Sokolowskyj v R [2014] NSWCCA 55 at [41], where the 'marked dissimilarity' was summarised as follows: "On the Crown case, key elements of the offence were a prepubescent victim and no public exhibition. The appellant is said to have latched the door to the change room (inferentially to achieve privacy) and then to have assaulted the complainant. The actions on which the tendency evidence was based had as their hallmark a public display with no prepubescent element in the victim. There was no active assault, rather the appellant's actions were "passive". Far from seeking to conceal his actions, the gist or thrill of the offences was the fact that they could be seen and were intended to be seen."'"
7. As to the balancing exercise in s 101, the High Court said in The Queen v Dennis Bauer (a pseudonym) at [73] that the expression "prejudicial effect" in s 101 [1098] conveys the idea of "harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way".

Submissions and Consideration

1. Extensive submissions in writing were provided by the appellant, parts of which were emphasised and further developed at the hearing of the appeal. A contention was maintained that the trial judge erred in admitting the evidence relating to the massage device pursuant to both ss 98 and 101, but it was made clear at the outset of the oral submissions that the principle contention was the issue raised by s 98, whether the evidence had significant probative value. [1099]
2. Four points were raised in support of the argument that the evidence lacked the capacity to have significant probative value: 1. Contrary to many cases involving coincidence evidence, here there were only two events. [1100] 2. The details pertaining to one of those two events (the murder weapon) were obscure. [1101] 3. The similarities between the two events relied upon by the Crown were relatively few, none were especially peculiar, and all were reasonably generic. [1102] 4. The two items had different purposes - one was murderous and the other was remedial. [1103]

(1) Only two events

1. The first point is a statement of what is readily apparent and was not further developed. It is a matter that does not assist the appellant. Section 98 is specifically concerned with "2 or more events". The significance of the number of events really depends upon a variety of circumstances such as the nature of the events, the uniqueness or otherwise of their qualities, and the nature of the facts in issue to which the evidence is said to be relevant. For example, if an event or circumstance is quite unique, seeing it replicated elsewhere just the once might be quite significant, whereas something less unique might need to be seen elsewhere a number of times before it could assume significance. The type of event in question in this case is quite unusual.

(2) The obscurity of one of the events

1. This is the most significant of the appellant's arguments in support of this ground. It was based upon the fact that the Crown was forced to rely on inferential reasoning to establish that the murder weapon was as earlier described: an improvised hammer-like object with the blood-soaked cloth at one time attached to it. [1104]
2. It was accepted that there was a reasonable inference that the cloth found in Bedroom 3 had been folded over, or under, something hard and secured with a rubber band. However it was contended that there was no inference available that it had been affixed to a murder weapon. The possibility of it having been used as a gag had been raised in the 2015 trial but was not pursued in the 2016 trial (R v Xie (No 12) at [37]). [1105] The main point raised in closing address in the latter trial was that there was insufficient evidence to conclude that it had been affixed to the weapon. [1106]
3. A problem with this is that it is difficult to formulate an alternative use to which the cloth may have been put when regard is had to all the circumstances. The inference that it had been attached under pressure to some hard, rounded object was strong. The head of a hammer, maybe a ball pein hammer, can meet that description. Fatal injuries consistent with having been caused by a hammer or hammer-like object was a powerful circumstance. The fact that the cloth was associated with the killing of Min and Lily Lin was virtually inescapable.
4. Some specific points were identified by the appellant as potentially negating the Crown's contention, but they were each subject to competing explanations.
5. One point was that there was no evidence to enable an inference to be drawn from the skull fractures seen on autopsy as to the likely size of whatever was used to cause them. Although the pathologist, Dr Irvine, gave evidence of the injuries being of "a very distinctive pattern that is very typical and familiar to forensic pathologists and that pattern is from the head of a hammer-like instrument", there was no evidence that the item was of a particular size. [1107] This was a neutral matter; it neither confirmed nor denied the Crown theory.
6. The appellant referred to evidence that arose in cross-examination of the officer who photographed the blood-soaked cloth that she did not see any bone, hair or flesh. The officer described her task as: "I think I just took a quick look, took a photograph and bagged it up for the biologists". An affirmative answer might have strengthened the Crown case, but her negative answer did not do otherwise. [1108]
7. The appellant referred to evidence that Dr Irvine observed grey marks, that appeared to the naked eye to be metallic, on damaged bone in the skulls of Min and Lily Lin. She said that this might have been something that had been transferred from the weapon that caused the injury. [1109] It gave rise to the submission that "if there was some form of metallic type transfer to the skull it would suggest the blood-soaked cloth may not have been over the top of the part of the weapon that struck the skulls of those persons". However, there were multiple skull fractures inflicted upon these two victims and this particular characteristic was not identified on each. The main difficulty with this contention is that it remains possible that the attack upon Min and Lily Lin commenced while cloth was affixed to the murder weapon and continued after it became dislodged.
8. In relation to each of these matters raised by the appellant it is important to bear in mind that the task of determining admissibility does not involve a determination of the actual probative value of the evidence. It is, as Simpson JA pointed out in R v Gale; R v Duckworth (at [30]), a matter of identifying what the evidence is "capable" of establishing.

(3) The asserted similarities not compelling

1. The third issue raised by the appellant was that the similarities (conveniently listed in the Crown written submissions [1110] ) were few, not especially peculiar and all reasonably generic. They were not of such a quality to render it improbable that they could be explained by coincidence. They were: 1. Each of the two pieces of cloth had not simply been attached with a rubber band to a hard object as the appellant's submissions described. They had been pressed on with enough force to create visible depressions. 2. In each case, the cloth had been affixed to hard cylindrical objects. 3. In each case, the cloth had been folded multiple times. 4. There was a "remarkable similarity" in the appearance of the circular depressions. The depressions were the same size. 5. In each case, a rubber band had been used. 6. Both devices were improvised homemade objects of an unusual kind having unusual features. 7. Each device was made for a very specific purpose. 8. Both devices used items, fabric and materials commonly found in and around a home.
2. These matters were available for the jury to consider in its assessment of the strength of the inference for which the Crown contended. We consider there was enough in these similarities to support a finding of significant probative value. A key part of this is the nature of the murder weapon postulated by the Crown. We are satisfied that it was open to the jury to find that most, if not all, of its features were as the Crown contended. The rope attachment is an example of something that was particularly compelling in light of the blood spatter evidence left at the scene. Detective Sergeant Harkins' description of the weapon having such features as "unique" in his considerable experience was evidence that could well have carried considerable weight with the jury.
3. Acceptance of the murder weapon as being as described by the Crown - a unique improvised, homemade device - could then be assessed alongside the undisputed evidence of the appellant having constructed the rather unique, improvised, homemade massage device. Construction of both items required relatively rudimentary skills and equipment, both of which the appellant possessed. Added to this could be the prospect that both items had the feature of folded cloth secured by rubber bands around a metal component. This evidence, in the context of all of the other evidence adduced by the Crown, was well capable of assisting the jury to a conclusion that the appellant constructed the murder weapon. It inexorably follows that the evidence was capable of being regarded by the jury as having significant probative value.

(4) Differences in uses and other dissimilarities

1. The final issue raised by the appellant at the hearing of the appeal was the different uses of the implements (one murderous and the other remedial). This was not further developed and that is unsurprising. The motive for similar actions does not deny the similarity of the action. There is no merit in this point.
2. In the written submissions, the appellant noted a number of other dissimilarities: different types of fabric; different sizes; different number of folds; one secured to a metal bolt and the other not; and that the murder weapon was not suggested to be a "wooden contraption" like the massage device. Further, the red rubber bands were of a common type and not amenable to any meaningful comparison. Finally, "the piece of blood-soaked cloth was not found in the state relied upon to ground the asserted similarities - this was a matter of inference". (We take this to mean that it was not secured to a murder weapon as the Crown alleged.) [1111]
3. Many of these points do not deny the availability of coincidence evidence reasoning. None of them foreclose a mode of reasoning based on similarity (see Selby v R above at [781]).

The balancing exercise in s 101(2)

1. As to s 101(2), it was accepted in the written submissions that no objection on this basis was taken at trial and so leave pursuant to r 4 of the Criminal Appeal Rules was required. [1112] It is notable that not only was no point taken by the two counsel who appeared for the appellant at his trial in 2016, no point was taken by different counsel (senior and junior) who appeared at his 2015 trial.
2. The appellant criticised the trial judge for being satisfied that the test should be resolved in favour of admitting the evidence because counsel for the appellant did not submit otherwise. It was submitted that this was erroneous because the absence of a submission did not relieve her Honour of the burden of reaching satisfaction that the probative value of the evidence substantially outweighed any possible prejudicial effect. [1113]
3. This relates to the original decision as to admissibility made over the objection of Senior Counsel then appearing for the appellant in the 2015 trial. In her judgment, the trial judge referred to the fact that counsel had not made any submission on a certain topic relevant to the s 98 issue and then continued (R v Xie (No 12) at [54]): "Neither did he submit that there is any prejudicial effect in the tender of the evidence that could be cured by appropriately formulated directions so as to compel its exclusion under s 101."
4. Her Honour did not say, as the appellant asserts, that it was because counsel did not assert to the contrary the test should be resolved in favour of admitting the evidence. It was more a matter of her Honour noting the implicit concession that there was no danger of unfair prejudice that would require exclusion if, pursuant to s 98, the evidence was found to have significant probative value.
5. In this Court, for the first time, the appellant contended that there was a danger of unfair prejudice in that there was a risk the jury would give the evidence disproportionate weight. That was because jurors would be unable to evaluate: [1114] 1. How commonplace it is for fabric to be attached to an object. 2. How many different ways fabric can be attached to an object. 3. How commonplace it is to use an ordinary rubber band to attach one object to another.
6. It was submitted that, because there was no evidence to enable the jury to determine whether it was improbable or not that the asserted similarities occurred coincidentally, the jury was required to engage in speculation. This carried the risk that the jury would give the evidence undue weight. Whatever probative value the evidence had; it was submitted that it did not outweigh this possible source of prejudice. [1115]
7. These submissions do not pay sufficient deference to the intelligence and commonsense of jurors. All these matters are readily assessible in accordance with the common and everyday experience of life. There was no justification for excluding the evidence pursuant to s 101(2).

Conclusion

1. The coincidence evidence was correctly held to be admissible.
2. We would grant leave under s 5(1) of the Criminal Appeal Act to raise this ground of appeal but reject the ground.

PART 11: Balance of Ground 8 - Conduct of Counsel

1. As already noted, Ground 8 contends that a miscarriage of justice was occasioned by a number of acts and omissions of the appellant's counsel at trial. The principles applicable to this ground are set out above. [1116]
2. The appellant relied upon 12 particulars in relation to Ground 8. It was submitted they individually or cumulatively caused a miscarriage of justice. [1117]
3. Particulars (i) to (vi) relating to the DNA material in Stain 91 and the evidence of Dr Perlin have been discussed earlier. [1118]
4. Particulars (vii) to (x) raise various issues concerning the evidence of Witness A and particulars (xi) and (xii) complain of a failure by trial counsel to seek correction of the summing up in relation to the issues with which Grounds 5 and 6 are concerned.

