【Classic Cases】R v XiX (No 4) [2014] NSWSC 5XX

JUDGMENT

JOHNSON J: The Accused, LXXX BXX (RoXXrt) XiX, is charged that on or about 18 July 2009 at North Epping in the State of New South Wales, he did murder the following persons:

(a) MXX (NoXXXn) LXX;

(b) YXX LX (LXly) LXX;

(c) YXX BXX (IrXXe) LXX;

(d) HeXXy LXX; and

(e) TeXXy LXX.

The trial of the Accused is fixed to commence before a jury on 8 May 2014 with an estimate of four months. Additional jurors will be selected for the jury in accordance with s.19(2) Jury Act 1977.

The Pretrial Applications

By Notice of Motion filed on 18 November 2013, the Accused sought the exclusion of various categories of evidence.

The grounds upon which the Accused sought exclusion of these categories of evidence were articulated in Schedules to the Notice of Motion dated 20 November 2013 (MFI8) and 10 March 2014 (MFI10).

The orders sought by the Accused were as follows:

(a) Order 1 - that evidence in relation to Stain 91, swabbed at X Beck Street, North Epping on 13 May 2010, not be admitted into evidence upon the basis that it is not relevant for the purpose of s.55 Evidence Act 1995;

(b) Orders 2 and 3 - that evidence of DNA analysis relating to Item 550 (Stain 91) to be given by Mr ClaXXon WaXXon, Mr RoXXrt GoXXz, Ms ShXXon NeXXlle, Dr SiXXn WaXXh and Dr MXXk PeXXXn not be admitted on the ground of relevance under s.55 Evidence Act 1995 or, if relevant, be excluded in the exercise of discretion under ss.135or 137 Evidence Act 1995;

(c) Order 4 - that evidence of the Accused cutting up shoe boxes on the night of 6-7 May 2010 be excluded upon the ground that it was improperly or illegally obtained for the purpose of s.138 Evidence Act 1995 - in written submissions, the Accused sought, in the alternative, exclusion of this evidence under ss.135 or 137 Evidence Act 1995;

(d) Order 5 - not pressed;

(e) Order 6 - evidence of conversations between the Accused and KaXXy LXX or the Accused and Witness A (a person who was in custody with the Accused in and after July 2011) (including transcripts of those conversations) be excluded on the ground of relevance under s.55 Evidence Act 1995 and with derivative use of the contents of those conversations not to be otherwise permitted.

The Court was informed, on 16 April 2014, that Order 6 was no longer sought as the parties had agreed concerning the surveillance device material and transcripts to be tendered.

There is, however, a further issue concerning motive which arises from the surveillance device material, as to which oral and written submissions have been made by the parties. I will return to this topic later in the judgment.

If the Court determines not to exclude Dr PeXXin’s evidence in its entirety, the Accused objects to the Crown having leave to rely upon Dr PeXXin’s supplementary material served upon the Accused on 3 March 2014. I will return to this issue after ruling upon the objections to Dr PeXXin’s evidence generally.

The Pretrial Hearing

The Accused was committed for trial from the Central Local Court on 20 December 2012.

The pretrial case management of this matter had been undertaken in 2013 by Latham J. Following the announcement of her Honour’s appointment as the Commissioner of the Independent Commission Against Corruption, I assumed carriage of the proceedings shortly prior to the commencement of the pretrial hearing on 18 November 2013.

The Accused was arraigned afresh before me on 18 November 2013: s.130(2) Criminal Procedure Act 1986.

The pretrial hearing proceeded on 18, 19, 20, 21, 22 and 25 November 2013. A number of directions were given to progress the matter in advance of a resumed pretrial hearing date scheduled for February 2014.

Issues arose concerning the funding of legal representation of the Accused, leading to a number of mentions of the proceedings in December 2013 and January-February 2014. Those issues having been resolved, the pretrial hearing resumed on 17 March 2014 and continued on 18, 19, 20, 21, 24, 25, 26, 27, 28 and 31 March 2014 and 1 April 2014.

Directions were given for the filing and service of written submissions on the range of topics covered by the Accused’s Notice of Motion. On 14 April 2014, counsel made relatively brief oral submissions to supplement the detailed written submissions which had been furnished.

The pretrial hearing extended beyond the topics raised in the Accused’s Notice of Motion in two respects.

Firstly, a Basha Inquiry (R v Basha (1989) 39 A Crim R 337) was conducted where Witness A was called to give evidence and be cross-examined (PT70-260).

Secondly, it was necessary for the Court to determine the question whether waiver of client legal privilege between the Accused and his former solicitor, Daniel Sheen, had occurred concerning one topic. Following a finding that privilege had been waived, evidence was adduced from Mr Sheen on a BashaInquiry (PT400-408): R v XiX (No. 3) [2013] NSWSC 1840.

A number of witnesses gave evidence at the pretrial hearing on forensic issues concerning the location of Stain 91 in the garage of the Accused’s premises at X Beck Street, North Epping, and subsequent examination and analysis, including DNA analysis undertaken with respect to Item 550 (Stain 91). The witnesses who were called at the pretrial hearing (by the Crown unless otherwise indicated) were as follows:

(a) Ms JXX GeXXard of the Forensic Biology Unit, Forensic Services Group, New South Wales Police Force (PT282-345);

(b) Dr PaXXa JXXe HaXXam, Forensic Scientist (called by the Accused) (PT346-391);

(c) Dr MXXk WiXXXam PeXXin, Chief Scientific Officer and Chief Executive Officer, Cybergenetics (PT471-659; 713-799; 1086-1198);

(d) Mr RoXXrt JXXn GoXXz, Acting Deputy Director of Criminalistics, NSW Forensic and Analytical Science Service (“FASS”) (PT667-712);

(e) Ms ShXXon NeXXlle, Manager of DNA Laboratory, FASS (PT808-908);

(f) Mr ClaXXon EvXXett WaXXon, Senior Forensic Scientist, FASS (PT910-923; 1011-1082);

(g) Dr SXXon JoXXph WXXsh, Chief Scientist, Forensic Portfolio, Australian Federal Police (PT925-998).

In addition to the witnesses who gave evidence at the pretrial hearing in this Court, a number of persons gave evidence at the committal proceedings at Central Local Court and the transcript of their evidence was tendered on the pretrial hearing. A substantial volume of documentary material was tendered as well.

Outline of the Crown Case Against the Accused

To place the issues requiring determination into context, it is appropriate to refer to the case against the Accused as summarised in the Crown Case Statement (“CCS”) handed up on 17 March 2014 (MFI11).

In the early hours of Saturday, 18 July 2009, the five deceased persons were murdered in their family home at XXA Boundary Road, North Epping (“the Boundary Road premises”).

The LXX Family (CCS [1]-[3])

MXX LXX (45 years of age) and his wife LXly LXX (44 years of age) lived with their family at the Boundary Road premises. LXly LXX’s sister, IrXXe LXX (39 years of age) also lived with the family. HeXXy LXX (12 years of age) and TeXXy LXX (nine years old) were the children of MXX and LXly LXX.

MXX and LXly LXX’s eldest daughter, Ms AB (then aged 15 years), was absent from the house on 18 July 2009. She was in New Caledonia on a school excursion. She is the sole survivor of the LXX family.

The Accused’s Family (CCS [4]-[8])

The Accused (then aged 45 years) and his wife, KaXXy LXX, lived at X Beck Street, North Epping (“the Beck Street premises”), with their son "JaXXs" (which is not his real name) (nine years of age). The Beck Street premises were about 250 metres walking distance from the Boundary Road premises. KaXXy LXX is the sister of MXX LXX.

Also living in Australia were Mr Yang Fei LXX (“Mr LXX”) and Mrs FXXg QXX ZhX (“Mrs ZhX”), the parents of MXX LXX and KaXXy LXX. Mr LXX and Mrs ZhX lived at XX Birmingham Street, Merrylands.

The Accused married KaXXy LXX in China in 1999 and he moved to Australia permanently in 2002. Between the end of 2001 and 2005, the Accused and his wife owned a buffet restaurant in Melbourne.

The business was sold in January 2005 and they moved to Sydney. The Accused had previously qualified as a medical practitioner in China and practised there for some time as an Ear Nose and Throat Specialist. As at 18 July 2009, the Accused was unemployed and had been since the sale of the Melbourne business in January 2005.

During the time when the Accused and KaXXy LXX lived in Melbourne, their son "JaXXs" was cared for by the grandparents, Mr LXX and Mrs ZhX, in Sydney. "JaXXs" appeared to have had some difficulties adapting to school, in terms of his language and other social development. It appears that one of the reasons for the decision made by the Accused and his wife to return to Sydney was to look after "JaXXs". The Crown points to a conversation recorded on a surveillance device at the Beck Street premises on 2 March 2010 in which the Accused states that the grandparents had “spoiled” "JaXXs" and taught "JaXXs" “the wrong things”, having shown “no respect” to him and KaXXy LXX.

The Deceased Family (CCS [9]-[12])

At the time of his death, MXX LXX was self-employed at the Epping Central Newsagency at XX Rawson Street, Epping. He had worked full time in the business, seven days a week and for up to 12 hours a day. He employed a number of casual workers, including his wife, LXly, and sister-in-law, IrXXe. MXX LXX’s father also worked in the newsagency business with his son.

The newsagency business was viable and profitable. MXX LXX had significant assets. He also had a number of debts including mortgages on the Boundary Road premises and on a commercial investment property in Epping and a residential investment property in western Sydney where his elderly parents resided.

LXly LXX was not employed on a full-time basis at the time of her death. She attended to home duties and assisted part time in the newsagency business. According to the CCS, it is likely that LXly LXX suffered from a depressive illness for a number of years that went generally untreated.

IrXXe LXX was a student at Macquarie University at the time of her death. She arrived in Australia in June 2008 on a student visa, and had been studying and also working in the newsagency business since that time. IrXXe had resided at the Boundary Road premises since her arrival in Australia.

As at 18 July 2009, HeXXy LXX was a student at Epping Boys’ High School and his younger brother, TeXXy, a student at Epping North Primary School.

Events on Evening of Friday, 17 July 2009 (CCS [13]-[16])

On Friday, 17 July 2009, MXX LXX, TeXXy LXX and HeXXy LXX attended a family dinner at MXX LXX’s parents’ unit at XX Birmingham Street, Merrylands. Also in attendance were the Accused, KaXXy LXX and their son, "JaXXs". A dinner of this type was a regular occurrence in the life of the LXX family and that of the Accused.

LXly LXX and IrXXe LXX did not attend the family dinner. As mentioned, Ms AB was overseas on a school excursion.

MXX LXX left the Merrylands apartment at about 9.00 pm. TeXXy and HeXXy LXX left at around 10.00 pm with the Accused, his wife and son. They returned to North Epping in the LXX family vehicle, a silver/grey Toyota Kluger driven by the Accused.

According to KaXXy LXX, the vehicle returned to the garage at the Boundary Road premises at about 10.30 pm. KaXXy LXX states that TeXXy and HeXXy LXX entered the house. She told police that there were no lights on upstairs, but there was a light on in the dining area when she dropped the children home at 10.30 pm. The front door was unlocked at that time. She did not turn lights off as she left. She locked and checked the front door of the Boundary Road premises as she left.

The Accused told his father-in-law that he had told HeXXy and TeXXy to be quiet because the parents must be asleep as the lights were on downstairs, but not upstairs. He told police that there was no light on in the lounge room downstairs, and said that normally it was not on. The Accused said that his wife would normally turn the light on when she went inside and it would then be bright. The Accused said that his wife did not do that on this evening and he was sure about this.

KaXXy LXX, the Accused and "JaXXs" then went to their own car, a Toyota Corolla, which had previously been parked at the Boundary Road premises. They drove the short distance to their home at the Beck Street premises.

Activity in the Boundary Road Premises After the LXX Family Returned on 17 July 2009 (CCS [17])

HeXXy LXX chatted online to a friend on MSN until the friend signed out at about 11.40 pm that night. Computer records show that the computer was turned off at 00:01:38.

A Dark Night (CCS [18])

The night of 17 July and the early hours of 18 July 2009 were dark. At 2.00 am, there was virtually no moon (moon rise was at 02:43 and moon set at 12:46). At its peak in the sky, only 23% of the moon was visible. The Boundary Road premises were likely in darkness as the electricity switch was off.

The Manner, Order and Time of Death of the Deceased Persons (CCS [18]-[24])

The Crown case is that the killer necessarily had knowledge of the layout of the home in order to be able to successfully navigate it in darkness.

All of the deceased were found dead in their respective bedrooms. All were on or near their beds. All had obvious and significant wounds to their head and face.

The Crown case is that there is an overwhelming inference that each deceased was quickly incapacitated. The concentration of blunt force injury to the head and face, together with asphyxial injuries, indicate that there may have been action taken to prevent the deceased from vocalising. The Crown contends that there is an available inference that all of the deceased were attacked whilst they were asleep, rather than earlier in the evening.

There was no disturbance of any items in the adults’ rooms to suggest a struggle whilst they were awake. There were no items out of place down stairs.

In relation to the time of the deaths, the Crown relies upon circumstantial evidence as to when the deceased were last seen alive. HeXXy finished his chat session on the computer in his bedroom at 11.40 pm and the computer was turned off shortly after midnight. MXX LXX did not attend the newsagency early on Saturday morning. The Crown contends that this period includes the time period when the Accused had an opportunity to commit the crimes, that is after 2.00 am.

A next-door neighbour, JanXXle WXXith, of XX Boundary Road, was awake until 1.00 am. She described herself as a light sleeper and she did not hear anything that night. The Crown contends that there is an available inference that there was very little noise during the attack as the deceased were attacked unawares in their beds. It is said that the logical inference is that the deaths occurred in the early hours of the morning.

Blood spatter and DNA evidence was considered by Detective Sergeant Harkins, an expert in blood stain analysis. The Crown contends that this evidence indicates the order of the deaths. It is said to illustrate that the killer had prior knowledge regarding which bedrooms various people were sleeping in and knew which to target first, in order to minimise the risk of opposition.

If the lights were off and the killer made a check once inside the house, the Crown contends that this would have been difficult to discern without running the risk of waking the occupants.

The Crown contends that the person most likely to offer significant resistance, MXX LXX, was killed first, together with his wife, LXly LXX. The killer would also have known he first picked the room with two adults and to disable those people quickly. The Crown contends that it is extremely likely that the severe injuries to the heads of the deceased would have been readily incapacitating.

The Crown submits that the other adult in the house, IrXXe LXX, was attacked next. She represented the next highest threat.

This was followed by the attack on the two boys who would have been the easiest to subdue. Even they were killed in their bedroom, indicating that the murder of the three adults did not awaken them in time to exit their bedrooms.

The Crown contends that the lack of blood evidence in or near Ms AB’s room, from either shoe impressions or blood smears on the door handles, provides an available inference that the killer had knowledge that Ms AB was away. The Crown says that for a person outside the family, with no prior knowledge of the layout of the bedrooms to go into them to see who was there, would have posed an unacceptable risk of waking the occupants and raising the risk of serious opposition. According to the Crown, the absence of this makes it highly unlikely that the assailant needed to explore the house.

There were impressions from only one type of shoe (other than those from police boots consistent with having been deposited during the discovery of the bodies and initial investigation of the crime scene).

Events on Saturday, 18 July 2009 (CCS [25]-[26])

On Saturday, 18 July 2009, the Accused got up at about 8.00 am. According to his interview with police on 22 July 2009, the Accused carried out some gardening work in the front and back yards. He said also “I have a little bit clean up for the floor of the garage, because it was quite dirty” (Q/A26). In his interview with Detective Sergeant MaXXe, the Accused said he was “maybe [in the] garage to get some tool or something”.

Between 9.00 am and 9.43 am, KaXXy LXX received a number of telephone calls from various people, who told her that MXX LXX’s newsagency had not been opened as expected. KaXXy LXX attempted unsuccessfully to contact MXX LXX on his mobile telephone number at 9.37 am. She did not try to contact any of the other residents of the Boundary Road premises.

When interviewed, KaXXy LXX said that at that point she was not concerned, believing her brother may have been delayed by his vehicle breaking down or similar whilst he was doing his usual home deliveries, and that other members of the family may have been out shopping. KaXXy LXX told one of the friends that contacted her that she was going out shopping and would drive past her brother’s house on the way to try and locate him.

Arrival of the Accused and KaXXy LXX at the Boundary Road Premises (CCS [26]-[31])

KaXXy LXX, the Accused and their son, "JaXXs", drove to the Boundary Road premises in KaXXy LXX’s red Toyota Corolla. Upon arrival at the Boundary Road premises, KaXXy LXX got out of the car before the Accused had turned off the engine. The Accused followed her into the house, rather than waiting in the car. According to his answers in his first record of interview, the Accused then told "JaXXs" to stay in the car. The Crown contends that there is an available inference that the Accused wanted to avoid his wife finding the bodies because he knew they were there, but she went inside before he could stop her.

KaXXy LXX went up the stairs first and the Accused followed her. She ultimately saw the body of LXly, and the blood in the master bedroom. However, she told police in her first interview that when they first approached that room and went in, she could not see anything as it was dark, but the Accused (who was behind her at the time) cuddled her and told her not to look. The Accused did this from a position where the Crown says he could not have seen the deceased. The bed in the room does not extend beyond the wall in the entry area.

KaXXy LXX recounted these events a second time in her first interview, saying she couldn’t see anything and at that time, the Accused (who was behind her) said “Don’t watch that”. She then turned to the right and saw her sister-in-law, IrXXe. The Accused said that KaXXy went two metres into the dark room, that he was one metre behind her and he grabbed KaXXy from behind and said “Don’t look”. In his interview with Detective Sergeant MaXXe on 16 March 2010, the Accused said that he did not go in very deep, just inside the door. From that position, he could not have seen the two deceased.

The Crown contends that the available inference is that the Accused already had knowledge that the bodies were there. In his interview with police on 22 July 2009, the Accused said that he held KaXXy, but believed that she had already seen the bodies. He said that once he saw his sister-in-law, he held his wife and said “KaXXy, don’t look at it”.

There was also a conversation between the Accused and KaXXy LXX about their relative positions that was captured on a surveillance device recording on 29 April 2010, in which the Crown contends that the Accused can be heard schooling his wife about what she should say.

The Crown case is that the Accused took hold of KaXXy LXX and told her not to look inside the main bedroom, before he himself had entered the room, because he already knew that the bodies of the victims were in that room.

After leaving the main bedroom, the Accused followed KaXXy LXX to the other bedrooms where they discovered the bodies of other victims. IrXXe LXX was in one bedroom and the boys, HeXXy and TeXXy LXX, were in another bedroom. According to KaXXy LXX, at no stage did the Accused check on the condition of these victims, despite being previously a qualified medical practitioner in China. The Crown contends, in all of his accounts to police, the Accused is vague regarding this aspect, indicating at one point that KaXXy LXX would not let him check the vital signs of the boys.

At no point of the morning of 18 July 2009 did the Accused inform police that he had seen MXX LXX inside the premises. Police had spent several hours conducting a search for MXX LXX as a suspect. In fact, his body was hidden under bedcovers, and was not discovered for some hours.

On 17 March 2010, the day after his interview with police, the Accused contacted investigating police and in a telephone conversation, recorded by telephone intercept, attempted to explain what he had told police about seeing MXX LXX in the bedroom during his interview. The Accused informed police that he had spoken to a police officer at the scene on the relevant morning and informed him that he was not sure whether there were four or five bodies in the house. The Accused did not inform any police at the scene that the body of MXX LXX may have been inside the premises.

Police were in fact informed by KaXXy LXX shortly before 2.00 pm that afternoon at Hornsby Hospital that she had seen something else on the bed. It was at this time that police checked the main bedroom and located the body of MXX LXX under bedcovers.

