徒勞無功：Epping滅門案的檢控

Suspect's wife ordered to give evidence over Lin killings

July 30, 2012
Paul Bibby
Court Reporter
The Lin family funeral. Photo: Lee Besford

The wife of Robert Xie, accused of murdering the Lin family in 2009, has been ordered to appear as a witness for the prosecution in his upcoming committal hearing.

A magistrate found today there were "inconsistencies" in Kathy Lin's evidence that must be clarified.

But a crucial police interview with the woman will not be admitted into evidence at the hearing because police did not follow correct procedure while interviewing her.

Ms Lin's brother, Min "Norman" Lin, 45, his wife, Yun Li "Lily" Lin, 43, her sister, Yun Bin "Irene" Yin, 39, and two boys who cannot be named for legal reasons were killed as they lay in their beds at their North Epping home.

Ms Lin is a key witness in relation to the deaths.

Police allege Robert 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.

Police say Ms Lin was sleeping next to Mr Xie before he allegedly left the home to commit the crime, was present the next day when he claims he discovered the bodies and allegedly witnessed the destruction of evidence in the days following.

The prosecution said the evidence Ms Lin gave to police during a series of interviews after the deaths was inconsistent, and that this had to be clarified in his upcoming committal hearing, during which a judge will decide whether he is to stand trial.

However Mr Xie's lawyers claimed that police did not follow proper procedure when they interviewed Ms Lin, neither getting her to sign a written statement, nor informing her of her rights and obligations. They claimed that she should therefore not be called as a witness.

But magistrate John Andrews today ordered that, despite these issues, Ms Lin must appear as a prosecution witnesses at the committal hearing.

"There are substantial reasons in the interests of justice for her to give evidence in the committal proceeding," Mr Andrews said.

"There do appear to be some inconsistencies in her evidence, which could be clarified."

However, the magistrate ruled that the second recorded interview Ms Lin gave to police in March 2010 could not be used. This is a significant blow to the prosecution, which hoped to use the interview as evidence.

"The lack of endorsement [via a signature] cannot be said to be trivial," Mr Andrews said.

"No satisfactory reasons for this failure were given."

Earlier today Ms Lin stepped up her fight against the prosecution attempt to call her as a witness, hiring her own lawyers to make a last-ditch attempt to have the application overturned.

Her solicitor, Matt Johnson, told Mr Andrews that there was the potential for "self incrimination" if his client was called to give evidence.

This related to a risk of inconsistencies between what she was recorded as saying in interviews with the NSW Crime Commission, interviews with police, and evidence she might give in the committal. This created a risk that she could be guilty of "lying to the crime commission", he said.

But Mr Andrews found that Ms Lin had "no standing" to make such an argument, throwing out her application.

The matter will return to court this afternoon for further legal argument in relation to the upcoming committal hearing.

The first mention of the committal hearing has been set down for August 13.


如果Kathy Lin是滅門案的主要證人，整件案的成敗所在的話，這件案控方必敗。主要證人的可靠性(reliability)出了問題，就算commit上高院審，引用Galbraith [1981] 1 WLR 1039： (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.... There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.

No case to answer似乎是唯一的結果。當Kathy Lin在庭上被引導作供(examination-in-chief)或盤問(cross-examination)時，她有權拒絕答自行入罪(self-incriminating)的問題。提出這種問題的時候，法官要提醒她有權拒絕作答，否則變成judicial admission，控方可以用作檢控她的證據。她脫身最佳的方法，我不能在這裏談，否則變成幫兇。