Particular (vii): Failing to understand and rationally respond to the Crown Case regarding "Plan A" and "Plan B"

1. The essence of particular (vii) was described as a complaint of "the failure of counsel to understand or engage with" the evidence concerning Witness A and "Plan A" and "Plan B". [1119]
2. Witness A described Plan A as "the accused would be released from custody, either on bail, or by being acquitted at committal". It failed as a plan when the appellant was committed for trial on 19 December 2012 and was refused bail on 24 December 2012. [1120] However, it also included using a corrupt police officer to provide information that would assist in achieving either of those ends. [1121]
3. Plan B was described by Witness A as "quite broad reaching … it all included Harry. Anything that Harry would do, whether it be approaching a corrupt official, or anything shady, was all [P]lan B". [1122] ("Harry" was Witness A's contact outside gaol who was supposed to implement Plan B. [1123] In fact, he was an undercover police officer.)
4. Plans A and B were not separate and distinct. The discussions between Witness A and the appellant about using Harry had commenced as early as 2 June 2012 when the appellant said of his prospects of getting bail, "if he can give me good information … more chance". [1124]
5. The appellant referred to the matters below as instances of counsel failing to understand or engage with the evidence concerning these "plans".
6. Contrary to the above, the appellant characterised the Crown case in relation to Plan A as involving no irregularity [1125] but despite this, the appellant's counsel had put to Witness A "that surely there must have been something wicked that the [appellant] was up to in Plan A". (A question in those terms was disallowed and it was replaced with, "Wasn't there something bad that he was trying to do in [P]lan A?") The preceding question contained the opposite characterisation of Plan A: "So was [P]lan A simply [the accused's] plan to face his committal, deal with it as best he could, and otherwise hope for the best thereafter?" The impugned question appears to have been exploratory as opposed to putting an aspect of a case to the witness. Nothing came of it. Counsel did not pursue it after Witness A responded, "I don't know sir". [1126] Accordingly, this exchange was quite insignificant.
7. Another criticism was that the apparent misunderstanding by defence counsel of details of the Crown case in relation to Plan B resulted in many opportunities for Witness A to "display authority". [1127] Despite the assertion of "many opportunities", the appellant provided only one instance. It was in cross‑examination when counsel attempted to describe an aspect of one of the plans discussed between the appellant and Witness A when Witness A disagreed with the description. During this exchange over a series of questions and answers, Witness A said, "[n]o you're off track there. I'm happy to clarify it for you though". [1128]
8. The cross‑examination of Witness A commenced around the middle of one day and concluded sometime in the afternoon of the next. It occupies in the order of 120 pages of transcript. [1129] The single answer by Witness A quoted above was in relatively mild terms and cannot reasonably indicate what the appellant suggests. It did not cause or contribute to any miscarriage of justice.
9. In any event, the error imputed to defence counsel in the question that prompted Witness A's retort was not an error at all. The appellant submitted that, when referring to one of the proposals discussed under the umbrella of "Plan B", the impugned question involved counsel mistakenly "thinking [Lily Lin's phone] was to be placed near a cadaver". [1130] In earlier cross‑examination of Witness A, counsel had referred to the proposal involving "the planting or placing of a mobile telephone handset, amongst other things, in proximity to or otherwise within the space of the corpse". He then corrected himself, saying "[w]hen I said 'proximity', [Witness] A, look, I was referring to the item, amongst other items, being placed somewhere which had some link to the cadaver". [1131] Counsel did not misunderstand the evidence.
10. The next instance of defence counsel misapprehending the Crown case as to Plan B, according to the appellant, was in a submission made to the jury. Counsel said: [1132] "Now, in the end the defence say, in relation to plan B and Harry and, for that matter, Witness A, is that in order to in any way take into account plan B, it is submitted, against the accused, well, ladies and gentlemen, you would have to find, in my submission, that the accused agreed in some way, shape or form, to go about or implement plan B and, when you come down to that question I ask you to consider that that question is, in large part, if not wholly, about whether or not [the accused] agrees with Harry: Is there evidence of agreement? Because it matters not, as you may accept, how much Harry talks or what he says or things of that kind, it all comes to nothing, in my submission, unless and until you thought that the accused agreed with Harry or agreed with somebody to do those things which are part of plan B in its various guises."
11. Counsel then referred to a visit to the gaol made by Harry, following which the appellant was recorded telling his wife that he did not want to see Harry anymore. The submission continued: "And that, ladies and gentlemen of the jury, is not the language of agreement. It is the language of someone coming to see him in the first instance he doesn't even know he is there to see him that day and, at the end of the visit he says 'I don't want to see this guy any more'. That's not the language of agreement. That's the language of non-agreement and, in my submission, when you come to look a plan B, it is an essential feature of the defence case that the accused never agrees with Harry."
12. The appellant drew attention to the fact that in the next break, the trial judge indicated to counsel that consciousness of guilt was not foreclosed because the appellant said he did not want to see Harry again after the meeting. Her Honour said she would be directing the jury that they could find a consciousness of guilt based upon the conversations between the appellant and Witness A that preceded the appellant receiving a visit from Harry. [1133]
13. The appellant referred to counsel having persisted with the same point during his address the next day, in fact, the day after that, 8 December 2016. [1134] The point about this instance is that counsel refined his submission, perhaps as a result of the exchange earlier. He referred to the recorded conversation between the appellant and his wife in which he referred to Harry and not wanting to talk to him again. His submission to the jury, again, was that what the appellant said was "not the language of agreement … he never agrees with Harry". Significantly, counsel couched his submission in terms of "the issue of agreement with Harry is not the be all and the end all" but that it was nevertheless "a relevant matter to which you may have regard". [1135]
14. The appellant then referred to counsel continuing in the same vein on the following day of his address, 9 December 2016, including describing "one of the really important big ticket items … whether or not [the accused] ever agrees with Harry". [1136] This was said in the context of counsel trying to provide a benign explanation for the appellant's association with Witness A. Counsel spoke of the appellant being in the custodial environment for the first time; it being stressful and unfamiliar; and the regime being such that it "involves a great deal of time with not much to do". He submitted that it need not be inferred that there is something sinister in the association because "it may speak simply to the fact that human beings are essentially social creatures". [1137] That was a broad submission and the reference to a "big ticket" issue may have been to emphasise the importance of that particular point in that broad context. It was an important point in the defence case on this subject as explained in a submission counsel made that the appellant did not refer to: "In my submission, in order to - everything is for you to do as you see fit - if you found that there is no agreement between [the appellant] and Harry, then it would follow from that, it is submitted, that there is no agreement, on the part of [the appellant] or intention to implement plan B, in whatever form - it may be there is a couple of forms of plan B, but just plan B generally, but if you find there is no intention or agreement on the part of [the appellant] to enact the plan then, in my submission, that would be very relevant to the question in all of the circumstances in a custodial environment it is, as for the first time to the question of whether or not you would see it as evidence of consciousness of guilt or perhaps explicable on other bases and, therefore, perhaps neutral. So that's the first thing." (emphasis added)
15. Trial counsel here indicated that a finding that there was no agreement with Harry was indicative of the appellant having never intended to carry through with Plan B. None of the discussions with Witness A that preceded the appellant's refusal to proceed with the plan, or to speak with Harry again, supported an inference of consciousness of guilt.
16. The trial judge came to understand the point when she again queried the logic of counsel's submission at the next break. After initially speaking critically as her Honour had previously, the trial judge said, "I am sorry, I see what you mean". [1138] Her Honour said she now understood counsel was making the point that, if the jury was satisfied there was no agreement with Harry, "it is a matter for the jury, you say, as to whether that neutralises all the steps up to that point". [1139]
17. Ultimately, the defence case in relation to Plan B was encapsulated by her Honour in summing up: [1140] "In [counsel for the appellant's] submission, he only ever talks about Plan B at the urging of Witness A, and [counsel] submitted that you will conclude he never agrees with Witness A that Plan B should go to the next stage, that is, taking a positive objective step to further the plan; or to put it in preparation for execution."
18. Other instances of counsel misunderstanding this evidence were said to be his contention that a Shepherd direction would be needed requiring proof beyond reasonable doubt that the appellant agreed to join Plan A or Plan B and a suggestion that s 137 of the Evidence Act was relevant. [1141] These were matters discussed in the absence of the jury with counsel's suggestions being relatively quickly rejected by the trial judge. It is what was said in the presence of the jury that is pertinent to whether the conduct of counsel may have caused or contributed to a miscarriage of justice.
19. Another criticism was counsel comparing the likelihood of the appellant agreeing with Plan B to receiving assistance from an "alien spaceship". [1142] This was something of a rhetorical flourish but counsel's essential point was that there were some "exceedingly odd" and "pretty unbelievable" aspects to Plan B. That was a fair point.
20. The appellant ultimately submitted that, because of the various failings of defence counsel, "there was effectively no meaningful submission on this topic before the jury". Having regard to the way in which the trial judge encapsulated the defence case as indicated above, we reject that submission.
21. The written submissions for the appellant then advanced an alternative case that might have been made on his behalf. [1143] We are satisfied that the approach taken by counsel represented a rational and legitimate choice. The fact that different counsel considers another argument to be a better one is beside the point. In this regard it is of interest that Senior Counsel who appeared for the appellant at his third trial in 2015 adopted precisely the same case theory in relation to this issue as counsel at the 2016 trial. [1144]

Particular (viii): Failing to understand the chronology of Witness A's disclosure to police about the alleged "sedation" conversation