The “000” Calls on 18 July 2009 (CCS [32]-[38])

After discovering the bodies of the victims, KaXXy LXX made the first of three calls from her mobile telephone to “000”.

According to mobile telephone and Telstra records, the first “000” call was made at about 9.47 am to Telstra’s Emergency Service Answer Point. This call was recorded and lasted for 63 seconds. Towards the end of this call, KaXXy LXX can be heard asking the Accused to take their son, "JaXXs", home and to come back immediately. The Accused left KaXXy LXX alone at the crime scene and drove their son the short distance to the Beck Street premises where "JaXXs" remained by himself. After the service operator transferred the call, it was not put through to New South Wales Police and terminated at approximately 09:48:14.

KaXXy LXX then made another call which was successfully transferred to police at approximately 9.50 am. The duration of the call was approximately three minutes and this call was also recorded. During the call, KaXXy LXX spoke initially to the operator in English and relayed information, including her location and the discovery of the victims. As the call continued, KaXXy LXX became emotional and also spoke and ultimately yelled and screamed (in Cantonese) at the Accused.

The Accused could be heard in the background of the recording responding to KaXXy LXX. Due to her apparently emotional state, the “000” operator asked KaXXy LXX if he could speak to the other person. Towards the end of the call, KaXXy LXX was walking quickly or running after the Accused, pleading with him to stay with her, however a car is heard driving off and the call is terminated by KaXXy LXX. At one point during the call, KaXXy LXX is heard saying to the Accused “I am more scared than you are”.

Telephone records show that a third call was made to “000” at 9.54 am. This call was also recorded and its duration was about three minutes and 29 seconds. During this call, KaXXy LXX attempted to provide the operator with further information and then remained on the line until police arrived.

During his interview on 16 March 2010, the Accused indicated that he remained with KaXXy LXX whilst she made the telephone calls to “000” stating that she was on the phone for some time. He indicated that he remained with KaXXy after the “000” call to wait for the police and ambulance, before deciding with KaXXy LXX that he should leave and tell her parents what had happened.

The Accused left his wife alone at the crime scene and drove "JaXXs" to their home a short distance away and left him there alone, stating that he was going to pick up MXX LXX’s parents at their Merrylands unit. The Crown contends that, for all the Accused knew, if he was not involved, the killer could have been close by.

The Accused did not tell KaXXy’s parents what had been discovered during their car trip back to the scene from Merrylands, so there was no reason that "JaXXs" could not have gone with the Accused. Even if it was KaXXy LXX’s idea to do this, the Crown contends that there is an inference available that the Accused decided to take this step because he knew that there was no genuine threat to his son in the neighbourhood. The Accused did not want to be present when police arrived at the scene. In recorded surveillance device material, the Crown contends that the Accused said words to the effect that police would consider the first people at the scene as a suspect.

Mr LXX, MXX LXX’s father, stated in his recorded interview on 24 June 2010 that it was in fact the Accused who rang him, telling him that “something terrible” had happened to MXX’s family, without going into further details and asking that Mr LXX and Mrs ZhX take a train to Epping. It was only after Mr LXX said that there were no regular trains running between their home in Merrylands and Epping that the Accused agreed to pick them up. This call took place at 9.54 am, after the second “000” call, and occupied some 69 seconds.

Evidence obtained from two witnesses is that shortly before 10.00 am on 18 July 2009, they witnessed an argument between a male and female person of Asian appearance at the top of the driveway at the Boundary Road premises. The Crown case is that the two people seen by the witnesses were the Accused and KaXXy LXX. The argument took place before the arrival of police and ambulance and the Accused is described as driving a small red-coloured motor vehicle.

The Crown contends that the evidence supports the inference available from the second “000” made by KaXXy LXX, during which she and the Accused were in strong disagreement. During conversations later recorded on surveillance devices, KaXXy LXX and the Accused discussed this topic. She states that she was very scared that morning and that she did not want the Accused to leave her alone at the premises, and that there was no urgency for him to leave to inform her parents. Even if she did not initially want him to leave and collect her parents, the Accused could have waited for the police to arrive.

Despite KaXXy LXX’s agreement, or otherwise, about this situation, the Crown contends that the fact that the Accused left his wife at the scene demonstrates that he knew that she was not in any danger. There is an available inference that he was confident of her safety because he knew that there was no killer nearby.

Examination for Blood and Concern for the Safety of the Accused’s Family (CCS [39]-[43])

The motor vehicle used by the Accused on the morning of 18 July 2009 (to attend the crime scene at the Boundary Road premises, then return to the Beck Street premises and then drive to Merrylands to pick up Mr LXX and Mrs ZhX and return to the Boundary Road premises) was examined by police and was found to have no traces of blood.

The shoes worn by the Accused on the same morning were also examined and found to have no traces of blood. Forensic examinations of the staircase, downstairs floors (including the front door foyer) and the outside driveway area of the Boundary Road premises revealed no traces of any blood.

Police wanted to move the Accused and his family away from the Beck Street premises for safety reasons. The Accused was reluctant to leave, citing a preference for his own bed. The Crown contends that the Accused was not keen to go because he knew there was no genuine threat from a killer.

Mr LXX bought some extra security devices (safety chains) for installation to the doors at the Beck Street premises after the murders, as he was frightened for the family and their safety. The Accused declined and said that it was not necessary as it was very safe.

A threatening letter was received on 7 October 2009. The Accused brought it to the police the next day and said “I was a little bit worried about my safety not much ... I am also thinking it might be a bit of a joke”. The Crown contends that the available inference is that he was not concerned because he knew he was not in danger as there was no real threat.

Police Investigation of Deceased Family (CCS [44])

The Crown contends that extensive investigations regarding the background of the victims, including their financial dealings and personal relationships, did not disclose any other individuals with a motive for the murders.

Installation and Use of Surveillance Devices in the Beck Street Premises (CCS [45]-[48])

In January 2010, warrants were issued authorising the installation of surveillance devices in the Beck Street premises. Between February and May 2010, conversations between the Accused and other people in the premises were lawfully monitored and recorded by police. These conversations were recorded during a period of the investigation when the Accused, KaXXy LXX and a number of other persons were reinterviewed by police, including the ERISP interviews conducted on 16 and 22 March 2010. The Crown contends that there are a number of recurring topics that are continuously raised by the Accused during the recorded conversations.

According to the Crown, the evidence suggests an attempt by the Accused to convince KaXXy LXX and Ms AB that the reason that the police were focusing their investigation on him was that the grandparents, Mr LXX and, in particular, his wife, Mrs ZhX, had intentionally supplied false information to the police upon which the police were acting and giving undue weight. The Accused is repeatedly recorded emphasising in conversations with KaXXy LXX and Ms AB that the relationship with the grandparents changed solely following a court dispute over Ms AB’s guardianship after the murder of her parents, during which Ms AB opted for KaXXy LXX as her guardian over the grandparents. The Accused alleges that out of hatred towards him and KaXXy LXX, the grandparents were fabricating lies about the Accused and were supplying them to police to frame the Accused as the prime suspect. The Accused states that the grandparents, in order to create a financial motive for the murders, had alleged to the police that the Accused was unemployed and bankrupt because of losses on the share market.

Contrary to the assertions of the Accused, however, Mr LXX and Mrs ZhX insisted in police interviews conducted as late as July and August 2010, that they did not believe that the Accused was responsible for the murders.

During some of the recorded conversations, the Accused discussed at length with KaXXy LXX, Ms AB and others different aspects of the evidence and police investigations. During such conversations, the Accused told KaXXy LXX of police suspicions and discussed with her areas of the evidence that were of importance in the Crown case.

Amongst other matters, the Accused discussed in detail the Accused’s and KaXXy LXX’s movements on the night of the murders, and re-enacted with KaXXy LXX at their home the discovery of the victims the following morning.

In what the Crown will allege is an attempt to cover up his own involvement, the Accused was recorded coaching KaXXy LXX and Ms AB about what they should say to police when they are interviewed, and what questions they should or should not answer. The Accused is recorded telling Ms AB that, being the only surviving family member, she is a police suspect and advising her to attend further police interviews in the presence of a solicitor only. The Accused also warned KaXXy LXX and Ms AB that police will “trick” them into providing inculpatory information about him, and that they must take great care in answering questions relating to him.

Execution of Crime Scene Warrant at Beck Street Premises on 11 May 2010 (CCS [49])

On 11 May 2010, police executed a crime scene warrant at the Accused’s Beck Street premises. A detailed forensic examination and search of the premises was conducted. The search continued until 15 May 2010.

The forensic examination included the garage, where a number of swabs and samples were obtained of stains and markings believed to be blood.

Location of Stain 91 and Initial Testing (CCS [50]-[53])

Underneath a desk in the garage, police located a small amount of what appeared to be blood (positive presumptive test) which was given the designation Stain 91 (later Item 550). It was sampled and sent for DNA analysis to the Division of Analytical Laboratories (“DAL”) in the New South Wales Department of Health.

Stain 91 was of a grey/brown colour. An Orthotolidine (“Otol”) test conducted by the police was strongly positive for blood. The appearance of the stain was consistent with blood.

Dr PaXXa HaXXam, JXX GeXXard, NiXXle CaXXbell and MeXXnie LeCXXpte expressed the joint opinion that Stain 91 is “possibly blood”. Their opinion is based on “the visual appearance of the stain, the positive presumption ortho-tolidine result and the negative Luminol result”. Dr HaXXam and Ms GeXXard expressed a further joint opinion that Stain 91 “is of human origin” based on the DNA profile generated.

Whilst the expert witnesses, Dr HaXXam, Ms GeXXard, Ms CaXXbell and Ms LeCXXpte cannot definitively state that it is blood, the Crown case is that because of its colour, the strong reaction to the Otol test, and the fact that it contains human DNA from a number of contributors, that the only reasonable conclusion is that Stain 91 is human blood.

DNA Analysis of Stain 91 (CCS [54]-[62])

The following testing in relation to Stain 91 was conducted at DAL:

(a)  “Profiler Plus” (nine areas plus sex) was done four times (two worked well, one partially and one did not work because of low levels):

(b)  “Identifiler” (15 areas, including all nine from “Profiler Plus” plus sex), was done twice (one worked well, one partially);

(c)  “Y-Filer” was done twice (one gave a partial profile and the other a full profile);

(d)  “PowerPlex 21” (20 areas, including all 15 from “Identifiler” plus sex) was done once.

Each test was done on a different run of the same sample. All of the results from “Profiler Plus” and “Identifiler” were consistent with each other and yielded a mixed DNA profile. There were good reference samples from each of the comparison persons (the deceased persons).

Mr ClaXXon WaXXon from DAL was of the opinion that there are at least three contributors to Stain 91, with at least three in the major component and probably at least four or more taking into account minor contributors.

The results of the “Profiler Plus” testing raised the possibility of inter-relatedness amongst contributors based upon common alleles. Mr WaXXon opined that MXX LXX, HeXXy LXX and TeXXy LXX could not be excluded as possible contributors to Stain 91, whilst the Accused and his family could be excluded as possible contributors. Mr WaXXon applied the “Random Man Not Excluded” (“RNME”) formula, and determined that one-in-five people in the general population could not be excluded as a potential contributor. Mr WaXXon adopted this formula due to uncertainty over the number of contributors to the mixed profile.

Mr WaXXon could not tell the age of the DNA from the testing, or whether each contributor’s DNA was deposited at different times or if the sample was mixed prior to being deposited on the garage floor.

However, the Crown case is that the fact that there are at least three contributors mixed into the one sample, coupled with the location of the sample underneath a desk on the floor of the garage, makes it inevitable that the different contributors were mixed prior to being deposited on the garage floor.

The Crown contends that this is supported by the fact that some very similar mixtures are found at the crime scene at the Boundary Road premises, including the mixtures in Item 47 (a swab of the interior door handle from Bedroom 2), Item 223 (a swab from the south wall of Bedroom 3) and Item 616 (a stain from the mattress in Bedroom 3).

Dr MXXk PeXXXn received the DNA data generated by DAL in New South Wales when processing the reference samples (for the Accused and five deceased persons) and a number of crime scene samples (Items 47, 223, 550 and 616). Dr PeXXin processed the DNA data using the “TrueAllele Casework” system. TrueAllele Casework is a computerised DNA interpretation system that objectively infers genetic profiles (genotypes) from DNA samples. The inferred genotypes can then be compared to reference genotypes. The Crown contends that TrueAllele Casework has been validated on synthetic and casework data and results have been admitted into evidence in the United Kingdom.

The results for Stain 91 (Item 550) were processed on the assumption that it contained three, four or five contributors. Dr PeXXin expressed the following opinions based upon the results of the TrueAllele processing:

(a) a match between a contributor to Stain 91 and YXX BXX LXX is 4,410 times more probable than a coincidental match to an unrelated Asian person;

(b) a match between a contributor to Stain 91 and YXX LX LXX is 27.1 times more probable than a coincidental match to an unrelated Asian person;

(c) a match between a contributor to Stain 91 and MXX LXX is 379,000 times more probable than a coincidental match to an unrelated Asian person;

(d) a match between a contributor to Stain 91 and HeXXy LXX is 1.33 billion times more probable than a coincidental match to an unrelated Asian person; and

(e) a match between a contributor to Stain 91 and TeXXy LXX is 1.03 quintillion times more probable than a coincidental match to an unrelated Asian person.

Dr PeXXin further conducted “evidence to evidence” comparison using TrueAllele and expressed the following opinions based on the results:

(a) a contributor to Stain 91 (Item 550) matches a contributor to Item 47 with a likelihood ratio of 1.78 billion relative to an Asian population;

(b) a contributor to Stain 91 (Item 550) matches a contributor to Item 223 with a likelihood ratio of 327,000 relative to an Asian population; and

(c) a contributor to Stain 91 (Item 550) matches a contributor to Item 616 with a likelihood ratio of 9.56 quadrillion relative to an Asian population.

Dr SiXXn WaXXh described the mixed profiles from Stain 91 (Item 550) and Item 616 (based upon PowerPlex 21 testing) as “consistent, with a large amount of overlapping information, present in similar proportions”. He expressed the opinion that there was a “very high degree of similarity for complex mixed profiles of this nature, particularly considering these observations under a proposition that the mixed profiles arose independently from each other”. He was not able to make a statistical assessment of the observed similarities.

Y-Filer testing of Stain 91 (Item 550) yielded a single, unmixed haplotype consistent with that of MXX LXX, HeXXy LXX and TeXXy LXX (and different to that of the Accused and his son). Dr WXXsh compared the Y-chromosome DNA profile against a global database of Y-chromosome haplotypes known as the “Y chromosome haplotype reference database” (“YHRD”) with the following results:

(a) searching all meta-populations in the YHRD, there were no matching Y-chromosome haplotypes found amongst 55,827 haplotypes - it is 99% probable that the haplotype frequency in all meta-populations is not more than one in 12,000; and

(b) searching only the Chinese meta-population in the YHRD, there were no matching Y-chromosome haplotypes found amongst 7,418 haplotypes - it is 99% probable that the haplotype frequency in the Chinese meta-population is not more than one in 1,600.

The Crown contends that the evidence relating to Stain 91 (Item 550) is probative of the Accused’s involvement in the five deaths at the crime scene several hundred metres from the Accused’s home.

Autopsy Findings, the LXkely Weapon Used and the Order of the Killings (CCS [63]-[67])

The autopsy findings indicated the following causes of death in each instance:

(a) MXX LXX - blunt force injuries of the head and asphyxia;

(b) LXly LXX - asphyxia and blunt force injuries of the head;

(c) IrXXe LXX - blunt force injuries of the head;

(d) HeXXy LXX - asphyxia and blunt force injuries of the head; and

(e) TeXXy LXX - blunt force injuries of the head and asphyxia.

As stated earlier, the evidence indicates that the time of the deaths was in the early hours of the morning of 18 July 2009.

Each of the five victims were attacked and killed in their respective bedrooms in the Boundary Road premises. The type of weapon was a hammer-like object. Some of the deceased had injuries that, the Crown contends, were classic in appearance with having been inflicted by a hammer. There is also a possibility that a “V”-shaped mark on the baby mattress in Bedroom 3 was made by a claw hammer. Given the rope pattern marks found at the scene, the weapon had a rope attached.

There was no evidence of a different kind of weapon. The Crown contends that the available inference is that there was a single killer.

The autopsy results and crime scene examinations indicated that MXX LXX and LXly LXX were attacked whilst asleep, as they had no defensive injuries and there were no signs of a struggle. The Crown case is that MXX LXX and LXly LXX were attacked first. IrXXe LXX may have been awake at the time she was attacked, as she appears to have moved in her bed, and also suffered defensive injuries.

HeXXy and TeXXy LXX were likely the last to be killed - there were signs of a violent struggle within that bedroom and there were a large number of defensive injuries to the boys, in particular to TeXXy LXX. The autopsy findings indicate that TeXXy LXX may have survived for between one-to-two hours after being attacked.

The Crown case is that the Accused had a close relationship with the LXX family, and was well acquainted with the family’s sleeping arrangements. The Crown contends that the Accused attacked the adult victims first to reduce the possibility of detection.

No Evidence of Forced Entry or Theft from the Boundary Road Premises (CCS [69]-[72])

The Boundary Road premises contain a two-storey dwelling on a battle-axe block. It is accessed by a driveway that is approximately 77 metres in length from the street frontage. Crime scene examinations of the Boundary Road premises showed no evidence of forced entry and minimal activity on the ground floor, except for the front door foyer area. The Crown case is that the Accused had access to a key to the front door of the victim’s home and, at the time of the murders, lived at the Beck Street premises, only 250 metres away.

The main power switch to the Boundary Road premises was switched off some time during the night or the early morning of 18 July 2009, indicating that the house was in darkness at the time when the victim’s were attacked. The bedrooms of all the victims were located on the second floor.

There was a large number of electrical items located at the LXX family home during the crime scene examinations, including computers, game consoles and mobile phones. In addition, MXX LXX’s wallet containing personal papers and $1,420.00 in cash was found a short distance from his body. The Crown case is that robbery was not a motive for entering the house or committing the murders.

Police enquiries in the immediate vicinity of the Boundary Road premises failed to locate any witnesses who had seen or, in particular, heard anything unusual that night, with the exception of a dog barking. The house is at the end of a long battle-axe block, and is surrounded on all sides by a number of other residential premises, and was generally very quiet, particularly during the time the Crown alleges the murders were committed.

Shoe Prints in the Boundary Road Premises (CCS [73]-[74])

A detailed forensic examination of the carpets on the first floor of the Boundary Road premises revealed approximately 42 shoe impressions or shoe marks in blood. An examination of these impressions and marks revealed a number of different sole pattern types. Eight of the impressions/marks had insufficient detail to allow a comparison. A further 10 of the impressions/marks were identified as either police or ambulance footwear or similar.

A further 24 of the impressions/marks located in blood were made by a shoe with the same tread pattern. The majority of these 24 shoe impressions had been matched to the tread used on five models of ASICS brand men’s running shoes, and one model of ASICS brand women’s running shoe. A number of those 24 ASICS impressions were found to have been made by a men’s US-size between 8.5 and 10.5.

The Accused owned a number of pairs of ASICS brand runners in men’s size US9.5. KaXXy LXX said that ASICS was the Accused’s favourite brand of sports shoes. Police located a number of photographs taken in 2006 at different times and locations, showing the Accused wearing a pair of one of the matched-model ASICS men’s running shoes, being a “GEL EVATION II TN333”. An extensive police search of the Accused’s home in May 2010 failed to locate the shoes shown in these photographs.

