R v Xie (No 5)

[2015] NSWSC 2118

Supreme Court

New South Wales

Medium Neutral Citation:	R v Xie (No 5) [2015] NSWSC 2118
Decision date:	24 March 2015
Jurisdiction:	Common Law - Criminal
Before:	Fullerton J
Decision:	Evidence not admitted
Catchwords:	CRIMINAL LAW – admissibility of computer aided diagrams
Legislation Cited:	Evidence Act 1995 (NSW), s 29(4), s 57
Category:	Procedural and other rulings
Parties:	The Crown Lian Bin (Robert) Xie (Accused)
Representation:	Counsel: M Tedeschi QC / K Ratcliffe (Crown) G Turnbull SC / L Fernandez (Accused)   Solicitors: Director of Public Prosecutions (Crown) Kidman Legal (Accused)
File Number(s):	2011/147183

JUDGMENT

1. HER HONOUR: The Crown has prepared for tender a series of 18 documents which were prepared by Forensic Imaging Police Officers utilising computer software. They are referred to in the evidence as "CAD" plans. Some plans within the series refer to nominated bedrooms, or parts of bedrooms, on the first floor of 55A Boundary Road. Other plans show the entire first floor area. There are no plans of the downstairs areas.

2. A number of CAD plans in the series (numbers 1, 2, 4, 5, 10, 13 and 16) show the location of shoe print impressions, or partial shoe print impressions, in blood in each of Bedrooms 1, 2 and 3 and the hallway connecting those rooms, with a legend differentiating between those impressions in blood said to be left by an "ASICS sole pattern type" and those that were not left by an ASICS type of shoe. Some impressions were sampled for DNA profiling, some were not.

3. It is the Crown case that the accused favoured an ASICS brand of sport shoe. It is also the Crown case that the concentration of shoe print impressions in various parts of the first floor area, and the direction in which the impressions were apparently laid, namely from right to left on the floor plan, that is, from Bedroom 1 progressively to Bedroom 2 and Bedroom 3, when considered with the evidence to be called from the forensic pathologist, allows for an inference to be drawn as to the order in which the killings were effected and that there was only one killer.

4. Other plans in the series (numbers 3, 6, 11, 14, 17 and 18) show the location of blood deposits (otherwise than in a shoe print impression) that have been identified as containing trace DNA of each of the five deceased, including some areas where mixed DNA profiles have been identified and some areas where "Y-STR Matches" of the male deceased were identified.

5. Other plans in the series (numbers 4, 5, 10, 13 and 16) show an overlay of shoe print impressions and the areas where the DNA of the deceased has been identified.

6. The legend on each plan also appoints the location from which other samples and swabs were taken for analytical purposes.

7. The tender of the CAD plans is supported by a statement from a crime scene officer Sim Hong Te, dated 20 March 2015. That statement was prepared at the request of the Crown, Mr Turnbull SC having taken initial objection to the tender on the basis that the defence had not been informed as to the process by which the plans were prepared, in particular, how various of the items (including shoe print impressions) were positioned on the plans relative to each other and relative to the physical configuration of the three bedrooms and the interconnecting hallway.

8. For the purposes of preparing her statement, Officer Te also reviewed each of the CAD plans for accuracy, as a result of which the Crown has made some minor amendments to the CAD plan MFI 51A, the revised version for tender purposes being MFI 51B.

9. Officer Te provided the following information about the methodology by which the sketch plans were prepared:

a) She said the plan was not drawn completely to scale but rather was a computer-aided diagram, which gave a "representation" of each of the rooms in the upstairs area and a "perspective" of the furniture and other items relative to each other.

b) She advised that the crime scene photographs, notes and sketches prepared by crime scene officers were a source from which clarification of what is represented in the CAD plans might be obtained, if necessary.

c) She went on to say, however, that the measurements of the internal walls of each of the upstairs rooms were accurate, having been taken from measurements made by Sergeant Davis in her crime scene notes. She also said that the positioning of the shoe print impressions were referable to measurements made by crime scene officers Weldon and Wood recorded in Officer Weldon's notes.

d) She identified some shoe print impressions, which she developed, which she said were positioned on the CAD plan according to measurements she took relative to the impressions positioned in the notes of crime scene officers Weldon and Wood.