1. The appellant's submissions in relation to this particular make an assertion similar to one made in relation to the previous particular; there was a "loss of authority" caused by a misunderstanding by counsel about some evidence. The Court was not referred to any principle or authority in relation to such an assertion. We take it to mean that the credibility of the appellant's counsel was adversely affected and that this in turn negatively impacted the jury's assessment of the defence case to the point that it caused or contributed to a miscarriage of justice.
2. Particular (viii) is relevant to the Crown's allegation that the appellant told Witness A that he had given "mild sedation" to his wife so he could leave the house undetected and commit the murders. The evidence has been reviewed earlier in the context of Ground 6 under "Crown case in relation to alibi".
3. In cross‑examining Witness A, defence counsel put that the appellant had never used the word "sedate"; it was Witness A's word. Witness A responded: [1145] "It is not a word I have used ever. I don't think I have ever used the word 'I feel sedated' or 'Let's go and sedate that other person'. It's more of a medical term, I would imagine."
4. In closing address, counsel reminded the jury of the recorded conversation between the appellant and Witness A in which the word "sedate" was first used by Witness A. (The conversation has been set out earlier in relation to Ground 6.) The appellant's submissions note that her Honour intervened to explain that Witness A was only using the word to police on the basis that he was attributing it to the accused. [1146]
5. We note that the trial judge merely said, "[b]ut it is a word he attributes to the accused Mr [counsel]". Counsel responded by repeating his point that it was incorrect for Witness A to claim that "[i]t is not a word I have used ever" as the recorded conversation revealed. As the Crown pointed out [1147] , it may have been a weak point to be made about Witness A's credibility, but it did not indicate a misunderstanding of the evidence. In any event, it was such a mild incident that it cannot have had much if any impact upon counsel's "authority".
6. Next the appellant referred to counsel submitting that "the issue of sedation had its genesis in prompts from the officer‑in‑charge, [DS] Maree"; the Crown Prosecutor pointing out in the jury's absence that this was a misunderstanding of the evidence. The appellant submitted that there was then "something of a correction, although not a retraction about [DS] Maree". [1148]
7. The appellant's description of "something of a correction" could more correctly be described as defence counsel providing the jury with a complete and correct summary of the evidence as to how and when the topic of sedation first arose: [1149] "Before that conversation on 19 May 2012 [Exhibit FM] and, according to Witness A, before he spoke to the police on any terms about the issue of [the appellant] informing the police, Witness A attributes to [the appellant] his having said to Witness A, 'No, no problems, mild sedation, she was asleep' in relation to Kathy, and in my submission you would reject it. In my submission, Witness A's unrecorded claims in relation to [the appellant] are not reliable, and they are part and parcel of his attempt to put forward a particular view of the evidence which you are invited to reject."
8. This removed the suggestion of the sedation topic having its genesis in prompts from DS Maree and correctly reminded the jury that the Crown case was that "sedation" had been first mentioned by the appellant but in an unrecorded and disputed conversation prior to the police involvement with Witness A. The implied criticism of defence counsel is not borne out. The Crown did not seek a retraction and none was required.
9. The next matter raised by the appellant is that the trial judge intervened to correct the reading of transcript during subsequent submissions by counsel. [1150] The submissions reference a passage of five transcript pages [1151] but nowhere in that passage is there any intervention in relation to transcript correction. There were two interventions by her Honour in that passage; one was to ask counsel to repeat something and the other was to respond to something counsel appeared to at least partially direct to her while he was reading some transcript. (In the course of reading from transcript, counsel said, "[t]hen at 3976, subject to her Honour's learned ruling"). The trial judge said something about whether it was necessary but told counsel to keep going. [1152]
10. The appellant then asserted that a "submission was advanced on the basis of this misunderstanding that the police use of Witness A was 'a story in search of an author' and was criticised by her Honour in the Summing Up". [1153] It appears that the "misunderstanding" related to how the topic of "sedation" arose. As indicated above, ultimately (at least) there was no misunderstanding.
11. One theme that permeates the appellant's case is criticism of the competence with which the defence case was conducted. It is notable in relation to this particular that counsel pursued with the jury its most significant aspects. Counsel referred to there being no explicit admission made by the appellant that he had sedated his wife, aside from the dubious evidence of Witness A of an unrecorded conversation. He referred to the Crown relying upon a mere "[y]eah" in a recorded conversation which was just something said in the flow of the conversation.

Particular (ix): Putting to Witness A that alleged inculpatory conversations with the appellant had occurred

1. The appellant's submissions in relation to particular (ix) raise criticisms of trial counsel for putting to Witness A that several inculpatory conversations occurred. It is significant to bear in mind that these were conversations not introduced by counsel. They were conversations adduced in evidence by the Crown.
2. Witness A said there was the following conversation on 16 June 2012. It was not recorded but he gave evidence with the assistance of a note he had made after the event. [1154] "[Witness A]: Tell me, if I want to sedate somebody, what is a medication that isn't too dangerous? [Appellant]: What you mean dangerous? [Witness A]: Okay, I remember reading in the paper before about somebody sedating someone and the medication was too strong, and the person died accidentally. [Appellant]: I don't know about this subject. [Witness A]: No, I understand, but the reason I ask is because when you say before Kathy was sedated during the murders, obviously the medication you used was a safe one because she had no problems. Maybe I can use this method in the future."
3. Witness A went on to say that according to his note, there was no verbal response, but the appellant "shook his head and waved his hand, indicated strongly he would not comment on this subject". Witness A said he replied, "[n]o, no, I understand, my apologies …".
4. The appellant submitted that this conversation was inculpatory for the following reasons: [1155] "Had the disputed original sedation conversation not occurred, there would be no logical reason for Witness A on a subsequent occasion when his interaction with [the appellant] was not being recorded, to raise with him the untrue proposition that [the appellant] had previously told him he had sedated his wife at the time of the murders. Witness A had nothing to gain from doing so, and stood the risk of jeopardising completely if not his safety (exposing himself as a likely informant) then at least his whole plan to gain benefits from his connection with [the appellant]. Had the disputed original conversation not occurred, there would be no reason for [the appellant] to react with such strong body language, allegedly taken (understandably if it had occurred) by the witness to indicate that [the appellant] was not prepared to discuss the topic with people around."
5. It is difficult to see merit in these submissions when one considers that the suggested reasons for characterising the conversation on 16 June 2012 as "inculpatory" apply equally to the recorded conversation that had occurred four weeks previously, on 19 May 2012. [1156] (This is the conversation that included the appellant saying, "[y]eah" in response to Witness A saying, "you told me before, your, when the murder happened, your wife sedated".)
6. Faced with the 19 May 2012 conversation being in evidence in recorded form, and Witness A having given evidence of the subsequent conversation based on notes he claimed to have made soon after, defence counsel had to deal with the latter conversation in some form. He chose to pursue a course of portraying Witness A as continually fishing for an admission and the appellant consistently refusing to take the bait on every occasion.
7. Taking advantage of the lack of corroboration by way of recording and contending that the conversation on 16 June 2012 did not occur would have been fraught with the problem of it being in similar terms to the one on 19 May 2012.
8. Another difficultly, seemingly not considered by the appellant's counsel in this Court, is that trial counsel may have been bound by instructions. It may not have been a matter for counsel to choose whether to dispute that the 16 June 2012 conversation occurred in the terms deposed by Witness A. We have already addressed the evidence that can be adduced in relation to complaints of this nature. [1157]
9. This leads to a further criticism by the appellant that trial counsel raised with Witness A other occasions in which he had tried to talk to the appellant about having sedated his wife but would get a response by way of the appellant getting "toey" or "touchy". This approach included raising occasions that were not the subject of evidence adduced by the Crown. The appellant contended that this "was only damaging to the defence case".
10. The overall submission by the appellant was that "there is objectively no rational explanation as a matter of forensic choice for this path being embarked on. … The path undertaken as set out in this particular of this ground only acted to enhance Witness A's credibility in this respect". To the contrary, we are satisfied that there was an objectively rational explanation for trial counsel to have adopted the impugned approach to this aspect of the evidence of Witness A.
11. As with particular (viii), it is of note that the impugned approach taken by trial counsel was mirrored in the approach taken by Senior Counsel who appeared for the appellant in the 2015 trial. [1158]

Particular (x): Failure to advance any submission against the Crown argument that the appellant had impliedly admitted to Witness A, in a recorded conversation, that he had disposed of the murder weapon on the way to pick up [the grandparents]

1. The Crown alleged the real reason the appellant left his wife at Boundary Road on her own after the discovery of the bodies was that he wanted to dispose of the incriminating evidence he had collected from the Beck Street home when he took XX there. This proposition was partly based upon what the Crown contended was an implicit admission in a recorded conversation with Witness A on 13 October 2012, [1159] in which he expressed concern that there "may be" some CCTV footage of him disposing of the hammer on the way to pick up the grandparents. [1160]
2. The appellant's written submissions provided extracts from the Crown's opening address to the jury in which reference was made to this topic. It was submitted that it was a topic that "stands out" in that address, along with the contention of there being evidence of the blood of four or five of the deceased being found on the appellant's garage floor. [1161]
3. The appellant noted that defence counsel made an application for the discharge of the jury because part of the Crown's opening address on this topic was "too argumentative, without evidentiary support and 'a bridge too far'". We note that this application was concerned more broadly with the Crown address and that this topic was cited as one of four examples. The application was summarily rejected without the Crown being called upon. [1162] However, the appellant's point is that nothing was subsequently said in the defence opening address as to whether the implied admission to Witness A was or was not in dispute. The appellant referred to s 159 of the Criminal Procedure Act 1986 that allows for a defence opening following the opening address of the prosecutor, provided it is "limited generally to an address on the matters disclosed in the prosecutor's opening address, including those that are in dispute and those that are not in dispute" (as well as matters to be raised by the defence). [1163]
4. The appellant contended that in closing address the Crown referred to this topic in "even stronger terms" (than in opening), but in the lengthy defence closing address there was nothing said about the recorded conversation with Witness A. (The Crown accepts the latter to be the case. [1164] ) Counsel did submit that the jury should not accept anything said by Witness A that was not recorded. He also submitted that, in relation to the recordings, the jury "will make of them what you make of them". [1165]
5. The appellant's submission was "there was much able to be said against the construction of this conversation urged by the Crown". There was "no objectively rational explanation for such failure as a matter of forensic choice, and the jury [was] left with a one-sided argument about potentially one of the most important pieces of evidence in the trial". We accept that this matter was a significant circumstance in the Crown's case, but many of the circumstances could be described as "important".
6. We are satisfied that defence counsel was presented with a conundrum as to how to deal with the issue of the alleged implied admission to Witness A. The trial judge also acknowledged the difficulty defence counsel faced during an exchange with him in which she expressed concern about the prospect of her reminding the jury of another recorded conversation with Witness A: [1166] "[F]or me to go back into it, it carries - it is an area, as you say, you're sensible to recognise Mr [counsel], that with there being no evidence as to what was actually motivating the accused to speak at length and in the way that he did, in some respects, and I took this approach in preparing the summing-up, the less that I take the jury in summing-up to the materials, the easier it might be for the jury to make their own judgment. And in your address you, if I may make the observation, seemed to me to take a not dissimilar approach because it's one of those areas of evidence, difficult for the accused as you've acknowledged on his behalf, that the more you go into it, the more interpretation is applied to it and it is material that does not advance his case."
7. On the appellant's case now, trial counsel should have referred to the evidence and made submissions as to why the jury would not accept the Crown's contention. If this approach was taken, it would have been necessary to remind the jury of the detail of the evidence. That would carry the risk of the jury calling to mind the quite valid argument of the Crown: [1167] "[T]he most significant thing about this conversation in respect of this topic is that the accused does not at any point say to Witness A, 'What are you talking about? I didn't stop the car and dispose of any hammer on the way to the grandparents. There can't be any CCTV because I didn't dispose of any hammer that morning. You don't need anybody to go and find out about that. It doesn't exist. Don't waste your time'."
8. It is significant that despite the assertion that "there was much able to be said against the construction of this conversation urged by the Crown", there is no suggestion as to what counsel should have submitted.
9. The issue of the alleged implied admission to Witness A was a component of a broader topic discussed earlier under the heading "Topic E - Leaving Kathy Lin" in relation to Ground 5(b). Other components of that topic included the content of the various triple-0 calls and the evidence of people who saw the appellant and Kathy Lin at Boundary Road. There was also the evidence of the grandfather and Kathy Lin to consider. The jury was left in no doubt that the appellant disputed there was anything incriminating about any of his conduct on 18 July 2009, including that he left Kathy Lin at Boundary Road in order to dispose of the murder weapon. As summarised in the Crown's submissions, defence counsel developed the following points in his address to the jury: [1168] (a) The appellant did not want to go to the grandparents' home in the first place. (b) The appellant had returned to Boundary Road with the grandparents so quickly that there was not time for him to have disposed of the murder weapon. (c) There was no blood found in the car he used.
10. What the appellant said to Witness A on 13 October 2012 was clearly not an explicit admission and the Crown did not suggest otherwise. Defence counsel did not need to tell the jury that the Crown relied upon it to make a particular interpretation of what was said. The prosecutor submitted to the jury, "[t]he Crown says … that the accused has, in that recorded conversation implicitly admitted to Witness A …". [1169] The trial judge made it abundantly clear in her summing up that it was necessary for them to consider counsel's submissions in the light of their own judgment of what the evidence established. [1170]
11. In all of the circumstances, it was appropriate for the defence case in relation to the conversation with Witness A on 13 October 2012 to be left to the jury in the fashion summarised by the trial judge to the jury: [1171] "[T]hrough his counsel, it is put that the accused's involvement with Witness A as a prisoner at Long Bay Gaol, when they were sharing the same wing or in the same wing, reveals nothing about his guilt. His recorded conversations, it is said, are simply quote 'gaol talk'."
12. We are not satisfied that a miscarriage of justice was occasioned by this aspect of the conduct of the appellant's counsel.