Events on 6 May 2010 and the Cutting Up of Shoe Boxes by the Accused (CCS [75]-[77])

On 6 May 2010, KaXXy LXX was questioned about the shoe impressions at the NSW Crime Commission in the presence of her solicitor, Daniel Sheen. Following the hearing, KaXXy LXX and the Accused went to Mr Sheen’s office. During the conversation, the solicitor told KaXXy LXX, in the presence of the Accused, that her husband was a suspect and that the shoe impressions appeared to have been identified as coming from an ASICS shoe of the same size as that worn by the Accused.

The Crown case is that later that night, the Accused is recorded on video (as part of the surveillance devices installed under warrant) retrieving objects that appear to be shoe boxes, and is later recorded on video cutting up these shoe boxes with scissors and placing the pieced into a shredder, and also into a bucket containing a liquid. The Accused flushed the contents of the bucket down the toilet. The Crown case is that one of the objects disposed of by the Accused was the shoe box that had previously contained the “GEL EVATION II TN333” men’s running shoes owned by him.

A crime scene examination of the Accused’s premises in May 2010 showed that the Accused had a number of pairs of shoes stored in shoe boxes, each of which was individually labelled with a small blue sticker. Also located during that examination was a quantity of shredded paper in the Accused’s garbage bin. A forensic reconstruction of that material revealed shredded pieces of a small blue sticker identical to those located on the shoe boxes.

No Sign of Entry to Ms AB’s Bedroom (CCS [78])

The forensic examination of the carpets and bloodied shoe impressions at the Boundary Road premises showed that there was no indication that the bedroom of Ms AB had been entered. Ms AB was overseas in New Caledonia at the time of the murders.

Further, forensic examination of the four bedroom doors revealed that three of the four had blood smears or marks. The only bedroom door that had no such marks was that normally occupied by Ms AB.

The Crown case is that the Accused was one of only a small group of people aware that Ms AB was overseas on 18 July 2009, and therefore did not have to enter or check that bedroom. The Crown case is that the Accused and his wife had a particularly close relationship with Ms AB.

Evidence from Witness A, “Harry” and Recordings of Conversations with the Accused (CCS [79]-[85])

In November 2010, Witness A was arrested by police and placed into custody. In July 2011, he was in custody with the Accused. Witness A and the Accused formed a relationship and they discussed various matters including their backgrounds, business dealings, the charges they faced and their respective court proceedings.

In December 2011, Witness A contacted police and passed on information regarding conversations he had had with the Accused. In January 2012, Witness A provided police with the first of a number of statements, and agreed to assist further in the investigation, including by covertly recording conversations with the Accused. Witness A recounted conversations to police in a number of letters and telephone calls.

On 19 May 2012 and thereafter, Witness A had a number of conversations with the Accused at the Long Bay Correctional Centre. These were lawfully recorded by surveillance device. The Accused and Witness A discussed various matters, some of which they had spoken about in the previous months.

The Crown contends that recorded and unrecorded conversations between Witness A and the Accused included reference to the following topics:

(a) that the Accused’s wife, KaXXy LXX, was sedated by him on the night of the murders;

(b) that the Accused had purchased a hammer (the Crown case is that this was the murder weapon) at a Two Dollar shop which, to his knowledge, had dummy cameras (and therefore no record of his purchase);

(c) the use of a pressure point on the neck was demonstrated or described by the Accused as a method whereby he could incapacitate, and therefore attack five people - there was related discussion that he should not tell his solicitors this;

(d) discussion about the best place to use a hammer to hit someone on the head;

(e) the Accused gave Witness A details and a drawing of the LXX family home front door key, so as to have one made in order to plant and implicate someone else;

(f) the Accused planned to invent a story of some mechanical work with the deceased, MXX LXX, in his garage, to explain MXX LXX’s blood on the floor of the garage;

(g) alternatively, he would attempt to explain the blood on the garage floor as having originated from the prior ownership of the home by a vet and it being animal blood;

(h) conversations about a “Plan B” - if the Accused was committed for trial and was not granted bail, he would get “Harry”, an associate of Witness A with access to a funeral parlour (who, unbeknown to the Accused was in fact an undercover police officer), to manufacture evidence by planting the DNA and/or fingerprints of a male person of Asian origin with a criminal background on the murder weapon - the available inference was that he had continuing access to the murder weapon;

(i) the Accused explained his motive - loss of “face” because his parents-in-law considered MXX LXX to be a better businessman than him - they did not like him and had not wanted him to marry their daughter;

(j) LXly LXX had a secret mobile phone that the Accused destroyed;

(k) the Accused’s desire not to be the first to arrive at the crime scene so as to avoid being a suspect;

(l) that a person that was not a near neighbour saw something on the night of the murders; and

(m) that the Accused did not drive to the LXX family house on the night of the killings because he did not need to drive as it was so close.

Between December 2012 and February 2013, Witness A and the Accused continued their relationship at the Long Bay Correctional Centre. During that period, they had further discussions about the plan to have Witness A and “Harry” plant evidence on another person in an effort to frame that person for the murders.

The Accused supplied Witness A with further information to be used as part of the plan to incriminate an anonymous person by the name of “Rob” (who was having an affair with LXly LXX) with the commission of the murders.

Witness A forwarded information to police, including that the Accused had shown him Ms AB’s travel itinerary, statements of witnesses, and had provided him with MXX LXX’s mobile telephone number and the LXX family’s landline telephone number. Witness A supplied police with a number of documents given to him by the Accused, including the sketch plan of the LXX family’s home, a sketch plan of the Epping newsagency and its opening hours, a drawing of the key to the family home and various exhibit photos thereof, as well as other material and information from the brief of evidence.

Police examined the documents and the Accused’s fingerprints were found on a number of those documents.

Witness A received a reduced sentence for his prior and future assistance.

On 21 February 2013, the Accused was transferred from Long Bay Correctional Centre to the Parklea Correctional Centre.

On 26 April 2013, an undercover police officer, “Harry”, visited the Accused. “Harry” informed the Accused that he had received the “paperwork” from Witness A, and the Accused told “Harry” that Witness A had told him that they had a “candidate” (that is, access to a body whose DNA and/or fingerprints could be planted on evidence to frame another person for the murders) and he told “Harry” to speak to Witness A about the matter. Later in the conversation, “Harry” asked the Accused what he should do, to which the Accused replied, “Go ahead”.

On 9 May 2013, “Harry”, along with the Accused’s wife, visited the Accused at the Parklea Correctional Centre. The conversation between “Harry”, the Accused and KaXXy LXX was lawfully recorded by a surveillance device. However, the majority of the recording is totally inaudible.

On 24 May 2013, the undercover police officer, “Harry”, visited the Accused and they had a conversation that was lawfully recorded on surveillance device. During that conversation, the Accused discussed his case and retrieving the murder weapon and having it planted on another person in an attempt to frame that person for the murders.

Provisions of Evidence Act 1995 and Applicable Principles

Recurring reference will be made in this judgment to provisions of the Evidence Act 1995, and principles to be applied in determining objections to evidence under one or more of those provisions. It is useful, at this point, to refer to those provisions and principles.

Statutory Provisions

Sections 55 and 56 Evidence Act 1995 provide as follows:

“55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to:

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

(c) a failure to adduce evidence.

56  Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.”

Sections 135 and 137 Evidence Act 1995 provide:

“135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.

...

137  Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

Section 138 provides:

“138  Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.”

Some Applicable Principles

The appropriate enquiry for the purpose of determining relevance under s.55 Evidence Act 1995 focuses upon the capability of the evidence to affect the determination or conclusions of the tribunal of fact: R v Burton [2013] NSWCCA 335;  237 A Crim R 238 at 270  [145]- [146]. It does not direct attention to what a tribunal of fact is likely to conclude. For the purposes of assessing this capability, it is assumed that the evidence would be accepted by the tribunal of fact and it is taken at its highest: R v Sood [2007] NSWCCA 214 at  [38].

Section 55 speaks of a rational effect that is brought about “directly or indirectly”. This is very broad language and suggests a wide rather than a narrow focus to the enquiry whether a proffered piece of evidence has the rational potential which s.55 requires: R v Le  [2000] NSWCCA 49 at  [19]; R v Pham [2005] NSWCCA 9 at  [95].

In approaching an objection based on relevance, it is necessary to keep in mind the observations of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Smith v The Queen [2001] HCA 50;  206 CLR 650 at 653-654  [6]- [7] (footnotes excluded):

“[6] ... although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore:

‘None but facts having rational probative value are admissible’,

and

‘All facts having rational probative value are admissible, unless some specific rule forbids.’

[7] In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt3.1 of the Act and s55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding.”

In Evans v The Queen [2007] HCA 59;  235 CLR 521, Gummow and Hayne JJ said at 529 [23] (footnotes excluded):

“The answer to the questions just posed is provided by proper application of the test of relevance. As this Court's decision in Smith v The Queen demonstrates, questions of relevance require careful analysis. In particular, they require careful identification of the process of reasoning that is invited. Only then can it be seen whether the evidence in question could ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’ (emphasis added).”

In the same case, Kirby J stated at 546-547 [95]-[98] (footnotes excluded):

“[95] The foregoing tests are stated in all their generality for application to millions of questions asked every year in the great variety of cases to which the Uniform Evidence Acts apply. According to s 55(1) of the Evidence Act, the test for relevance requires no more than that the evidence ‘if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. That test must necessarily be given an extremely broad ambit.

[96] Other provisions of the Evidence Act reinforce the impression that the test of relevance is not a narrow or stringent one (see eg ss 57, 58). A broad interpretation alone is the one compatible with the purpose of the Act which is to aid the court process (effectively of quelling controversies brought to the court for that purpose, taking into account all evidence which has a bearing upon the questions in issue) rather than to delay or needlessly complicate the resolution of that process.

[97] What is, or is not, relevant to an issue in proceedings is much more likely to be perceived by advocates and judges of trial than by an appellate court. Still more so than by the ultimate national appellate court, concluding for the first time for itself that an issue, which everyone else has considered to be relevant, is irrelevant.

[98] I cannot say that this course could not properly happen. Indeed, in the experience of this Court it has already happened, at least once, in Smith v The Queen. I disagreed with the approach on that occasion. In this appeal, I have considered whether the circumstances of the case are sufficiently analogous to require me to suppress my objection to the course favoured in the joint reasons and to conform to it. However, questions of relevance are always highly fact-specific. No general rule could be laid down that was not anchored in the proof of the facts in issue in the particular proceeding.”

It will be observed in a moment that case law establishes that the application of s.137 does not involve the Court weighing possible alternative explanations or competing inferences in determining whether to exclude evidence under s.137. As the Crown submits, it is self evidently the case that a ruling as to relevance under ss.55 and 56 does not require or permit the Court to have regard to alternative explanations or competing inferences in determining the antecedent question of relevance. Nor does the Court consider issues concerning reliability of evidence at this point.

Sections 135 and 137 Evidence Act 1995

Section 135 is based upon an assumption that the evidence is otherwise admissible. It confers a power to refuse to admit such evidence if the particular opinion is formed. A discretionary process is involved, with the formation of the relevant opinion requiring a balancing exercise. The power to reject evidence will only be engaged if the probative value of the evidence is “substantially outweighed” by a “danger” of the kind identified in s.135(a), (b) or (c): Dyldam Developments Pty LXmited v Jones [2008] NSWCA 56 at  [78].

In Dyldam Developments Pty LXmited v Jones, Basten JA observed at [93] that the apparent purpose of s.135(c) (the “undue waste of time” provision) was to allow a trial Judge to avoid an inappropriate expansion of the trial caused by the parties tendering, and then seeking to meet, evidence of slight or peripheral relevance to the facts in issue. His Honour observed (at [93]) that “once it is accepted that the probative value of the proffered evidence is significant or substantial, there may be limited scope for exclusion on the basis of a danger of ‘undue waste of time’”.

In R v Burton, Simpson J (RA Hulme J and Barr AJ agreeing) said with respect to s.137 (at 266 [134]):

“The section requires two separate assessments and a judgment: first, an assessment of the probative value of the evidence sought to be adduced by the Crown, second, an assessment of the danger of unfair prejudice to the defendant (that might be caused by its admission), and, finally, a judgment as to whether any such danger outweighs the probative value of the evidence. If the result of the assessment process is that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant, the court is obliged to exclude the evidence. There is a danger of unfair prejudice if there is a real risk that the jury will make improper use of the evidence: R v BD (1997) 94 A Crim R 131.”

The Court in R v Burton considered the role of an alternative explanation or competing inference in a s.137objection. As will be seen, this issue is relevant to the objection to the Stain 91 and DNA evidence. Simpson J said at 272 [156]-[158]:

“156 I do have difficulty with the logic of the proposition that the existence of an alternative interpretation robs the evidence of the respondent's words of probative value, or diminishes its probative value. The probative value of evidence depends upon what the tribunal of fact draws from the evidence. If the jury accept the Crown interpretation, the probative value of the evidence will (as a matter of fact and reality) be high.

157 A number of provisions in the Evidence Act (s 97, s 98, s 101, s 103, s 135, s 137 and s 138) make the admissibility of evidence dependent upon an assessment, by the trial judge, of the probative value of the evidence. Two things may be said about the actual probative value to be assigned to any item of evidence. The first is that the actual probative value to be assigned to the evidence is in the province of the tribunal of fact - in most criminal trials, the jury. The second is that the actual probative value cannot be determined until all of the evidence in the trial is complete. By way of example, evidence of a positive identification of an accused person as the perpetrator of a crime may appear to have powerful probative value when it is admitted. Its actual probative value may diminish, even to the point of extinction, in the light of other evidence, whether given in cross-examination, or by other witnesses.

158 The provisions which make admissibility of evidence dependent upon an assessment of its probative value are not, and cannot be, concerned, with the actual probative value of the evidence; they must be concerned with the potential probative value of the evidence on completion of the trial, as assessed by the trial judge at the time the admission of the evidence in question - what Spigelman CJ in Shamouil called the ‘capability’ of the evidence to affect the assessment of the probability of the existence of the fact in issue.”

Simpson J continued at 273 [160]-[162]:

“160 Where an item of evidence is capable of different interpretations, or is susceptible of ‘competing inferences’, its actual probative value will depend upon what interpretation is placed on it, or what inferences are actually drawn from it. It is no part of the judge's function to make that assessment. The function of the judge is to assess the extent to which the evidence has the capacity to bear upon the proof of the fact or facts in issue. This was the approach taken by JaXXs J, with whom Rothman and Harrison JJ agreed, in R v SJRC  [2007] NSWCCA 142; his Honour said:

‘38 It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference (scil - inference) contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice.

39 It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn.’

161 Obviously, in determining the admissibility of evidence by reference to probative value, a trial judge is making the assessment on the basis of the information available at the time the question of admissibility is under consideration. In R v Fletcher  [2005] NSWCCA 338;  156 A Crim R 308 and R v Zhang  [2005] NSWCCA 437; 158 A Crim R 504 I described the process as an exercise that is ‘predictive and evaluative’. The predictive element is not a prediction of what the jury will make of that item of evidence on completion of the evidence in the trial; it is a prediction of the potential value of the evidence when the mosaic of evidence is complete.

162 The exercise necessarily requires that the assessment of probative value, in that sense, be made on the basis that the evidence will be accepted as reliable and credible - that is, at its most favourable for the tendering party, or, as has been said, ‘at its highest’ (for example, Shamouil at [87]). That is in accordance with a long line of authority.”

Following an examination of authority, Simpson J said at 280 [196]-[197]:

“196 I am unable to accept that the existence of ‘competing inferences’ available to be drawn from (or alternative interpretations of) the proposed prosecution evidence has any part to play in the assessment of probative value for the purpose of s 137 of the Evidence Act. That is because of the different exercise required by (for example) s 98, and s 137. Section 98 requires an assessment of the significance of the probative value of the evidence tendered as coincidence evidence in the context of the whole of the case of the tendering party. That is why, in DSJ, it was held that the existence of alternative explanations could have a bearing on the significance of the probative value of the evidence.

197  Section 137 requires assessment of the probative value of the evidence without regard to other evidence in the Crown case (s 137 applies only to evidence tendered by the prosecution) but balanced against the danger of any unfair prejudice.”

With respect to ss.135 and 137 Evidence Act 1995, it is necessary to keep in mind the statement of McHugh J in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 325  [91] that evidence is not unfairly prejudicial “merely because it makes it more likely that the defendant will be convicted”. The relevant enquiry is whether the jury may misuse the evidence in some unfair way: Papakosmas v The Queen at 325 [91]; R v Clark  [2001] NSWCCA 494;  123 A Crim R 506 at 582-584  [163]- [165].

Unfairly prejudicial evidence is not evidence that advances the Crown case or weakens the defence case, but is evidence that is dangerous to the defence case in some way: R v Suteski [2002] NSWCCA 509 at [116]. There must be a risk that the evidence will provide some irrational, emotional or illogical response or a risk of the evidence being given more weight than it truly deserves: BJS v R [2013] NSWCCA 123;  231 A Crim R 537 at 549-550 [51].

Improperly Obtained Evidence and s.138 Evidence Act 1995

The Accused bears the onus of establishing impropriety on an objection under s.138: Robinson v Woolworths LXmited [2005] NSWCCA 426;  64 NSWLR 612 at 621 [33], 632 [106].

The Evidence Act 1995 does not define the concept of “impropriety”. The principles collected in Ridgeway v The Queen [1995] HCA 66;  184 CLR 19 remain pertinent and those principles ought to be applied when considering whether conduct constitutes “impropriety” in a particular case: Robinson v Woolworths LXmited at 618-619 [22]-[24], 622-623 [36]-[37], 631-632 [102]. In Robinson v Woolworths LXmited, Basten JA (Barr J agreeing) said at 618-619 [23]:

“It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards. Thirdly, the concepts of ‘harassment’ and ‘manipulation’ suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgewayreferred to offences being procured or induced.”

Basten JA (Barr J agreeing) made the following observations at 622-623 [36]-[37] concerning the minimum standards test:

“In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety.

Before leaving these broad principles, it is necessary to note the indeterminacy of the test identified by reference to inconsistency with ‘the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement’: Ridgeway at 36. Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject. It is at least doubtful whether a majority of the Australian community would have shared the High Court’s view of the ‘entrapment’ of Mr Ridgeway: see for example, the comments of McHugh J at 85. The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion. (Of course, standards may themselves require scrutiny, but no relevant standard was identified in the present case.) And the test of such a case must involve judicial appraisal of all potentially relevant public policy considerations, being the task actually undertaken inRidgeway. Appeals to ‘community standards’ will tend to substitute subjective reactions for careful analysis, albeit of ill-defined concepts.”

In R v Cornwell [2003] NSWSC 97;  57 NSWLR 82, Howie J considered a s.138 objection alleging impropriety in the context of incorrect statements made in an application for a listening device warrant. His Honour said at 87-88 [20]-[21]:

“I am of the view that, otherwise than when subs 138(2) or s 139 apply, the court should determine whether the section is engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects, inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand the terms of subs 138(3)(e), which subsection requires the court to take into account whether the ‘impropriety or contravention was deliberate or reckless’, make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power.

I am prepared to accept for present purposes that any misstatement of fact in an affidavit in support of a warrant for the use of a listening device on private premises may be an impropriety within s138, notwithstanding that the misstatement was not intended by the person preparing the affidavit to influence the officer who was to act upon that material in determining whether to issue the warrant. I accept the submission made by Mr Boulten that a person preparing an affidavit for the purposes of obtaining a warrant for the use of a listening device in a private home must be scrupulous to ensure that the contents of the affidavit fully and accurately set out the factual material relevant to the determination whether the warrant should be issued. The question of whether the misstatement was intentional, reckless, or inadvertent and the motive, if any, for the misstatement will be matters which are relevant to the gravity of the impropriety and the exercise of discretion to permit the Crown to lead the evidence notwithstanding that it was obtained improperly or as a consequence of an impropriety.”

