Robert Xie murder mystery goes on after hung jury trial

For the third time, a trial of Robert Xie has failed to reach a conclusion.

Xie Jury Coming Back

The prosecution proposed three possible motives: financial jealousy, a perceived loss of face and a sexual interest in a female con­nected with the family.

But it appears not enough of the four women and eight men on the jury accepted any one alleged motive was credible and strong enough to compel Lian Bin “Robert” Xie to commit one of this country’s most heinous multiple murders.

Yesterday, after more than two weeks of deliberation, the jury told NSW Supreme Court judge Elizabeth Fullerton that despite its best efforts, it could not reach even a majority verdict on whether Xie was guilty or innocent of wiping out five members of his wife’s family. Next year a new jury will endeavour to decide whether Xie is innocent or guilty of the crime, after the last jury was discharged yesterday. That will be a new trial, with the prosecution and defence entitled to run it with whatever evidence they choose; the last jury acted on the evidence it heard, reviewed here.

It was the third time a trial of Xie had failed to reach a conclusion.

The first trial was aborted when undisclosed new evidence emerged, and the second had to be called off when the judge became suddenly ill. Yesterday the prosecution said it would persevere, mounting a retrial in the new year.

As jury trials go, the latest Xie trial was onerous in the extreme. Jurors gave up the better part of a year of their lives, hearing 140 days of evidence, followed by weeks of closing arguments and Fullerton’s summing up.

There had been no way around it, Fullerton told the jury on November 12, shortly before instructing them to retire to consider their verdict.

“There is just no simple way of putting a case of such complexity,” she said.

To find Xie guilty, the jury would have have needed to be convinced beyond reasonable doubt based on fiercely contested and individually inconclusive pieces of evidence.

As she sent them out to consider their verdict, Fullerton told jurors that “in very many respects, this is a circumstantial evidence case”.

To convict, the jury would have had to have placed a fair bit of credence on the evidence of a hardened criminal called Witness A, who told the court of conversations he said he had with Xie in prison as part of a police sting operation.

The prosecution claimed the testimony indirectly indicated Xie had committed the crime.

Witness A had himself freely admitted that “at the forefront of my mind was personal gain” when deciding to inform on Xie — he’d done a deal with the police that would give him money and favourable treatment.

Each day, the jurors sat facing Xie, a slender former doctor who had migrated from China. Xie wore conservative suits and ties and was often accompanied by his wife or other family member.

He was composed, listening intently and occasionally making notes, sometimes slipping mes­sages to his lawyers. To convict, the jury would have had to believe this was the man who had committed a crime involving extraordinary cunning, meticulous planning, and calculated and determined brutality.

In the US, courts have usually held that the first amendment guaranteeing free speech means jurors are allowed after the conclusion of a case to speak to journalists about why the jury reached the outcome it did, and media outlets can report on it. It makes for gripping television as jurors hold news conferences, giving blow-by-blow accounts of the jury-room debate.

In Australia, by contrast, strict laws prevent jurors from being identified or their jury-room stories published.

Just what ultimately led to the hung jury in the Xie case is something the Australian general public would no doubt dearly like to know, but is unlikely to ever find out.

A look back at the evidence the jurors heard, however, can give some clues as to where the key decision points must have lain.

The prosecution case had it that one cold night in July 2009, Xie left the bed he shared with his wife, Kathy. He might have sedated her, the prosecution claimed, so she would not remember him departing, and would wake up with him yawning and stretching beside her like any other morning.

From there, the prosecution scenario went, using a key to which he had access, Xie snuck into the house in Sydney’s northwest where his brother-in-law, newsagent Min Lin, lived with his family, after turning off the power.

Then, prosecutors told the jury, the slight Xie, 51, had crept up on each of the five members of the Lin family with a hammer — and his slender hands.

In China Xie was an ear, nose and throat specialist and, the court heard, had allegedly told Witness A he knew just how to press on the carotid artery in the neck to render a person unconscious. Between the hammer and the carotid artery technique, the prosecution case went, Xie had done for Min Lin, Lin’s wife Yun “Lily” Lin, Lily’s sister Yun Bin “Irene” Lin, and Min and Lily’s two sons, Henry, 12, and Terry, 9.

Autopsies found all five had been bludgeoned, and four also had been asphyxiated.

Terry, the court heard, had put up a “furious struggle”, while Irene’s right hand had defensive wounds.

Having murdered the five Lins, the prosecution claimed, Xie went home, cleaning everything up — almost, but not quite.

It was a drop of blood found in Xie’s garage, the Crown claimed, that provided the forensic proof of the crime because DNA in it “most likely” matched that of some Lin family members.

There were also, the Crown claimed, bloodied shoe prints in the Lin home consistent with Xie’s favourite sneakers, Asics. The prosecution said it all fitted together. But in many respects, the jury was not presented with a fully formed figure of a murder but asked to join dots.

There was no murder weapon found, no witness, and no specific confession. The defence said the reddish drop of something was so tiny it was impossible to even say for sure it was blood.

Xie’s lawyers also contested the footprint evidence: they said it covered five different shoe sizes.

In fact, there wasn’t much the defence and prosecution agreed on at all.

The defence case, led by Graham Turnbull SC, put forward that the idea that a single person could have achieved such a gruesome feat of overpowering and killing an entire family, in the dark, against resistance, was absurd.

“Facts from the crime scene we contend — and you might think with good reason — establish that it was not one person and it could not have been in the dark,” Turnbull told the court.

