R v Xie

1. [1]

   1HIS HONOUR: Lian Bin Xie ("the applicant") applies for bail. The Crown opposes the application. He is charged with five counts of murder. Apart from the provisions of s 32 Bail Act 1978 which apply to all bail applications, the Bail Act makes special provision for murder. Section 9C Bail Act provides:

2. [2]

   Section 32(7) Bail Act provides that matters beyond those identified in s 32 which the court accepts as relevant may be considered when determining an application for bail to which s 9C applies.

3. [3]

   The applicant submits that the court would find that there are exceptional circumstances and would grant him conditional bail on the terms that are as follows:

Relevant principle

1. [4]

   Section 9C places a heavy onus on an applicant for a grant of bail on a charge of murder: see for example R v Connelly (Supreme Court of New South Wales, Hoeben J, 16 February 2006, unreported); R v Pirini (Supreme Court of New South Wales, McClellan CJ at CL, 8 September 2009, unreported); R v Pirini (Supreme Court of New South Wales, James J, 20 April 2010, unreported). Exceptional circumstances may arise from one or more factors either singularly or combined: see Pirini (8 September 2009); R v Young [2006] NSWSC 1499; R v Jacobs [2008] NSWSC 417. A weak Crown case may constitute exceptional circumstances: Memery v R [2000] VSC 495.

2. [5]

   Although exceptional circumstances may be established by a weak Crown case, an assessment of the existence of exceptional circumstances is not limited to this consideration. In Pirini (8 September 2009), McClellan CJ at CL said at [44-45]:

The Crown case

1. [6]

   The Crown alleges that the applicant murdered in the early hours of the morning of 18 July 2009, Min Lin, his wife Yunli [Lily] Lin, their two sons Henry aged 12, and Terry aged 9 and Yun Bin [Irene] Lin, the sister of Yunli Lin, in their family home at xxx Boundary Road, North Epping.

2. [7]

   The autopsy findings indicate that the cause of death of each of the deceased, other than Irene Lin, was asphyxia and blunt force injuries of the head. The cause of Irene Lin's death was blunt force injury of the head.

3. [8]

   All of the deceased were killed in their bedrooms. Some of the blunt force injuries suggest the use of a metal hammer or metal hammer-like weapon. The autopsy results and crime scene examinations are said to indicate that Min Lin and Lily Lin were attacked whilst asleep, as they had no defensive injuries and there were no signs of struggle. The Crown case is that they were attacked first and Irene Lin may have been awake at the time she was attacked. She suffered defensive injuries and appears to have moved in her bed. The Crown contends that Henry and Terry were likely the last to be killed as there were signs of a violent struggle and they suffered multiple defensive injuries. The autopsy findings indicate that Terry may have survived for one to two hours after the attack.

4. [9]

   The applicant is married to Kathy Lin, the sister of Min Lin. They lived with their son [AB] in Beck Street, North Epping, which is approximately 250 metres walking distance from the Lin family home.

5. [10]

   The applicant had attended a family dinner on Friday 17 July 2009 at Min Lin's parents' apartment in Merrylands. Also in attendance were Min Lin, Henry and Terry, Kathy Lin and [AB]. The Friday night dinner was a regular occurrence in the lives of the Lin and Xie families.

6. [11]

   Min Lin left the apartment at about 9pm. At around 10pm, the applicant, Kathy, [AB], Terry and Henry left the apartment together. They returned to North Epping in the Lin family vehicle, which was driven by the applicant. According to Kathy, the vehicle was returned to the garage of xxx Boundary Road, at about 10.30pm. Terry and Henry entered the home, whilst she, the accused and [AB] went to their vehicle, which had been parked in the street. They then drove to their house in Beck Street.

7. [12]

   Henry chatted on line to a friend on MSN until the friend signed out at about 11.40pm that night.

8. [13]

   Between 9am and 9.43am on the following morning, Kathy Lin received a number of telephone calls from various people, who told her that Min Lin's Newsagency had not opened. Min Lin was the proprietor of the Epping Central Newsagency. Kathy told police that she, the applicant and [AB] drove to xxx Boundary Road, where they discovered the deceaseds' bodies.

9. [14]

   The applicant was not charged with the murders until 5 May 2011.

10. [15]

    The case advanced by the Crown is circumstantial. A brief summary of the principal circumstances relied upon by the Crown is as follows:

11. [16]

    During the application, Detective Sergeant Maree, the office in charge of the investigation, gave evidence that he believed the applicant had an underlying hatred towards his in-laws.

Submissions on the Crown case

1. [17]

   Mr Turnbull SC for the applicant submitted that the Crown case is speculative and the circumstances relied upon by the Crown are individually, and together, weak. His criticism of the DNA evidence included the lack of any test which established that the sample taken from the applicant's garage was a bodily fluid, the lack of any test comparing sample 550 to the crime scene sample and the Crown's disregard for the "B sample" when reliance was placed on the findings of Dr Simon Walsh. Mr Turnbull pointed out that Dr Raymond's evidence was not footwear identification evidence, but evidence of comparison. He submitted that there was no evidence that the applicant owned any ASICS shoes at the date of the murders that match the patterns in the Lin family home. The shoe patterns could have been produced by one of three different models and one of five different sizes from 8.5 to 10 and ASICS was an extremely popular brand.

2. [18]

   Mr Turnbull contended that there was no evidence of any dispute between the applicant and Min Lin, and there was an absence of motive for the applicant to have murdered the five deceased. He argued that another matter which undermined the strength of the Crown case, was the application made by the Crown to have Kathy Lin called to give evidence at the committal proceedings. Other matters were raised by Mr Turnbull, which included a criticism of the police investigation.