Section 142 Evidence Act 1995 addresses the standard of proof when issues concerning admissibility of evidence arise. Section 142 provides:

“142  Admissibility of evidence: standard of proof

(1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding:

(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or

(b) any other question arising under this Act,

have been proved if it is satisfied that they have been proved on the balance of probabilities.

(2) In determining whether it is so satisfied, the matters that the court must take into account include:

(a) the importance of the evidence in the proceeding, and

(b) the gravity of the matters alleged in relation to the question.”

In R (Cth) v Petroulias (No. 8)  [2007] NSWSC 82, I observed at [17]-[18]:

“17 Section 142(2) Evidence Act 1995 appears to import the Briginshaw principle in requiring a court, when considering whether it is satisfied on the balance of probabilities on a ruling concerning admissibility of evidence, to take into account the gravity of the matters alleged in relation to the question. It has been observed that s.140 Evidence Act 1995, including the reference to ‘the gravity of the matter alleged’ in s.140(2)(c), is reflective of the law, including the Briginshaw principle, and provides for no new principle: Amalgamated Television Services Pty Ltd v Marsden  [2002] NSWCA 419 at  [61]; Palmer v Dorman  [2005] NSWCA 361 at  [40]- [47].

18 I am satisfied that the Briginshaw principle has application where objection is taken to the admissibility of evidence in a criminal proceeding under s.138 of the Act and it is contended that a person or persons have acted improperly or illegally. The need to take into account ‘the gravity of the matters alleged in relation to a question’ in s.142(2)(b) invokes the Briginshaw principle. This is especially so where the allegation is that a person has consciously and knowingly acted in an improper way involving, as is contended here by the Accused, the making of fraudulent statements and misrepresentations which found their way into applications for warrants.”

I adopt this approach with respect to the submission for the Accused that impropriety is demonstrated in the circumstances of the present case.

An imperfection or defect in procedures utilised by law enforcement officers will not necessarily equate to impropriety within the meaning of s.138, nor will all inappropriate conduct of a law enforcement officer necessarily be improper within the meaning of that term in s.138(1)(a): Director of Public Prosecutions v AM  [2006] NSWSC 348;  161 A Crim R 219 at 230  [45].

If impropriety is established by the Accused, it remains necessary, in the present context, for the Accused to establish that the impropriety resulted in the obtaining of the evidence to which objection is taken. The Accused must satisfy the Court that there is causal connection between the impropriety and the obtaining of the impugned evidence: R v Dalley [2002] NSWCCA 284;  (2002) 132 A Crim R 169 at 186  [86]; R v Cornwell at 89 [25]. If the Court cannot be satisfied of that matter, s.138 has no application. A connection between the improper conduct and the obtaining of the evidence may be indirect. There could be a sufficient connection found between a misstatement in an application or affidavit in support of a warrant and the evidence obtained as a result of the issuing of the warrant so as to engage s.138(1) of the Act: R v Cornwell at 89 [25].

In the event that the Accused establishes the elements of impropriety and causation for the purposes of s.138(1), the evidence is not to be admitted unless the Crown establishes, on the balance of probabilities, that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. In considering this question, the Court is to take into account the factors identified in s.138(3) of the Act.

Expert Opinion Evidence - s.79 Evidence Act 1995

In its written submissions, the Crown referred to relevant authorities concerning the admissibility of expert evidence and the construction and application of s.79 Evidence Act 1995.

The written submissions of the Accused did not contend that the evidence of relevant Crown witnesses did not satisfy the requirements under s.79. A passing oral submission was made, but not developed, with respect to an aspect of the evidence of Dr WXXsh (PT1235-1236). In these circumstances, brief reference may be made to the relevant principles.

Section 79 Evidence Act 1995 provides an exception to the exclusionary rule in s.76, where evidence is given by a person who has specialised knowledge based on the person’s training, study or experience and the opinion evidence of that person is wholly or substantially based on that knowledge.

In Dasreef Pty LXmited v Hawchar [2011] HCA 21;  243 CLR 588 at 604  [37], the plurality described the s.79admissibility test in the following way:

“It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [(2001) [2001] NSWCA 305;  52 NSWLR 705 at 743-744  [85]] is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita [(2001) [2001] NSWCA 305;  52 NSWLR 705 at 744  [85]], that ‘the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded’. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying ‘specialised knowledge’ based on his or her ‘training, study or experience’, being an opinion ‘wholly or substantially based’ on that ‘specialised knowledge’, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.”

Order 4 - Application to Exclude Evidence of the Accused Cutting Up Shoe Boxes Under ss.138Evidence Act 1995 or ss.135(a) or 137 Evidence Act 1995

As with other grounds of objection addressed in this judgment, the parties provided detailed written submissions. It is not necessary for the purposes of this judgment to rehearse those submissions in very great detail. The submissions in question (MFIs15 and 19) are on the Court file. It is sufficient to set out the essence of those submissions to assist an understanding of the decision which I have reached. Before doing so, some context is required.

Factual Background

The basic factual matters relating to this objection are not in dispute. Some of them were referred to in the CCS (at [125]-[127] above).

I touched upon this topic in R v XiX (No. 3) at [9]-[13]:

“9 In May 2010, Mr Sheen was acting as the solicitor for the Accused and KaXXy LXX. The Accused had not been charged with the alleged offences of murder at that time.

10 On 3 and 6 May 2010, Mr Sheen accompanied KaXXy LXX to, and represented her at, private hearings before the New South Wales Crime Commission (“the Commission”) (Exhibit PTN, Tabs 1 and 2). Those hearings were held in camera. It is an offence to disclose anything said at a private hearing under s.13 New South Wales Crime Commission Act 1985. That Act applied to the 2010 private hearings, although it has since been repealed and replaced by the Crime Commission Act 2012.

11 During the course of the private hearing on 6 May 2010, KaXXy LXX was examined by Counsel Assisting the Commission concerning the type, brand and size of shoes which the Accused ordinarily wore. That evidence was subject to the confidentiality provisions referred to above.

12 After the Accused was charged with the murders, committal proceedings took place before a Magistrate in connection with those charges. On 21 August 2012, KaXXy LXX was called as a witness by the Crown. Mr CoXXsh, of counsel, appeared for KaXXy LXX on that occasion. Mr TurXXull SC appeared for the Accused. Mr TedXXchi QC, Senior Crown Prosecutor, appeared for the Crown at those proceedings.

13 It was the case that an audio-visual surveillance device had been placed by investigators in the home of the Accused and KaXXy LXX at X Beck Street, North Epping prior to 6 May 2010. That surveillance device captured certain images, which the Crown says depict the Accused cutting up shoe boxes and disposing of them in the early hours of 7 May 2010 (Exhibits PTO and PTP).”

During the examination before the NSW Crime Commission on 6 May 2010, KaXXy LXX was informed by counsel assisting that the police were of the view:

(a) that there was a single killer;

(b) that the killer was wearing ASICS brand sneakers;

(c) that the killer at no stage went near Ms AB ‘s room;

(d) that the shoes worn by the killer were a men’s US-size 9.5, the same shoe size as that of the Accused.

Items (a), (b) and (c) in the preceding paragraph were, in fact, accurate statements of the belief of the investigating police. However, Item (d) was inaccurate in that the evidence indicated that the killer’s shoe size was between men’s US-size 8.5 and 10.5, rather than 9.5.

There is no dispute that, following the NSW Crime Commission hearing on 6 May 2010, the Accused came to learn of the questions asked during the hearing concerning the killer’s shoes and the shoes of the Accused. Evidence given by KaXXy LXX at the committal proceedings touched upon this topic.

There is some controversy as to how the Accused came to learn of the questions asked of KaXXy LXX at the NSW Crime Commission private hearing and the answers given by her. The evidence of KaXXy LXX at the committal proceedings indicated that it was Mr Sheen who had disclosed these matters. The evidence of Mr Sheen at the Basha Inquiry in this Court in November 2013 was that there had been no discussion at all in his presence with the Accused or KaXXy LXX concerning the Accused’s shoes or shoe size. He denied that he had conveyed to the Accused any information that he had become aware of in the NSW Crime Commission about the investigation of the matter.

By whichever of these two means, it seems clear that the Accused was informed of what was said during the examination of his wife at the private hearing on 6 May 2010 concerning shoes. Later that evening, the Accused was captured by visual surveillance device apparently cutting up shoe boxes in the presence of his wife.

Submissions of the Accused

It was submitted for the Accused that the questioning of KaXXy LXX before the NSW Crime Commission on 6 May 2010 was the result of collaboration between the NSW Crime Commission and the New South Wales Police. It was submitted that the questioning was deliberate and intentionally provocative.

The Accused submitted that the evidence of cutting up shoes was obtained improperly, with the impropriety being:

(a) the deliberate and provocative questioning of KaXXy LXX before the NSW Crime Commission, with the expectation that she would breach the New South Wales Crime Commission Act 1985 by telling her husband what was put to her at the hearing - it is said that KaXXy LXX was an innocent third party being used to illicit a response from the Accused, who was a suspect;

(b) the improper use of the NSW Crime Commission being to provoke a response from the Accused;

(c) propositions were put to KaXXy LXX which were either deliberately or recklessly not factually correct, in order to exaggerate the state of the evidence against her husband.

Counsel for the Accused submitted that events between February and May 2010 constituted a form of pressure upon the Accused and KaXXy LXX, leading up to her examination before the NSW Crime Commission. It was submitted that KaXXy LXX had been subjected to intemperate, unfair and belligerent questioning which would not have been allowed in a courtroom.

It was submitted that the strategy was to confront KaXXy LXX with provocative questioning, and allegations concerning her husband’s involvement, in the hope of gathering evidence to incriminate the Accused. At the committal proceedings, Detective Sergeant MaXXe accepted that the police strategy was to“rattle their cage and see what happens” (T14-15, committal proceedings, 23 November 2012).

The Accused submitted that KaXXy LXX was questioned in a deliberate and provocative way before the NSW Crime Commission, with the expectation that she would breach the New South Wales Crime Commission Act 1985 by telling the Accused what was put to her at the hearing.

It was submitted further that propositions put to KaXXy LXX at the hearing were either deliberately or recklessly not factually correct, with particular reference being made to the statement that the killer’s shoe size was “the same as your husband” (T63, NSW Crime Commission, 6 May 2010), when the true position was that the evidence disclosed the killer’s shoe size to be between men’s US-size 8.5-10.5, and not 9.5.

It was submitted that the examination of KaXXy LXX in this way went beyond the true confines of the New South Wales Crime Commission Act 1985. The Accused submitted that impropriety had been demonstrated and that the Court should exclude the evidence under challenge.

The Accused accepted the probative value of the evidence, bearing as it did upon the issue of consciousness of guilt. However, it was submitted that the impropriety here was grave so that the evidence should be excluded in the exercise of discretion.

If the s.138 objection did not succeed, the Accused objected to the tender of the evidence under ss.135(a) and 137 Evidence Act 1995 on the basis that the evidence is unfairly prejudicial, or that the probative value of the evidence is outweighed by the danger of unfair prejudice to the Accused. In this respect, it was submitted that there is an evident basis that gives rise to an equivocal motivation for the Accused’s conduct in cutting up shoe boxes, which negates what is said to be the probative value of the evidence. It was submitted that there were extraordinary pressures on the Accused and KaXXy LXX arising from the murders of five members of their family, and that they were vulnerable in the circumstances then prevailing.

Submissions of the Crown

The Crown submitted that no impropriety had been demonstrated on the part of the NSW Crime Commission or the New South Wales Police. It was noted that this was the first occasion on which KaXXy LXX had been questioned about her husband’s possession of ASICS shoes of the same kind as those used by the killer.

The Crown noted the evidence of Detective Sergeant MaXXe as to his purpose in providing information to KaXXy LXX about the shoes (to “rattle their cage” to “see what happened”). The Crown submitted that there was nothing improper in this approach by the police or indeed by the NSW Crime Commission.

The Crown submitted that the provision of information about the shoes to KaXXy LXX in no way incited her or encouraged her to break the law by conveying information to her husband in breach of the New South Wales Crime Commission Act 1985. The Crown noted, in any event, that it was her evidence that she did not convey this information to her husband but that the solicitor, Mr Sheen, did so.

The Crown submitted that no impropriety or illegality had been established by the Accused. Whilst acknowledging that an inaccurate statement had been made to KaXXy LXX during the examination concerning the killer’s shoe size (US-men’s size 9.5 instead of US-men’s size 8.5-10.5), the Crown submitted that this did not constitute impropriety.

Even if impropriety did arise, the Crown submitted that it was trivial and not such as would lead to the exclusion of the evidence. By reference to the factors in s.138(3) Evidence Act 1995, the Crown submitted that the probative value of the evidence was high and that, if the point was reached where the relevant balancing exercise was to be undertaken, the evidence ought be admitted.

The Crown submitted that the actions of the NSW Crime Commission or of Detective Sergeant MaXXe were incapable of amounting to a degree of harassment or manipulation which was inconsistent with minimum standards of acceptable conduct in the circumstances.

The Crown submitted that the objections under ss.138, 135(a) and 137 Evidence Act 1995 should be overruled.

Decision

The primary focus of the present objection is s.138. A subsidiary objection was made by reference to ss.135(a) and 137 Evidence Act 1995. The Accused did not submit that the evidence concerning the cutting up of shoe boxes was not relevant, for the purpose of ss.55 and 56 Evidence Act 1995. The Crown contends that this evidence is relevant as demonstrating consciousness of guilt, and the Accused did not seek to contradict that proposition.

The applicable principles surrounding a s.138 objection appear at [162]-[171] above.

Topics (a) and (b) at [185] above may be considered together. Each contends the improper use of the NSW Crime Commission. This is said to arise from what is described as the deliberate and provocative questioning of KaXXy LXX in circumstances where she was to be used to elicit a response from her husband.

There is limited evidence before this Court concerning the hearing on 6 May 2010 before the NSW Crime Commission. It is clear that KaXXy LXX had been called to be examined on 3 and 6 May 2010. She was legally represented by Mr Sheen. It may be inferred that the hearing was part of an investigation by the NSW Crime Commission relating to the five murders of members of the LXX family.

It may be concluded that the New South Wales Police Force and the NSW Crime Commission were acting co-operatively in this investigation.

In my view, it is unremarkable that an investigation by an inquisitorial or investigative body such as the NSW Crime Commission would proceed with persons being called to be examined in relation to the subject matter of the investigation. The NSW Crime Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate: s.13A New South Wales Crime Commission Act 1985.

KaXXy LXX was represented by a solicitor at the hearing on 3 and 6 May 2010. One of the roles of a legal representative for a witness at such a hearing is to assist the witness by taking appropriate objection, or making an appropriate submission if the examination is considered to exceed the bounds of a proper examination. No objection was taken by the legal representative on 6 May 2010, nor any submission made complaining of the tone or the content of the questions being asked.

The concept of asking questions of a person during a criminal investigation for the purpose of “rattling their cage” is not, of itself, improper. A range of investigative techniques are undertaken by law enforcement authorities which may have in mind seeing what a person or persons may do in the event that certain information is provided to them.

The fact that KaXXy LXX was informed of matters which the police had discovered concerning shoe prints and shoe size at the crime scene was not improper. Nothing was said or done which compelled or pressured KaXXy LXX to pass on this information to the Accused. Indeed, it is her account that she did not do so.

For the purpose of this ruling, it may be taken that the Accused came to learn of what had been said to KaXXy LXX on 6 May 2010 concerning shoe prints and shoe size.

It has not been submitted that the events in question constituted a breach of the New South Wales Crime Commission Act 1985, with no claim of illegality being advanced on behalf of the Accused in support of the s.138 objection. The written submissions for the Accused acknowledge the statement of Basten JA inSD v New South Wales Crime Commission [2013] NSWCA 48;  84 NSWLR 456 at 465  [29] that a primary purpose of the New South Wales Crime Commission Act 1985 was to enhance the likelihood of the laying of charges and the prosecution of such charges at trial. What has occurred here appears to accord with this statement.

I am not persuaded that any impropriety has been established in the circumstances surrounding the calling of KaXXy LXX to give evidence before the NSW Crime Commission on 6 May 2010, nor in the questioning of her on that occasion.

The remaining basis of claimed impropriety is what was described as the putting of propositions to KaXXy LXX which were either deliberately or recklessly not factually correct, in order to exaggerate the state of the evidence against the Accused (see [185](c) above).

There was no inaccuracy in what was put to KaXXy LXX on 6 May 2010 concerning shoes and shoe size, apart from the conceded inaccuracy concerning the precision of the killer’s shoe size (see [180] above).

As authorities such as R v Cornwell and Director of Public Prosecutions v AM make clear, the making of an inaccurate statement in a warrant application may, depending upon the circumstances, constitute impropriety for the purpose of s.138. The present case does not involve a warrant application. Rather, it involves the questioning of a person before an investigatory body. I am content to determine this objection upon the basis that the approach in R v Cornwell is capable of applying by analogy in the circumstances of this case.

It is necessary to consider the particular inaccuracy in this case. Only one of several propositions put to KaXXy LXX was inaccurate. The particular inaccuracy was to attribute a greater degree of precision concerning the killer’s shoe size than the evidence indicated. The evidence available to police indicated that the killer’s shoe size was within the range of US men’s size 8.5-10.5. The proposition put to KaXXy LXX was that the killer’s shoe size was US men’s size 9.5, which was said to be the same size as that of the Accused.

This is not a case where the Accused’s shoe size in fact lay outside the relatively narrow range of shoe size indicated by the evidence. As it happens, the Accused’s shoe size lay in the middle of that range.

I accept, for present purposes, that the making of an inaccurate statement of this type during an examination before the NSW Crime Commission has the capacity to clear the first hurdle in establishing impropriety. However, in the circumstances of this case, I am simply not persuaded that impropriety has been demonstrated.

Even if this circumstance did demonstrate impropriety for the purpose of s.138, it would be necessary to consider whether there was any causal link between that impropriety and the obtaining of the evidence in question. The matter may be tested in this way. Would there have been any material difference in what occurred if what was said to KaXXy LXX was that the killer’s shoe size was US men’s size 8.5-10.5, rather than US men’s size 9.5? It is difficult to see that that would be so. There is the additional complication here that KaXXy LXX asserts that she did not pass on this information to the Accused.

I am not persuaded that a causal link has been demonstrated, if impropriety had otherwise been established.

In these circumstances, the Accused has not established impropriety, and the necessary causal link, so as to raise for consideration the balancing exercise required under s.138(3), upon which the Crown would bear the onus of proof to the civil standard.

If this point had been reached, I would have been well satisfied that the discretion ought be exercised in favour of admission of the evidence. In my view, the evidence is of substantial probative value: s.138(3)(a). The evidence is important in the proceeding (s.138(3)(b)) and the nature of the subject matter of the proceeding is very grave, involving five counts of murder (s.138(3)(c)).

The only impropriety which I would have found (but have not done so) arises from the inaccurate statement concerning shoe size. Such an impropriety, which I would not characterise as being deliberate or reckless (s.138(3)(e)) could fairly be characterised as trivial (s.138(3)(d)). Other subparagraphs (s.138(3)(f)-(h)) would not, in my view, operate against admission of the evidence in the circumstances of this case.

I decline to exclude the evidence under challenge by reference to s.138 Evidence Act 1995.

The objections by the Accused under ss.135(a) and 137 were dealt with briefly in submissions, and a similar approach may be adopted in ruling upon them in this judgment. The relevant principles appear at [154]-[161] above.

It is submitted for the Accused that the Court should refuse to admit this evidence as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Accused: s.135(a). Alternatively, it is submitted that the Court must refuse to admit the evidence if its probative value is outweighed by the danger of unfair prejudice to the Accused: s.137.