Particular (xi): Failure to seek correction to her Honour's summing up in relation to the issues raised in connection with Ground 5

Particular (xii): Failure to seek correction to her Honour's summing up in relation to the issues raised in connection with Ground 6

1. It follows from our determination of Grounds 5 and 6 that there is no substance to these grounds. There was no correction needed in relation to the summing up on those issues.

Conclusion

1. There is no merit in the appellant's criticisms of defence counsel in any of "Particulars" (i) to (xii). Leave to appeal pursuant to s 6(1) of the Criminal Appeal Act in respect of this ground is refused.

PART 12: Disposition

1. At the hearing of the appeal, Senior Counsel for the appellant submitted that, if the Court were to uphold any of the grounds of appeal, then it should receive further submissions on whether to order a retrial or enter acquittals. It follows from the rejection of all the grounds, that circumstance does not arise and the appeal must be dismissed.
2. Accordingly, the Court orders that: (i) The tender of Exhibit C1, being the report of Professor Peter Gill dated 25 October 2019, is rejected; (ii) Exhibit A1, being the report of Dr Mark Perlin dated 19 May 2020, is admitted but, pursuant to s 136 of the Evidence Act 1995, the use of that report is limited to Ground 8 of the appeal; (iii) The oral evidence of Dr Mark Perlin given on 25 June 2020 and 29 June 2020 is admitted but, pursuant to s 136 of the Evidence Act 1995, the use of that evidence is limited to Ground 8 of the appeal; (iv) Paragraphs 1 to 4 of the affidavit of Frances Low affirmed 19 June 2020 and their annexures are admitted but, pursuant to s 136 of the Evidence Act 1995, the use of that evidence is limited to Ground 8 of the appeal; (v) Leave to raise Grounds 1, 5, 6 and 8 of the appeal is refused; (vi) Leave to raise Grounds 2, 3, 4 and 7 of the appeal is granted; (vii) Appeal dismissed.

