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Supreme Court 8 August 2018

R v Warwick (No.34)

[2018] NSWSC 1242

Homicide
EVIDENCE OPINION EVIDENCE EXCEPTIONS EXPERT OPINION EVIDENCE ACT 1995, S 79 OPINION EVIDENCE ADMITTED EVIDENCE

Citation: R v Warwick (No.34) [2018] NSWSC 1242
Court: Supreme Court of New South Wales
Date: 8 August 2018
Judge: Garling J

Background

The accused faced an indictment containing 24 counts, including four counts of murder, arising from events at a Kingdom Hall on the night of 13 to 14 July 1985. A central factual issue was the identity of an intruder who had broken into the Hall, with the Crown alleging the accused was that person. The accused denied involvement, pointing to evidence that a physical examination by police approximately two and a half weeks after the break-in revealed no injuries consistent with significant blood loss.

The Crown sought to lead evidence from Detective Sergeant Shawn Harkins, a specialist in bloodstain pattern analysis, by tendering a 22-page statement and photographs of demonstrations he had conducted. The accused objected to the admission of both the expert opinion component and the demonstration evidence on several grounds, including irrelevance, unfair prejudice, and lack of qualification.

The accused was being tried by judge alone, pursuant to an earlier unopposed application.

Legal Issues

  • Whether Detective Sergeant Harkins was qualified to give expert opinion evidence in the field of bloodstain pattern analysis
  • Whether his opinion regarding lay people's perceptions of blood quantities at crime scenes was admissible under section 79 of the Evidence Act 1995
  • Whether that expert opinion was relevant and whether its probative value was outweighed by unfair prejudice under section 137 of the Evidence Act 1995
  • Whether photographs and evidence of demonstrations showing blood quantities on horizontal surfaces were admissible

Decision

Issue 1: Qualification of the expert

Garling J found Detective Sergeant Harkins well-qualified to give expert opinion evidence on bloodstain patterns, crime scene interpretation, and estimation of blood quantities at crime scenes (at [14]-[16]). His qualifications included a Bachelor of Forensic Science, certification in crime scene investigation methodology, enrolment in a PhD with a thesis on blood droplet dynamics, and extensive experience training forensic practitioners across multiple Australian police services and institutions. The court was satisfied his evidence related to an identifiable field of scientific endeavour (at [16]).

Issue 2: Admissibility of the expert opinion on lay observations

The expert's opinion concerned how lay people, without forensic or policing backgrounds, typically estimate and describe quantities of blood observed at crime scenes. Garling J held this opinion admissible under section 79 of the Evidence Act 1995, as it was wholly or substantially based on Harkins' experience as a teacher using known quantities of blood in training exercises and his expertise as a bloodstain pattern analyst (at [23]-[24]), consistent with the requirements confirmed in Dasreef Pty Limited v Hawchar (2011) 243 CLR 588.

Issue 3: Relevance and section 137

The Crown had already led qualitative lay evidence from a witness who described the blood at the Hall using expressions such as "a large amount," "a lot of blood," and "a pool of blood." The accused had cross-examined that witness on the implications of such descriptions. Garling J found the expert opinion relevant to enable a balanced assessment of those lay observations and of significant probative value to the fact-finding tribunal (at [31]). The court found no unfair prejudice arising from the evidence, observing that the opinion was clearly expressed, its basis was adequately identified, and it was capable of being tested by cross-examination (at [33]). Accordingly, section 137 did not require exclusion (at [34]).

Issue 4: Admissibility of the demonstrations

The demonstrations involved sequentially applying measured quantities of blood to surfaces replicating the floor areas of the Hall where blood had been observed, and photographing the results. Garling J noted that the Crown did not intend to lead any quantitative evidence about blood loss, and it remained uncertain whether any such quantitative evidence would be placed before the court at all (at [39]). Because the demonstrations were designed to illustrate the visual appearance of specific quantities of blood, they lacked relevance in the absence of any quantitative blood evidence in the proceedings at that stage (at [40]). The demonstration evidence was therefore not admitted. The court noted this ruling depended on the current state of the evidence and was open to revisitation (at [42]).

Orders Made

  • The Crown is permitted to lead the evidence of Detective Sergeant Harkins as set out in his statement signed 17 January 2018, with the following excluded from evidence-in-chief:
  • Section E of the statement (paragraphs 30 to 48 inclusive)
  • All attachments to the statement from immediately after page 22 to the end of the report

Key Takeaways

  • An expert in bloodstain pattern analysis may give admissible opinion evidence about how lay people typically perceive and describe blood quantities at crime scenes, provided that opinion is wholly or substantially based on the expert's teaching experience and specialist expertise, in accordance with section 79 of the Evidence Act 1995 and the principles in Dasreef (at [23]-[24]).

  • Qualitative lay evidence about blood at a crime scene can render expert opinion on lay perception relevant, where the fact-finding tribunal must weigh those lay observations as part of a contested factual issue (at [25]-[31]).

  • Significant probative value, combined with the absence of identifiable unfair prejudice, will ordinarily defeat a section 137 exclusion application, particularly where the opinion is clearly expressed and open to cross-examination (at [32]-[34]).

  • Demonstration evidence designed to illustrate specific blood quantities will lack relevance where no quantitative blood evidence has been or is anticipated to be tendered; without a quantitative foundation, such demonstrations cannot assist the tribunal of fact (at [40]-[41]).

  • Rulings on admissibility that depend on the state of the evidence at a particular point in a trial may be revisited if the evidentiary landscape changes; Garling J expressly flagged that the exclusion of the demonstration evidence was contingent on the current absence of quantitative blood evidence (at [42]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588
- R v Warwick (No.2) [2017] NSWSC 1225
- R v Warwick (No.21) [2018] NSWSC 654