In support of this aspect of the objection, it was submitted for the Accused that innocent explanations may be available to the Accused for cutting up the shoe boxes, arising from the pressures which had existed for some time on the Accused and KaXXy LXX as a result of the deaths of five members of the family.

I am satisfied that the evidence of the Accused cutting up the shoe boxes is of substantial probative value. I am not satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Accused. Nor am I satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the Accused.

The question of any alternative explanation or competing inference concerning the cutting up of shoe boxes by the Accused will be matters for the jury to consider. It is not a basis upon which the Court should exclude evidence under s.137: R v Burton (at [157]-[159] above).

It will be a matter for the jury to determine what weight ought be given to this evidence in determining the question of the guilt of the Accused.

I decline to exclude this evidence under ss.135(a) or 137 Evidence Act 1995.

Orders 1, 2 and 3 - Objection to All Evidence Concerning Stain 91 (Item 550) Including Evidence of Its Location in the Garage at the Beck Street Premises and Subsequent Forensic and DNA Analysis and Opinion Evidence Arising From It

The CCS referred to the location of Stain 91 and subsequent testing and DNA analysis (at [94]-[110] above).

The parties have provided very detailed written submissions concerning two interrelated topics:

(a) whether Stain 91 is human blood (MFIs16, 25 and 31);

(b) whether DNA analysis and opinion evidence concerning Stain 91 (Item 550) ought be admitted (MFIs29 and 32).

In addition to the written submissions, short oral submissions were made on these topics on 14 April 2014 (PT1232-1241).

A Topic-by-Topic Examination or an Overall Examination?

The written submissions of the parties approach the objection to this body of evidence in different ways.

The submissions of the Accused challenge particular aspects of the technical and scientific evidence at different points along the way, commencing with the location of Stain 91 in the garage at the Beck Street premises on 13 May 2010, the sampling methods used and subsequent analysis and conclusions, as well as the process of DNA analysis undertaken at FASS, the opinion evidence of Dr WXXsh and the processes undertaken by Dr WXXsh and Dr PeXXin and the conclusions reached by them.

The Crown submissions approach these issues in two overlapping steps:

(a) the Crown submits that the combination of all the evidence surrounding Stain 91 (Item 550) is overwhelmingly capable of proving that the stain was blood, that it is relevant and admissible evidence with issues surroundings its deposition and composition being proper questions for the jury to consider and determine;

(b) the Crown case in relation to the relevance and significance of the presence of the mixed DNA profile found in the Accused’s garage is straightforward - as part of the circumstantial case, the fact that a mixed DNA profile with the extant properties it has, including the number of contributors, the likely contributors (including evidence of the Y-Filer haplotype), the presence of certain alleles and peak heights of those alleles, the fact that the mixture can readily be explained by the presence of the DNA from a combination of the five deceased, is similar to other samples from the crime scene, and the associated likelihood ratios, can be used persuasively to link the Accused to the crime scene.

It may be seen that the competing approaches of the parties on the question of admissibility of this evidence call for some assessment as to the appropriate method to consider the objection in this case.

As will be seen, I prefer the Crown’s approach of determining the admissibility issue having regard to what is said to be the overall and cumulative effect of the evidence. For example, it would be unduly narrow, and conducive to error, to focus tightly upon the question whether, in light of the evidence concerning the location and sampling of Stain 91, it ought be excluded given the evidence of witnesses that it is “possibly blood”. It is relevant to take into account, amongst other things, the evidence of DNA analysis which tends to confirm the presence of DNA, and thus human material, in Stain 91. The evidence adduced on the DNA issue is capable of shedding light upon the question as to whether Stain 91 is blood.

As will be seen, there is, in addition, non-scientific evidence arising from the alleged actions and statements of the Accused, which bears upon this topic as well.

Events Leading to the Location of Stain 91

The Crown submission on the admissibility of Stain 91 (MFI25) contains a useful summary of aspects of the evidence leading to the discovery of Stain 91. It is helpful to set out this part of the Crown submission (MFI25, paragraphs 3-10) (footnotes excluded):

“Forensic examinations in relation to Stain 91 during the execution of the search warrant at X Beck Street, Epping on 11 May 2010

3. On 11 May 2010, police executed a Crime Scene Warrant at the accused's home at 4 Beck Street and a detailed forensic examination and search of the premises was conducted. The search continued until 15 May 2010. On 13 May 2010, the forensic examination included the garage, where a number of swabs and samples were obtained of stains and markings believed to be blood. Underneath furniture in the garage, police located a small amount of what appeared to be blood which was sampled and sent for DNA analysis.

Evidence from forensic officers searching the garage 

4. At the Committal, evidence was called from biologists MeXXnie LeCXXpte and NiXXle CaXXbell, who were then attached to the Forensic Biology Section. Ms LeCXXpte attended 4 Beck Street between 12 to 14 May 2010. Ms CaXXbell attended the premises on 13 and 14 May 2010. Ms GeXXard, who was also then a reporting officer in the Forensic Biology Unit, attended on 12 May 2010.

5. Ms LeCXXpte gave evidence on 29 August and 30 August 2012. Ms CaXXbell was called as a witness on 13 November 2012. Ms GeXXard, together with the defence expert Dr PaXXa HaXXam, gave evidence during the voir dire proceedings on 21 and 22 November 2013.

6. The biologists that were present at the time gave evidence in relation to a briefing that was provided to the forensic officers prior to the start of the search on each of the mornings, the areas that were examined at 4 Beck St, and the details and procedure of the forensic examinations, in particular, with regard to the garage floor and Stain 91.

7. The defence expert Dr HaXXam did not have the advantage of any direct observation of the screening, detection, examination and swabbing of Stain 91. ...

Briefing

8. The forensic biologists were explicitly tasked with conducting an examination at 4 Beck Street that was focussed on detecting blood evidence. Ms LeCXXpte gave evidence that the forensic officers who conducted the search of the garage were briefed in the morning of 13 May 2010 to ‘look for blood and therefore anything that we possibly could believe that was blood we would test to see if there is the possibility that the stain is a blood stain'.

9. Ms CaXXbell stated that the information she received from Ms LeCXXpte on the drive to the premises of 4 Beck Street on 13 May 2010 was that they were going to concentrate the search on this particular day on the garage. She was further informed that, ‘they believed that the occupant of the house had been in the garage and they wanted to see if there was any blood staining in it’. Ms CaXXbell stated that, ‘a plan was formed that we would concentrate on the garage that day that we would be looking for any sort of blood staining on any of the furniture, on the floor or on any of the tools. Basically, all the contents of the garage was to be searched’. Ms GeXXard confirmed that the biologists were given particular instructions to screen the premises for blood.

Examination of the garage floor

10. Ms LeCXXpte gave evidence that the examination of the garage floor commenced at 4.45 pm. The searching team included NiXXle CaXXbell and JXX GeXXard. The search started with a 'hands and knees' search of the floor, followed by a visual examination with white light and the application of a presumptive screening test for blood using the chemicals Orthotolidine ('Otol') and hydrogen peroxide. The evidence was that all officers were searching the floor in relation to discoloured areas and conducting testing thereof, with Ms LeCXXpte being primarily responsible for the note taking. Ms GeXXard gave evidence that on the portion of the floor that had been allocated to her, she would estimate that she conducted 300-400 Otol tests alone. Ms GeXXard gave a detailed description of what is involved in the two-step Otol test.”

The Crown submissions then turned to the discovery of Stain 91 and what was done thereafter.

Submissions of the Accused on the Question Whether Stain 91 is Blood (MFI31)

I turn to the submissions advanced on behalf of the Accused. Although not attempting an exhaustive recital of them, it is appropriate to provide some detail to assist an understanding of the objection.

The submissions for the Accused pointed to evidence from a number of witnesses which was said to demonstrate difficulties which the Crown have on this issue. Put shortly, it was submitted that what was said to be a small and ill-defined stain on a dirty and dusty concrete garage floor, which gave a positive reaction to one presumptive test and a negative reaction to another (as to blood), with no control testing having been done of the stain and with no swabbing of an area around the stain raised very grave doubt that Stain 91 was in fact blood.

It was submitted that Stain 91 has to be blood, on the Crown case, as otherwise there is no link between the Accused and the murders of the deceased.

The Accused submitted that the evidence in relation to Stain 91 being “possibly blood” should not be admitted because it is not relevant.

Submissions were made in support of this proposition by reference to the evidence of Ms LeCXXpte, Ms CaXXbell and Ms GeXXard, together with the defence expert witness, Dr HaXXam. These submissions involved a number of propositions:

(a) there were limitations on presumptive tests and an absence of control and confirmatory testing;

(b) there was no guarantee that the stain, and nothing other than the stain, was swabbed in the process of obtaining Stain 91;

(c) the limited assistance of the appearance of the stain and its reaction to Otol;

(d) the absence of direct evidence as to how the stain was deposited;

(e) the biological source of the DNA cannot be determined.

The Accused submitted that one of the facts in issue in the trial is whether the stain found in the Accused’s garage, 10 months after the killings, was blood from the deceased killed in the Boundary Road premises. In order to prove this, the Crown has to prove that the stain found in the garage is human blood containing the DNA of some or all of the deceased, and which the Accused deposited after he murdered them.

The Accused submitted that the question whether the stain found in the garage is actually blood, is a fact in the Crown circumstantial case against the Accused that is so fundamental to the process of reasoning in relation to his guilt, that it must be proved beyond reasonable doubt: Shepherd v The Queen [1990] HCA 56;  170 CLR 573 at 585. It is submitted that this conclusion of fact is an indispensable, intermediate step in the reasoning process towards an inference of guilt, so that the conclusion must be established beyond reasonable doubt.

Reference was made to Davidson v R  [2009] NSWCCA 150;  75 NSWLR 150 at 165  [74] where Simpson J (Spigelman CJ and JaXXs J agreeing) said that an intermediate fact will be “indispensable” where the absence of evidence of that fact means there is no fit case to go to a jury.

The Accused submits that the question whether the stain is blood is indispensable. If it cannot be proved that the stain is blood, the Accused submits that the stain is not relevant as there is no link to the murders. If the stain is not blood, it is submitted that it must not be placed before the jury.

The Accused submits that the very highest the experts can put it is that the stain is “possibly blood”. In light of the evidence given by expert witnesses at the committal proceedings and the pretrial hearing, it was submitted that it is now even less possible that the stain is blood, with the issue involving no more than speculation.

The Accused sought to rely upon Armstrong v R  [2013] NSWCCA 113 as being illustrative of the dangers of the admission of presumptive testing. There, Harrison J (Simpson and Bellew JJ agreeing) stated (at [24]) that a presumptive test does not positively establish the presence of blood, and that the jury was arguably misled by a Crown submission that there was in fact blood found when the evidence in support of that submission did not rise above presumptive testing (at [29]).

Further submissions were made for the Accused pointing to aspects of the evidence of Dr PeXXin, Mr WaXXon, Dr WXXsh, Mr GoXXz and Ms NeXXlle. It was submitted that this evidence did not advance the Crown case that Stain 91 was blood.

It was noted that the Crown case was that Stain 91 involved at least three contributors mixed into the one sample (see [103] above). The Accused submitted that the Crown case that, because there were a number of contributors mixed into the sample, it was inevitable that they were mixed before being deposited on the garage floor, was pure speculation. It was submitted further that the manner of collection of the swab will affect the DNA analysis. It was submitted that Ms CaXXbell could not guarantee that she swabbed the stain, and the stain only, in taking the sample which is Stain 91.

The submissions summarised so far constituted the defence challenge to the relevance, and thus admissibility, of Stain 91.

Submissions of the Accused on the DNA Evidence (MFI29)

The Accused made separate and detailed written submissions directed to the exclusion of the DNA analysis and opinion evidence.

A range of topics were explored in cross-examination of Crown witnesses called at the pretrial hearing and, in particular, Dr PeXXin. Not all challenges apparently made in the course of cross-examination, in particular of Dr PeXXin, have translated into submissions for the Accused objecting to the tender of the evidence.

The Accused challenges the admissibility of the DNA evidence arising from Stain 91 (Item 550). It was submitted that, in order for this evidence to be relevant, the Crown has to establish:

(a) the stain swabbed in May 2010 in the Accused’s garage was blood - if the Crown cannot prove that the stain swabbed is blood, there is no need to turn to the analysis of the DNA said to come from the stain;

(b) the blood-to-blood sample from the garage is the same as the sample from the crime scene - the Crown refers to “evidence to evidence” comparisons in the CCS (at [107] above) - the Crown seeks to establish that the samples came from the same source, being the victims’ blood shared and mixed at the time of their deaths in the Boundary Road premises;

(c) the sample in the garage was a part of a larger sample from the crime scene - the alleged killer, the Accused, transported it from the Boundary Road premises to the Beck Street premises.

The Accused submitted that Item 550 was a degraded and inhibited sample, and a complex mixture of related people. These aspects are relevant to the analysis of the sample and how the results are interpreted.

The Accused submitted that Dr PeXXin’s TrueAllele program had not been validated for five-person related mixtures. It was submitted that TrueAllele had not been validated by FASS and, although a limited TrueAllele program is used, FASS is still in the process of preparing it and getting it ready for use. The Accused submitted that STRmix is the only validated program used by FASS.

It was submitted further that TrueAllele has not been validated for PowerPlex 21.

The Accused pointed to evidence that scientific staff from New South Wales Police and FASS carried out an evaluation of the Cybergenetics TrueAllele expert system and prepared an evaluation report for the Biologist Specialist Advisory Group (“BSAG”), a group with a senior representative from each of the Australasian jurisdictional forensic DNA laboratories. This group, in consultation with the Australasian Scientific Working Group on Statistics and Interpretation, identified that a move towards a continuous probabilistic model was the way forward for DNA interpretation and national standardisation (statement of ShXXon NeXXlle, 4 February 2014, Exhibit PTK1, Tab A). However, the Accused submitted that the BSAG evaluation process revealed a number of problems, including analytical artefacts, the modelling of stutter and other matters referred to in the Accused’s written submissions on DNA evidence (MFI29, paragraph 43).

The Accused submitted that Dr PeXXin’s first report of 23 September 2013 was prepared before TrueAllele was validated.

A submission was developed that TrueAllele does not produce a relevant sample-to-sample comparison. TrueAllele generates likelihood ratios which are a measure of the extent to which the evidence changes beliefs in a hypothesis. A submission was developed by reference to the use by TrueAllele of inferred genotypes, and not actual evidence samples.

The Accused submitted that the TrueAllele analysis has no relevance to the fact in issue. It is entirely possible that one contributor to the garage mixture is the same as one contributor to the crime scene. However, the issue is whether all the contributors to the garage sample are found in the crime scene samples. The Accused submits that this is the only relevant hypothesis which supports the Crown case and that Dr PeXXin’s analysis does not address this question, let alone resolve it.

It was submitted further that TrueAllele is not capable of dealing with contributors who are related. It is not capable of dealing with a different number of contributors in each alternate hypothesis that the software considers. As a result, the likelihood ratios generated are said not to be relevant.

It was submitted further that the likelihood that individual persons may have contributed to the mixture is not relevant to the question of whether the sample is inevitably a combination of contributors, all of whom must be deceased to support the Crown theory.

The Accused submitted that TrueAllele will only answer the question it is asked. In this case, it was asked to identify the inferred genotypes for the deceased, and then identify the individual genotype in various evidence samples. It did not consider whether there were unknown contributors. It did not consider whether Ms AB’s inferred genotype was in the mixture in the same manner. It did not consider if any other known reference sample, other than the Accused, was in the mixture.

The Accused submitted that the Crown case in relation to the DNA evidence may end up being that there are at least three contributors to Stain 91, with at least three in the major component or probably at least four or more taking into account minor contributors. The results of the Profiler Plus testing raised the possibility of interrelatedness amongst contributors based upon common alleles. MXX LXX, HeXXy LXX and TeXXy LXX could not be excluded as possible contributors to Stain 91 (see [101] above). The CCS noted that Mr WaXXon applied the RMNE formula, and determined that one in five people in the general population could not be excluded as a potential contributor. It was noted that Mr WaXXon adopted this formula due to uncertainty over the number of contributors to the mixed profile (see [101] above).

The Accused submitted that no expert who had given evidence at the pretrial hearing had determined the number of contributors to Item 550. Reference was made to the evidence of Mr GoXXz, noting that he could not say there were five contributors in the mixture. Submissions were made, as well, on this topic by reference to the evidence of Dr PeXXin.

Submissions were made by reference to the defence request to Dr PeXXin to have Ms AB’s sample tested using TrueAllele Casework. I note that Dr PeXXin readily agreed to undertake this task. An adjournment of the pretrial hearing was allowed to permit the Accused’s legal representatives to consider Dr PeXXin’s report in response to their request, and to take advice from their own expert advisor or advisors on the issues raised in it.

The Accused seeks to rely upon part of Dr PeXXin’s report dated 26 March 2014 as providing evidence of Ms AB’s DNA being contained in Item 550, noting that this conclusion would mean that Item 550 cannot be linked to the crime scene, as Ms AB is alive (MFI29, paragraph 80).

The Accused made submissions concerning the concept of shadowing, mentioned in Dr PeXXin’s evidence with respect to this report. Further submissions were made by reference to Dr PeXXin’s report, the results of which were said to indicate that Ms AB was present in the crime scene samples and, in particular, Item 223, a swab taken from a wall in Bedroom 3 (the bedroom of HeXXy and TeXXy LXX). This sample was a direct swab of blood and it was noted that Ms AB was not present and did not bleed. This aspect was relied upon to challenge the reliability of Dr PeXXin’s evidence.

Submissions were made by reference to Dr PeXXin’s evidence concerning mixture weights. It was submitted that Dr PeXXin’s report of 26 March 2014 (Exhibit PTK20), being the report provided by Dr PeXXin in response to the defence request (concerning Ms AB) made in the course of the pretrial hearing, provided an insight into the complexity of the mixture. Reference was made to concepts of shadowing and false positives, which were said to manifest the actual difficulties which TrueAllele has in dealing with five-person related mixtures which are compromised. It was said to constitute effectively an acknowledgement of an important area of imprecision in TrueAllele’s capacities, being an imprecision previously demonstrated by the differing likelihood ratios in Dr PeXXin’s first two reports, and the error corrected in the third report that arose in applying an incorrect theta value.

The Accused noted that the Crown case is that the mixed profiles from Stain 91 (Item 550) and Item 626 (based upon PowerPlex 21 testing) are “consistent, with a large amount of overlapping information, present in similar proportions”. The Crown bases its case on this aspect on Dr WXXsh, who said there was a “very high degree of similarity for complex mixed profiles of this nature, particularly considering these observations under a proposition that the mixed profiles arose independently from each other” (see [108] above).

The Accused submits that Items 550 and 616 are not, in fact, the same. There are features of the DNA profiles which are different. Peak heights and peak-height ratios, within and between loci, are different. There are 61 alleles in the mixed profile of Item 616. Those Item 616 alleles are present in the mixed profile from Item 550, but there are an additional 14 alleles designated in Item 550. It is submitted that the proportion of the allele distribution is not identical.

The Accused submitted that there were limitations on Dr WXXsh’s analysis. It was submitted that he had no specialised knowledge or experience in comparing complex mixtures. He had never made a comparative analysis such as this before. It was this aspect which led to a s.79 objection to this evidence of Dr WXXsh.

Dr WXXsh was also unfamiliar with the performance of 3500s, a particular machine that works on PowerPlex 21. He did not have any direct involvement using those instruments. For the interpretation of the profiles, he was almost entirely reliant on the FASS staff. Dr WXXsh sought advice in relation to criteria applied to interpret profiles, and stated that if there were questions regarding the profile designation itself, he would defer to the FASS laboratory.

The Accused developed a submission by reference to the additional 14 alleles in Item 550 which were not in Item 616. It was submitted, as well, that the fact that the sample comprised people who were related raised further difficulties when trying to establish similarities, and their significance.