Endnotes

1. The publication of the name of Brenda Lin is not prohibited by s 15A(1) of the Children's (Criminal Proceedings) Act 1987 because she has consented to that publication pursuant to s 15D.
2. Trial Tcpt 649.
3. Pursuant to s 15A(1) of the Children's (Criminal Proceedings) Act 1987, the publication of the name of the appellant's son is prohibited.
4. Trial Tcpt 4022.26.
5. See for example Applicant's Third Written Submissions filed 1 April 2019 (AWS3) at [76ff], and [618] below.
6. Ex AE.
7. Ex AE.
8. Ex AE.
9. Ex C at [8].
10. Ex C at [10].
11. Crown Part A statement ("Part A") at [247].
12. Crown Part A Statement at [244] to [245] ("Part A").
13. Part A at [249].
14. Part A at [250].
15. Part A at [83].
16. Part A at [65]; Ex C at [12].
17. Part A at [72]; Ex C at [8].
18. Part A at [254]; Ex S at p 154.
19. Part A at [108].
20. Part A at [108] to [109]; p 51.
21. Part A at p 51.
22. Ex S at p 155.
23. Ex S at p 157.
24. Part A at [257].
25. Part A at p 51.
26. Ex S at p 159.
27. Ex S at p 160.
28. See [572]ff.
29. Part A at [1211].
30. Part A at p 51.
31. Part A at p 47.
32. Part A at p 47.
33. Part A at [284].
34. Trial Tcpt 341.
35. Trial Tcpt 342.30.
36. Part A at [159].
37. Trial Tcpt 343.11.
38. See [35].
39. Trial Tcpt 343.39.
40. Trial Tcpt 344.
41. Trial Tcpt 345.44.
42. Trial Tcpt 346.21.
43. Trial Tcpt 346.46.
44. Trial Tcpt 347.15.
45. Trial Tcpt 348.45.
46. Part A at p 60.
47. Trial Tcpt 352 to 353.
48. Ex Z.
49. Part A at [383].
50. Part A at [384]; Ex Z at p 16.
51. Trial Tcpt 444.
52. Trial Tcpt 354.38.
53. Trial Tcpt 355.7.
54. At [638]ff.
55. Part A at [523]; Trial Tcpt 593.
56. Trial Tcpt 594.1.
57. Part A at [205]; Trial Tcpt 356.15.
58. Part A at [249]; Trial Tcpt 1087.
59. EX A, Tab 6 and Ex A, Tab 8.
60. Ex DF, DG and DJ.
61. Ex S.
62. Part A at [2226].
63. Ex DN.
64. Ex GJ.
65. Part A at [1492] and [1506].
66. Part A at pp 626 to 627.
67. Trial Tcpt 4976.
68. Trial Tcpt 4976.
69. Summing Up ("SU") [483] to [489].
70. Trial Tcpt 4991; Trial Tcpt 5007.
71. Trial Tcpt 5656; SU [1207].
72. Trial Tcpt 5650; SU [1212].
73. SU [1197].
74. Trial Tcpt 4978.
75. SU [1064].
76. Trial Tcpt 4982.
77. Trial Tcpt 4982.
78. Trial Tcpt 4983; SU [1064] to [1085].
79. Trial Tcpt 4982 to 4983.
80. Trial Tcpt 4975; SU [1035] to [1036].
81. SU [1677].
82. Trial Tcpt 4424.
83. SU [1678].
84. Trial Tcpt 5002.
85. SU [1680]; SU [420]; Trial Tcpt 5026.
86. Trial Tcpt 5028.
87. Trial Tcpt 5033; SU [1090].
88. At least in 2006: SU [1094].
89. SU [1685]; SU [423]; Trial Tcpt 5033.
90. Trial Tcpt 5034.
91. Trial Tcpt 5036.
92. SU [1682].
93. SU [422]; SU [1156] to [1184]; SU [1225]; Trial Tcpt 5040.
94. SU [1214].
95. SU [423]; Trial Tcpt 5042.
96. Trial Tcpt 5042.
97. Trial Tcpt 5044.
98. SU [1689]; SU [426].
99. SU [1690]; SU [427].
100. SU [1691]; SU [428].
101. SU [1694]; SU [431].
102. SU [1690]; SU [427].
103. SU [1695]; SU [432].
104. Trial Tcpt 5080.
105. Q&A 374, Ex DN.
106. Trial Tcpt 5082.
107. SU [1695]; Trial Tcpt 5081.
108. SU [434]; Trial Tcpt 5085 to 5086.
109. Trial Tcpt 2605 to 2606.
110. SU [828] to [853].
111. SU [829].
112. Ex FP.
113. Ex FP at pp 4 to 5.
114. Ex FP at p 21.
115. SU [1697]; SU [435]; SU [876] to [910].
116. Trial Tcpt 5141.24.
117. Trial Tcpt 2620 to 2648.
118. See [686ff]
119. Part A at [1584]; MFI 65.
120. MFI 66.
121. Part A at [1586]; Trial Tcpt 2651 to 2653.
122. SU [149].
123. SU [387].
124. SU [257]; SU [336]; SU [419].
125. Ex FM(1) at pp 27 to 30.
126. SU [465].
127. SU [1696].
128. SU [464]; SU [480]; SU [526]; SU [531]; SU [533]; Ex FL; Ex FQ.
129. Trial Tcpt 5022.
130. SU [467] to [468].
131. SU [1700].
132. SU [1699]; SU [1231]; Trial Tcpt 5016 to 5020.
133. SU [1701]; SU [978]-[980]; SU [1343] to [1344].
134. SU [1337] to [1338].
135. SU [1346].
136. SU [971].
137. SU [470].
138. SU [1031].
139. SU [1046].
140. SU [1048].
141. SU [1708]; SU [450].
142. SU [1711]; SU [854] to [860].
143. SU [1710]; Trial Tcpt 5210.
144. Trial Tcpt 5211.
145. Trial Tcpt 5328.
146. SU [805].
147. Trial Tcpt 5209.
148. Trial Tcpt 5211.
149. Trial Tcpt 5323.
150. Trial Tcpt 5210.
151. AB 6000.
152. SU [827].
153. SU [1705].
154. SU [384].
155. Trial Tcpt 5220.
156. Trial Tcpt 5235.
157. SU [1712]; SU [453].
158. SU [1712]; SU [453].
159. Cf [69] above.
160. SU [375].
161. SU [910].
162. SU [449].
163. SU [1707].
164. SU [1706]; SU [613].
165. SU [672] to [673].
166. SU [1359].
167. SU [1430].
168. SU [1431].
169. SU [1466].
170. SU [451]; SU [1360].
171. Trial Tcpt 5237.
172. SU [1359]; SU [1375].
173. Trial Tcpt 4479 (or "PCAST": Trial Tcpt 4435).
174. Trial Tcpt 5498 to 5499.
175. Trial Tcpt 5500.
176. SU [134].
177. SU [1702].
178. SU [1627] to [1656].
179. Report dated 19 May 2020 (Ex C1: "Dr Perlin Appeal Report") and oral evidence on 25 June 2020 and 29 June 2020
180. Report dated 25 October 2019 (Ex A1: "Professor Gill Appeal Report").
181. CCA Tcpt 148.45; CCA Tcpt 216.4; CCA Tcpt 373.36.
182. See [444].
183. Part A at [1492] and [1506].
184. Ex FT.
185. Ex FT.
186. Part A at [1532].
187. Trial Tcpt 4022+.
188. Trial Tcpt 1813+.
189. Trial Tcpt 1173.47; Ex CQ.
190. Trial Tcpt 1178.15.
191. Trial Tcpt 1173.33; Trial Tcpt 1177.
192. Trial Tcpt 1175.40.
193. Trial Tcpt 1818.25 to .32.
194. Trial Tcpt 1821.1.
195. Ex CQ, p 7; Trial Tcpt 1822 to 1823.
196. Trial Tcpt 1823.39.
197. Ex CQ, p 8; Trial Tcpt 4025 to 4026.
198. Trial Tcpt 4046.27.
199. Ex CQ, p 9; Trial Tcpt 1182.1.
200. Trial Tcpt 1825.25.
201. Ex CQ, p 10.
202. CQ, p 10; Trial Tcpt 1826.
203. See for example Dr Perlin at Trial Tcpt 4230.13.
204. CQ, p 11; Trial Tcpt 1833 to 1835.
205. CQ, p 11; Trial Tcpt 1836.
206. CQ, p 13.
207. Trial Tcpt 1839.31.
208. Trial Tcpt 1841.20.
209. Trial Tcpt 1841.24.
210. Trial Tcpt 1841.37.
211. Trial Tcpt 1843.38.
212. Trial Tcpt 1845.21.
213. Trial Tcpt 1844.15.
214. Trial Tcpt 1846.24.
215. Trial Tcpt 1846.50 to 1847.14; Trial Tcpt 4052 to 4053.
216. Trial Tcpt 1847.44.
217. Trial Tcpt 1849.38.
218. Trial Tcpt 1849.44.
219. Trial Tcpt 1848.27.
220. Trial Tcpt 1848.51.
221. Trial Tcpt 1855.28.
222. Trial Tcpt 1853.33.
223. Trial Tcpt 1853.41.
224. Trial Tcpt 1854.30.
225. Trial Tcpt 1855.29.
226. Trial Tcpt 1858; Ex CQ, p 2.
227. Trial Tcpt 1859.
228. Trial Tcpt 1860 to 1861.
229. Trial Tcpt 1924.10.
230. Trial Tcpt 1862.26; Trial Tcpt 4056; Ex CQ, p 31.
231. Trial Tcpt 4025 to 4026; Trial Tcpt 4024.36.
232. Trial Tcpt 4027; Ex FU.
233. Locus A; Ex FU.
234. Trial Tcpt 4028.28.
235. Trial Tcpt 4028.30.
236. Trial Tcpt 4028.49.
237. Trial Tcpt 4038.29.
238. Trial Tcpt 4038.38.
239. Trial Tcpt 4039.40.
240. Trial Tcpt 4040.8.
241. Trial Tcpt 4040 to 4041; esp Trial Tcpt 4041.48.
242. Trial Tcpt 4040.43.
243. Trial Tcpt 4042.
244. Trial Tcpt 4043.
245. Trial Tcpt 4043.44.
246. Trial Tcpt 4044.24.
247. Trial Tcpt 4045.17 to .25; Trial Tcpt 4046.5.
248. Trial Tcpt 4045.47.
249. Trial Tcpt 4047.10.
250. Trial Tcpt 4047.34.
251. Trial Tcpt 4048 to 4049.
252. Trial Tcpt 4049.41.
253. Trial Tcpt 4050.21.
254. Trial Tcpt 4051.10.
255. Trial Tcpt 4050.49.
256. Trial Tcpt 4075.29.
257. Trial Tcpt 4076.8.
258. Trial Tcpt 4076 to 4077.
259. Trial Tcpt 4079.
260. Trial Tcpt 4079.40.
261. Trial Tcpt 4058.A.
262. Trial Tcpt 4130.17.
263. Trial Tcpt 4146.
264. Trial Tcpt 4149+.
265. Trial Tcpt 4081.
266. Trial Tcpt 4194.128.
267. id.
268. Trial Tcpt 4222.
269. Trial Tcpt 4226; CV: Ex FW.
270. Ex FW.
271. Trial Tcpt 4223.20.
272. Trial Tcpt 4223.35.
273. Trial Tcpt 4224.
274. Trial Tcpt 4224.44.
275. Trial Tcpt 4225.5.
276. Trial Tcpt 4231.18.
277. Trial Tcpt 4244.21.
278. Trial Tcpt 4240 to 4243.
279. Ex FX slide 4; Trial Tcpt 4241.
280. Trial Tcpt 4469.22.
281. Ex FX slide 5; Trial Tcpt 4241 to 4242.
282. Trial Tcpt 4246.
283. Ex FX, slide 6.
284. Ex FX, slide 7.
285. Trial Tcpt 4246.28.
286. Trial Tcpt 4246.44.
287. Trial Tcpt 4248.6.
288. Trial Tcpt 4248.44.
289. Trial Tcpt 4247.10; AB 4889.10; AB 5066.
290. Trial Tcpt 4247.
291. Ex FX, slide 8.
292. Trial Tcpt 4249.46.
293. Trial Tcpt 4249.31.
294. Trial Tcpt 4251.38.
295. Trial Tcpt 4252.35.
296. Trial Tcpt 4252.4.
297. Trial Tcpt 4253.34.
298. Ex FX, slide 9; Trial Tcpt 4252.
299. Trial Tcpt 4253.12.
300. Trial Tcpt 4252.35.
301. Trial Tcpt 4253.20.
302. T 31/03/2014 at 1127.46 and on appeal: CCA Tcpt 237.11.
303. Ex FX, slide 10; Trial Tcpt 4259.
304. Trial Tcpt 4260.3.
305. Trial Tcpt 4260.21.
306. Trial Tcpt 4260.4.
307. Trial Tcpt 4260.30.
308. Trial Tcpt 4261.22.
309. Trial Tcpt 4262.35.
310. Trial Tcpt 4264.7.
311. Trial Tcpt 4264.15; Trial Tcpt 4264.41.
312. Trial Tcpt 4264.
313. Trial Tcpt 4264.26; Trial Tcpt 4265.49.
314. Trial Tcpt 4265.50.
315. Trial Tcpt 4264.35.
316. CCA Tcpt 285.
317. Trial Tcpt 4469.23.
318. Trial Tcpt 4469.30; see also Trial Tcpt 4267.
319. Trial Tcpt 4469.34.
320. Trial Tcpt 4268.36. Trial Tcpt 4268.36.
321. Trial Tcpt 4269.27.
322. Trial Tcpt 4265.
323. Ex FX, slide 12; Trial Tcpt 4266.
324. Trial Tcpt 4267.50.
