Wife's interviews on Lin murders 'did not follow procedure'
Witness … Kathy Lin leaves Central Local Court. Photo: Peter Rae
CRUCIAL police interviews conducted with the wife of Robert Xie, the man accused of the 2009 Lin family murders, could be ruled inadmissible in court because officers did not follow correct procedure.
Kathy Lin is a key witness in relation to the murders, in which her brother, sister-in-law, their two young sons and another woman were murdered as they lay in their beds at their North Epping home.
Police allege Mr Xie, 48, motivated by a deep-seated resentment towards his brother and sister-in-law, crept into their home in the early hours of the morning and bludgeoned the family to death.
Following the murders, Ms Lin gave two in-depth interviews to police in which she was asked a series of detailed questions about the crime.
But during a hearing yesterday to determine whether Ms Lin can be called as a prosecution witness in Mr Xie's impending committal hearing, lawyers for the accused said the transcripts of the interviews could not be used because police had made procedural errors.
Counsel appearing for Mr Xie, Lester Fernandez, said that when police first formally spoke to Ms Lin two days after the murders, they did not get her to make a formal written statement as is standard procedure, but undertook an extended recorded interview.
''The police took a short cut,'' Mr Fernandez said.
''A police officer should have set aside a few days to record the statement of Ms Lin. This court should not overlook that.''
Then, in the second extended interview conducted by police seven months later, officers failed to read Ms Lin the standard pre-prepared statement informing her of her rights and responsibilities.
Ms Lin, who continues to support her husband and is opposing the prosecution's attempt to call her as a witness, has subsequently refused to sign the transcripts of the interviews.
Mr Fernandez said this also made them inadmissible.
''A written statement must be endorsed … must specify the age of the person who made the statement, and must be signed by the person … and witnessed,'' he said.
''My submission is that what took place are not trivial or technical requirements. It is not sufficient just to say this is a recorded interview.''
If the prosecution is prevented from tendering the transcripts as evidence, it would be unable to ask Ms Lin about crucial facts in the case at the committal hearing.
The Crown prosecutor Kara Shead said there were substantial inconsistencies in Ms Lin's various accounts to police and these needed to be examined in court ''in the interests of justice''.
''It's not just the inconsistencies but why these inconsistencies occurred,'' she said. ''Change on an important matter from 'This is what occurred' to 'I do not recall' … is fairly important.''
(11/7/2012 Sydney Morning Herald)
我在Epping滅門案的一些發展 一文講過，澳洲聯邦高等法院裁定普通法(common law)中並無配偶特權(spousal privilege)，加上在2002年新南威爾斯州對證據條例(Evidence Act 1995)的一連串修訂，容許法庭逼使證人指證配偶，故此在本案中，辯方不能以配偶incompetent and incompellible來擋駕，改為指責警方錄取口供時程序上犯錯，作為反對疑兇配偶作供的理由。就算反對失敗，Kathy Lin需要作供的話，試問控方可以怎樣控制這證人呢？證人沒有覆讀口供紙，確認內容真實無訛，並簽名作實，更沒有作出法定聲明(statutory declaration)，如果她在證人台上反口，否認口供紙的內容，控方根本不能向法庭申請把她轉作敵對證人(hostile witness)。一件轟動全國的滅門案，竟然調查得這樣兒戲。更甚的是，主控官在庭上明言，證人的口供嚴重矛盾(substantial inconsistencies)，為公眾利益起見，需要由她作供澄清。恕我孤陋寡聞，發展到committal* 的階段，控方理應準備就緒，一應俱全，怎能採取「讓我們一起找出真相」的態度。唉！Murder trial變成「今日睇真啲」，這就是澳洲。
*The Purpose of Committal Proceedings. Committal proceedings are held to determine whether, in the case of more serious criminal offences, there is sufficient, evidence to require the defendant to stand trial. Committal proceedings are generally held before a magistrate, who hears evidence from the prosecution which is recorded and can be used at the trial. After hearing the evidence the magistrate must determine if there is sufficient evidence to justify the defendant being committed for trial. If there is insufficient evidence, the magistrate may discharge the accused person. This does not amount to an acquittal: it is still open for the prosecution to obtain further evidence and bring subsequent committal proceedings, or proceed direct to trial by way of an ex officio indictment. (Excerpt from Australian Law Reform Commission)
The superintendant heading the investigation said greed and jealousy was the motive at arrest day. Police believe were motivated by a deep hatred towards Mr and Mrs Lin who Mr Xie allegedly felt being unfairly favoured within the family. Prosecution opposed bail application because Mr Xie has strong financial position and close connections to China made him a flight risk. Police dramatically changed their view of motive. Is it sound logical? Where is physical evidence? Did prosecution mention that?
回覆刪除Anonymous,
回覆刪除I am afraid I cannot answer your questions as far as actual evidence is concerned. I only read from the media report when I made comments. You can say my comments are just guesswork.
The police tried to establish a case with certain motives. They have to put forward at least a motive for the jury to digest. How can the prosecution prove the motive? It can come from admission by the defendant when cautioned statement is taken. Otherwise than that, ancillary evidence coming from other witnesses. For instance, someone can say there were grudges, arguments, conflicts or hatred between the victims and the defendant because they witnessed and heard such arguments and threatening words. It is easy to say greed or jealously or whatever. It is a matter of whether there is such admissible evidence. There can be multiple motives. I am only concerned whether such evidence is forthcoming. What the police believe is immaterial. I do not know the prosecution case unless I can see the file. From the media report, this is a very weak case relying on a lot of inference to be drawn. In the bail application proceeding, I did not hear any cogent evidence pointing at the guilt of the defendant. It is just like in the opening by the prosecutor to the jury, "Members of the jury, you are going to hear ... blah blah blah.." In the end no such evidence is adduced or admissible in front of the jury. I still have to wait and see the evidence. That said, it is not always easy to get direct evidence to prove the guilt of the defendant, say, someone saw the killing or the defendant made admission etc. There are cases relying on inference to be drawn and the inference should be irresistable.