Particular reference should be made to the following part of the Accused’s written submission on the DNA evidence (MFI29, paragraphs 105-106):

“105. The evidence in this case will be that [Ms AB], HeXXy and TeXXy LXX spent significant time at the home and in the garage at 4 Beck Street, which was only 250 metres away from their house. All the deceased had been to X Beck Street. MXX, [Ms AB], HeXXy and TeXXy had been in the garage. The children played in the garage. KaXXy LXX’s parents and [Ms AB] lived at Beck Street for around 10 months before the garage was sampled in May 2010. Numerous items from the Boundary Road house, from the newsagency, and Jimmy Hue were placed inside the garage before the garage was searched in May 2010. None of these items were filmed as police and forensic biologists moved them. With regard to these items, their nature, position, location, source and time of placement were not accounted for.

106. There is therefore a very clear explanation for the presence of their DNA in the garage.”

I will return to this aspect later in the judgment. It is appropriate to observe at this point, however, that there was no evidence of these factual matters adduced at the pretrial hearing. Further, these matters seem to foreshadow evidence which may be adduced at the trial which would be available to a jury to take into account in determining whether there is, in effect, an innocent explanation for the presence of DNA from persons including some of the deceased persons in the garage and, in particular, in Stain 91.

This aspect of the Accused’s written submission appears to raise issues for a jury, and not matters bearing upon the question of admissibility.

As has been noted earlier (see [153], [157]-[159] above), the fact that the Accused advances these matters in submissions, as a possible alternative explanation for the presence of Stain 91 (and its DNA components), does not support the exclusion of the evidence. Indeed, it serves to fortify the view that the evidence ought be admitted, with the jury to assess the use to be made of this evidence, in light of all evidence adduced at the trial.

The Accused submitted that one of the significant failings of TrueAllele is that it cannot deal with related people. It was submitted that proportions in the profiles are not the same, with reference being made to parts of the evidence of Dr WXXsh. The Accused noted that Dr WXXsh made no statistical assessment of similarities.

It was submitted that there is no scientific basis upon which it can be concluded that Item 550 is relevantly similar to the crime scene sample.

The Accused submitted that there was no evidence upon which a reasonably instructed jury could conclude that the garage sample is relevantly or probatively similar to the crime scene sample. In order to have probative value, it was submitted that the similarities must advance the proposition that the DNA derived from blood at the crime scene. It is not in dispute that there are some generic similarities between the garage sample and the crime scene samples - the sample contains DNA, it is a complex mixture, it has multiple contributors, the contributors are male and female and the samples contain a number of very common alleles. It was submitted, however, that DAL analysed about 640 samples from the crime scene and not one of these samples has the same DNA profile as Item 550, despite emanating supposedly from the same location.

The Accused submitted that a points of similarity approach has no scientific validity. It was submitted that comparing profiles does not involve adding up alleles in common.

The Accused submitted that it is not possible to determine if Items 550 and 616 were once part of the same mixture. It was submitted that there is no evidence that one sample is a sub-sample of the other sample. It was said that the Crown case has to be that Items 550 and 616 have come from the same pool of blood, but there is no evidence to support this.

With respect to the discretionary exclusion of the DNA evidence pursuant to ss.135 and 137 Evidence Act 1995, the Accused relied upon the following contentions:

(a) there is no true statistical phenomenon for something as complex as low template DNA profiles;

(b) TrueAllele is the “new frontier”;

(c) TrueAllele is a work in progress.

The Accused submitted that the time line of TrueAllele’s analysis of the sample, and the time line of various TrueAllele studies, suggest the real possibility that TrueAllele is racing to provide a result in advance of proper scientific analysis and verification. It is said that its approach here is case specific, not conceptually or scientifically specific. It was submitted that the orderly development of reliable science and its implementation is evident from the significant work done by sanctioning jurisdictions before implementation.

The Accused submits that, no matter what the future holds for probabilistic analysis, it is clear that at this point the Accused in this case is the experiment and that it would be utterly unfair, unreliable and dangerous to admit this evidence.

Other matters are relied upon in support of discretionary exclusion were identified (without elaboration) (MFI29, paragraph 136):

(a) the quality of the sample involved;

(b) the complexity of the science involved in the matter;

(c) the emotional effect that the staggering numbers that TrueAllele generates will have on the jury;

(d) the subtlety of the distinction between the CCS and the notion of a sample-to-sample comparison;

(e) the probative value of the evidence is substantially outweighed by the danger that the evidence might cause or result in an undue waste of time;

(f) the probative value of the evidence is substantially outweighed by the danger that the evidence might be misleading or confusing;

(g) the evidence led by the Crown will have to be addressed by a significant defence case;

(h) there are contrary approaches to statistical analysis of DNA profiles (the work of Dr MitXXell and Professor BaXXing) which have not been explained or considered.

The Accused submits that the Crown’s DNA evidence should not be admitted or, alternatively, should be excluded in the exercise of the Court’s discretion.

Submissions of the Crown on the Question Whether Stain 91 is Blood (MFI25)

The Crown submits that the evidence is that the appearance of Stain 91 is consistent with an aged blood stain. The forensic scientists used a scale to describe stains and what could be seen of the stain is consistent with the characteristics of an old blood stain.

The Crown points to the joint report authored by Ms LeCXXpte, Ms CaXXbell, Ms GeXXard and Dr HaXXam which states (paragraph 13):

“Whilst this stain did not exhibit a classic red-brown colour of a fresh or well-preserved blood stain the appearance of the stain fell within the expected range for an aged blood stain considering the surface upon which it was deposited, and the environmental conditions to which it may have been subjected."

In response to the defence submissions concerning presumptive screening tests, the Crown submits that it is necessary to keep in mind that the area of the garage was not outdoors and that Stain 91 was in a well-protected area of the floor, under furniture. There was no evidence that the floor was in fact exposed to oxidising agents that would have generated a false positive. The Crown submitted that, in essence, the entire floor was itself a control, indicating that a false positive was highly unlikely.

The Crown emphasised that it does not rely on the presumptive test to establish that the stain was blood, but a combination of all the evidence. The strong reaction to Otol does not conclusively prove that the stain was blood, but it is a persuasive matter that a jury can consider.

With respect to the defence submissions concerning lack of confirmatory testing, the Crown submitted that there is no requirement for such a test. It is not a precondition for admissibility. As there was a small sample, DNA testing would clearly yield the most information. It was noted that, in answer to a question in cross-examination as to whether, if confronted with a situation where a sample would be consumed by a confirmatory test for blood, a DNA test instead would be chosen, Dr HaXXam, the defence expert agreed. The Crown submitted that what had occurred in this case accords with that approach.

With respect to the defence submission based upon the lack of a control test concerning Stain 91, the Crown submitted that control tests near the stain were not necessary, as the testing method employed on the floor was essentially a control test in itself, with reference being made to aspects of the evidence of Ms CaXXbell and Ms GeXXard.

The Crown noted that each of Ms CaXXbell and Ms LeCXXpte were cross-examined in relation to the measurements of Stain 91 and the level of care that was taken to ensure that only the stain itself, and not areas outside its edges, were swabbed. Ms CaXXbell confirmed that she would have ensured to swab the discolouration only, therefore avoiding the swab getting into contact with any of the surrounding areas.

The Crown submitted that Ms CaXXbell was a trained and skilled forensic biologist. It was her evidence that she tried not to get into any areas outside of the stain. She was at the scene to test stains and to perform this task.

It was submitted that there is no precondition for admissibility that the swab be taken from the stain only. If this were the case, the Crown observed that there would be very little forensic evidence of this nature admitted in criminal trials. Any perceived deficiencies with the sampling process could be explored before the jury, to be taken into account by the jury in assessing the evidence.

With respect to the defence submission that Stain 91 gave a negative reaction to Luminol testing, the Crown observed that the Luminol testing was not performed by the examining biologist, but by crime scene officers following the examination and swabbing of the garage floor. The Crown addressed the inconsistency in the positive result of Stain 91 to Otol testing as opposed to the negative reaction to the Luminol testing, referring in this regard to the evidence of Ms GeXXard.

With respect to the defence submission concerning possible transfer and the possibility that the moving and clearing out of furniture and boxes during the search of the garage may have caused an item to move onto Stain 91 and thus being responsible for the stain, the Crown pointed to the evidence of Ms CaXXbell that she did not believe that this was the case “as there was furniture already on top of that stain”. Stain 91 was detected in a protected area. The Crown submitted that Stain 91 was not located in an area that could be regarded as a suitable thoroughfare for a person to travel through the garage to put out a refuse bin.

The Crown noted the defence submission that the biological source of the stain cannot be determined. The Crown submitted that the presence of a great deal of DNA information from Stain 91 is indicative that the stain is not from small amounts of trace DNA.

It was submitted, in any event, that proving the biological source of Stain 91 is not a precondition for admissibility. It was submitted that the defence contention that what could have been on this stain was skin cells, blood, saliva, semen or a mixture of those materials was simply an alternative hypothesis for a jury to consider. Putting aside what the Crown submitted was the inherent improbability of the deposition by a combination of licking or dribbling, ejaculation, bleeding or rubbing off of skin cells onto the identical tiny protected spot in the garage, the Crown submitted that a jury would be entitled to conclude, from all the evidence, that the stain was blood.

The Crown pointed to the joint report of the four blood experts (both Crown and defence) which observed that, in determining whether Stain 91 is of human origin, the DNA profile should be considered as it would assist in determining whether the stain has human origins.

It was noted that Ms GeXXard and the defence expert, Dr HaXXam, possessed relevant qualifications to comment on the DNA result. They provided an addendum report addressing the DNA profile obtained from Stain 91, which resulted in the consensus position:

“Based on the DNA profile generated it is agreed that the stain is of human origin.”

Ms GeXXard stated that this opinion was based on the amplification test and the DNA analysis itself which is human specific.

The Crown submitted that Dr HaXXam’s evidence that there was a small amount of DNA recovered from Stain 91 should be considered in the light of Dr HaXXam’s vastly lesser degree of relevant experience relative to the other DNA experts who have described the DNA quantities as possessing a lot of information.

As part of its submission that the question of admissibility of evidence concerning Stain 91 involved consideration of all evidence bearing upon that question, and not a narrow enquiry focusing upon discrete parts of the scientific evidence, the Crown relied upon what is said to be the Accused’s admissions to Witness A as to the need to account for the finding of blood in his garage. It was submitted that the jury would be entitled to find that the Accused had made admissions as to the presence of blood in that location give Witness A’s statements that:

(a) the Accused planned to invent a story of some mechanical work with MXX LXX in his garage to explain MXX LXX’s blood on the floor of the garage; and

(b) alternatively, he attempted to explain the blood on the garage floor as having originated from the prior ownership of the home by a vet with it being animal blood.

The Crown submitted that the fact in issue in this trial, the existence of which the evidence in question is said to be rationally capable of affecting, is whether or not the Accused committed the five alleged murders. It was submitted that the CCS makes clear (see [110] above) that the Crown case is that the stain on the garage floor links the Accused to the crime scene, because it is the blood of the deceased from that crime scene.

The Accused agrees that this is the relevant fact in issue.

The Crown submitted that, if the jury was satisfied that the stain was mixed blood from the crime scene, which the Crown contends is the overwhelming inference, this is powerful evidence in the Crown case. It is submitted that the evidence undoubtedly has the capacity to rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue.

The Crown contends that the overwhelming inference is that the stain is mixed blood from the crime scene. Alternatively, any assessment of competing hypotheses is a question of fact for a jury to resolve.

The Crown accepts that its case is that Stain 91, part of which became Item 550, is a blood stain yielding a mixed DNA profile from which the deceased cannot be excluded as contributors. The Crown accepts that the tribunal of fact would need to be satisfied beyond reasonable doubt that Stain 91 is blood, indeed blood from the crime scene, to use it to reason towards guilt. However, the Crown submits that such a conclusion is not an indispensable link in a chain of reasoning towards an inference of guilt of the type referred to in Shepherd v The Queen. The Crown submits that this not a “link in the chain” circumstantial case.

The Crown does not accept that a tribunal of fact would be confined in their consideration of that question to the evidence of the blood experts, being Ms GeXXard, Ms LeCXXpte, Ms CaXXbell and Dr HaXXam. The fact that the experts put it no higher than “possibly blood” is, the Crown submits, of little moment. The experts have considered but a small part of the Crown case in expressing that expert opinion. The Crown notes that the jury will be asked to consider the Crown case in its entirety.

The Crown relies upon the following factors in establishing that the biological source of Stain 91 (Item 550) is human blood:

(a) the results of presumptive testing - specifically the strong positive reaction to an Otol test;

(b) the appearance of the stain, which is within the range of what might be expected of an aged blood stain;

(c) the method or mode of deposition of the stain - a transfer mechanism - being consistent with deposition from a “wet” source;

(d) the presence of human DNA;

(e) the presence of a mixed profile with three, four or more contributors;

(f) the presence in that profile of alleles consistent in all respects with the DNA profiles of the deceased;

(g) the similar DNA profiles resolved from what were blood stains at the crime scene, such as Item 616 - both in terms of the alleles present and the peak heights and ratios of the DNA mixtures;

(h) evidence indicating the presence of the Accused in the garage in the period shortly after the murders (his statement to police that he cleaned up the dirty garage floor on the morning of Saturday, 18 July 2009 - see [55] above) - evidence of at least one opportunity to have deposited the blood from the crime scene; and

(i) admissions by the Accused to Witness A.

Whilst noting that the blood experts cannot state definitively that Item 550 is blood, the Crown submits that definitive proof is not the applicable legal standard. The blood experts jointly opine that it is “possibly blood” based on factors which they took into account. Their opinion is based upon the realms of scientific possibility. Their joint opinion forms part of a larger circumstantial Crown case.

The Crown submits that the tribunal of fact will also have before it the evidence of mixed samples from the crime scene, including Item 616 which was described by Dr WXXsh as displaying a “very high degree of similarity” to Item 550, with Item 616 having been sourced from a swab of an apparent blood stain on a mattress in the bedroom in which HeXXy LXX and TeXXy LXX were killed.

The Crown submits that the tribunal of fact will be entitled to engage their common sense in determining what possible sources of DNA could have yielded the DNA profile extracted from Item 550, with it being inherently unlikely to come from mixed saliva or mixed epithelial cells. In the circumstances, the Crown submits that it will be open to the tribunal of fact to be satisfied beyond reasonable doubt that Item 550 is blood, and that it is blood that has been deposited from the crime scene.

The Crown submits that the defence focus upon the blood experts’ opinion that Stain 91 was “possibly blood” involves misconceived reasoning, which divorces impermissibly that expert evidence from other persuasive evidence in the Crown case which will be before the jury, including the presence of human DNA and the analysis of that DNA.

The Crown distinguishes Armstrong v R which relates to the use of the evidence, and not its admissibility.

The Crown submits that the two separate bodies of expert evidence concerning Stain 91 and DNA evidence, and any conclusions as to its biological origin as human blood, are inextricably connected. There is little or no significance in a blood stain being found in the garage of the Accused’s home if it cannot be said to be the blood of one or more of the deceased. Similarly, there is little significance in a collation of the DNA of one or more of the deceased being found in the garage of the Accused’s home unless it is in some way connected to the crime scene, most obviously as blood from the crime scene. The Crown submits that the evidence must be considered collectively in resolving each issue.

The Crown submits that the combination of all the evidence surrounding Stain 91 (Item 550) is overwhelmingly capable of proving that the stain is blood. It is relevant and admissible evidence having that clear capacity, with issues surrounding its deposition and composition being proper questions for the jury to consider and determine.

Crown Submissions Concerning DNA Evidence (MFI32)

The Crown submissions summarised the evidence in a manner which I accept and incorporate later in the judgment. The Crown then responded to the defence submissions concerning the DNA evidence (MFI32, paragraph 77ff).

By way of general observation, the Crown noted that challenges to scientific innovations are routine. Reference was made to the statement of Thomas LJ in R v Reed [2009] EWCA Crim 2698; [2010] 1 Cr App R 23 at  [111] that there is no closed category where evidence cannot be placed before a jury, and that it would be wrong to deny to the law of evidence the advances to be gained from new techniques and new advances in science with particular reference, in this context, to DNA evidence.

The Crown submitted that there is nothing unfairly prejudicial in the DNA evidence. There is no inflammatory or emotional quality to the evidence. Directions will ensure that no improper use is made of the evidence. If the jury determined that the DNA evidence establishes a link between the Accused and the crime scene, this evidence is highly probative. There is simply no unfair prejudice against this that needs to be weighed in the balance.

Alternatively, if there be a risk that the evidence would be accorded more weight than it deserved, any such risk would be ameliorated by directions.

In response to the defence argument concerning Dr WXXsh’s evidence, the Crown submitted that it does not assert, and does not need to demonstrate, that Item 550 is the same as any of the crime scene samples. It is inevitable that there would be differences between the samples. The relevance, the Crown submits, arises from the connection to the crime scene.

In response to the defence submission on the issue of similarity, the Crown submits that evidence of similarity is routinely admitted. The illustration is provided of evidence of identification being admissible in a circumstantial case, even where it is weak evidence: Festa v The Queen [2001] HCA 72;  208 CLR 593 at 611  [56].

The Crown referred expressly to the decision of the Court of Appeal (Criminal Division) in R v Dlugosz and Ors [2013] EWCA Crim 2;  [2013] 1 Cr App R 32 in support of this submission.

The Crown submitted that, in the present case, Dr WXXsh’s opinions about the similarities between Item 550 and other crime scene samples are analogous to evidence allowed in R v Dlugosz. It was submitted that Dr WXXsh’s appropriate caution when expressing those opinions was apparent, and the limitations on the evidence would be crystal clear to the jury. The experts themselves were at pains to point out the limitations. The Crown noted that Mr GoXXz and Ms NeXXlle, coming as they do from a rubric of statistical reporting, had referred the Crown to Dr PeXXin, having noted the “interesting similarities”. The provision of Dr PeXXin’s statistical evidence did not mean that evidence of the noted similarities is inadmissible.

The Crown joins issue with a number of particular submissions advanced on behalf of the Accused, contending at different points that the submissions are not supported by the evidence. It was submitted that the defence contention that a degraded sample causes real limitations to a TrueAllele analysis is not supported by the evidence. Further, the Crown submits that degradation is a known phenomenon that is routinely observed, and taken into account, in the process of DNA profile interpretation and analysis.

In response to the defence submissions that TrueAllele had not been validated for five-person related mixtures, the Crown referred to the 2013 New York State Police Crime Laboratory System TrueAllele Validation Addendum (four-person mixture and familial study) which extended the TrueAllele validation beyond three-person mixtures (Exhibit PTK2, PeXXin, Tab 9). The Crown submitted that this study concluded that the validation findings supported and extended the previous New York State Police data for low template samples and three-person mixtures, and strongly recommended the current methods of autosomal STR interpretation be replaced by TrueAllele for mixtures involving related and unrelated individuals.

The Crown submitted that what is clear from the validation is that all of the data is capable of being reliably used. The increased complexity of the samples was accounted for, and a reduction in match statistics is the result of any less clear-cut separation of genotypes because of shared alleles in family members or for mixture weight similarities.

The Crown pointed to a 2014 publication in which Cybergenetics, in collaboration with the Kern Regional Crime Laboratory in California, assessed TrueAllele’s capacity to deal with five-person mixtures:“TrueAllele Genotype Identification on DNA Mixtures Containing Up to Five Unknown Contributors”(Exhibit PTK2, PeXXin, Tab 10).

The Crown submitted that the validation studies contained in the evidence provide clear support for TrueAllele’s robustness and suitability for analysing the complex data in this case. Stringent validation has included shared alleles and multiple contributors up to five. What those studies illustrate is that where the capacity of TrueAllele to extract information is logically and necessarily reduced by levels of complexity, this is reflected in lower and hence more conservative LRs and not in any compromised data. More complex samples produce more conservative results.

