Citation: R v Xie (No 5) [2015] NSWSC 2118
Court: Supreme Court of New South Wales
Date: 24 March 2015
Judge(s): Fullerton J
Background
The accused stood trial for the murders of five deceased persons whose remains were found at 55A Boundary Road. The Crown sought to tender a series of 18 computer-aided diagrams (CAD plans) prepared by Forensic Imaging Police Officers. These plans depicted, among other things, the location of blood deposits and shoe print impressions in blood across three first-floor bedrooms and the connecting hallway.
The Crown case relied in part on shoe print impressions consistent with an ASICS brand sole pattern, a brand allegedly favoured by the accused. The concentration and direction of those impressions, running from Bedroom 1 through to Bedroom 3, were said to support an inference about the order in which the killings occurred and that only one person was responsible.
The tender was supported by a statement from crime scene officer Sim Hong Te, prepared after defence counsel initially objected on the basis that the methodology underlying the plans had not been disclosed. The statement addressed how the plans were constructed, including which measurements were taken from which officers' notes.
Legal Issues
- Whether the CAD plans showing shoe print impressions were admissible under s 29(4) of the Evidence Act 1995 (NSW) as evidence likely to aid the jury's comprehension of other evidence.
- Whether the plans accurately and reliably represented the number, direction, and relative positioning of the shoe print impressions.
- Whether, in the alternative, the plans showing shoe print impressions should be provisionally admitted under s 57 of the Evidence Act 1995 (NSW) pending further evidence.
- Whether the tender of the disputed plans should be deferred until the relevant crime scene officers and the shoe mark analysis expert had given evidence.
Decision
Fullerton J drew a distinction between two categories of CAD plans within the series. The plans depicting only the location and spread of blood deposits identified by DNA profiling (plans 3, 6, 11, 14, 17 and 18) attracted no objection from the defence and were not the subject of the ruling. The "Summary of Crime Scene Evidence" in tabulated form (MFI 52B) was also uncontested and was not addressed further.
The contested plans were those showing shoe print impressions (plans 1, 2, 4, 5, 10, 13 and 16). Defence counsel submitted that Officer Te's statement did not adequately explain how the shoe print impressions were positioned relative to the scale applied in each plan. He also submitted that the plans misrepresented the number, direction, and relative position of the impressions, and that the positioning appeared to rest on guesswork. Further, counsel raised the possibility that crime scene contamination may have obscured or obliterated other shoe print impressions, leaving open the reasonable possibility of more than one person being present.
Fullerton J accepted the defence submission that the tender of the shoe print impression plans should be deferred. Her Honour concluded that these plans should not be admitted until crime scene officers Weldon, Wood, and Te had given oral evidence, so that their probative value could properly be tested. Officer Raymond, who was to give evidence about shoe mark analysis, was also identified as relevant to the accuracy of the plans.
Her Honour also declined to admit the disputed plans on a provisional basis under s 57 of the Evidence Act. This was because the defence position was that the plans might ultimately prove wholly unreliable and could be excluded from evidence entirely. The Crown was left to determine whether to reserve the tender of the shoe print impression plans until all relevant witnesses had been called, or to tender the uncontested plans and summary separately in the meantime.
Orders Made
• Certain CAD plans (numbered 1, 2, 4, 5, 10, 13 and 16) showing shoe print impressions are not to be admitted at this time
• Admission of these CAD plans is deferred pending the evidence of crime scene officers Weldon, Wood, Te and Raymond
• CAD plans numbered 3, 6, 11, 14, 17 and 18 showing blood location and spread may be admitted
• The "Summary of Crime Scene Evidence" (MFI 52B) is admitted
• Evidence is not to be provisionally admitted under s 57 of the Evidence Act
• It remains a matter for the Crown whether to reserve tender of the complete series of CAD plans or tender discrete parts separately
Key Takeaways
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Under s 29(4) of the Evidence Act 1995 (NSW), evidence in a non-standard form, such as a computer-aided diagram, is admissible if it is likely to aid jury comprehension of other evidence; however, the probative value of such evidence must be capable of proper assessment.
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Where defence counsel raises a credible challenge to the reliability of the methodology underlying a visual aid, and where that challenge cannot be resolved without oral evidence from the relevant crime scene officers, a court may defer the tender of that aid until those witnesses are available for examination.
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Provisional admission under s 57 of the Evidence Act 1995 (NSW) was declined in circumstances where the defence maintained the disputed plans might ultimately be found wholly unreliable and inadmissible.
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A distinction emerged between plans that merely depicted agreed-upon factual matters (blood deposit locations) and plans carrying interpretive content (direction, number, and relative positioning of shoe prints): the latter attracted greater scrutiny given the Crown's reliance on them to support an inference about the identity and number of offenders.
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The Supreme Court left the sequencing of tender decisions to the Crown's discretion, confirming that courts will not dictate how a party organises its case so long as admissibility requirements are ultimately satisfied.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 29(4) (evidence in non-standard form)
- Evidence Act 1995 (NSW), s 57 (provisional relevance)
Cases cited: None identified in the judgment or metadata.