R v Thompson Kimura and William Rodney Swan (No 1)

[2016] NSWSC 568

Supreme Court

New South Wales

Medium Neutral Citation:	R v Thompson Kimura and William Rodney Swan (No 1) [2016] NSWSC 568
Hearing dates:	05 May 2016
Decision date:	06 May 2016
Jurisdiction:	Common Law - Criminal
Before:	N Adams J
Decision:	(1) Photographs showing non-tested areas of staining on accused Swan’s shorts admissible. (2) Evidence of opinion that those areas of staining are blood inadmissible. (3) Actual shorts admissible.
Catchwords:	CRIMINAL LAW – evidence – application to exclude evidence under s 137 Evidence Act 1995 (NSW) – where photographs of shorts worn by accused Swan show several areas of staining – where only one stain tested for blood or DNA – probative value of evidence of other similar stains in circumstances where possibility of secondary transference raised – whether evidence unfairly prejudicial – evidence of staining admissible – evidence of crime scene officer’s opinion inadmissible
Legislation Cited:	Evidence Act 1995 (NSW) s 137
Cases Cited:	Papakosmas v R (1999) 196 CLR 297 Mundarra Smith v The Queen (2001) 206 CLR 650
Category:	Procedural and other rulings
Parties:	Regina Thompson Kimura William Rodney Swan
Representation:	Counsel: M Cunneen SC (Crown) M Dennis (Accused Swan) C Bruce SC (Accused Kimura)   Solicitors: Solicitor for Public Prosecutions (Crown) Blair Criminal Laywers (Accused Swan) NSW Legal Aid (Accused Kimura)
File Number(s):	2013/00117926; 2013/00117929
Publication restriction:	Nil

Judgment

Background

1. The Crown proposes to tender nine photographs of a pair of white football shorts worn by the accused William Swan on 15 April 2013 showing various stains on them. One of the stains was tested and found to be blood. None of the other stains were ever scientifically tested. The Crown Prosecutor also proposes to adduce evidence from the Crime Scene Officer that, in his opinion, the stains that were never tested are also blood.

2. Mr Dennis, who appears for Mr Swan, objects to any evidence being adduced concerning the stains on the shorts that were not scientifically tested. He also objects to the tender of all but one of the nine photographs (namely, photograph 106). The application to exclude the evidence is based on a submission that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant: s 137 of the Evidence Act 1995.

3. The background to the application to exclude the evidence is as follows.

4. Both accused Thompson Kimura and William Swan have pleaded not guilty to a charge that they did murder Alexander Kormilets (“the deceased”) who was assaulted in his home unit in Redfern in the early hours of 15 April 2013. Both accused are also charged in the alternative that they did rob the deceased of certain property whilst in the company of each other and at the time of the robbery did inflict grievous bodily harm upon the deceased. The deceased did not die until eight months after the assault upon him. One of the live issues in the trial is the question of the whether the assault upon the deceased was an operating and substantial cause of his death.

5. As at 15 April 2013 the deceased resided in the Kendall Building at unit 210/43 Moorehead Road in Redfern. The building is a high-rise building with various CCTV cameras positioned in internal areas of the building, including the lifts.

6. At about 2.01am on 15 April 2013 the deceased telephoned Redfern police to report that two men had entered his unit, assaulted him and robbed him of certain property. CCTV footage shows police arriving at the building in response to this call at 2.05 am.

7. Subsequent examination of the CCTV footage depicts both accused entering the lifts together at 12.28am on 15 April 2013. The two men are next seen at approximately 1.58am quickly exiting the building by the stairs and leaving the building. Mr Swan can be seen carrying what appears to be a white plastic bag at this time. Significantly, in the footage both showing Mr Swan arriving at the building and leaving the building he is seen to be wearing white football shorts with a red and blue stripe down the side.

8. On 16 April 2013 a search warrant was executed at premises in Redfern where Mr Swan had been staying and a number of items were seized including a television later identified to have been stolen from the deceased and a pair of shorts matching the shorts seen to be worn by Mr Swan in the CCTV footage.

9. The shorts were later examined by a Crime Scene Officer Dr Phillip Austin. His evidence before me yesterday on the voir dire was that there were a number of areas of apparent staining on the shorts. He tested one of these areas - the area of staining on the waistband of the shorts. In relation to this stain he performed a HemaTrace® confirmatory test for blood which was positive. A swatch was then taken out of that stain and submitted to Forensic and Scientific Services (FASS). Subsequent analysis of that swatch revealed that it contained a DNA profile matching that of the deceased.

10. Despite the fact that there was more than one area of staining on the shorts, only the one portion on the waistband was scientifically tested for the presence of blood. Nor were any of the other stains ever later subjected to DNA analysis. When asked by the Crown Prosecutor on the voir dire why only one area was tested for blood Dr Austin replied “based on the information I was given. Normally if I am not given any information that there are multiple people bleeding, I will only test one area”: T116.

