R v Coskun (No 2)

[2022] NSWSC 265

Supreme Court

New South Wales

Medium Neutral Citation:	R v Coskun (No 2) [2022] NSWSC 265
Hearing dates:	4 March 2022; 10 March 2022
Decision date:	14 March 2022
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Blood splatter evidence is admissible
Catchwords:	EVIDENCE — Opinion evidence — Exceptions — Expert opinion — whether blood splatter evidence based on expert knowledge or based on observations of similarities between bloodstains that jurors could make themselves — knowledge and experience required to make such a comparison ­— evidence admissible as expert opinion.
Legislation Cited:	Evidence Act 1995 (NSW), s 79
Category:	Procedural rulings
Parties:	Regina Cengiz Coskun
Representation:	Counsel: Ms S Traynor (Crown) Mr P Coady (Accused) Solicitors: Solicitor for Public Prosecutions Bannisters Lawyers
File Number(s):	2019/105006

Judgment

1. HIS HONOUR: The Crown alleges that Mr Cengiz Coskun (the accused) was one of two men who entered an apartment in Five Dock at about 3.45am on 2 April 2019 for the purpose of committing an armed robbery with a dangerous weapon. One of the occupants, Mr John Odisho, was shot in the head the commission of the robbery, and later died due to this wound. Another occupant, Mr Sargon Odisho, and the accused, also suffered gunshot wounds.

2. The apartment is quite modestly sized, but the crime scene is complex. The shooting of John Odisho occurred in the context of firearms being discharged by both one of the intruders and by Sargon Odisho. Six rounds of .38 calibre ammunition were discharged by Sargon Odisho from within his bedroom (the second bedroom) towards the doorway, and ten rounds of .40 calibre ammunition were discharged by one of the intruders from the vicinity of the doorway into that bedroom. There was a lot of blood staining and projectile damage.

3. The Crown relies upon an array of circumstantial evidence suggesting that the accused was one of the intruders and was responsible for the murder of John Odisho.

4. Counsel for the accused objected to the admissibility of a discrete aspect of the proposed evidence of a blood stain expert, Detective Senior Sergeant Gregory Moon. It concerned blood stains on the door to the second bedroom. A stain (identified as B4) positioned around the middle of the door was subject to DNA testing which revealed a profile consistent with that of John Odisho. No DNA testing was carried out in respect of the many other surrounding blood stains on the door.

5. Detective Moon’s evidence includes his opinion that the blood staining directly associated with the B4 stain was a subtype of blood spatter called “cast-off”. Detective Moon is of the opinion that the remaining staining on the door is also “cast-off” blood spatter, however he allows for the possibility that it is “projected blood”, which he understands is the opinion of a defence expert, Dr Reynolds.

6. Detective Moon described “cast-off” blood staining as the resultant deposition of blood that was adhering to something being released by its movement. [1] The example was given in his evidence on the voir dire of someone with a bloodstained hand moving their hand and releasing blood which deposited onto a surface such as a door or wall. This was contrasted with blood that is forced or “projected” out of a wound and directly deposited onto a surface. [2] Detective Moon gave evidence of how these two types of blood spatter stains were distinguishable in their appearance; [3] for example, projected stains often comprise larger droplets of blood and they are not deposited in a linear or curvilinear pattern as are cast-off spatter.

   1. T638

   2. T642

   3. T638

7. Detective Moon finds support for his preferred characterisation of the blood staining on the bedroom door (excluding that classified as B4) as cast-off spatter by comparison with blood staining elsewhere in the apartment. He compared it with what is accepted to be “cast-off” blood splatter on the pantry door, an area of the apartment where no shooting occurred and hence where no projected blood could have been deposited. A swab taken from blood on this surface (B7) revealed a profile consistent with Sargon Odisho.

8. Detective Moon found that the cast-off pattern on the pantry door was similar in appearance to the non-B4 staining on the door to the second bedroom. The features of similarity were the height (about 900mm on the pantry door and 1005mm on the bedroom door), the size and shape of the individual stains, and the direction of their deposition, curvilinear from left to right. [4]

   4. T864.15

9. The defence contention is that without this comparison being made by Detective Moon in support of his opinion that the similarities make it more likely the non-B4 staining on the bedroom door is cast-off, the Crown evidence would be completely neutral; the staining could either be cast-off or projected. [5]

   5. T862.45

10. The significance of this is that the defence case is that the bedroom door staining is more likely projected blood from the impact of a bullet with John Odisho’s head. He sustained a single gunshot wound with entry on the upper front left side and exit just above and behind the right ear. Two arteries between the entry and exit wounds were compromised. That might have caused blood to project from one or both of the wounds. If it was projected from the entry wound (or perhaps if he rotated his head and it projected from the exit wound) blood might have been deposited on the door. If so, this would indicate John Odisho was in sufficient proximity to the door to allow direct projected blood splatter to occur. (Just how proximate he would need to have been is not clear.) The ballistics evidence indicates the shooter/intruder was either in the doorway to the bedroom, just inside it, or in the hallway just outside it. If John Odisho’s blood had projected onto the door, it is possible that it also projected onto the shooter. The accused’s clothing was seized after he presented at Auburn Hospital seeking treatment for his gunshot wound following the incident. Forensic testing of his clothing did not detect any blood of the deceased. Therefore, the other intruder was likely the shooter, not the accused. [6]

    6. T863

11. The basis of the objection to the opinion expressed by Detective Moon, derived from his comparison of the non-B4 staining on the bedroom door and the B7 staining on the pantry door, is that it is a comparison that jurors can make for themselves. Quite simply, it is not a matter for expert opinion evidence under s 79 of the Evidence Act 1995 (NSW); it is not a matter arising from Detective Moon’s specialised knowledge based upon his training, study or experience (collectively, his expertise).

12. I was satisfied that the evidence was admissible pursuant to s 79. Detective Moon’s evidence is of two bloodstains being sufficiently similar in appearance to support a conclusion that they were caused by the same method of deposition. This assessment of sufficient similarity is a matter calling for judgment based upon the detective’s expertise. Lay persons are not equipped with knowledge from training or experience to be able to assess the degree to which blood stains should appear similar before something useful can be derived from a comparison, or whether there is such a degree of variation in appearance that caution should be exercised, or no conclusion be drawn at all.

13. For these reasons I was satisfied that the expert opinion evidence of Detective Moon based upon his comparison of blood staining on the second bedroom door and the pantry door was admissible. [7]

**********

7. T865

Endnotes

Decision last updated: 30 May 2022