The Crown points to Ms NeXXlle’s evidence in which she expressed her belief that TrueAllele is capable of carrying out an interpretation of a complex mixture such as has occurred in this case (PT907).

The Crown noted that Dr PeXXin had been cross-examined upon the basis that TrueAllele could not be adequately tested because it was a “black box”. The Crown observed, however, that no submission had been made on this topic by the Accused.

The Crown submitted, in any event, that both Ms NeXXlle (PT894) and Dr PeXXin (PT587) had rejected the characterisation of TrueAllele as a “black box”.

The Crown referred to the decision in R v Karger [2001] SASC 64;  83 SASR 1, where Mullighan J rejected a challenge to the admissibility of evidence obtained by way of a Profiler Plus system upon the basis, inter alia, that it was a “black box” (at 96-100 [449]-[465]).

The Crown submitted that it was not accurate to state that Dr PeXXin’s first report had been completed before PowerPlex 21 validation. Further, the Crown pointed to evidence from Ms NeXXlle concerning the BSAG report and the introduction of STRmix at FASS, none of which involved a critical conclusion or rejection or non-validation of TrueAllele.

Contrary to the defence assertion, the Crown submitted that Dr PeXXin did in fact make an evidence-to-evidence comparison, which he explained in some detail in evidence. He made this comparison by reference to genotypes. The same process of inferring genotypes was applied to each of the samples. The inferred genotypes were then used for the purposes of comparison. The raw data of the samples was necessarily converted into information (the inferred genotypes) that could be used in the formulation of an LR. The mathematical underpinning of the LR calculation was described in evidence.

In response to the defence submission that there had been no consideration of whether Ms AB’s genotype was in the mixture, the Crown pointed to Dr PeXXin’s supplementary report (Exhibit PTK20) in direct response to the defence request (Exhibit PTK19) dealing with the reference sample of Ms AB. Ultimately, Dr PeXXin provided a probability figure and concluded that “in light of all the data, [Ms AB], there’s no statistical support for [Ms AB] having contributed her DNA to item 550 or item 616” (PT1088).

In response to the defence submission that there was no evidence of the number of contributors to the garage mixture, the Crown submitted that there was consistency across the evidence of all the experts that there were at least three contributors. The evidence was summarised in the following way (MFI32, paragraph 170):

Expert

Item 550

ClaXXon WaXXon

At least 3 in the major (2 males, possibly one female)

RoXXrt GoXXz

At least 4 (at least 2 males)

ShXXon NeXXlle

Possibly 4

Dr SiXXn WaXXh

550A: at least 3 (TeXXy, HeXXy, MXX LXX)

550B: at least 4 (TeXXy, HeXXy, MXX LXX, YXX BXX LXX)

Dr MXXk PeXXXn

3, 4 or 5

In response to the defence submission that Dr PeXXin had not referred to “shadowing” in earlier reports, the Crown noted that Dr PeXXin explained that the presence of a relative at a lower match statistic may result in a “false positive”. To address this issue, Dr PeXXin used a “peeling” process to provide further clarity in relation to any statistical support for the presence or absence of the DNA profile of Ms AB in Items 550 and 616. The Crown referred to evidence given by Dr PeXXin concerning shadowing.

The Crown indicated that it did not seek to rely on evidence of “peeling” in evidence in chief at the trial. The Crown would necessarily rely on this evidence to rebut any defence suggestion that there is scientific support for the presence of Ms AB’s DNA in Items 550 and 616. The Crown submits that, in light of the material in Dr PeXXin’s most recent report, to do so would be misleading. In these circumstances, the Crown submitted that it was not necessary for there to be any ruling on the evidence derived from the “peeling” process at this stage.

With respect to the defence argument that there is an alternative hypothesis or competing inference available to explain the mixed DNA sample in Stain 91 (see [280] above), the Crown submitted that to assert that the mixed sample from the garage came to be there by way of family members’ overlaying DNA samples, from disparate biological sources at separate times, is manifestly absurd. In any event, the Crown submits that these are questions of fact for the jury to determine with the assistance of directions. The availability of a competing inference does not make the evidence inadmissible.

The Crown responded to the defence submission that TrueAllele was not validated and that it constituted a “work in progress”. The Crown submitted that TrueAllele is not an unfinished product. It is a highly validated method that has been in use, in its current 25th version, for over five years.

Reference was made to evidence of 20 TrueAllele validation studies having been done, five of them peer reviewed. It was noted that low template, complex three, four and five person mixtures were studied in the Kern Report (Exhibit PTK2, Tab 10).

The Crown submitted that TrueAllele is validated, and has been accepted in other jurisdictions on numerous occasions. In addition to Dr PeXXin’s evidence given in more than 20 trials, there have been a number of admissibility hearings in different overseas jurisdictions. These include:

(a)  Commonwealth v Foley (2012) 38 A.3d 882 - evidence admitted at first instance with the decision being affirmed by the Superior Court of Pennsylvania;

(b)  R v Duffy and Shivers [2012] NICC 1 - Hart J of the Northern Ireland Crown Court allowed Dr PeXXin to give evidence with respect to TrueAllele results;

(c)  Commonwealth of Virginia v Brady (unreported, Virginia Circuit Court, 17 December 2013) - the Court overruled an objection to evidence from Dr PeXXin of TrueAllele analysis;

(d)  R v Broughton (unreported, Oxford Crown Court, 29 June 2010) - Eccles J excluded TrueAllele evidence, notwithstanding his view that “this evidence is capable of being admitted in evidence in the United Kingdom”, with his Honour indicating that reasons would later be given but with this (for reasons unknown) not having occurred;

(e)  California v Lawton, Langston and Harper (unreported, Superior Court of California (Kern County), 1 October 2013) - the Court admitted evidence concerning TrueAllele analysis.

The Crown noted that, whenever there is a new advance in DNA technology or analysis, there is inevitably a challenge to the admissibility of the evidence garnered as a result. The Profiler Plus kit was challenged extensively at first instance in South Australia before the decision of Mullighan J in R v Karger.

In R v McIntryre  [2001] NSWSC 311, Bell J considered the admissibility of opinion evidence regarding DNA results using the Profiler Plus system. Her Honour declined to exclude the evidence, referring to R v Karger.

The Crown pointed, as well, to R v Fuller [2013] SADC 150, where a challenge to STRmix evidence was rejected and the evidence admitted.

The Crown referred to authorities, including R v Karger at [179], which emphasised the roles of the prosecution, defence counsel, expert witnesses and the trial Judge in the process of adducing expert DNA evidence, addressing the jury and giving directions to the jury in a manner intended to reduce or remove any tendency of such evidence to mislead, prejudice or confuse the jury.

Reference was made to R v MK [2012] NSWCCA 110;  223 A Crim R 572, where the Court of Criminal Appeal allowed a Crown appeal from the exclusion by a trial Judge of mixed DNA evidence involving a major component and a weak minor component, with the Profiler Plus kit having been used as well as Y-Filer testing. There was uncertainty surrounding the number of contributors. The Crown referred to the decision of the High Court in Aytugrul v The Queen [2012] HCA 15;  247 CLR 170 in support of the admission of the evidence in the present case.

The Crown submitted that, if there was any prospect of a danger that the jury would attribute weight to the DNA evidence that was unjustified because it was complex evidence, directions would ensure that that was not the case.

The Crown submitted that the evidence of DNA analysis was relevant and that it was the product of appropriate expertise. It was submitted that it should be admitted, with scope for any appropriate challenge to the evidence being available by way of cross-examination, evidence from defence experts and submissions concerning the evidence.

It was submitted that the evidence in this trial was not collected from a sterile environment, but from a garage floor and a biologically complex crime scene. Complexity is inherent in any such collected profile and information is lost if human methods of interpretation are applied.

In a complex mixture such as Item 550, it was noted that much data is lost in the calculation of LRs because of the complexity of the mixture and the application of arbitrary thresholds. The DNA evidence extracted from evidence items undoubtedly contains relevant information.

The Crown submitted that TrueAllele’s significant advantage over human methods is that it uses all of the data obtained in the analyses performed, and assigns corresponding probabilities to different hypotheses that explain the data. TrueAllele calculates an accurate result based on the entirety of the available data. In addition, there is no prospect of contextual bias as the analysis is an objective one, a situation reflected in the LRs generated.

The Crown submitted that the DNA evidence is relevant, admissible evidence and ought not be excluded on any discretionary basis.

Summary of the Evidence of Mr WaXXon, Mr GoXXz, Dr WXXsh and Dr PeXXin

The Crown submissions (MFI32) contain a summary of the evidence of Mr WaXXon, Mr GoXXz, Dr WXXsh and Dr PeXXin which I consider (for the purpose of this ruling) to be accurate, and incorporate in this part of the judgment.

Mr WaXXon gave evidence of the steps he had taken in the laboratory in respect of the testing of Item 550. The first round of testing conducted on Item 550 did not return a result. Item 550 was then subjected to a process of robotic automation called Microcon, which allows the washing of the DNA to try to remove inhibitors. A second amplification process took place which permitted more effective testing and results.

Mr WaXXon outlined the process of Y-filer, Identifiler and PowerPlex 21 testing. His evidence on 28 March 2014 (PT1015) involved an explanation by him of the concepts of threshold, artefacts, stutter and post-stutter. Mr WaXXon concluded that there were no alleles present in Item 550 that could not be accounted by reference to the combined DNA profiles of the deceased.

Mr WaXXon gave evidence about the number of contributors to Item 550. The statistical opinions expressed by Mr WaXXon were summarised in a table contained in the Crown written submissions (MFI32, paragraph 13) which constitutes an accurate summary. That table is reproduced below (excluding footnotes):

Report

Opinion

Genetic kit

Calculation

Report 2

(16 December 2010) and Report 6

(9 July 2012)

Approximately 1 in 5 people in the population cannot be excluded as major contributors to the mixture.

Profiler Plus/ Identifiler testing

Random Man Not Excluded

('RMNE')

Report 6

(9 July 2012)

All patrilineal related male relatives and approximately 1 in 760 unrelated males in the general population cannot be excluded.

Y-filer testing

Counting method

Report 8

(16 October 2013)

Approximately 1 in 210,000 people in the Australian Southeast Asian population cannot be excluded from the major component of this mixture.

Approximately 1 in 730,000 people in the Australian Caucasian population cannot be excluded from the major component of this mixture. Approximately 1 in 620,000 people in the Australian Aboriginal population cannot be excluded from the major component of this mixture.

PowerPlex

21 testing

RMNE

Mr GoXXz stated that each of the alleles designated in Items 47, 223, 550 and 616 were consistent with alleles in the reference samples of the five deceased. He described the similarities between Items 550 and 616 as (PT 673):

“... interesting, because I've looked at thousands of profiles over the years ... and to see two that are that similar, it is quite interesting.”

Mr GoXXz later described his use of the term “interesting” as meaning that the similarities “have some sort of scientific merit”. However he was unable to attribute statistical significance to the similarities. Mr GoXXz later stated:

“... I found the similarity between the profile in the house on the mattress in particular and the profile in the garage to be unusual, that is why it was interesting because the amount of alleles that were there were similar, the peak heights were similar, and you don't tend to see that in two in theory unrelated scenes”.

Mr GoXXz did not agree that the samples were “low template mixtures”. He considered that the sample “had a reasonable quantity of DNA present” (PT708).

Mr GoXXz was of the view that there were at least three, and possibly four or five contributors to Item 550 (PT684). He later stated that “there are at least four” (PT690). Concerning the possibility of five persons, Mr GoXXz said (PT684):

“... the relationship between the mattress and the garage, it is throwing doubt on the whole possibility you are dealing with related people in the garage and therefore you could not be sure that you are dealing with only four people. It could be five”.

Mr GoXXz considered that the DNA profile taken from Item 550 showed signs of relatedness amongst contributors (PT 688). He considered that the sample in the garage (Item 550) was a stronger sample than the sample from the bedroom mattress (Item 616) (PT686).

It was Mr GoXXz’s belief that the validation of TrueAllele by FASS had been completed, but had not been written up. He stated that, in part, FASS had moved in another direction, utilising STRmix, due to considerations such as cost and the length of time TrueAllele took to generate results. A concern about the reliability of TrueAllele was not a factor and he agreed that he considered TrueAllele to be a reliable system (PT707). Mr GoXXz was confident in the results generated by TrueAllele (PT708).

In re-examination, Mr GoXXz was asked concerning the comparative validation of STRmix and TrueAllele (PT707):

“Q. In terms of comparison between STRmix and TrueAllele is either system more validated than the other insofar as you are aware?

A. In my opinion probably TrueAllele is. It has been around a lot longer and has been used in overseas cases. It has undergone scrutiny by overseas experts and had a couple of documents written about the validation of it. To me it probably had more inspection of the system than STRmix had. Given another year STRmix would have probably been just the same.”

Dr SiXXn WaXXh is an important witness in the Crown case. The Crown written submission described his background and experience in the following way, which I consider to be accurate (MFI32, paragraph 36) (footnotes excluded):

“Dr WXXsh holds the position of Chief Scientist at the AFP in Canberra. He has been employed with the AFP since November 2006. In 2009, Dr WXXsh completed a PhD in forensic science on the topic of ‘Evaluating the role and impact of forensic DNA profiling on the criminal justice system’. Dr WXXsh has been involved in the field of forensic DNA and forensic criminal casework for almost 20 years, and has regularly interpreted complex mixed DNA profiles. Dr WXXsh has published widely, and given evidence in Court on numerous occasions. He is the co-author of three books, two of which have been published (with the third awaiting publication): ‘Forensic DNA Evidence interpretation’ and ‘Case Study in Forensic Science’. Dr WXXsh maintains membership of a number of relevant professional organisations and holds the position of adjunct Professor at the University of Canberra Dr WXXsh is a pre-eminent DNA practitioner in Australia and New Zealand. The Crown relies on Dr WXXsh’s experience in interpreting complex DNA samples in the forensic area.”

Dr WXXsh’s experience and training are of particular significance given the s.79 objection taken to part of his evidence.

Dr WXXsh considered the results obtained by FASS from the Profiler Plus, Identifiler, Y-Filer and PowerPlex 21 for Item 550 and compared them to other items from the crime scene that he considered similar, namely Items 47, 224 and 616.

Dr WXXsh initially interpreted Item 550 relying on two separate profiles obtained by FASS as a result of two amplification processes. Profile 550A was obtained on 10 June 2010 following amplification with the electrophoreses system, whilst Profile 550B arose from a further amplification on 18 June 2010. Dr WXXsh expressed the opinion that Profile 550A contained the profile of at least three different individuals that could be explained by TeXXy, HeXXy and MXX LXX. In relation to Profile 550B, Dr WXXsh concluded that this profile arose from at least four individuals, with the additional DNA present in that sample being explained by YXX BXX (IrXXe) LXX further to TeXXy, HeXXy and MXX LXX.

Dr WXXsh gave evidence concerning similarities with other samples from the crime scene. He undertook a comparison between Item 550 and Item 616 following PowerPlex 21 testing. Whilst Dr WXXsh stated that his familiarity with the PowerPlex 21 kit, and the associated capillary electrophoreses machine 3500s, is limited due to the recent introduction of the kit, his experience with the performance of the established kits informed his ability to interpret PowerPlex 21 data. Dr WXXsh was asked (PT934):

“Q. When you did consider item 550 against item 616, what was your opinion about the relative similarity of those two mixed profiles?

A. Well, my opinion is that they are similar. There was a high level of consistency between the two profiles, a high level of overlapping

information”

The following similarities between Item 550 and Item 616 were observed by Dr WXXsh and were considered significant:

(a) all 61 alleles designated in Item 616 were present in Item 550;

(b) there was an observable similarity between those samples in terms of the proportions of the alleles they have in common;

(c) there was no example of a considerable departure from the general consistency;

(d) each sample was in itself a complex mixture arising from at least three contributors;

(e) there was no association or reason for these profiles to be similar.

The cross-examination of Dr WXXsh focused on, inter alia, dissimilarities observed between samples. Dr WXXsh acknowledged the presence of dissimilarities, but maintained his position. Dr WXXsh was of the opinion that “there is a lot more similar information in there than there are dissimilar pieces of information” (PT941).

A challenge was made to Dr WXXsh in cross-examination concerning his capacity to express an expert opinion in relation to similarity (PT942):

“Q. You just - I mean, really this is your evidence: "I've looked at it,

I'm an expert and I reckon they are relatively similar"; that's it, isn't

it?

A. I would probably summarise it a little differently. I would say that

what I am looking at are two objective pieces of scientific data, each of which are highly complex with a high amount of information. To generate any of those complex pieces of data can only occur under a certain limited amount of circumstances.”

The Crown relies on Dr WXXsh’s expertise in the area of forensic DNA interpretation and submits that he is qualified to comment on the observed similarities between Item 550 and Item 616, which he considers significant, without the provision of a statistic. I will return to this topic.

In relation to the haplotype present in Item 550 that was consistent with MXX, TeXXy and HeXXy LXX, Dr WXXsh consulted the “Y chromosome haplotype reference database”, the largest of its kind (PT982-983).

The evidence reveals Dr PeXXin’s substantial background and expertise in the area of DNA mixture interpretation. He is the Chief Scientific Officer and Chief Executive Officer of Cybergenetics, a bio-information company based in Pittsburgh, PA, United States which was formed 20 years ago. Dr PeXXin is an expert on DNA mixture interpretation and the likelihood ratio. He holds a PhD in computer science, a PhD in mathematics and a medical degree.

TrueAllele is the software system developed and employed by Cybergenetics and Dr PeXXin. It is currently in its 25th version, and has remained the same since 2009. The software in its first form was designed 20 years ago.

TrueAllele applies a probabilistic method of DNA typing. The system objectively infers genotypes from the entirety of the data. Contrary to the defence submissions, the Crown submits that is this one of the qualities of the TrueAllele system. It means that there is no loss of information due to thresholds, and that the system looks at the data without considering any of the known reference samples. These inferred genotypes then allow comparisons to be made with other evidence items of reference samples, producing a match statistic in the form of a likelihood ratio, that is the probability of a match.

Having considered the evidence given by Dr PeXXin over several days, there is force in the Crown submission that the probabilistic method utilised with TrueAllele represents a strength, and not a weakness, in assessing issues relevant to the admissibility of the evidence.

Dr PeXXin gave evidence concerning the relationship between evidence items, inferred genotypes and reference samples.

Cybergenetics received electropherograms (“EPGs”) for Items 550, 616, 13, 47, 205, 221, 223, 224 and 229, and the reference samples from the five deceased, the Accused and Ms AB, together with all of the results of the Profiler Plus, Identifiler, Y-Filer and PowerPlex 21 testing runs.

TrueAllele requires the human operator to provide a range of contributor numbers to be considered prior to the start of the computer process. For Item 550, three, four or five contributors were assumed. The number of peak heights that are observed are a decisive factor in this consideration. TrueAllele can be set to assume any number of contributors up to 10. Once a sufficient number of contributors are assumed, the behaviour of the system is the same statistically (PT626) and the system does not overstate (PT790).

Dr PeXXin explained that the way the system expresses the challenge to use all of the information results in a conservative approach, a negative log likelihood ratio (“LR”).

