Epping滅門案能否交付高院審訊？

Loyal wife keeps smiling - and provides alibi for night of murders

Date: August 25, 2012 

Despite the charges and a rigorous prosecutor, Kathy Lin is standing firm.

Taking the stand … Kathy Lin leaves court. Photo: Peter Rae

KATHY LIN'S face lights up as her husband is brought up from the cells at Central Local Court.

Craning her neck to make eye contact, she gives the slim 48-year-old a small, excited wave and a beaming smile.

Robert Xie stands accused of murdering her brother, her sister-in-law, her two nephews and the boy's aunt, in their North Epping home.

The July 2009 deaths are arguably the worst multiple homicide Sydney has seen in the last two decades.

But after the first four days of Robert Xie's committal hearing this week, there can be little doubt that Ms Lin continues to support the man she married 13 years ago and to believe he should be freed.

The 41-year-old was called as a witness for the prosecution. But far from providing evidence of her husband's guilt, Ms Lin seemed convinced of his innocence.

During the second day of her testimony before the magistrate, John Andrews, Ms Lin told the court that on the night of the murders Robert Xie had never left their bed.

''In my knowledge he stayed with me in the bed,'' she said. ''In my knowledge he didn't leave the house.''

Though qualified by the words ''in my knowledge'' these statements go some way to providing Robert Xie with an alibi for the pre-dawn hours in which the murders allegedly took place.

But the prosecution was less than satisfied.

The Crown prosecutor, Mark Tedeschi, QC, produced the transcript of an interview Ms Lin had with police in March 2010 in which she said she did not know whether her husband had got out of bed that night.

''On the 20th of July 2009 you claimed that [Mr Xie] was home all night,'' Mr Tedeschi said. ''In March 2010 you didn't know and on the 6th of May 2010 you didn't know. And now you claim that you know and that he didn't leave the house.

''Is it the case that your memory of what happened on the night of July 17 is better now than it was then?'' he said.

The interactions between Ms Lin and the Crown were adversarial for much of the two days she was in the witness stand.

Mrs Lin's answers were very soft and at times indecipherable, with the magistrate, John Andrews, sitting just metres away, repeatedly asking her to speak up and to repeat what she had said.

The Crown suggested on at least two occasions that Ms Lin was playing up her limited English skills to avoid answering a question.

''[The question] was in much simpler English than that used in the police interview … I'd be surprised if she didn't understand it,'' Mr Tedeschi quipped at one point.

Ms Lin denied the prosecution's claim that, during the frantic triple-0 call she made after discovering the bodies of her relatives, her husband had ignored her pleas to stay and driven away.

''I want to suggest to you that you were begging your husband to stay at your brother's place until the police came,'' Mr Tedeschi said, after playing a recording of the call in which she is heard pleading with someone in the background in Cantonese.

''You said to your husband 'Stay here, stay here, wait, wait a bit until the police come' in a desperate tone,'' Mr Tedeschi said.

Ms Lin replied: ''No, I didn't say that.''

Mr Tedeschi also suggested to Ms Lin that, in the months after the murders, she had tipped her husband off about an important aspect of the police investigation into the murders, namely, their suspicion that the bloodied shoe prints found at the crime scene matched the kind of Asics running trainers favoured by Mr Xie.

The court was played video footage captured by police surveillance cameras on May 6 last year, the same day Ms Lin was asked questions by the NSW Crime Commission about her husband's choice of running shoe.

It allegedly showed Mr Xie cutting up shoe boxes, placing the pieces in a bucket of water, and taking them into the toilet.

Ms Lin said she was ''not sure'' whether she had told her husband about this aspect of the police investigation, and denied outright that he had disposed of shoe boxes the night after her Crime Commission interview.

As her husband was taken back down to the cells at the close of proceedings, Kathy Lin reached through a gap in the glass walls of the dock to squeeze her husband's hand.

上面張貼了今天Sydney Morning Herald對Kathy Lin前幾天作供的寫照，控方證據的強弱露了端倪。在上一個blog，有讀者問我既然committal hearing旨在讓裁判官檢視證供是否足以交付(commit)高院審訊，為何容許傳媒報導。背後的理念，以我這個對法律只懂皮毛的人來說，實在不敢造次，胡亂解釋。香港和新南威爾斯州所訂立的法律也恰巧相反。香港的committal hearing是閉門聆訊，不得報導證據內容(裁判官條例第80及87A條)；新州的committal hearing卻是公開聆訊，故此能夠報導。孰是孰非，我不能妄下定論，總的來說要對open justice及保障公眾利益作出平衡考慮。審訊前及審訊期間的評論也需極度小心，以免影響審訊的公正性(fair trial)，以致構成藐視法庭。故此對滅門案，我不敢過份評論。

報導顯示Kathy Lin錄取的幾份講法不一的口供，我可以肯定說是有「高人」指點過精心炮製出來的。在現階段也不能詳細講我的看法，玄妙之處暫時不能為外人道，尤其是涉及妨礙司法公正的指控。籠統地講，這是一石二鳥之策。

傳媒一直都沒有提及被告曾經錄下自行入罪的警誡口供(inculpatory cautioned statement)，我只好假設這方面的證供欠奉。就報導看，控方依賴Kathy Lin去證明被告在案發時是否在家，清洗車房並不尋常，慣常穿哪種球鞋(推論與兇案現場鞋印的關連)，這些看來都泡了湯。餘下的證供只有被告車房找到吻合其中一個死者的血漬及偷錄的証據。血漬不是獨一無二的，既不能推斷一定來自死者，就算能夠確定從死者而來，兩家人是親戚關係，必定有日常交往串門，在甚麼情況下留下血漬有甚麼出奇。而且科學鑑證人員的搜證過程及方法，證物處理的程序chain of evidence如果有任向環節出錯，可能變成inadmissible。裁判官聽畢證據後，會否判令本案交付高院審訊，採取的標準是

62 Prosecution evidence and initial determination

(1) The Magistrate must take the prosecution evidence in accordance with Division 3 and must determine whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence.

(2) The Magistrate must discharge the accused person in relation to the offence if, in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is not of the opinion that, having regard to all the evidence before theMagistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence.

(Criminal Procedure Act 1986-Section 62)

案件發展下去還有另一個可能性，就是控方提出中止檢控(enter a nolle prosequi)。Nolle prosequi並不等同撤銷控罪(offer no evidence)，Enter nolle之後還可重新檢控。以目前看到的證據，控方並無勝算。