11. In his opening address last Tuesday Mr Dennis told the jury that Mr Swan admits that the shorts were worn by him on 15 April 2013 and that the DNA profile found on them matched that of the deceased. It is also conceded on behalf of Mr Swan that he is depicted in the CCTV footage entering and leaving the building in the early hours of 15 April 2013. Mr Dennis also told the jury that Mr Swan does not know how the deceased’s DNA got on his shorts but raised the possibility of secondary transference.

12. Mr Dennis’s objection to the evidence of the Crime Scene Officer Dr Austin is twofold. First, he objects to the officer giving evidence that, in his opinion, the red stains that were not tested are blood. Second, he objects to any evidence that there was other staining on the shorts besides that portion that was tested and positively found to be blood being led before the jury.

13. In support of his application Mr Dennis tendered on the voir dire the relevant page from Dr Austin’s statement as well as the nine photos taken by him of the shorts. This became exhibit 1 on the voir dire. Short evidence was called from Dr Austin. No other evidence was before me on the voir dire.

14. I indicated at the time of the objection that before I could make a final ruling concerning the admissibility of the additional staining I would need to know what evidence the Forensic Biologist would give regarding the question of secondary transference as this would have a bearing on the probative value of the evidence in question. On that basis I provisionally ruled that the evidence could not be admitted at that stage of the proceedings.

15. Dr Austin gave evidence until 1pm yesterday about matters other than the staining on the shorts. After the lunch adjournment Ms Mhorag Campbell, Forensic Biologist, was interposed to give evidence. She was cross-examined by Mr Dennis and asked whether a number of hypothetical scenarios concerning secondary transference were possible. The overall effect of her evidence was that all of the scenarios put were possible but she could not comment on the degree of their probability. In response to nearly all scenarios put to her she responded that secondary transference depended on a number of variables such as whether a person’s hands had been recently washed and whether the blood in question was wet or dry.

16. One potential secondary transference scenario suggested to Ms Campbell was whether DNA could travel via the victim’s blood during the assault to one of his assailants then be transferred to a bottle taken by him from the scene then transferred to a person who later picked up that bottle elsewhere and was later found with the victim’s DNA on him. In response to this Ms Campbell stated: “Yes its possible but there again [are] so many variables and steps along the way, I can’t say how likely it is”: T 152

17. Ms Campbell was also asked whether it was possible that if there was blood on the bottles and it was transferred onto a person who later handled one or more of them whether it was possible that there could be no visible blood on the bottles after that person handled them. Ms Campbell replied that it was possible, “…if they put their hands exactly where any blood stains were, and have subsequently wiped off any blood stains…”

18. She was further asked whether it was possible that a person could touch the bottles containing the victim’s blood then touch the waistband of his shorts and then get the victim’s DNA on his pants that way. Ms Campbell replied that it was possible if the blood was wet at every stage of the transference.

19. It was further suggested to Ms Campbell that there could be skin cells on the bottles from their original owner, the victim, which could be transferred to someone who was later given the bottle and the victim’s DNA could be transferred through those skin cells. It was then suggested that blood from a source other than the victim could came to be on the shorts in the place where the victim’s DNA in skin cells was which could mean that the victim’s DNA was from the skin cells rather than blood. Ms Campbell stated that “Anything is possible” but it depended on there being a very large amount of skin cells because DNA from blood is likely to “override or mask or hide” any DNA from the skin cells”: T157 A number of other scenarios were also put to Ms Campbell in cross examination.

20. At the conclusion of Ms Campbell’s evidence yesterday, I heard further submissions from Mr Dennis and the Crown Prosecutor concerning the admissibility of the additional staining on the shorts and the opinion evidence from Dr Austin that, in his view, the staining was blood. During those submissions I inquired as to whether the Crown Prosecutor sought to tender the shorts as well as the photos of them taken at the time. The Crown Prosecutor indicated that she did not propose to tender the actual shorts. Mr Dennis then indicated that if the photos were admitted into evidence then he would seek to tender the actual shorts to show their appearance and in particular the fact that they were dirty. The Crown Prosecutor opposed such a tender and submitted that it would be misleading for the jury to see them as much of the staining has faded since 15 April 2013.

21. I then reserved my decision until today.

Consideration

22. Having considered the matter overnight I propose to allow the Crown Prosecutor to tender all of the photographs of the shorts depicting all of the staining on them and I propose to allow Mr Dennis to tender Mr Swan’s actual shorts. I do not propose to permit the Crown Prosecutor to lead from Dr Austin his opinion evidence that all of the stains are blood. My reasons for making these evidentiary rulings are as follows.

Evidence of staining

23. This is not a case in which there is no basis for the jury to conclude that the other stains on the shorts are also blood given that one of the areas showing a stain on the shorts has tested positive for blood. Had there been no positive testing of any of the areas on the shorts then the probative value of the staining would have been significantly reduced and the risk of unfair prejudice would have been greater. As it is, the photos show a number of small stains on the photos that appear to be similar in colour. One of those stains has been found conclusively to be blood. A swab taken from that staining has been found to contain DNA matching the profile of the deceased.