325. Trial Tcpt 4268.5.
326. Trial Tcpt 4268.15.
327. Trial Tcpt 4270.8.
328. Trial Tcpt 4270.16.
329. Trial Tcpt 4270.24.
330. See [307]ff.
331. Ex FX, slide 13; Trial Tcpt 4271.
332. Trial Tcpt 4271.30.
333. Trial Tcpt 4272.10; Trial Tcpt 4272.18.
334. Trial Tcpt 4272.13.
335. Ex FX, slide 14; Trial Tcpt 4272.
336. Trial Tcpt 4272.45.
337. Trial Tcpt 4273.17.
338. Trial Tcpt 4273.1.
339. Ex FX, slide 15; Trial Tcpt 4273.
340. Trial Tcpt 3632.50; Trial Tcpt 3633.9.
341. Trial Tcpt 4274.38.
342. Trial Tcpt 4428.11.
343. Trial Tcpt 4274.
344. Ex FX, slide 16; Trial Tcpt 4275.
345. Trial Tcpt 4275.25.
346. Trial Tcpt 4275.40.
347. Trial Tcpt 4275.50.
348. Trial Tcpt 4302.41.
349. Trial Tcpt 4276.8.
350. Trial Tcpt 4276.35.
351. Trial Tcpt 4276.37.
352. See [344].
353. Trial Tcpt 4276.
354. Transcript reads "a conclusion" but it seems likely this is a transcription error.
355. Ex FX, slide 17.
356. Trial Tcpt 4278.
357. Trial Tcpt 4277.21.
358. Trial Tcpt 4303.
359. Trial Tcpt 4503.
360. 2014 Voir Dire Tcpt 606.38.
361. Trial Tcpt 4503.47.
362. Trial Tcpt 4503.49.
363. Trial Tcpt 4504.9.
364. Trial Tcpt 4504.9.
365. Trial Tcpt 4433.2.
366. Trial Tcpt 4283.16.
367. Trial Tcpt 4284.10.
368. Trial Tcpt 4284.10.
369. Trial Tcpt 4283.32.
370. Trial Tcpt 4284.49.
371. Trial Tcpt 4286.42.
372. Trial Tcpt 4287.15.
373. Trial Tcpt 4287.28.
374. Trial Tcpt 4867.38.
375. Trial Tcpt 4225.18.
376. Trial Tcpt 4226.5 to .15.
377. Trial Tcpt 4285 to 4286.
378. Trial Tcpt 4295.
379. Trial Tcpt 4450.
380. Trial Tcpt 4499.16 to .20.
381. MFI 133; Trial Tcpt 4495; Trial Tcpt 4506.
382. Trial Tcpt 4543.
383. President's Council of Advisors on Science and Technology, Report to the President, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (September 2016).
384. Trial Tcpt 4465.9.
385. Trial Tcpt 4466.22.
386. Trial Tcpt 4471.5.
387. See [85].
388. Trial Tcpt 4717 to 4721.
389. Trial Tcpt 4721.32.
390. Trial Tcpt 4723.4.
391. Trial Tcpt 4725.
392. Trial Tcpt 4723 to 4724.
393. Trial Tcpt 4724.18.
394. Trial Tcpt 4725.20.
395. Trial Tcpt 4726.
396. Trial Tcpt 4750.35.
397. Trial Tcpt 5114+.
398. Trial Tcpt 5124.41; Trial Tcpt 5125.41; Trial Tcpt 5125.26.
399. Trial Tcpt 5125.45.
400. Trial Tcpt 5127.9.
401. Trial Tcpt 5127.10.
402. Trial Tcpt 5127.
403. Trial Tcpt 5129 to 5137.
404. Trial Tcpt 5137.50.
405. Trial Tcpt 5139.25.
406. Trial Tcpt 5141.24.
407. Trial Tcpt 5213.14.
408. Trial Tcpt 5383 to 5385.
409. Trial Tcpt 5385.35.
410. Trial Tcpt 5386.13.
411. Trial Tcpt 5496+.
412. Trial Tcpt 5498.
413. Trial Tcpt 5508.5.
414. Trial Tcpt 5510.
415. Trial Tcpt 5514.
416. Trial Tcpt 5525.10.
417. Trial Tcpt 5535.45.
418. Trial Tcpt 5540.
419. Trial Tcpt 5541; Trial Tcpt 5636.
420. SU at [1612] to [1623].
421. Trial Tcpt 480 to 481.
422. First appellant written submissions, filed 3 December 2018 (AWS1) at [268] to [269] and [285].
423. Trial Tcpt 4231.15.
424. See AWS1 at [256]; attached to the submissions at page 11 onwards; Ex PTK 1 at p 428 and onwards.
425. Page 11 of annexures to AWS1; Ex PTK 1 at p 428.
426. CCA Tcpt 221.27. It is an expansion of the data depicted in slide 9 for one locus to all loci for a particular TrueAllele run (see [129]).
427. AWS1 at [402].
428. CWS at [190].
429. 2015 Trial Tcpt 6029.
430. CCA Tcpt 225.46; 228.35; 229.20; 282.2.
431. Dr Perlin Appeal Report at p 41.
432. id.
433. Second appellant written submissions, filed 21 December 2018 (AWS2) at [268].
434. AWS2 at p 56; PTK 1 at p 589.
435. PTK 1 at p 598.
436. 2014 Voir Dire Tcpt at 622.47.
437. 2014 Voir Dire Tcpt at 623.
438. 2014 Voir Dire Tcpt at 779.28.
439. 2014 Voir Dire Tcpt at 1191.20.
440. 2014 Voir Dire Tcpt at 808.10.
441. 2014 Voir Dire Tcpt at 868.28.
442. See [101].
443. "New York State TrueAllele validation on DNA mixtures of known composition, 15 October 2013": PTK 2, tab 16 at p 10; Virginia TrueAllele Validation Studies: PTK 2, tabs 6 and 7; Kern Regional Crime Laboratory Study, "TrueAllele Genotype Identification on DNA mixtures containing up to five unknown contributors": PTK 2, tab 10 at p 14; "TrueAllele Casework Validation on PowerPlex 21 Mixture Data, 2 March 2014": PTK 2, tab 11 at p 10; "TrueAllele Casework Separates DNA Mixtures that Share Alleles, 12 March 2014": PTK 2, tab 12 at p 10.
444. CCA Tcpt 225.32.
445. Dr Perlin Appeal Report at p 44, 50, 57 and 71.
446. Dr Perlin Appeal Report at p 44.
447. Dr Perlin Appeal Report at p 50; CCA Tcpt p 224.
448. AWS2 at [266].
449. SU [1546].
450. Fourth appellant written submissions, dated 18 June 2020 (AWS4) at [38].
451. CCA Tcpt 228.40 to 229.10.
452. CCA Tcpt p 228.41.
453. CCA Tcpt 229.15.
454. See [135].
455. See [129] and [133].
456. AWS1 at [263] and [285].
457. AWS1 at [285].
458. CCA Tcpt 221.50.
459. See [137] to [140].
460. CCA Tcpt 240; 285.21 to 286.
461. AWS1 at [283].
462. AWS1 at [284].
463. Trial Tcpt 4421.5.
464. 2014 Voir Dire Tcpt 870.18.
465. See voir dire Ex PTK 2 tab 6 at p 29; PTK 2 tab 8 at p 61; PTK 2 tab 9 at pp 71 and 80; PTK 2 tab 10 at p 12.
466. "New York State TrueAllele Casework Developmental Validation, 2009-2010, DuCeman, Perlin, Belrose, 19 February 2010": PTK 2 at p 453.
467. AWS1 at [272], [281] to [282], [297] and [300].
468. See [144] and [147]; AWS2 at [272] to [273].
469. AWS2 at [272].
470. 2014 Voir Dire Tcpt 763.14; AWS2 at [272].
471. AWS1 at [292] to [293], [297] and [299] to [300] and [305].
472. AWS1 at [292].
473. AWS1 at [255].
474. See [129].
475. See [129] to [132].
476. 2014 Voir Dire Tcpt 780.18.
477. Trial Tcpt 4272.13.
478. See [160].
479. Trial Tcpt 4273.46.
480. See [155] to [161].
481. 2014 Voir Dire Tcpt 1107.28.
482. Trial Tcpt 4300.10.
483. Trial Tcpt 4301.35.
484. 2014 Voir Dire Tcpt 1109.40.
485. 2014 Voir Dire Tcpt 1109.49.
486. CCA Tcpt 253.5; 251.25.
487. CCA Tcpt 249.35; 245.35.
488. CCA Tcpt 250.8.
489. CCA Tcpt 262.8.
490. CCA Tcpt 271.40.
491. CCA Tcpt 271.20.
492. Page 35 of the annexures to AWS1: see AWS1 at [275].
493. AWS1 at [269] to [305].
494. See [141].
495. 2014 Voir Dire Tcpt 565.43.
496. 2014 Voir Dire Tcpt 1137.15.
497. 2014 Voir Dire Tcpt 1137.22; 2014 Voir Dire Tcpt 1139.34.
498. 2014 Voir Dire Tcpt 606.45; 2014 Voir Dire Tcpt 1139.34.
499. 2014 Voir Dire Tcpt 606 to 607; 2014 Voir Dire Tcpt 1137.5.
500. 2014 Voir Dire Tcpt 792.24.
501. Trial Tcpt 4469.30.
502. 2014 Voir Dire Tcpt 737.3.
503. 2014 Voir Dire Tcpt 792.4.
504. 2014 Voir Dire Tcpt 721.38.
505. 2014 Voir Dire Tcpt 1175.18.
506. PTK 23.
507. See [143] to [150].
508. 2014 Voir Dire Tcpt 1187.33.
509. 2014 Voir Dire Tcpt 1196.30.
510. CWS, Annexure 5.
511. CWS at [254].
512. AWS1 at [272], [289] to [290] and [292].
513. AWS1 at [293] and [297].
514. AWS1 at [284].
515. AWS1 at [277] and [289].
516. AWS1 at [289].
517. CCA Tcpt.
518. CCA Tcpt 121.5.
519. Part A at [62] to [64].
520. Trial Tcpt 4278.28.
521. Trial Tcpt 4431.
522. Trial Tcpt 4431 to 4432.1.
523. CCA Tcpt 268.18.
524. CCA Tcpt 268.
525. CCA Tcpt 270.21 to .25.
526. CCA Tcpt 269.50.
527. See [159].
528. Page 15 of Annexure 1 to AWS1.
529. AWS1 at [278] to [281].
530. CCA Tcpt 305.49.
531. CCA Tcpt 307.39.
532. CCA Tcpt 307.40.
533. CCA Tcpt 321.1.
534. CCA Tcpt 325.20.
535. AWS1 at [292] to [293].
536. AWS1 at [292] and [293].
537. AWS1 at [293].
538. Part A at [64].
539. cf AWS1 at [294].
540. cf AWS1 at [297].
541. CCA Tcpt p 332.
542. AWS1 [299]; AWS1 annexures p 61 and p 63.
543. AWS1 at [300].
544. AWS1 at [302]; annexure p 61.
545. AWS1 at [303] to [305].
546. 2014 Voir Dire Tcpt 798.7 to .14.
547. CWS at [271].
548. CWS at [273].
549. CWS at [272] to [274].
550. Eg, AWS1 at [137ff].
551. AWS1 at [295], at [375] to [377] and [404]; CCA Tcpt 3.10.
552. AWS1 at [394] and [417].
553. AWS1 at [513] and [521].
554. Ex PTK 2; Tendered on 17 March 2014.
555. 2014 Voir Dire Tcpt 504.9+.
556. PTK 2 at p 187 to 248; 2014 Voir Dire Tcpt 539.
557. PTK 2 at p 249 to 329; 2014 Voir Dire Tcpt 539.
558. PTK 2 at p 252.1.
559. PTK 2 at p 328.1.
560. PTK 2 at p 328.8.
561. PTK 2 at p 299.
562. PTK 2 at p 286.
563. PTK 2 at p 319.
564. cf AWS1 at 344.
565. 2014 Voir Dire Tcpt 541.19.
566. 2014 Voir Dire Tcpt 541.29.
567. 2014 Voir Dire Tcpt 545.
568. 2014 Voir Dire Tcpt 547.50.
569. PTK 2 at p 343.
570. PTK 2 at p 344.5.
571. PTK 2 at p 433-452.
572. PTK 2 at p 436.8.
573. 2014 Voir Dire Tcpt 549.40.
574. 2014 Voir Dire Tcpt 549.48.
575. 2014 Voir Dire Tcpt 552.36.
576. PTK 2 at p 538-561.
577. PTK 2 at p 548.
578. id.
579. PTK 2 at p 555; 2014 Voir Dire Tcpt 554.35.
580. PTK 2 at p 730.
581. 2014 Voir Dire Tcpt 564.31.
582. 2014 Voir Dire Tcpt 565.5.
583. 2014 Voir Dire Tcpt 565.22; 2014 Voir Dire Tcpt 566.10 to .20; PTK 2 at p 737.
584. PTK 2 at p 737.
585. 2014 Voir Dire Tcpt 626.29.
586. cf AWS1 at [375].
587. PTK 1 at p 74.
588. PTK 1 at p 75.
589. 2014 Voir Dire Tcpt 815.48.
590. At [171ff].
591. See [174].
592. See [175].
593. Trial Tcpt 4498.27.
594. See [174].
595. Trial Tcpt 4498.48.