The probability statistics (LRs) provided in Dr PeXXin’s updated report dated 21 March 2014, taking into account the higher theta value (co-ancestry coefficient), are reflected in the following table (MFI32, paragraph 76):

Reference

Item 550

YXX BXX LIN

28.5 thousand times (Asian person)

1.68 million times (Caucasian person)

YXX LX LIN

289 times (Asian person)

15.7 thousand times (Caucasian person)

MXX LIN

226 thousand (Asian person)

367 million (Caucasian person)

HeXXy LIN

2.21 Billion times (Asian person)

1.73 trillion times (Caucasian person)

TeXXy LIN

50.4 quadrillion times (Asian person)

80.8 quintillion times (Caucasian)

Item 47 [door handle]

Item 550

Contributor to 550 matches a contributor to 47: 1.08 billion (relative to an Asian population) 1.4 trillion (relative to a Caucasian population)

Item 223 [bedroom wall]

Item 550

Contributor to 550 matches a contributor to 223: 4.29 million (relative to an Asian population) 7.33 trillion (relative to a Caucasian population)

Item 616 [bedroom mattress]

Item 550

Contributor to 550 matches a contributor to 616: 1.11 quadrillion (relative to an Asian population) 4.23 quintillion (relative to a Caucasian population)

Decision

I commenced an examination of this topic (at [234]-[239] above) by noting the competing approaches of the Accused and the Crown to the admissibility of evidence concerning Stain 91 and subsequent DNA analysis and LR evidence arising from Item 550.

It will be recalled that the Crown invited an approach which considered all matters bearing upon the relevance of this evidence, both scientific and non-scientific. The Accused, on the other hand, focused upon what were said to be particular weaknesses, or areas of vulnerability, with respect to discrete aspects of the scientific evidence.

The primary question to be considered is the issue of the relevance under ss.55-56 Evidence Act 1995.

It is necessary to identify the facts in issue in the trial to allow an assessment of the question whether the evidence, if accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact (the jury) of the probability of a fact in issue in the proceeding: Smith v The Queen at 654 [7] (at [150] above). The parties agree that the following formulation identifies the facts in issue for this purpose.

The ultimate fact in issue in the trial is whether the Accused committed the five alleged murders. The Crown contends that the stain on the garage floor (Stain 91) links the Accused to the crime scene because it is the blood of the deceased from that crime scene. If the jury was satisfied that the stain was mixed blood from the crime scene, the Crown contends that this is powerful evidence in the Crown case.

Questions of relevance require careful analysis, and identification of the process of reasoning that is invited: Evans v The Queen at 529 [23] (at [151] above).

Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised: Smith v The Queen at 653 [6]. The relevance test is to be given a broad ambit and the test is not a narrow or stringent one: Evans v The Queen at 546-547 [95]-[96] (at [152] above).

I have set out in some little detail the arguments advanced on the question of admissibility of this evidence. The further the Court has proceeded to assess the competing arguments, the clearer is the response, in my view, to the initial question concerning the relevance of the evidence.

It is necessary to keep in mind the areas of scientific and non-scientific evidence which bear upon the relevance issue. The non-scientific evidence should not be overlooked. Firstly, the Accused informed police that he had undertaken some cleaning of the garage floor on the morning of Saturday, 18 July 2009. That aspect presented both opportunity for the deposition of material (which may be said to relate to the crime scene), together with a stated desire to clean the garage floor at a time of some significance to the case. Secondly, there is the evidence of conversations said to have occurred between the Accused and Witness A, including the need to find explanations for blood on the garage floor.

These matters are not raised, of course, for the purpose of expressing any view concerning the weight to be given to this evidence. What they demonstrate, however, is that it would be erroneous to consider, in an unduly narrow fashion, the issue of relevance of the evidence concerning Stain 91 and the DNA evidence.

The submissions of the Accused are directed almost entirely to the reliability of the evidence and the weight to be attached to it. There is scope for argument concerning the strengths or weaknesses of various pieces of evidence along the way, commencing with the location of Stain 91 on the garage floor and concluding with the opinions expressed by Mr WaXXon, Dr WXXsh and finally, Dr PeXXin. These are, in truth, areas which may be challenged or explored in the presence of the jury, with the ultimate weight to be attached to the evidence, and the conclusions to be drawn from it, being matters for the jury.

I do not think that Armstrong v R assists the present objection. The present case involves far more than presumptive testing of blood.

Submissions which advance suggested alternative explanations or competing inferences with respect to the suggested presence of DNA of the deceased on the garage floor are not issues which bear upon the relevance objection (see [153] above).

I accept the common submission of the parties that it would be necessary for the jury to be satisfied beyond reasonable doubt that Stain 91 contained blood from the crime scene, for the purpose of evidence arising from this source operating against the Accused at trial. However, this issue is not to be determined solely by reference to the scientific evidence, with other areas of evidence already mentioned to be taken into account, together with such further evidence as may be adduced at the trial which bears upon that question.

I am not persuaded that any submission advanced by the Accused warrants the exclusion of evidence concerning Stain 91 and the DNA analysis and LR opinion evidence of Dr PeXXin upon the basis that relevance has not been demonstrated for the purpose of ss.55 and 56 Evidence Act 1995.

The question of discretionary rejection of the evidence under ss.135 or 137 Evidence Act 1995 then arises.

As R v Burton at 266 [134] makes clear (see [156] above), s.137 requires two separate assessments and a judgment:

(a) an assessment of the probative value of the evidence sought to be adduced by the Crown;

(b) an assessment of the danger of unfair prejudice to the Accused that may be caused by its admission; and

(c) a judgment as to whether any such danger outweighs the probative value of the evidence.

This process has regard to the potential probative value of the evidence. The function of the Judge is to assess the extent to which the evidence has the capacity to bear upon the proof of the fact or facts in issue: R v Burton at 273 [160]-[161] (see [158] above).

The availability of alternative explanations or competing inferences are not to be taken into account (see extracts from R v Burton at [157]-[159] above).

Applying these principles, I assess the probative value of the Stain 91 and DNA evidence as being substantial.

An assessment of the danger of unfair prejudice involves the concept of “unfair prejudice” as explained in pertinent authorities (see [160]-[161] above).

Arguments which sought to challenge the reliability of the blood and DNA evidence, and the suggestion of alternative explanations or competing inferences, do not demonstrate the danger of unfair prejudice in this case.

Beyond those matters, the Accused pointed to a number of matters in support of discretionary exclusion under ss.135 or 137 (see [289]-[292] above).

I express my broad agreement with the Crown submissions made with respect to these issues, and make the following additional comments.

The fact that aspects of the scientific evidence, including DNA analysis and LR opinion evidence from Dr PeXXin, may be complex is not a reason to exclude it. The Courts have recognised that the development of modern science has given rise to areas of evidence of some complexity in jury trials in the criminal courts. As is made clear in R v Karger at 44 [179], Aytugrul v The Queen at 183-187 [20]-[34] and R v MK at 583 [48], the complexity of evidence of this type is not a reason to exclude it.

The contemporary jury system operates upon the basis that a jury will be assisted by witnesses, counsel and the trial Judge in understanding expert evidence given, by appropriate examination and cross-examination by counsel, and the making of submissions by reference to the evidence by counsel, with the task of the trial Judge including the giving of directions to assist the jury by reference to the evidence and submissions.

It may be taken that there are aspects of this case which will require counsel and myself, as trial Judge, to undertake our respective duties in a careful and diligent manner. For the purpose of ruling upon the present objection, I will approach the issue upon the basis that the jury will receive that assistance in this trial.

The various criticisms of the testing process with respect to Stain 91, and the Crown responses to those criticisms, will no doubt be the subject of evidence before the jury, to assist the jury in its fact-finding function in that respect. Those are matters which may be explored before the jury, but do not warrant exclusion under ss.135 or 137: R v Ngo [2001] NSWSC 595;  122 A Crim R 467 at 469  [7].

The evidence of Mr GoXXz, Ms NeXXlle, Mr WaXXon, Dr WXXsh or Dr PeXXin does not, on its face, raise any question concerning the validation of the TrueAllele system. Indeed, the evidence of the Australian witnesses serves to fortify a conclusion that TrueAllele is accepted by objective experts in the field in this country. The evidence contradicts any suggestion that TrueAllele constitutes a “black box”, a concept floated in cross-examination, but not advanced in the submissions of the Accused. Validation is not a legal concept. It is a shorthand term which may be called in aid when evidence of this type may be challenged upon the basis that it involves new, or relatively new, scientific processes.

Absolute certainty of result or unanimity of scientific opinion is not required for admissibility: R v Gilmore [1977] 2 NSWLR 935 at 939-941.

The evidence adduced at the pretrial hearing provides strong evidence of validation of TrueAllele in the United States of America, and its use by well-known law enforcement agencies in that jurisdiction. The validation evidence is contained in Exhibit PTK2, and extends to a range of validation studies by reputable bodies. The validation studies include a study entitled “TrueAllele Genotype Identification on DNA Mixtures Containing up to Five Unknown Contributors” (February 2014) carried out by Cybergenetics and the Kern Regional Crime Laboratory, Bakersfield, California (Exhibit PTK2, PeXXin, Tab 10). This study has direct relevance to the circumstances of the present case.

In addition, there is evidence of judicial determinations in the United States of America and the United Kingdom, where objections to evidence from Dr PeXXin concerning TrueAllele analysis have been overruled. These aspects of the evidence fortify a conclusion that Dr PeXXin’s evidence ought not be excluded upon the basis that it is, in some way, the product of a scientifically unformed or incomplete process not worthy of admission at a criminal trial. The evidence suggests the contrary.

I note that although Dr PeXXin was cross-examined on these matters, no defence evidence was called or tendered which served to undermine the validation evidence adduced by the Crown.

The evidence from Mr GoXXz, Ms NeXXlle, Mr Clayton and Dr WXXsh has a cumulative effect which supports its admission in the trial. No challenge was made to the credibility of these witnesses in the substantial pretrial hearing at which each was cross-examined in some detail. Each of these witnesses explained the processes undertaken by them in a manner which was, on the face of it, conservative and cautious.

The Accused has not called any witness at the pretrial hearing apart from Dr HaXXam. The position is to be contrasted with other cases where defence expert witnesses were called to give evidence on voir dires concerning admissibility of DNA evidence: R v Karger; R v McIntyre; R v Gallagher [2001] NSWSC 462 and R v MK.

The evidence of Dr WXXsh concerning similarities between Items 550 and 616 does not involve a statistical comparison. I am satisfied, however, that it constitutes admissible expert opinion evidence. Dr WXXsh is highly qualified in the field. He explained, in some detail, the factors taken into account in his opinion concerning similarity. This conclusion is supported by R v Dlugosz, where the Court allowed non-statistical expert DNA evidence to be given. I am satisfied that the necessary foundation has been demonstrated for the purpose of s.79 Evidence Act 1995 for evidence of this type to be given, in particular by Dr WXXsh.

Short conclusions may be expressed with respect to the Accused’s submissions concerning ss.135 and 137(at [289] and [292] above).

As to [289](a), there is no evidence that Item 550 was, in fact, low template DNA. The evidence of Mr GoXXz and Dr WXXsh does not support this proposition.

As to [289](b) and (c), the evidence does not support a conclusion that TrueAllele “requires more work”and is “a work in progress”. The evidence reveals that the process is established and validated and has been used by reputable agencies and admitted into evidence in courts in other jurisdictions.

As to [292](a), the quality of the sample involved has permitted a range of detailed examinations to be undertaken, as illustrated in the evidence adduced at the pretrial hearing. Any issue concerning sample quality may be taken up, if considered appropriate, before the jury.

As to [292](b), the science involved is complex, but the courts have adjusted to this phenomenon, as cases such as R v Karger, Aytugrul v The Queen and R v MK illustrate. The jury is entitled to receive assistance from counsel and the trial Judge, with appropriate directions to be provided by reference to the evidence and submissions.

As to [292](c), the use of large numbers as part of the LR evidence resulting from the TrueAllele process will be a topic for explanation and assistance during evidence, submissions and directions to the jury: Aytugrul v R  [2010] NSWCCA 157;  205 A Crim R 157 at 186  [162]; Aytugrul v The Queen at 186-187 [32], 203-204 [75].

As to [292](d), I do not detect readily a distinction between the CCS and the evidence, but any issue in this respect is capable of clarification in the course of the trial.

As to [292](e), I am not persuaded that there is a danger that the evidence might cause or result in undue waste of time so as to warrant exclusion under s.135(c). The evidence is not of peripheral relevance. It has significant probative value.

As to [292](f), I am not persuaded that there is a danger that the evidence might be misleading or confusing so as to warrant exclusion under s.135(b). It is to be expected that the evidence will be given in the manner foreshadowed during Dr PeXXin’s evidence at the pretrial hearing. The presentation of the evidence, and its use at the trial, will involve the witness, counsel and myself as trial Judge, in assisting the jury with appropriate directions.

As to [292](g), the suggestion that there may be a need for a significant defence case is not a basis for excluding the Crown evidence. Nor does it assist with respect to the s.135 objection. The witnesses called by the Crown were cross-examined in detail at the pretrial hearing, so that the Accused ought be aware of the case he has to meet, and to adduce evidence in the defence case if it is considered appropriate to do so.

As to [292](h), the fact that there may be contrary or alternative approaches to statistical evidence does not point to exclusion of the Crown evidence. This topic was touched upon in cross-examination of Dr PeXXin, with his responses referring to the work of Dr MitXXell and Professor BaXXing (PT1143-1148, 1157, 1159). No evidence was called by the Accused on these aspects.

Having undertaken the assessments under s.137 referred to in R v Burton at 266 [134], I record my judgment that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the Accused.

In summary, the evidence under challenge is relevant and admissible, and I am not satisfied that any discretionary basis has been demonstrated for its exclusion under ss.135 or 137 Evidence Act 1995.

I decline to make Orders 1, 2 or 3 as sought in the Accused’s Notice of Motion.

The Motive Issue

I have mentioned already that the parties have agreed concerning the surveillance device evidence to be admitted at trial. An issue which emerged in the course of closing submissions concerned the Crown’s intention to rely upon a new area concerning motive.

The Crown articulated this topic in a written submission (part MFI30) and in oral submissions on 14 April 2014 (PT1225-1229).

Thereafter, submissions were received for the Accused (dated 16 April 2014) and the Crown (dated 16 April 2014) on the motive issue.

There is, of course, no obligation upon the Crown to prove motive in the trial. It is not an element of the crime. However, a jury will ordinarily be directed that motive can be an issue in the trial and that the presence or absence of motive, or the nature of any motive suggested, may bear upon a determination as to whether the jury is satisfied beyond reasonable doubt that it was the Accused who killed the five deceased persons: De Gruchy v The Queen [2002] HCA 33;  211 CLR 85 at 92-93  [28]- [32]; R v Vjestica  [2008] VSCA 47;  182 A Crim R 350 at 382-383  [112]- [115].

The CCS referred to a possible motive relating to the comparative perception of MXX LXX being a success and the Accused a failure (see [134](i) above).

The Crown foreshadowed, by reference to transcripts of surveillance device material, an intention to rely upon a further suggested motive namely that the Accused had been in a relationship with LXly LXX, and that this may have constituted a motive to murder her and other members of her family. Objection was taken on behalf of the Accused to this matter being raised very late in circumstances where it was said that it was, at best, highly speculative.

The written submissions of the Crown indicate that it is not intended to open on this issue to the jury. The Crown wished to identify this as a motive which may be relied upon, depending upon the state of the evidence, so that the Accused was on notice of this prospect.

It may be said that this issue is being raised at a relatively late point in time given the history of this matter, and the apparent availability to the Crown of the material which is said to give rise to this possible motive.

The issue has been the subject of relatively brief written submissions. It remains an open question as to whether the Crown will seek to rely upon it at trial. The Accused is on notice that this may occur. The Crown will not advert to this issue in opening. It is not necessary to express a view on this issue at this time. However, the topic should not be raised in the trial without prior notification to the Accused and the Court, so that further submissions may be made on the issue.

Crown Application for Leave to Rely Upon Dr PeXXin’s Material Served on 3 March 2014

In 2013, directions were given by Latham J, and later by me, with respect to the service by the Crown of evidence upon which it would seek to rely, including DNA evidence. Applications by the Crown to extend the timetable in this respect were met with resistance and criticism on behalf of the Accused.

The Crown requires an extension of time to rely upon Dr PeXXin’s material served on 3 March 2014. The Accused opposes that grant of leave, pointing to the history of extensions of time during 2013 and the consequences of those extensions for the Accused. It is submitted that the Court should not accede to the Crown application for a further extension of time.

It is the case that a number of delays occurred during 2013, for reasons as to which there is some debate. Given the point that has been reached in the proceedings, I do not consider that much is to be gained by any detailed historical narrative with respect to events and orders in 2013.

Dr PeXXin had been identified as a Crown witness in late 2013 and his first report served. The pretrial hearing commenced before me on 18 November 2013. Orders were made by me intended to progress the foreshadowed DNA pretrial hearing, then expected to occur in February 2014. Orders were made for the service of DNA evidence by the Crown and the Accused.

As it happened, issues surrounding the Accused’s legal representation saw a number of orders not being complied with.

During the course of the pretrial hearing in 2014, it was clear that senior counsel for the Accused was obtaining expert advice concerning the DNA evidence being given by the Crown witnesses, including Dr PeXXin.

Dr PeXXin’s additional material was served on 3 March 2014, some two weeks prior to the resumed pretrial hearing.

What transpired has involved not only the provision by the Crown of Dr PeXXin’s reports to the defence, but an extended cross-examination of Dr PeXXin as part of the pretrial hearing. This occurred over a number of days, when Dr PeXXin was present in Sydney, with the cross-examination continuing by audio-visual link from Pittsburgh.

As mentioned earlier, the cross-examination of Dr PeXXin was adjourned at one point when a further report was provided by him on 26 March 2014 in response to a defence request that he undertake certain work with respect to Ms AB. As Mr TurXXull SC made clear, expert advice was being obtained with respect to Dr PeXXin’s reports, including the report provided as a result of a defence request.

Having had an opportunity to take advice in this respect, senior counsel for the Accused then continued and concluded a detailed cross-examination of Dr PeXXin, on all matters upon which he sought to cross-examine the witness.

The Crown’s leave application must now be considered in the practical context whereby there has to be an opportunity for the Accused to test at length the evidence of Dr PeXXin, together with the evidence of Mr GoXXz, Ms NeXXlle, Mr WaXXon and Dr WXXsh.

It is submitted for the Accused that there is prejudice to him if the Crown is permitted to rely upon Dr PeXXin’s further material for which leave is required. However, there is no articulated area of prejudice, let alone any evidence identifying what would need to be done by any defence expert, and pointing to difficulties with it being done in the context of this trial.

The trial is scheduled to commence on 8 May 2014. It has a four-month estimate. It may be expected that any DNA evidence to be adduced by the Crown will be called at least some weeks into the trial. The evidence of Dr PeXXin was completed on 1 April 2014.

I am not persuaded that there is any actual prejudice to the Accused in the Crown having leave to rely upon this evidence. The Accused has had an opportunity to test the evidence at length and there is, in my view, time available for the Accused to meet this evidence.

I will grant leave to the Crown to rely upon the further material from Dr PeXXin provided on 3 March 2014.

Conclusion

The evidence with respect to the Accused cutting up shoe boxes on 6 and 7 May 2010 is admissible, and I decline to exclude it under ss.135, 137 or 138 Evidence Act 1995.

The evidence concerning the location, examination and testing of Stain 91 and subsequent DNA analysis, including LR opinion evidence is relevant and admissible under s.55 Evidence Act 1995, and I decline to exclude it under ss.135 or 137 Evidence Act 1995.

I will hear further submissions on a suggested motive, based upon a contention that the Accused had been in a relationship with LXly LXX, if that motive is sought to be relied upon by the Crown.

I propose to grant the Crown leave to rely upon the further material from Dr PeXXin served on the Accused on 3 March 2014.

The Accused’s Notice of Motion dated 18 November 2013 is dismissed.

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Amendments

17 February 2017 - Name deleted in a number of paragraphs.

28 February 2017 - Publication restriction on coversheet amended.