Ms Lin gave two in-depth interviews to police, and others to Crime Commission. Do you think she is so smart to refuse to sign the statements? Do you think no any clues can found from five bodies?
回覆刪除I think she was advised to take this course. She was smart. I can only guess. When she gave evidence to the Crime Commission, in law, she could not refuse to answer questions put to her. So she gave a statement and she could even lie if she chose to. Could she refuse to give statements to the police? yes, she could. Then why did she give statements to the police? I think she just wanted to create inconsistencies so that she would become an unreliable witness. If she has become such an unreliable witness, the Court cannot believe her and rely on her evidence. It will help the defendant. What I don't understand is that the Crown said she is a key witness. How can an unreliable witness so crucial to the prosecution case? It is so paradoxical. It sheds light on how weak the prosecution case is.
刪除If there is forensic evidence coming from the deceased which can link the defendant to the crime, I would have thought the prosecution would have mentioned it in the bail application proceeding. My guess is there is no such clues.
Do you know Baden-Clay case? Baden-Clay's parents refused police interview too.
回覆刪除Police took a short cut to do first extended record interview before a formal written statement. Then, in the second extended interview conducted by police seven months later, officers failed to read Ms Lin the standard pre-prepared statement informing her of her rights and responsibilities. When she gave evidence to the Crime Commission, she could not refuse to answer question. Is it possible she could not refuse to sign statement if police asked her that time. If she was advised, do you think her legal rep let her to do further interview put this situation.
Look two cases, if you are their rep, what kind of advice you will give them? Go or refuse? Why?
Under your experience, is it possiable no any clues from crime scene? Police said this was one of largest single homicides in NSW history. So far the Crown only focuses on statement inconsistencies. Is it reasonable sound police said we confident we got our man?
Baden-Clay's case is very different in terms of strength of evidence. Refusing to be interviewed by police is a matter of personal choice and rights.
刪除I don't know if Lin's refusal is intentional or she just took advantage of the procedural faults of the police. I do not want to state my view on hypothetical legal representation. It may sound like an incitement to pervert the course of justice. After all, I am by nature pro-prosecution. I think with a criminal mind but I will not suggest tricks for people to dodge the police investigation.
No matter how cold blooded and clear cut the crime is, there are also clues. It is only a matter of whether you see them and most importantly, how to link them to the killer.
You have misconceived when you say the Crown only focuses on inconsistency of the statements. We only see a fragment of the case at the moment. At the moment, the focus is on whether Kathy Lin can testify, the issue brought up by the defence. We are unable to see the entirety of the prosecution case until the trial. Committal proceeding is basically a paper trial with a limited number of witnesses called. The magistrate has to decide if there is sufficient evidence to commit the case to High Court for trial. Look at the HK scenario. In Tony Chan's case, only 3 witnesses were called and the rest of evidence is in statement form or documentary form. We are unable to see or read any report of the evidence because the media cannot report it and the preliminary inquiry is held in camera (close court).
I cannot speculate if the police have got the right man since I only learn about the facts from the media. What is the point if we have got the right man but devoid of evidence? From what I read from the news report, the evidence against the defendant is scanty.
Normally what kind of reports will be expected after medical examination to help investigation? How long it takes? Can these reports draw a clear picture for investigation? If yes, the Crown relys on these sufficient evidence to require for trail instead of call his wife.
回覆刪除The forensic reports and post mortem reports are needed to establish the cause of death and possible weapons used to inflict the kind of fatal injuries. Then the police have to try to find the weapons. The police also tried to find finger prints, fabric of clothes, shoe prints, blood samples, defence injuries from the assailant etc. I would have thought they would clip the finger nails of the deceased and the suspect to see if there is trail of contact evidence. They are the usual stuff to look at I suppose. Such reports do not take long. Unlike the Braden-Clay's case, the prosecution asked for 5 months' adjournment to analyse the financial statements of the accused, a rather ludicrous request.
回覆刪除Post mortem and forensic reports give direction to the police as to what they have to look for. Whether there is any evidence linking the defendant is a matter only known to the prosecution and the defence. We, outsiders, will not know.
The wife's evidence, on the face of it, has nothing to do with the forensic aspect of the case. The wife is probably used to establish the family relations and the alibi aspect. I really don't know. What is the point of guesswork? Why not wait until we see the impending trial and a lot of matters will come to light?
Current high profile Lloyd Rayney case. Any comment?
回覆刪除Sorry, I did not pay attention to this Perth murder case. I am unable to comment. Apparently, this case is much stronger than the Epping murder. There was marital problem, hatred, evidence of motive is not difficult to establish. The car used to convey the corpse and its eventual accident left a trail. A perfect plan turned berserk.
刪除Normally prosecutor and defence lawyer give their an opening address at trial. But Lloyd Rayney's lawyer chose not to give an opening address to their case. What's advantage and disadvantage?
回覆刪除Normally only the prosecution will give opening address at the criminal trial before any evidence is heard. If the defence is going to give opening, it will be after the prosecution closes its case, not after the prosecutor finishes his/her opening. Defence opening address is not a norm. In simple cases, there is actually no need to give opening especially in the magistrate's court. I cannot think of any disadvantage for the defence if there is no opening address.
刪除