R v RM

[2023] NSWDC 90

District Court

New South Wales

Medium Neutral Citation:	R v RM [2023] NSWDC 90
Hearing dates:	14 March – 27 March 2023
Date of orders:	20 March 2023
Decision date:	20 March 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 14
Catchwords:	EVIDENCE – expert evidence – semen stains and contested issue as to how one was deposited on a bedframe in complainant’s bedroom – whether evidence fell outside witness’ expertise – whether evidence substantially based upon expert’s specialised knowledge
Legislation Cited:	Evidence Act 1995 (NSW) ss 79, 135
Cases Cited:	R v Basha (1989) 39 A Crim R 337
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Office of the Director of Public Prosecutions (ODPP) RM (accused)
Representation:	Counsel: Mr C Reynolds for the ODPP Ms K Hogan for the accused Solicitors: ODPP AJA Associates for the accused
File Number(s):	2020/00213495
Publication restriction:	Non-publication order regarding the identity of the accused and the complainant

JUDGMENT

Background

1. In this trial, the accused is charged with multiple sexual offences against the complainant, his daughter, over a significant period, most recently in 2020. 

2. The last of the alleged incidents occurred on 19 July 2020.  The complainant gave evidence that one of the two charges arising from that alleged incident involved the father masturbating himself in the complainant's bedroom in close proximity to her head. 

3. In this context, the Crown has called Mr Ben Reid, a Crime Scene Officer attached to the New South Wales Police. Mr Reid has given evidence substantially to the effect that the accused's semen was detected in the complainant's bedroom, and specifically on the side frame of the complainant's bed. There are certain photos (Exhibit I) depicting a semen stain.

4. Mr Reid had also given some evidence of the methodology deployed to detecting semen stains in which he set out his understanding the various ways in which semen can be identified. Putting the matter very broadly, this includes, amongst other things, ordinary and forensic light sources, and the use of chemicals which can act upon seminal fluid and illuminate semen. Mr Reid stated that he had been involved in dozens and dozens of crime scenes involving semen.

5. In a number of those photographs, Mr Reid referred to the semen stain identified on the bed frame.  After doing so Mr Crown asked him whether he could give a name to the semen stain.  That line of questioning provoked objection by Counsel for the accused. 

6. In the absence of the jury I permitted a ‘Basha’ inquiry in which Mr Reid was invited to spell out what he knew on the subject of semen stains.

7. The gist of his evidence in that inquiry was that Mr Reid had, in one of his two reports, referred to the stain as being of a 'drip' stain. But subsequent to that opinion, he had completed a blood stain course and he reconsidered the accuracy of that description.  Mr Reid stated that, so far as he is aware, there is no course that officers like himself can attend which focuses specifically on semen stains. He appeared to prefer, as an alternative description, that it was a 'flow' stain. He preferred that because of a pattern visibly evident on the stain explicable he thought by gravity on this form of liquid.  Although he accepted that there may be differences between blood and semen stains, especially in their chemical composition, they were both derived from liquid emitted from the human body.

8. Counsel for the accused argued that Mr Reid was not qualified to express opinion about the nature of the semen stain or how it got deposited on the bed frame.  His evidence was based upon inferences derived from special study in blood stains which were different in nature to the semen stains. This was evidence that fell outside his expertise and was not substantially based upon his specialised knowledge.

9. Mr Crown tendered on a voir dire a statement of Mr Reid's qualifications contained in his second report which supported evidence already adduced in chief. His speciality may, it seems to me, be sufficiently described as being that of a forensic investigator. Matters touched upon in the second report of some connection also included his completion of the course in Biological Evidence Recovery and, as Mr Reid had touched upon, a Blood Stain Pattern Analysis. Both courses were facilitated by the New South Wales Police Force.

Consideration

10. Counsel for the accused did not object to Officer Reid giving evidence about the existence of or identification of a semen stain deposited on the bed.  No point was taken that Mr Reid was unqualified in giving expert opinion evidence detecting the presence of semen. The line of questioning to which objection appears to be directed to is his giving evidence about the nature of the stain and how it got there.

11. The issue of admissibility of the opinion is to be determined in accordance with s 79 of the Evidence Act 1995 (NSW).  The provision requires the party adducing the proof to establish:

1. the person's specialised knowledge;

2. that the person’s knowledge or this knowledge is based upon a person's training, study or experience; and

3. that the opinion is wholly or substantially based on that specialised knowledge.

12. In my opinion none of these requirements are satisfied in connection with the Crown's attempts to adduce expert opinion evidence from Officer Reid about the nature of the semen stain which might, in isolation, help explain how the semen stain got there. In other words, in my view it is insufficient for the officer to reason from his study or knowledge of how blood stains can become deposited on property. It matters not for this purpose, whether or not Officer Reid is subjectively aware whether there is a specific course regarding semen stains that exists. He may or may not be right about that but there is nothing in his training which would suggest that he is qualified to even suggest that a different expert could give evidence on that matter. He conceded, properly enough in my view, that there are differences in the chemical composition of blood and semen. Even if he was so qualified by his drawing an inference, or, perhaps more accurately an analogy between blood and semen and relied upon a lay person's appreciation of the force of gravity does not satisfy the requirement that Officer Reid's evidence in the relevant respect, is substantially based on specialised knowledge.

13. In my view, leaving aside the question of compliance for s 79 there is also a risk that evidence of this kind from an expert with Officer Reid's limited qualifications may be unfairly prejudicial or misleading or confusing which should mean that it would alternatively be excluded under s 135.

14. Counsel for the accused’s objection about Officer Reid opining about the nature or qualities of the semen stain here detected is sustained.

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Decision last updated: 12 April 2023