596. At [174].
597. Trial Tcpt 4498.45.
598. Trial Tcpt 4498.45.
599. See [174].
600. Trial Tcpt 4450.
601. Affidavit of Frances Low affirmed 18 June 2020.
602. CCA Tcpt 19.37.
603. See [443].
604. Greenspoon article at p 1276.
605. AWS1 at [250].
606. Greenspoon article at p 1274 to 1275.
607. AWS1 at [371] and [374].
608. Master's Thesis at p 52.
609. CCA Tcpt 270.38.
610. CCA Tcpt 290.37.
611. CCA Tcpt 291.30.
612. CCA Tcpt 291.34 and 292.3.
613. CCA Tcpt 294.10.
614. AWS1 at [364], [365], [366].
615. AWS1 at [364].
616. AWS1 at [375].
617. See [229].
618. AWS1 at [362].
619. CWS at [379].
620. AWS1 at [375].
621. AWS1 at [378] to [384].
622. Cf AWS1 at [361].
623. See CCA Tcpt 90.5.
624. AWS1 at [368].
625. AWS1 at [394].
626. AWS1 at [417].
627. See [174].
628. Hodgson, supra at 114.
629. Specifically, the opinions contained in part 7 section 9.1, page 23 line 575 to page 24 line 613, page 24 line 630 to page 26 line 688 and the corresponding part of the summary of the report.
630. Professor Gill Appeal Report at p 6.
631. At p 8.
632. id.
633. Professor Gill Appeal Report at p 26.
634. Professor Gill Appeal Report, section 7.
635. See [327].
636. Professor Gill Appeal Report, section 9.
637. See [143].
638. Dr Perlin Appeal Report at pp 10 to 13.
639. PTK 2 at 978 to 980.
640. See [137].
641. Professor Gill Appeal Report at p 21.5.
642. Trial Tcpt 4273.41.
643. Professor Gill Appeal Report at p 24.
644. Trial Tcpt 4434.14; Professor Gill Appeal Report at p 26.
645. Professor Gill Appeal Report p 27.
646. Dr Perlin Appeal Report at p 16.2.
647. Professor Gill Appeal Report at p 28.
648. Id.
649. See [350].
650. Dr Perlin Appeal Report at p 13.1.
651. Dr Perlin Appeal Report at pp 13 to 16.
652. AWS1 at [388].
653. AWS1 at [389].
654. AWS1 at [389].
655. CCA Tcpt 84.38.
656. See [137], [143], [147] and [150].
657. See [145].
658. See for example [143].
659. See [149].
660. SU [1561].
661. AWS1 at [390].
662. CCA Tcpt 83.21.
663. See [147].
664. See [150]; AWS1 at [390].
665. Professor Gill Appeal Report at p 21.
666. Dr Perlin Appeal Report at pp 15 to 16.
667. Dr Perlin Appeal Report at pp 44, 49, 56.
668. Dr Perlin Appeal Report at p 44.
669. id.
670. At p 49.
671. At p 54.
672. At p 54.
673. Supra at pp 114 to 115.
674. CCA Tcpt 232.16; CCA Tcpt 333 to 334.
675. CCA Tcpt 329.11.
676. CCA Tcpt 334.25.
677. CCA Tcpt 330.6.
678. See [108].
679. See [108].
680. See [155].
681. Professor Gill Appeal Report at p 21.
682. See [402] below.
683. AWS1 at [306].
684. AWS1 at [311].
685. AWS1 at [313] and [315].
686. At [5(b)].
687. PTK at p 369 and p 377.
688. PTK at p 383 and p 574.
689. Xie (No 4) at [393].
690. 2014 Voir Dire Tcpt 962; PTK 14.
691. PTK 14.
692. PTK 14 at 194.
693. 2014 Voir Dire Tcpt 963 to 964.
694. See [263].
695. 2014 Voir Dire Tcpt 541.20.
696. See [233].
697. PTK 20.
698. 2014 Voir Dire Tcpt 1085.13.
699. PTK 20 at p 5.
700. id.
701. id.
702. 2014 Voir Dire Tcpt 1098.42.
703. 2014 Voir Dire Tcpt 1102.
704. 2014 Voir Dire Tcpt 1102.41.
705. 2014 Voir Dire Tcpt 1103 to 1108.
706. Xie (No 4) at [435].
707. Xie (No 4) at [438].
708. Xie (No 4) at [469].
709. Xie (No 4) at [106] and [391].
710. See [231] to [234].
711. AWS1 at [320].
712. Xie (No 4) at [413].
713. Xie (No 4) at [418].
714. Xie (No 4) at [422] to [424].
715. Xie (No 4) at [432].
716. Xie (No 4) at [439].
717. Xie (No 4) at [440].
718. AWS1 at [307].
719. AWS1 at [322].
720. AWS1 at [324] to [328].
721. See [257] to [302].
722. AWS1 at [329].
723. AWS1 at [329], first point.
724. See [214ff].
725. AWS1 at [329], second point.
726. See [214ff].
727. AWS1 at [329], third point.
728. See [188ff].
729. AWS1 at [329], fourth point.
730. Trial Tcpt 4298.19.
731. See [108] to [109].
732. CWS [333]; see [109] above.
733. AWS1 [329], point 5.
734. AWS1 [329], points 6 and 7.
735. See [141].
736. See [151ff].
737. AWS1 at [329], point 8.
738. Trial Tcpt 4482.45.
739. See [107].
740. AWS1 at [342].
741. AWS1 at [307].
742. AWS1 at [344].
743. AWS4 at [8]; Xie (No 4) at [338].
744. Xie (No 4) at [348].
745. Xie (No 4) at [417].
746. See Part 5.
747. AWS1 at [345].
748. AWS1 at [346].
749. See [188ff] and [214ff] respectively.
750. CCA Tcpt 88.19.
751. Row 8 and Row 3.
752. 2014 Voir Dire Tcpt 769.40.
753. Trial Tcpt 4602.
754. Trial Tcpt 4068.
755. Trial Tcpt 4069.36.
756. Trial Tcpt 4069.42.
757. Trial Tcpt 4094.41; Trial Tcpt 4101.31.
758. Trial Tcpt 4109.20.
759. Trial Tcpt 4058.
760. Trial Tcpt 4113.5.
761. AWS1 at [350]; see also CWS at [351].
762. Trial Tcpt 4179; Trial Tcpt 4182.15.
763. Trial Tcpt 4189.35.
764. Trial Tcpt 4190.
765. Trial Tcpt 4193.
766. Trial Tcpt 4199; Trial Tcpt 4201.
767. Trial Tcpt 4197.27.
768. Trial Tcpt 4202.5.
769. Trial Tcpt 4202.
770. Trial Tcpt 4204.20 to .38.
771. See [257] to [302].
772. AWS1 at [383].
773. See [141].
774. AWS1 [385] to [392], [403], [413] and [414].
775. AWS1 at [393] to [394] and [417].
776. See [133], [143] and [147] to [150].
777. See [155ff].
778. See [304].
779. AWS1 at [417]; see [305] to [306].
780. AWS1 at [395] and [396].
781. AWS1 at [395] and [402].
782. See [188ff].
783. See [137] to [140].
784. See [230].
785. AWS1 at [404]; see [155].
786. AWS1 at [405].
787. AWS1 at [397].
788. See [129] to [134]; [205] to [206].
789. AWS1 at [398].
790. AWS1 at [399].
791. See [220ff].
792. See [214] to [225].
793. AWS1 at [400].
794. See [214ff].
795. Trial Tcpt 4298.
796. Trial Tcpt 4299.
797. Trial Tcpt 5508.1.
798. AWS1 at [401].
799. See [159] to [161].
800. See [155] and [242].
801. See [226] to [256].
802. AWS1 at [406] to [411].
803. See [226] to [253] and [257] to [303].
804. AWS1 at [408].
805. See [159].
806. See [238] to [243]; CCA Tcpt 121.4.
807. CCA Tcpt 122.5 to .10.
808. At [242].
809. CCA Tcpt 123.26.
810. At [242].
811. AWS1 at [411].
812. See [160].
813. AWS1 at [412].
814. AWS1 at [415].
815. See [229ff] and [211ff].
816. See [115].
817. CCA Tcpt 415.11.
818. CCA Tcpt 415.48.
819. 2015 Trial Tcpt 9840.40.
820. 2015 Trial Tcpt 9841.15.
821. 2015 Trial Tcpt 9845.5.
822. CWS at [737].
823. See [107] to [111].
824. See [175].
825. See [171] to [175] and [257] to [306], esp at [303] to [306].
826. See [113].
827. CCA Tcpt 148.45; CCA Tcpt 216.4.
828. CCA Tcpt 373.36; In particular the opinions contained in part 7 section 9.1, page 23 line 575 to page 24 line 613, page 24 line 630 to page 26 line 688 and the corresponding part of the summary of the report.
829. CCA Tcpt 19.37.
830. Applicant's outline of submissions filed 30 September 2018 at [15] and [16].
831. CCA Tcpt 127 to 128.
832. See [248] to [249].
833. CCA Tcpt 439 to 440; 496 to 499.
834. AWS1 at [441].
835. SU [921] to [927].
836. SU [928] to [936].
837. SU [939] to [982].
838. SU [986] to [999].
839. SU [1000] to [1021].
840. SU pp 299 to 302.
841. AWS1 [421] to [422].
842. AWS1 [424].
843. CCA Tcpt 339.26; 340.43.
844. AWS1 [427].
845. AWS4 [4], [9].
846. CCA Tcpt 343-4, referring to AWS1 [422].
847. CWS [407], [412], [415].
848. CWS [416].
849. CWS [418], quoting SU [34].
850. CCA Tcpt 456.6.
851. SU [996].
852. SU [986] to [991]; [997] to [999].
853. SU [992] to [993].
854. SU [994] to [995].
855. SU [996].
856. AWS1 [441].
857. CCA Tcpt 341.2 to 341.11.
858. SU [996].
859. AWS1 [443] to [446].
860. AWS1 [452].
861. AWS1 [448]; AWS2 [1]; CCA Tcpt 373.15.
862. AWS1 [449].
863. Written directions (MFI 163).
864. See above at [53]. For the defence case, see [75].
865. SU [423].
866. Trial Tcpt 5086.2.
867. Trial Tcpt 5085-5089.
868. See above at [63].
869. CCA Tcpt 368.
870. See [814].
871. CCA Tcpt 467.27.
872. CCA Tcpt 360.30.
873. CCA Tcpt 361.45.
874. CCA Tcpt 367.
875. CCA Tcpt 369.
876. CWS [439] to [440].
877. CCA Tcpt 369 to 370.
878. "Applicant's Note of Outstanding Matters" received 7 July 2020.
879. CCA Tcpt 366.
880. The suggested hypothetical alternative explanation of drinking alcohol after the accident being "alcohol dependence in times of crisis" appears to have been purely speculative in its application to the offender.
881. There are several variations in which the concept may be expressed but this will suffice.
882. CCA Tcpt 366.32.
883. SU [854].
884. Written directions MFI.163.
885. SU [832] to [833].
886. SU [884].
887. SU [885] to [911].
888. SU [913].
889. SU p 119.
890. SU [453]; [1712].
891. AWS1 [451].
892. AWS2 [2].
893. CCA Tcpt 457.
894. AWS2 [4].
895. AWS2 [7].
896. Distributed to the jury was a document, "Structure of Crown Submissions: Order of Topics to be Covered", MFI 153. The actions of the appellant on 18 July 2009 were items C 7 (i)-(ix).
897. AWS2 [8].
898. AWS3 [116].
899. Trial Tcpt 5046-7.
900. Ex FM1 pp 71, 76.
901. Ex FM1 pp 67.
902. Crown address Tcpt 5047.5.
903. Trial Tcpt 5048.27.
904. Trial Tcpt 5060.23.
905. AWS2 [24] to [25], [29].
906. SU [766].
907. SU [772].
908. CCA Tcpt 381.35; 382.3.
909. CCA Tcpt 382.45; 383.20.
910. CCA Tcpt 384.6.
911. Trial Tcpt 5048.35ff.
