Citation: [2022] NSWSC 265
Court: Supreme Court of New South Wales
Date: 14 March 2022
Judge(s): R A Hulme J
Background
The accused faced trial for the murder of a man shot during an alleged armed home invasion in Five Dock in the early hours of 2 April 2019. The Crown alleged the accused was one of two intruders who entered an apartment, during which multiple firearms were discharged by both the intruders and an occupant. The deceased sustained a fatal gunshot wound to the head, and both the accused and another occupant also suffered gunshot wounds.
The accused's defence turned in part on the source of blood staining on the door of a second bedroom in the apartment. The defence contended that blood on the door was projected directly from the deceased's gunshot wound, which would suggest the shooter was in close proximity to the deceased. If so, projected blood may also have landed on the shooter, and because no blood of the deceased was found on the accused's clothing, the defence argued the other intruder was more likely the shooter.
The Crown sought to lead opinion evidence from a blood stain expert, Detective Senior Sergeant Moon, who compared blood staining on the bedroom door with staining on a pantry door elsewhere in the apartment where no shooting occurred. The defence objected to the admissibility of this comparison evidence.
Legal Issues
- Whether Detective Moon's comparison of blood staining patterns on the bedroom door and the pantry door constituted admissible expert opinion evidence under s 79 of the Evidence Act 1995 (NSW), or whether it was a comparison that jurors could make for themselves without the assistance of an expert.
Decision
Admissibility of the blood stain comparison evidence:
Justice Hulme ruled the evidence admissible under s 79 of the Evidence Act 1995 (NSW) (at [12]).
The defence argued that comparing two sets of bloodstains for visual similarity required no special expertise and fell outside the scope of expert opinion evidence. The defence position was that without Detective Moon's comparison, the Crown's evidence on the nature of the staining would be entirely neutral, capable of supporting either "cast-off" or "projected" blood as an explanation (at [9], [11]).
The Court rejected this contention. It accepted that Detective Moon's assessment involved more than a simple visual matching exercise. Determining whether two bloodstain patterns are sufficiently similar to support a conclusion that they were caused by the same method of deposition requires judgment informed by training and experience. Lay jurors lack the knowledge to assess the threshold degree of similarity needed before a useful inference can be drawn, or to identify when variation between stains should counsel caution or preclude any conclusion altogether (at [12]).
The Court therefore held that the comparison drew on Detective Moon's specialised knowledge and was properly the subject of expert opinion evidence under s 79, rather than a matter for unassisted jury observation (at [12]-[13]).
Orders Made
- Blood spatter comparison evidence ruled admissible.
Key Takeaways
- A blood stain expert's comparison of two sets of staining patterns, to assess whether their similarities support a common method of deposition, constitutes admissible expert opinion under s 79 of the Evidence Act 1995 (NSW) (at [12]).
- Under s 79, evidence goes beyond lay observation where it requires judgment about the threshold degree of similarity needed to draw a useful inference from a comparison, a judgment that depends on training and experience rather than ordinary perception (at [12]).
- The Supreme Court distinguished between a purely visual comparison (which jurors could undertake themselves) and an evaluative assessment of whether observed similarities are forensically meaningful, holding that only the latter requires expert assistance (at [12]-[13]).
- The ruling confirms that "cast-off" and "projected" blood spatter are recognised subtypes with distinguishable features, including droplet size, pattern shape, and linearity, and that classifying staining as one or the other is a matter calling for expertise (at [6], [12]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) , s 79
Cases
- Not stated