R v Smart (Ruling no 1) - [2008] VSC 79

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1533 of 2007

THE QUEEN

KEITH HERBERT SMART

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2008
DATE OF RULING:	19 March 2008
CASE MAY BE CITED AS:	R v Smart (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2008] VSC 79

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CRIMINAL LAW – Ruling – Admissibility of expert opinion as to footprints and blood spatter enhanced by Luminol – Whether speculation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Office of Public Prosecutions
For the Accused	Mr W. Toohey	Galbally & O’Bryan

HIS HONOUR:

Keith Herbert Smart is charged that at Cranbourne North on 14 October 2006 he murdered Katie Lee Tanner.

The case against the accused is a circumstantial one. If Ms Tanner was murdered, her body has not been located. At the time of her disappearance Ms Tanner was residing with the accused at 22 Courtenay Avenue, Cranbourne North. She had previously been in a relationship with the son of the accused, David Smart, but that relationship had ended. As I understand the way the evidence is likely to fall, it will be that Ms Tanner was residing with the accused as a matter of convenience rather than as part of some relationship with him.

On 14 October 2006, Ms Tanner had apparently arranged to visit a friend in Frankston for drinks and invited the accused to go with her. In his record of interview the accused described going to Frankston with Ms Tanner, arriving at the house where the function was occurring at about 7.00 pm and staying there until about 10.00 pm. He said that he and Ms Tanner drove back to Cranbourne North from Frankston and arrived home at about 10.30 pm.

After arriving home, the accused gave the following account of what happened:

She was sittin’ on the couch playin’ with her phone. We were havin’ a talk. I said, “alright, darlin’, I’m going to bed”. She said “Okay, see you in the mornin’.” And I went to bed, turned me tellie on. I reckon about 20 minutes later I was snoozin’.

Ms Tanner has not been seen since.

The Crown case is effectively that there was some kind of conflict between the accused and Ms Tanner as a result of which the accused attacked Ms Tanner at the premises at Cranbourne North, causing her death, and then disposed of her body. The nature of the attack that will be alleged is by use of a rubber mallet which was located some weeks later in a “wheelie” bin at the premises of the accused and which had DNA potentially attributable to him on the handle and the blood and DNA of Ms Tanner on the head.

The property at Cranbourne North was examined twice by police. The premises were also inspected by a scientific expert, Ms Debra Maureen Ryan. Ms Ryan is a forensic scientist employed by the Victoria Police Forensic Services Centre.…

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 Smart (Ruling no 1)

Details

AGLC: R v Smart (Ruling no 1) [2008] VSC 79
Case: [2008] VSC 79
Decision Date: 19 March 2008

CaseChat Overview and Summary

In the matter of the Queen versus Smart, the case was heard by the Supreme Court of Victoria, where the defendant was charged with murder. The central dispute revolved around the admissibility of expert evidence regarding the analysis of footprints and blood spatter, with a focus on the use of Luminol as an enhancement technique. The expert's opinions were pivotal in linking the defendant to the crime scene and implicating him in the murder.

The court was required to determine whether the expert's opinions, which incorporated the use of Luminol to enhance the visibility of blood spatter, were speculative and therefore inadmissible. The defence argued that the opinions went beyond the expert's field of expertise and constituted conjecture rather than reliable evidence. The prosecution, on the other hand, maintained that the expert's methods were scientifically sound and the opinions were based on empirical evidence.

The court found that the expert's opinions were not speculative. It held that the use of Luminol was a recognised technique in the field of forensic science and that the expert's methodology was based on established scientific principles. The court accepted that the expert had the requisite knowledge and experience to provide a reliable opinion on the enhanced footprints and blood spatter. Consequently, the court ruled that the expert evidence was admissible and could be considered by the jury in reaching a verdict.

The final orders of the court did not directly address the outcome of the trial but focused on the admissibility of the expert evidence. The court's ruling ensured that the expert's opinions regarding the footprints and blood spatter, enhanced by Luminol, would be presented to the jury as part of the prosecution's case. This decision underscored the importance of scientific reliability in the admissibility of expert evidence in criminal proceedings.

Orders