912. Trial Tcpt 5212.27.
913. SU [721].
914. SU [426]; [728]; [1689].
915. AWS2 [37]; CCA Tcpt 386.27.
916. AWS2 [30].
917. CCA Tcpt 387.45-388.4.
918. AWS2 [40] to [101].
919. At [35].
920. Trial Tcpt 5052.33.
921. CCA Tcpt 476.41.
922. Ex DJ, Q 36.
923. Ex DN, Q 348-350.
924. Ex R & S.
925. Trial Tcpt 5052.20.
926. Trial Tcpt 5050-1.
927. Trial Tcpt 2684-5.
928. Trial Tcpt 2701; Ex GJ Q 264-268.
929. Trial Tcpt 5051; Ex GJ Q274.
930. Ex 45 (Page 11 of Annexure 3 to AWS2).
931. Trial Tcpt 2703.
932. Trial Tcpt 2693; 2901; Ex DU.
933. Part A at [1601]; Ex S Q1856.
934. CCA Tcpt 393.5.
935. Trial Tcpt 2698.7.
936. Trial Tcpt 2698.11.
937. Tcpt 2696.46-2698.28.
938. This was referred to in the Crown's closing address in relation to Topic C (Trial Tcpt 5052.37) but it was dealt with in detail later in the address when the Crown was dealing with various forms of post-18 July 2009 conduct (Trial Tcpt 5083.24).
939. Ex DT1 at p 7.
940. Trial Tcpt 2712.21.
941. SU [729]-[746].
942. SU [729]-[741].
943. SU [741]-[746].
944. CCA Tcpt 387-401.
945. CCA Tcpt 387.25-395.18.
946. CCA Tcpt 396.10.
947. CCA Tcpt 397.4-397.50; AWS2 [110].
948. CCA Tcpt 398.5.
949. CCA Tcpt 400.41.
950. AWS2 [111].
951. The plan available to her in 2010 was of poor quality but that was not her reason for not providing some indication. She said it was because of advice from her solicitor.
952. Ex S Q1906-Q1908.
953. Ex S Q1907.
954. Trial Tcpt 2685.40.
955. SU [743].
956. Ex DN Q334; Q350.
957. Ex DT p 7.
958. SU [717] to [919].
959. SU [427]; [1690].
960. He told police he worked as an ear nose and throat doctor for five years in China after graduating with a degree in medical science in 1986: Ex DG, Q108-116; also Ex DN Q429.
961. Ex DJ, Q39.
962. Ex DJ, Q181-186.
963. Ex DN, Q 400 - 405.
964. Trial Tcpt 5053.35.
965. Trial Tcpt 5209.44; 5326-7; 5329.5; 5344.20.
966. Trial Tcpt 5809; Ex S Q1934-1937.
967. SU [427].
968. SU [1690].
969. AWS2 [134].
970. CCA Tcpt 402.35.
971. AWS2 [134].
972. Trial Tcpt 5809.3.
973. Trial Tcpt 5063.13.
974. AWS3 [57] to [61].
975. CCA Tcpt 403.6.
976. Trial Tcpt 5058.36ff.
977. Trial Tcpt 5059.39ff.
978. Trial Tcpt 5060.1ff; 5062.27; 5062.35.
979. Trial Tcpt 5060.28; 5062.19ff.
980. Trial Tcpt 5062.45.
981. Trial Tcpt 5063.13.
982. AWS3 [76]; CCA Tcpt 403.20.
983. AWS3 [78].
984. AWS3 [83]-[84].
985. AWS3 [87]. See below at [632].
986. AWS3 [92]. See below at [631].
987. Trial Tcpt 5060.8; SU [771].
988. AWS3 [95]. See below at [627].
989. AWS3 [97].
990. AWS3 [98].
991. AWS3 [99].
992. AWS3 [100].
993. AWS3 [100].
994. AWS3 [101]. See below at [630].
995. AWS3 [102].
996. AWS3 [103]; [105].
997. AWS [104]; [106] to [112].
998. AWS3 [113].
999. See Ground 6.
1000. Ground 5(b), Topic C.
1001. Trial Tcpt 5058.4. See above at 624.
1002. See above at 624. AWS3 [101]; CWS [540]; SU [1710].
1003. Trial Tcpt 2728.40.
1004. Trial Tcpt 2744.10. See above at 624.
1005. Ex DN Q473.
1006. Ex 44 Q 288-292. See above at 624.
1007. CWS [537], referring to SU [768] to [772].
1008. SU [773].
1009. SU [453]; [721] to [724]; [757].
1010. Trial Tcpt 5065-5070.
1011. See [29].
1012. The evidence of Nurse Edwards is at Trial Tcpt 607-8.
1013. The evidence of Detective Senior Wilson is at Trial Tcpt 593-4.
1014. Trial Tcpt 5071.10.
1015. Trial Tcpt 5071.15.
1016. Trial Tcpt 593.16; 5071.27.
1017. Trial Tcpt 5071.40.
1018. Trial Tcpt 5072.14.
1019. Trial Tcpt 5072.30.
1020. Trial Tcpt 5073.45.
1021. AWS3 [165].
1022. AWS3 [168].
1023. AWS3 [169].
1024. AWS3 [173].
1025. Ex DN Q374, 626.
1026. Trial Tcpt 5081-2.
1027. Trial Tcpt 2752.35; 3021.50.
1028. Ex S, Q 1913-4.
1029. Ex DI, Q18-25 (Appellant); Ex S, Q1794-1811 (Kathy Lin).
1030. Trial Tcpt 5099.15.
1031. In an interview on 22 March 2010 at Q 126 and in a covertly recorded conversation with her husband later that day: as to the former, see Crown closing address at Trial Tcpt 5090-5093.
1032. Trial Tcpt 5100.20.
1033. Trial Tcpt 3700.12.
1034. Ex FM, p 127.
1035. Trial Tcpt 5099.35.
1036. Trial Tcpt 3909.
1037. SU [250].
1038. Trial Tcpt 5382.15; 5220.45.
1039. Trial Tcpt 5562.29; 5700.47; 5695.44.
1040. Trial Tcpt 5562.21.
1041. AWS1 [470].
1042. SU [360].
1043. AWS1 [471].
1044. AWS1 [471].
1045. Some of these are derived from the Crown's submissions.
1046. Trial Tcpt 3753-4.
1047. MFI 163 "13 Sound recordings as evidence"; SU [96] to [111].
1048. Ex FM; Trial Tcpt 3756; 3994; 5099; 5696; SU [358].
1049. SU [361].
1050. AWS1 [472].
1051. AWS1 [473]-[474].
1052. AWS1 [460], [475]; Trial Tcpt 3991.10; CCA Tcpt 413.10.
1053. Trial Tcpt 3991.
1054. Trial Tcpt 3885.41.
1055. Trial Tcpt 3686-3699.
1056. Ex FL; Trial Tcpt 3695.48-3700.27.
1057. CWS [599]ff.
1058. See [36].
1059. Trial Tcpt 4511.
1060. Trial Tcpt 4646-7.
1061. SU p 116.
1062. SU pp116 to 117.
1063. SU p 119.
1064. See, for example, Trial Tcpt 3693-3697.
1065. AWS1 [476]; CCA Tcpt 414.2.
1066. Trial Tcpt 4016-4018; SU [184]-[220]; [375]; Written directions, MFI 163, item 14.
1067. AWS1 [477].
1068. CWS [610].
1069. AWS2 [478].
1070. Trial Tcpt 4551.21.
1071. Trial Tcpt 5562.21; 5697.47; 5730;26. The defence address commenced 24 November 2016 and concluded 13 December 2016.
1072. AWS1 [478].
1073. SU [267] to [268].
1074. AWS1 [498].
1075. Ex DZ.
1076. CWS [639]. Trial Tcpt 5034-5.
1077. CWS [626]; Trial Tcpt 3222.
1078. Trial Tcpt 1466-8; 1571; 1932-5.
1079. Trial Tcpt 1574ff.
1080. CWS [615] to [624].
1081. Trial Tcpt 2167-8.
1082. CWS [629] to [633].
1083. CWS [634].
1084. Trial Tcpt 5034-5.
1085. Trial Tcpt 1599-1601; CWS [635].
1086. Trial Tcpt 1601.21.
1087. CWS [636].
1088. Trial Tcpt 5034.50.
1089. Trial Tcpt 5035-6.
1090. Ex BB; Trial Tcpt 2797-9.
1091. CCA Tcpt 347.7.
1092. CWS [642].
1093. Trial Tcpt 4963.35; AWS2 [486].
1094. Trial Tcpt 5041.18.
1095. SU [1176] to [1177], [1179].
1096. SU [1180] to [1184].
1097. Amendments made by the Evidence Amendment (Tendency and Coincidence) Act 2020 did not apply and may be ignored.
1098. As well as "unfairly prejudicial" in s 135 and "unfair prejudice" in s 137.
1099. CCA Tcpt 345.5.
1100. CCA Tcpt 346.50.
1101. CCA Tcpt 347.6.
1102. CCA Tcpt 354.20.
1103. CCA Tcpt 354.32.
1104. AWS2 [501].
1105. 2015 Trial Tcpt 4279.5; 4545.8.
1106. CCA Tcpt 347.41.
1107. CCA Tcpt 352.30.
1108. Trial Tcpt 1388-9.
1109. Trial Tcpt 3241 (Min Lin); 3256-7 (Lily Lin).
1110. CWS [653].
1111. AWS2 [503].
1112. AWS2 [488].
1113. AWS2 [509].
1114. AWS2 [510].
1115. AWS2 [510].
1116. See [415]ff.
1117. CCA Tcpt 414.20; 420.8.
1118. At [413]ff.
1119. CCA Tcpt 418.11.
1120. Trial Tcpt 5145.41.
1121. For example, Trial Tcpt 5692.2; 5693.35 and generally CWS [742] to [744].
1122. Trial Tcpt 3787.25.
1123. See [480].
1124. Ex FN, pp 97 to 98.
1125. Extract from CCA Tcpt 368; see above at [480]. AWS1 [526], [530].
1126. Trial Tcpt 3882.4-3882.18.
1127. AWS1 [530].
1128. Trial Tcpt 3946.23.
1129. Trial Tcpt 3870-3992.
1130. AWS1 [530].
1131. Trial Tcpt 3877.8.
1132. Trial Tcpt 5402.8.
1133. AWS1 [531]; Trial Tcpt 5412.
1134. AWS1 [532]; Trial Tcpt 5557-8. The submissions assert that the trial judge raised this with counsel the next day, 8 December 2016 but reference pages 5670-5673 of the transcript which was on 9 December 2016.
1135. Trial Tcpt 5558.5; 5558.14.
1136. Trial Tcpt 5660.27.
1137. Trial Tcpt 5659-60.
1138. Trial Tcpt 5671.22.
1139. Trial Tcpt 5673.1.
1140. SU [885].
1141. AWS1 [531]; Trial Tcpt 4964.37; 5413.2.
1142. AWS1 [533].
1143. AWS1 [534].
1144. See summary in CWS [761].
1145. Trial Tcpt 3908.37.
1146. This would appear to be a reference to what occurred at Trial Tcpt 5696.31.
1147. CWS [769].
1148. AWS1 [536] to [537].
1149. Trial Tcpt 5706.23.
1150. AWS1 [537].
1151. Trial Tcpt 5706-5710.
1152. Trial Tcpt 5709.18; 5710.4.
1153. AWS1 [538].
1154. Trial Tcpt 3781.28.
1155. AWS1 [541].
1156. Ex FM.
1157. See [417ff].
1158. CWS [779].
1159. Ex FP.
1160. Trial Tcpt 5060.17; 5062.19ff; see [63].
1161. AWS1 [550] to [552].
1162. Trial Tcpt 81-83.
1163. AWS1 [553].
1164. CWS [783].
1165. Trial Tcpt 5644.36; AWS1 [554] to [555].
1166. SU pp 271 to 272.
1167. Trial Tcpt 5062.4.
1168. CWS [790].
1169. Trial Tcpt 5062.17.
1170. For example, at the conclusion of directions about consciousness of guilt matters, which included leaving Kathy Lin at Boundary Road, at SU [912].
1171. SU [453].

Amendments 15 February 2021 - [140] the words "divided by" were inserted where divided symbol had been removed. 18 February 2021 - [1] ... North Epping, a suburb in the north east of Sydney, corrected to read "north west of Sydney". 11 March 2021 - [12] - Ages of appellant and his wife amended. [66] - Mark Walton, corrected to Clayton Walton. [95], [97]-[100], [102], [106], [108], [110], [121]-[124], [126], [130], [132]-[134], [136], [138], [142], [189], [196], [210]-[212], [217], [244], fn 233, fn 426 - various corrections to the singular/plural of locus and loci. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2021