Against the circumstantial and contested nature of the evidence, a key aspect of the case related to the prosecution’s ability to outline an overall plot, and from there, a motive.

The Crown presented a personal drama of how the fortunes of two sides of a migrant family had diverged so far that jealousy and hatred had poisoned their relationship.

Robert and Kathy Xie came to Australia from China in 2002, and initially ran a restaurant in Melbourne until 2005 when they moved to Sydney, where they were unemployed.

Min Lin, Kathy’s brother, was described in court as a hard worker, a classic self-made small entrepreneur who operated the Epping Central Newsagency, sometimes with the help of Lily. The contrast between the Xies’ financial and employment fate, and that of the Lins, produced two elements of “intense bitterness and hatred” on Xie’s part, according to the chief prosecution barrister, Mark Tedeschi QC.

One was jealousy and the other the corollary: a prospect of financial gain if, by killing Min Lin, Xie could take over the news agency. “The accused through his wife made a concerted effort to wrestle control of the assets,” Tedeschi told the court.

A second alleged motive was Xie’s loss of face because of his belief that his parents-in-law, family patriarch Yang Fei Lin and his wife Feng Qing Zhu, preferred their hardworking son Min and his wife Lily to himself and their daughter, Kathy. Again, the prosecution relied on the evidence of serial jailbird Witness A, who claimed Xie had expressed his resentment towards the Lin family. “All the family never like me from beginning,” Xie allegedly told Witness A on one occasion.

“They say ‘you can find someone with more money, more pretty’. They always try to take my face. That is very important in Chinese culture. More important than money.”

There was, finally, a bit of sex in the mix when it came to motive, the prosecution claimed, with Xie attracted to a female with links to the family.

Court suppression orders prevent The Australian and other media outlets from reporting everything the jury heard in court on this part of the case, but what the Crown claimed was the full story was heard by the jury.

With motive, it all fitted together, Tedeschi said: the victims had been killed with “vastly more force than was necessary”, consistent with a crime of “intense bitterness and hatred”.

Turnbull systematically tried to undermine Tedischi’s theory of motive. He painted a picture of a “loving and respectful relationship” between the Xie and Lin families and a “union of two equals” who lived near each other so their children could play with each other. Financial motives were absurd, Turnbull said; Xie had savings and was comfortably and profitably entertained playing the sharemarket, and had once said running a news agency was too much work.

A particularly interesting aspect of the Xie case relates to how the jury must have dealt with the evidence of Witness A. On the last day in court before retiring the jury, Fullerton directed it to “approach Witness A’s evidence with caution”.

Witness A was a tough nut. He’d spent more than 18 years of his life behind bars for armed robbery, larceny, drug supply, assaulting police and other crimes.

Witness A had befriended Xie in prison as part of a complex undercover police operation, in exchange for $4900, relocation to another jail and some prospect of getting out early.

Witness A claimed that in prison in 2011, having won his trust, Xie made a series of admissions.

These included sedating his wife, outlining the carotid artery unconsciousness trick, and that he had disposed of the murder weapon the morning after the murders. The issue from an evidentiary point of view, Fullerton had advised the jury, was that some of these alleged conversations were covertly recorded by police and played to the court, but others were not.

This rendered the latter cate­gory of conversations solely versions of what Witness A claimed them to have been.

The one question Witness A did not ask Xie in Sydney’s Long Bay Jail was at one level the obvious one: had he murdered the Lins?

Tedeschi’s explanation was that Witness A had been too smart to go down that track.

“The accused would have smelt a rat and thought ‘Whoa, what’s going on here?’ ” Tedeschi said. It was another occasion where the evidence was tempting, but inconclusive.

Fullerton stressed to the jury that in the whole of the Witness A testimony, “the Crown accepts there were no direct admissions that he was the murderer”.

Xie and Witness A had, the prosecution claimed, discussed “plan B”, an elaborate plot to plant someone else’s DNA — possibly that of a people-smuggler who had conveniently died — on the hammer allegedly used in the murders to frame someone else for the crime.

In one particularly spectacular version of plan B, Witness A claimed, Xie had told him the DNA would have to come from an Asian man called “Rob”, to frame him as having tried to cover up what would be claimed to be an affair “Rob” had with Lily.

But Turnbull had said it was all just too cute. Police had been unable to find strong incriminating evidence against their chief suspect, Turnbull told the court, and had instead built their case around a liar, Witness A.

“This is a case which starts with Witness A and works backwards,” Turnbull said.

Exercising his legal rights, Xie did not take the stand.

There was one person of the Lin family still alive after the murders who had been in a position to provide crucial first-hand evidence: Kathy, and the prosecution did its best to destroy her credibility when she took the stand.

Kathy said her husband had never left the bedroom on the night of the murders — which, if true, gave Xie a rock-solid alibi.

Tedeschi asked Kathy about an interview she had with police five years earlier, in which she was asked that same key question of whether Xie had left the bedroom that night.

After talking to her solicitor during that interview, she told officers: “I don’t answer this question.”

In the end, the jury would have had to consider whether a wife whose husband had allegedly murdered her brother, nephews and two in-laws could have stood by him if she knew he was guilty.

The evidence she gave was in absolute support of Xie, when it came to both opportunity and the critical question of whether he had enough disregard for his wife, and enough hatred of her family, to murder them.

“I know in my heart my husband love me and my extended family,” she told the court in July.

And yesterday, outside court after the jury was discharged, Kathy left no doubt how she sees it, saying: “My husband is innocent and we will never, ever give up.”