R v Do (No. 1) - [2015] NSWSC 106

Supreme Court

New South Wales

Medium Neutral Citation: R v Do (No. 1) [2015] NSWSC 106
Hearing dates: 23 February 2015
Date of orders: 24 February 2015
Decision date: 26 February 2015
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
See paragraphs [26] and [34]

Catchwords: CRIMINAL LAW – evidence – expert evidence – footprints in blood – comparisons with impressions of feet of witnesses including accused – whether area of specialised knowledge – blood drying times - whether police officer had specialised knowledge
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Honeysett v The Queen [2014] HCA 29; (2014) 88 ALJR 786
R v Sica [2012] QSC 430; (2012) 232 A Crim R 486
Smith v R [2013] NSWCCA 64
Category: Procedural and other rulings
Parties: Crown
Tony Thao Do (Defendant)
Representation:
Counsel:
N Noman SC (Crown)
C Smith SC and B O’Reilly (Defendant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Defendant)

File Number(s): 2012/294022

Judgment

The deceased was killed on 13 September 2012. The accused has been charged with her murder. The deceased was found lying on the floor of a living room of the house just to the left of the entrance hall with a large amount of largely diluted blood on or around her. Blood was found in the hallway leading up to the back door through the dining area and across the hall into a bathroom on the opposite side of the entrance hall.
Footprints were found in the blood. Pawprints from a dog or dogs were found including paw prints within a footprint at marker AN. Blood spatters were found.
The Crown seeks to lead evidence from Detective Sergeant Flippence in relation to two matters. The first concerns a footprint in blood at marker AG. The second concerns evidence about blood drying time.
A number of footmarks at the scene were identified with footprint ridge detail referred to in the statement of leading Senior Constable Searles. However, three footmarks at markers AG, AH and AN were not able to be identified using footprint ridge detail. The Crown accepts that the footmarks at AH and AN contain insufficient detail from which any conclusion can be drawn. The Crown seeks to lead evidence from Sergeant Flippence of his expert opinion about the footmark at marker AG.
The evidence the Crown wishes to lead is the opinion of Sergeant Flippence that the footmark at marker AG resembles the left foot impression of the accused in both layout and size. Sergeant Flippence reaches that conclusion by having obtained foot impressions of the deceased, Aminda Huynh and the accused. These three persons were known to have walked with bare feet at the scene of the killing.
The Crown says the purpose of the evidence is to show an inconsistency between what the accused says his movements were around the crime scene and the objective evidence. Footprints, most of which will be proved by the evidence of Detective Searles, will tend to highlight the inconsistency…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Do (No. 1)

Details

AGLC: R v Do (No. 1) [2015] NSWSC 106
Case: [2015] NSWSC 106
Decision Date: 26 February 2015

CaseChat Overview and Summary

The matter before the court involved the prosecution of a defendant, Do, for the crime of murder. The prosecution's case relied heavily on evidence including footprints in blood at the crime scene and comparisons of these prints with the feet of witnesses, including the accused. The dispute centred on whether the area of comparing footprints in blood constituted a specialised field of knowledge, and if so, whether the police officer providing expert evidence had the requisite expertise to testify on the matter. Additionally, the court had to determine if the officer's evidence on blood drying times was within his area of specialised knowledge.

The legal issues addressed by the court involved the admissibility of expert evidence and the qualifications of the expert witness. The court needed to assess whether the comparison of blood footprints constituted a specialised field of knowledge and whether the police officer had sufficient expertise to provide an opinion on this matter. Furthermore, the court had to examine whether the officer's testimony on blood drying times was within the bounds of his specialised knowledge. The court also had to consider whether the officer's professional experience and training equipped him to provide expert evidence on the drying times of blood.

In ruling on these issues, the court found that the comparison of blood footprints in relation to identifying individuals did not constitute a specialised field of knowledge. The court determined that this task was within the realm of general knowledge and did not require specialised expertise. Consequently, the officer's evidence on this matter was deemed inadmissible. Regarding the officer's testimony on blood drying times, the court found that this did fall within the officer's specialised knowledge. The officer's professional experience and training qualified him to provide an expert opinion on this aspect of the case.

The court ruled that the expert evidence provided by the police officer on blood drying times was admissible, while the evidence on the comparison of blood footprints was not. The court's decision was based on the specific expertise required for each aspect of the evidence presented. The ruling ultimately impacted the admissibility of certain pieces of evidence in the trial against Do, thereby influencing the direction and outcome of the case.

Orders