24. It could not be said that the probative value of the evidence of other staining is low. The Crown case is that the two accused entered the deceased’s premises and assaulted him such that he was seriously injured and bled at the scene. The defence takes no issue that his injuries were life threatening and amounted to grievous bodily harm. Photographs taken of the deceased that night and marked Exhibit B show that the deceased bled a significant amount that night. Photographs tendered through Dr Austin yesterday and marked Exhibit R show areas of staining on the deceased’s clothing and around his unit

25. A significant matter pertinent to the assessment of the probative value of the evidence is the fact that it is anticipated that the case for Mr Swan will be that the blood on the waistband must have got there from secondary transference in one of the ways suggested to Ms Campbell in her evidence. The degree of staining of the shorts is relevant to the question of possible secondary transference.

26. Having determined that the probative value of the evidence is significant I have to consider whether it outweighs the danger of unfair prejudice to the accused, Mr Swan. If that be the case I must exclude it. The meaning of the words “unfair prejudice” in the context of s 137 of the Evidence Act is well established. The phrase “…means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way”: Papakosmas v R (1999) 196 CLR 297 per McHugh J. The question is whether there will be a risk that the jury will misuse the evidence of the staining by undertaking a process of impermissible reasoning.

27. Having considered the evidence called in the trial thus far and to be called I am of the view that it would be open to the jury to infer that the other red staining similar to the red stain on the waistband that was found to be blood was also blood. It is an available inference to be drawn on the Crown case overall. Whether the jury finds that the other staining is blood or not is a matter for them but it would not be an impermissible inference for them to draw on the state of the evidence overall. This would not be a situation where there is a risk of speculation as there will be evidence before them that provides a proper basis to draw the conclusion that the staining is also blood.

28. Mr Dennis suggests that it may be the accused Mr Swan’s blood given that he is seen with a bandage in some of the CCTV footage. That is a matter for evidence and does not go to the question of admissibility of the shorts.

29. Mr Dennis will be able to cross examine Dr Austin to the effect that there is no scientific evidence that the other staining is blood.

30. It will of course be necessary for me to direct the jury as to how they could use the evidence. I propose to explain to them that there is no evidence that the other staining is blood as it was never tested. It will be a matter for them what they make of the evidence of staining but they would be entitled to take into account, inter alia, that one of the stains was found to be blood, the proximity of that staining to the other staining and the appearance of that stain when compared with the other staining.

31. The Crown Prosecutor indicated to me during submissions that she did not propose to say anything in particular to the jury about the other staining if that material was before the jury. I have presumed that this means that she will leave the legal directions as to how the jury could use this evidence to me as the trial judge.

The evidence of Dr Austin’s opinion

32. On the voir dire Dr Austin gave evidence that in his opinion the red staining that was never scientifically tested is blood.

33. The Crown Prosecutor indicated during legal argument that she proposed to adduce from Dr Austin that, once one stain on an item is positively found to be blood, the inference to be drawn is that the rest are as well. Mr Dennis submitted in response that any inference drawn by the crime scene officer is irrelevant without “scientific backing.” He likened this evidence to that held to be irrelevant by the High Court in Mundarra Smith v The Queen (2001) 206 CLR 650 in that the jury can draw that inference as readily as Dr Austin. I agree. Given that I have found that the fact that the other stains are also blood is a permissible inference to be drawn, the evidence of Dr Austin that he has drawn the same inference does not advance matters further.

34. The Crown Prosecutor relies upon Dr Austin’s extensive experience in identifying bloodstains in order to qualify him as an expert to be able to say that by visual examination and by drawing inferences the stains are blood stains. The fact remains that he did not scientifically test the stained areas. In giving his the opinion that it is blood the witness is hence limited to reliance upon his observations of the staining, albeit based on his extensive experience in doing so. I have also taken into account that, in his evidence on the voir dire, Dr Austin conceded in cross-examination by Mr Dennis that he has been wrong in the past about whether stains were blood.

35. I do not propose to permit Dr Austin to give his evidence that he infers the other staining is blood as well.

36. In the event that I permitted the Crown to tender the photos of the staining, objection was taken by Mr Dennis to the captions on the photographs affixed by Dr Austin describing the various stains as blood. The Crown Prosecutor did not press the tender of the captions.

The original shorts

37. Finally, the Crown Prosecutor objects to the tender of the actual shorts themselves on the basis that the staining has now faded. This means that the jury would be shown shorts that are dissimilar in appearance to that seen by Dr Austin in April 2013.

38. Mr Dennis presses for the tender of the actual shorts. He submits that it is relevant for the jury to see how dirty they are. It is unclear to me, not having seen the shorts and compared them with the photographs, whether they appear dirtier now than they did in April 2013.

39. It seems to me that, in circumstances where I have allowed the tender of the photographs showing all the staining on the shorts as at April 2013, the shorts themselves are also relevant and hence admissible evidence. If necessary I would also permit Dr Austin to give evidence about how dirty the shorts were as at April 2013. I will hear argument on that should that issue arise.

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Decision last updated: 23 June 2016