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Supreme Court 26 February 2015

R v Do (No. 1)

[2015] NSWSC 106

Homicide
CRIMINAL LAW EVIDENCE EXPERT EVIDENCE FOOTPRINTS IN BLOOD WHETHER AREA OF SPECIALISED KNOWLEDGE BLOOD DRYING TIMES

Citation: R v Do (No. 1) [2015] NSWSC 106
Court: Supreme Court of New South Wales
Date: 26 February 2015
Judge(s): Davies J

Background

The accused was charged with the murder of the deceased, who was found on the floor of a living room on 13 September 2012, surrounded by a large amount of diluted blood. Blood was also found throughout a hallway, dining area, and bathroom. Footprints and dog pawprints were discovered in the blood at the scene.

The Crown sought to lead expert evidence from Detective Sergeant Flippence on two distinct matters: first, a comparison between an unidentified footprint in blood (marked AG) and foot impressions taken from the accused, the deceased, and a third person known to have walked barefoot at the scene; and second, the drying time of blood found at the crime scene.

The defence opposed both limbs of the proposed evidence, challenging whether Sergeant Flippence possessed the necessary specialised knowledge required under the Evidence Act 1995 (NSW).

  • Whether Sergeant Flippence had the specialised knowledge required under s 79(1) of the Evidence Act 1995 (NSW) to give expert opinion evidence comparing the unidentified footprint at marker AG with foot impressions of the accused and others.
  • Whether Sergeant Flippence had the specialised knowledge to give opinion evidence about blood drying times and the variables affecting them.
  • Whether the blood drying time evidence should be excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice.

Decision

Footprint comparison evidence: Davies J held that Sergeant Flippence had not demonstrated the necessary expertise to give opinion evidence about footprint comparisons. Although Sergeant Flippence had studied human anatomy and physiology as part of his forensic qualifications, no details were provided about any specific training in foot anatomy or footprint analysis. The court found that evidence of this kind would require a podiatrist or someone with equivalent training and experience.

Sergeant Flippence was nonetheless permitted to give factual evidence: the taking of the footprint photograph, the obtaining of foot impressions, the preparation of overlays, and the measurements he recorded. The court noted, drawing on Honeysett v The Queen [2014] HCA 29, that the comparison of overlays against the crime scene photograph was likely something the jury could undertake for themselves, subject to appropriate warnings about the limits of any inferences drawn. The Crown had expressly disclaimed any suggestion that the evidence amounted to formal identification of the accused.

Blood drying time evidence: Davies J was entirely satisfied that Sergeant Flippence possessed the specialised knowledge to opine on blood drying times. His 18 years in the Forensic Services Group, his Diploma of Applied Science (Forensic Investigation), a 40-hour course in blood stain pattern interpretation, his published research, and his prior court experience collectively established the requisite expertise.

On the s 137 application, the court declined to exclude the evidence. In a circumstantial case, the jury would likely treat time of death as significant, and the evidence about why blood drying time is difficult to pinpoint, including the effect of dilution and the dog pawprints suggesting blood was still wet after 8:30pm, had meaningful probative value. Provided the full range of variables was placed before the jury, there was no real risk of misuse. The entirety of Sergeant Flippence's statement of 13 February 2015 was admitted.

Orders Made

• The whole of the evidence contained in the Statement of Sergeant Flippence of 13 February 2015 is admissible.

Key Takeaways

  • Forensic experience in blood stain pattern interpretation does not, without more, qualify a police officer to give expert opinion evidence comparing footprint shapes. A podiatrist or person with equivalent foot anatomy training is required for that opinion evidence.
  • Factual evidence, such as taking impressions, preparing overlays, and recording measurements, remains admissible from a witness without expert qualifications, and juries may draw their own comparisons from such material (Honeysett v The Queen [2014] HCA 29 at [44]).
  • Forensic podiatry is a recognised area of specialised knowledge in Australian courts, as confirmed in R v Sica [2012] QSC 430 and Smith v R [2013] NSWCCA 64; the dispute in this case was about the individual witness's qualifications, not the field itself.
  • Under s 137 of the Evidence Act 1995 (NSW), evidence about blood drying time and its variables was not excluded where its probative value in a circumstantial case outweighed any risk of unfair prejudice, particularly where the full picture of uncertainties was to be placed before the jury.
  • A police officer with 18 years' forensic experience, relevant academic qualifications, specialist course training, published research, and prior court experience in blood stain pattern analysis can satisfy the specialised knowledge requirement for opinion evidence on blood drying times.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 79(1), 137

Cases:
- Honeysett v The Queen [2014] HCA 29; (2014) 88 ALJR 786
- R v Sica [2012] QSC 430; (2012) 232 A Crim R 486
- Smith v R [2013] NSWCCA 64