3. [19]

   The Crown submitted that the case was a strong one. The Crown argued that the police investigation had been thorough and the evidence points to only one reasonable conclusion, which was the guilt of the accused.

Assessment of the Crown case

1. [20]

   As this is a bail application, my assessment of the strength or otherwise of the Crown case is limited to an examination of the material before me, which is untested. The only witness, who has been called to give evidence was Detective Sergeant Maree. I should state at the outset that Mr Turnbull's cross-examination of this witness failed to establish that his criticism of the investigation by police of the murders was justified.

2. [21]

   Having regard to the early stage of the proceedings, it is inappropriate that my analysis of the evidence is provided in detail. It is sufficient for present purposes to make the following observations:

3. [22]

   The strength of the Crown case would be offset by the Crown's concession that the applicant's DNA has not been identified on any items from the crime scene, the lack of evidence of animosity by the applicant towards any of the deceased prior to the killings and other material, such as the threatening letter of 13 August 2009, the unidentified DNA on the power box and the applicant's lack of prior criminal history.

4. [23]

   On the material before me, I conclude that when the circumstances relied upon by the Crown are viewed in combination, a jury could capably conclude that the applicant murdered each of the deceased. I do not think, however, that the Crown case is so strong that it will inevitably succeed. The applicant has, in my opinion, a reasonable prospect of a jury not being satisfied beyond reasonable doubt that he committed the murders.

5. [24]

   My conclusion, as to the strength of the Crown case, does not by itself, justify a finding of exceptional circumstances.

Delay

1. [25]

   Another matter relied upon by the applicant as constituting exceptional circumstances (either by itself or in combination) was the delay that was likely to occur in the prosecution of the applicant. Delay in the prosecution of an applicant is capable of constituting exceptional circumstances within s 9C: Pirini per James J at [93].

2. [26]

   Belle Lou, the applicant's solicitor, estimates that the applicant is unlikely to be committed to this court for trial until August or September 2012, with a trial date not being fixed until 2013.

3. [27]

   I am not persuaded that the progress of these proceedings is unduly slow moving. What is asserted to be delay, falls well-short of a delay that by itself might constitute exceptional circumstances. I do, however, take into account the time that the applicant will be in custody, in combination with my assessment of the strength of the Crown case and the other matters under s 32 Bail Act 1978 that are relevant to the present application.

The interests of the applicant

1. [28]

   Section 32(1)(b) Bail Act provides that in making a determination as to a grant of bail, the court is to have regard to the interests of the person, having regard only to:

2. [29]

   Sam Borenstein, a clinical psychologist in a report dated 25 March 2012, expresses the opinion that the applicant has an adjustment disorder with mixed anxiety and depressed mood, which is a direct consequence of his imprisonment and feeling of being wrongfully accused. The psychologist makes mention of the applicant's difficulties with reading and recollection. I give modest weight to this consideration.

3. [30]

   Ms Lou refers to the Crown brief consisting of about 10, 554 pages and 332 CD's and DVD's having been served and the difficulty experienced in obtaining instructions. I accept the applicant's submission that the preparation of his case will be more difficult if he is not at liberty.

Flight

1. [31]

   The Crown contended that the applicant is a flight risk, coming originally from China and having his family members in that country. The Crown submitted that he has significant financial ties to China and apparent access to funds. On the other hand, Mr Turnbull said that there is no question, given the applicant's history of travelling to China and returning, while the murders were being investigated, that the applicant is someone who might flee. Mr Turnbull argued that the proposed bail conditions would weigh heavily upon the applicant and guarantee his presence at court.

2. [32]

   Section 32(1)(a) Bail Act obliges the court to consider the probability of whether or not the person will appear having regard, relevantly, only to:

3. [33]

   The applicant was born in China. He is one of three children, having an older sister who works as an accountant in Guangzhou and a younger brother, who runs a car parts business. The applicant's parents, who are retired, live in China as do his sister and brother. The applicant and his wife have lived together in Australia since 2002. They ran a restaurant that was sold in 2005. After that time, the applicant participated in share trading. He and his wife have been married for some 13 years and their son [AB] is 11 years old. They own as joint tenants their home at North Epping. The applicant has no prior criminal history.

4. [34]

   A strong connection with China, however, remains. He is the only member of his family living outside China. He has a very close relationship with them. Prior to his arrest, he returned to China annually. Ron Szancer, the forensic accountant, in his statement discloses that between 3 February 2005 and 23 June 2009, there were 15 incoming international money transfers from China totalling $1,556,712 and four outgoing international money transfers to China totalling $811,617.00.

5. [35]

   Although it is true that the applicant has travelled to and from China since the deaths of the deceased, he is now charged with five murders. Should the applicant be convicted, he faces the distinct prospect of imprisonment for life, which provides strong motivation for not answering bail. I do not think that my assessment of the strength of the Crown case or the proposed bail conditions eliminate the significant possibility that the applicant might attempt to flee to China. I am not persuaded that the applicant is not a flight risk.

Interference with witnesses

1. [36]

   The surveillance tapes demonstrate the applicant's ability to attempt to influence his wife and his niece. Should the court accede to the proposed bail conditions, the applicant would return to the matrimonial home. In my opinion, the likelihood of his interfering with the evidence of his wife and niece remains high. Kathy Lin's evidence, in particular, is important to the Crown case.

Decision

1. [37]

   Taking into account all of the matters that must be considered, I am not satisfied that the applicant has discharged the high onus of establishing exceptional circumstances.

2. [38]

   Accordingly, bail is refused.