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Supreme Court 16 April 2015

R v Xie (No 7)

[2015] NSWSC 2120

Homicide
CRIMINAL LAW RELEVANCE

Citation: R v Xie (No 7) [2015] NSWSC 2120
Court: Supreme Court of New South Wales
Date: 16 April 2015
Judge: Fullerton J

Background

The accused stood trial for multiple murders alleged to have occurred at 55A Boundary Road. A central element of the defence case was that the forensic evidence, taken together, left open the reasonable possibility that more than one person committed the murders. The crime scene had been attended by Detective Sergeant Sarah Davis, who was unavailable to give evidence at trial due to illness. Her observations had been led before the jury through hearsay evidence given by Detective Senior Sergeant Ryan, and extracts of her working notes had been tendered as an exhibit.

Among the working papers was a sketch prepared by Constable Davis of a "Hello Kitty" doona that had been located underneath the legs and lower torso of one of the deceased in Bedroom 2. On the sketch, Constable Davis had cross-hatched two areas and labelled them "SM1 impression (blood)" and "SM2 (blood)", indicating she considered them potential shoe mark impressions. The doona had been examined at the NSW Police forensic laboratory, and a qualified forensic expert, Dr Jennifer Raymond, had subsequently reviewed the marks.

Defence counsel sought to tender the sketch plan and accompanying photographs (marked for identification as MFI 136) during the trial. The Crown objected, and Fullerton J heard argument on the tender in the absence of the jury.

  • Whether MFI 136 (the sketch and photographs of the doona markings) was relevant and admissible as evidence capable of rationally affecting the jury's assessment of a fact in issue, namely whether more than one assailant had been present.
  • Whether the pictorial representation of Constable Davis's tentative shoe mark designations added anything beyond the oral evidence already before the jury on that issue.

Decision

Fullerton J rejected the tender of MFI 136. The core question was whether the document could rationally affect the jury's assessment of the probability that more than one person had committed the murders. Her Honour concluded it could not.

Dr Raymond, the qualified marks examiner, had been asked in cross-examination about the marks Constable Davis designated as SM1 and SM2 on the doona. Dr Raymond concluded they had "no further detail to confirm their origin" and that they "could be anything." No positive or even tentative identification of a shoe print had been made by any expert. The marks on the doona were therefore of indeterminate origin, coming from within, as the evidence put it, "a myriad of possibilities."

Constable Davis's cross-hatching on the sketch represented only her preliminary view that the marks might warrant further investigation, not any conclusion about their nature. Her Honour noted that the oral evidence on this point, including Constable Davis's tentative designations and Dr Raymond's ultimate conclusion, was already before the jury and available for use in final submissions. Admitting the sketch would not add probative content; it would simply provide a visual prompt for an inference that the expert evidence did not support.

Fullerton J further observed that permitting the tender would risk inviting the jury to treat an unidentified mark of unknown origin as potentially belonging to a second assailant, without any expert opinion capable of supporting that reasoning and without Dr Raymond having been cross-examined on the point to that extent. The sketch therefore failed the threshold of rational relevance.

Orders Made

No orders were made in this decision. Fullerton J rejected the tender of MFI 136 and noted that the use of the oral evidence regarding SM1 and SM2 in final submissions remained a matter for later consideration in the trial.

Key Takeaways

  • Relevance requires that a document be capable of rationally affecting, directly or indirectly, the probability of a fact in issue. A pictorial representation that adds nothing beyond inconclusive oral evidence already before the jury does not meet that standard.
  • Where expert opinion evidence has definitively discounted the significance of a mark or feature, tendering a preliminary investigator's sketch designating that same mark as a possible item of interest cannot independently revive an inference the expert's evidence forecloses.
  • A crime scene officer's tentative field notation (such as labelling a mark "SM" for shoe mark) carries no identificatory weight in itself and does not become admissible simply because it is recorded in a sketch or working paper.
  • Admitting material that invites the jury to reason to a conclusion unsupported by expert opinion, and without that expert having been cross-examined to that effect, carries the risk of undermining properly qualified evidence. Fullerton J identified this as a specific reason for excluding the document.
  • The decision is confined to its facts and the particular state of the evidence in this trial. It does not establish a broad principle against tendering crime scene working documents, but turns on the absence of any expert foundation capable of giving the sketch probative force.

Legislation and Cases Referenced

Legislation: Not cited in the judgment.

Cases: Not cited in the judgment.