Citation: R v Thompson Kimura and William Swan (No 1) [2016] NSWSC 568
Court: Supreme Court of New South Wales
Date: 6 May 2016
Judge: N Adams J
Background
Two accused faced charges of murder and robbery with grievous bodily harm arising from an assault on a man in his Redfern unit in the early hours of 15 April 2013. The victim was assaulted and robbed; he died eight months later. CCTV footage placed both accused at the building around the relevant time, and one accused, Swan, was seen wearing white football shorts on his arrival and departure.
Police executed a search warrant the following day and located shorts matching those seen in the CCTV footage. A Crime Scene Officer, Dr Austin, examined the shorts and found multiple areas of apparent staining. Only one stain, on the waistband, was scientifically tested: it confirmed positive for blood, and subsequent DNA analysis matched the victim. The remaining stains were never tested.
At trial, Swan's counsel conceded that Swan wore the shorts on the night in question and that the waistband DNA matched the victim, but raised the possibility of secondary transference to explain how that DNA came to be present. The Crown sought to tender nine photographs of the shorts and to lead evidence from Dr Austin that, in his opinion, the untested stains were also blood. Swan's counsel objected to both.
Legal Issues
- Whether evidence of the untested stains on the shorts was admissible, given that only one stain had been scientifically confirmed as blood and the defence raised secondary transference
- Whether the probative value of the photographs showing all staining was outweighed by the danger of unfair prejudice to Swan, under s 137 of the Evidence Act 1995 (NSW)
- Whether Dr Austin was permitted to give opinion evidence that the untested stains were blood, given that his conclusion rested solely on visual observation and experience rather than scientific testing
- Whether the original (now-faded) shorts themselves were admissible in addition to the photographs
Decision
Adams J considered the probative value of the photographs by reference to the forensic biologist's evidence on secondary transference. Ms Campbell's evidence was that various secondary transference scenarios were all possible but dependent on multiple variables, and she could not comment on their probability. The judge found that, in those circumstances, the photographs of all staining retained significant probative value: the existence of multiple stained areas on the shorts was relevant to whether the blood was consistent with a contact event, and any risk of prejudice from the photographs did not outweigh that probative value. The nine photographs were admitted into evidence.
On the opinion evidence, Adams J declined to permit Dr Austin to tell the jury that the untested stains were also blood. The judge accepted that a jury could itself draw the inference that other similar-looking stains might be blood, and that Dr Austin's untested opinion did not advance the matter beyond what the jury could determine for themselves. This reasoning drew on the principle in Mundarra Smith v The Queen (2001) 206 CLR 650, to the effect that expert opinion adding nothing beyond an inference available to the jury does not assist. The judge also noted that Dr Austin had conceded in cross-examination that he had been wrong before when visually identifying stains as blood.
Adams J further noted that the captions on the photographs describing the stains as blood were not pressed by the Crown and would not be admitted. On the question of the original shorts, the judge held that, despite fading of the stains since 2013, the shorts remained relevant and admissible evidence. The photographs already admitted depicted the shorts as they appeared at the relevant time, and the physical shorts were a further admissible item in that context.
Orders Made
• Dr Austin not permitted to give evidence that he infers the other staining is blood
• Photographs of the staining showing all stains on the shorts as at April 2013 are admissible
• The original shorts themselves are admissible as relevant evidence
• Dr Austin may give evidence about how dirty the shorts were as at April 2013 if necessary
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), the Supreme Court found that photographs of clothing showing multiple unstained areas were admissible where the defence raised secondary transference, because the existence of multiple stains carried probative value that was not outweighed by unfair prejudice to the accused.
- A crime scene officer's visual opinion that untested stains were blood was held inadmissible where the conclusion rested solely on observation and experience, without scientific testing, and where the jury could draw the same inference without expert assistance.
- Applying Mundarra Smith v The Queen (2001) 206 CLR 650, opinion evidence that does no more than replicate an inference already available to the jury does not assist the court and is properly excluded.
- Extensive professional experience does not, of itself, make an expert's visual identification of an untested substance admissible where the expert has acknowledged past errors in making the same kind of identification.
- Physical exhibits whose appearance has changed since the relevant date are not automatically excluded; the court held the faded shorts remained admissible alongside contemporaneous photographs that showed their original condition.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 137
Cases
- Papakosmas v R (1999) 196 CLR 297
- Mundarra Smith v The Queen (2001) 206 CLR 650