10. The CAD or sketch plans are tendered by the Crown pursuant to s 29(4) of the Evidence Act 1995 (NSW) as a form of evidence likely to aid the jury's comprehension of the evidence of Detective Ryan, the crime scene officer through whom the evidence of Sergeant Davis and other crime scene officers was led by consent on a hearsay basis. It was also tendered by the Crown to assist the jury to comprehend the evidence of Detective Raymond, who is to give evidence of her analysis of the shoe mark impressions, and the evidence of Detective Harkins, a blood spatter expert. Ms Te is also to give evidence.

11. In a separate document headed "Summary of Crime Scene Evidence", the CAD plans are referred to by their identifying number. The Crown also seeks to tender that summary under s 29(4).

12. That document, which was also further revised to correct various transpositional errors, and which became MFI 52B, sets out in a tabular form a large number of items. The items are identified by a FASS item and cross-referenced to other identifying numbers given by police at the time of swabbing areas at 55A Boundary Road or later identified by other means. The items are then further identified by the location where they were found, the identity of the collecting officer, the identity of the examining officer (in almost every case, Ms Te), together with the results of testing at the police forensic biology laboratory and later at the FASS DNA laboratory. The summary of those results are also relied upon by the Crown as aiding the jury's comprehension of the results of the forensic analysis of blood deposits, either transferred, spattered, wiped or sampled (including from shoe print impressions) and blood located on items found in the upstairs area. The summary is also said by the Crown to assist in aiding the jury's comprehension of the identity of the major and/or minor contributors to those samples.

13. There was no objection to the tender of the “Summary of Crime Scene Evidence” in the tabulated document MFI 52B. The objection to MFI 52A was maintained, but in part only.

14. There was no objection to those CAD plans numbered 3, 6, 11, 14, 17 and 18, that is, the plans that are limited to showing the location and spread of the blood of each of the deceased sampled for DNA profiling. There was an objection, however, to any of the plans that show or purport to show the relative positioning and direction of the shoe print impressions, namely numbered plans 1, 2, 4, 5, 10, 13 and 16. In Mr Turnbull's submission, there is nothing in Officer Te's statement that makes sufficiently clear the position of the shoe print impressions relative to the scale applied to each of the plans. He also submitted that the CAD plans falsely represent the number, direction and relative position of the shoe print impressions. From his interrogation of the source materials, he submitted that the location of the shoe print impressions appeared to be a matter of guesswork and, in addition, that there was a real risk that the integrity of the crime scene was contaminated, potentially obscuring and/or obliterating other bloodied shoe print impressions leaving open the reasonable possibility that there was more than one person in the upstairs area when the deceased were murdered.

15. He submitted that to admit the CAD plans at this time and to allow the jury to view what he submitted are either wrongly positioned shoe print impressions or select impressions only, all of which are oriented in the one direction, right to left on the plan, carries the risk of the jury relying on that evidence to the unfair prejudice of the accused.

16. In Mr Turnbull's submission, the plans containing the shoe print impressions, if they are to be admitted as part of the series of CAD plans, should be deferred until each of crime scene officers Weldon, Wood and Te are called to enable the probative value of the CAD plans to be tested. To the extent that Officer Raymond is also relied upon by the Crown as supporting the accuracy of the positioning, direction and array of shoe print impressions, Mr Turnbull submitted that the tender of the CAD plans should also await her evidence.

17. I accept that submission. I am also satisfied that the evidence should not be provisionally admitted at this time under s 57 of the Evidence Act, given Mr Turnbull’s submission that the CAD plans will ultimately be revealed to be wholly unreliable and may not be admitted into evidence at all.

18. It is entirely a matter for the Crown as to whether the tender of the series of CAD plans showing shoe mark impressions is reserved with a view to the series being tendered as a complete set, or whether the CAD plans are tendered in discrete parts and the series, to which no objection is taken, tendered with the “Summary of Crime Scene Evidence”.

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Decision last updated: 28 February 2017