R v Xie (No 7) [2015]

[2015] NSWSC 2120

Supreme Court

New South Wales

Medium Neutral Citation:	R v Xie (No 7) [2015] NSWSC 2120
Decision date:	16 April 2015
Jurisdiction:	Common Law - Criminal
Before:	Fullerton J
Decision:	Evidence not admitted
Catchwords:	CRIMINAL LAW – relevance – admissibility of crime scene officer’s sketch plans
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: Mr Turnbull SC seeks to tender a series of documents marked for identification 136, being a subset of the working papers of Detective Sergeant Sarah Davis, a crime scene officer who attended 55A Boundary Road on 18 July 2009 and for successive days thereafter. Constable Davis was not available to give evidence at trial due to illness. In order to ensure that her observations, where relevant, were led before the jury, including her sketches of the first floor of 55A Boundary Road and, in particular, the appearance of Bedrooms 1, 2 and 3 and the deceased in situ in those rooms, Detective Senior Sergeant Ryan gave hearsay evidence of Constable Davis’ observations by agreement. Extracts of her crime scene working notes were also tendered through Detective Ryan (see Exhibit 40).

2. Ms Te, another crime scene officer who worked alongside Constable Davis, also gave evidence of what she and Constable Davis observed of what were later identified as shoe print impressions in blood, both in situ at the crime scene and upon sections of the carpet removed from the crime scene.

3. Neither Ms Te, Constable Davis nor Detective Ryan has relevant expertise in the identification and comparison of shoe print impressions. Dr Jennifer Raymond was qualified by the Crown to give that opinion evidence. Her expertise was not challenged by Mr Turnbull.

4. MFI 136 comprises a sketch drawn by Constable Davis on 3 August 2009 of a piece of bedding removed from 55A Boundary Road and examined at the NSW Police forensic laboratory at the Crime Scene Services Branch at Pemulwuy. The bedding is a doona identified on the sketch as “#item 5” and described as a “Hello Kitty” doona (by reason of the print design on the material of the doona). It was located underneath the legs and lower torso of Irene Lin in Bedroom 2. Her legs were draped over one side of a single bed in that room.

5. A number of shoe print impressions in blood bearing identifiable features of an ASICS-style sole print impression were located on the carpet underneath the edge of the Hello Kitty doona at the side of the bed proximate to where Irene’s legs were draped.

6. Dr Raymond gave evidence that there were a number of shoe mark impressions involving multiple placements of a bloodied shoe on the carpet in that area (in cross-examination, she said there were at least ten separate placements adjacent to the bed), all of which demonstrated a “diamond-shaped recess” consistent with the sole pattern of ASICS-type shoes. Dr Raymond said that she observed only one shoe pattern of this type in that area, leading her to the opinion that all the shoe print impressions were consistent with the marks of an ASICS-style sole.

7. At the time of Constable Davis’ examination of the doona, but before Dr Raymond had examined it, applying her skill and expertise as a marks examiner, Constable Davis cross-hatched two distinct areas on the doona which she nominated as “SM1 impression (blood)” and “SM2 (blood)”. At the time of designating the marks in that way, observable shoe print impressions on the carpet within the crime scene, with a sequential “SM” numbering, had been applied by Detectives Wood and Weldon. The numbering of the shoe print impressions by them commenced at SM1. These shoe print impressions included impressions that were later identified as being deposited by police issue boots or protective booties worn over police boots.

8. In cross-examination, Detective Ryan agreed with the proposition put to him in respect of the “SM” designations, namely that:

… “SM” is a shorthand way of saying “shoe mark”. That’s not intended to be conclusive. That’s just to indicate what the concern of the investigator might be and that is that they think it might be a shoe mark…

9. In the course of Ms Te's examination in chief, junior counsel for the Crown led from her that the marks Constable Davis had nominated as SM1 and SM2 were insufficient to determine what left the marks, whether it be “a shoe, tool or simply a fold of fabric”. She confirmed that that was the case. She was not cross-examined by Mr Fernandez as to the sufficiency or otherwise of that observation. It was certainly not suggested to her that the marks had the appearance of shoe mark impressions or that the photographs of the marks, which accompanied Constable Davis’ sketch, suggested that they had any outline or identifying features of a “shoe mark impression”. I note in that connection that there is a high-resolution photograph of SM1 and SM2 as part of MFI 136, together with a photograph of SM2 under enhancement, neither of which have the obvious appearance of a shoe print impression or a partial shoe print impression.

10. Dr Raymond was not asked any questions in evidence in chief as to whether she gave any consideration to the marks Constable Davis nominated as SM1 and SM2 on the doona in the course of her examination of photographs and sketches of the potential shoe print impressions in blood in the crime scene itself and on the carpet segments removed for examination purposes. In cross-examination, Mr Turnbull directed Dr Raymond’s attention to the marks on Constable Davis’ sketch, which she accepted were apparently intended by her to designate where she thought there was a potential for identification of a shoe mark or shoe print. Mr Turnbull then asked the following questions:

Q. Were you, at any time, asked to review those photographs or that drawing in order to apply your expertise to that question?

A. This doona was examined, in conjunction with Sarah Davis and Sim Te. Sim’s notes covered these, SM 1 and SM 2, and I reviewed her case notes and her photographs regarding this, yes.

Q. What was the conclusion that you came to?

A. That they had no further detail to confirm their origin.

Q. So, they could be shoe prints, but they could be from any myriad source?

A. They could be anything, yes.

11. Mr Turnbull then sought to tender MFI 136. The Crown objected to the tender and argument was reserved until a convenient time in the absence of the jury.

12. In the course of argument, Mr Turnbull advanced the submission that the tender of MFI 136 (that is, Constable Davis’ sketch of the doona and the cross-hatching of an area in blood and the accompanying photographs of the marks) was not for the purpose of providing a visual form of the evidence given by either or both Ms Te and Dr Raymond, but to seek to establish that the marks described by Constable Davis as possible “shoe marks” were in fact shoe marks in blood deposited on the doona during the course of the attack on Irene Lin, or that the jury might reason to that conclusion as a reasonable possibility. He emphasised that it was, and always has been, the accused’s case that the forensic evidence gathered from crime scene when taken together and properly scrutinised would, at the very least, leave room for doubt that the murders were committed in the dark by only one person. He identified that as the fact in issue, to which the tender of MFI 136 was relevant.

13. The evidence thus far admitted in the trial as to the potential, as Constable Davis saw it, for SM1 and SM2 to be identified as shoe mark impressions before they were subjected to later analysis and that potential discounted, is already available to the jury for their consideration and available to defence counsel to draw upon in advancing final submissions to the jury as to whether the Crown has proved the guilt of the accused.

14. I am not satisfied that the pictorial representation of what Constable Davis thought might have been shoe print impressions by her cross-hatching on the sketch plan of the doona cover, in what I understand to be the general area of the marks, is capable of rationally affecting (directly or indirectly) the jury’s assessment of the probability of there being (or possibly being) more than one assailant. The placement of the doona at or near the feet of Irene Lin, covering the other prints in blood on the carpet, the fact that the marks on it are in blood and the marks are not identified as coming from any particular source, but within a myriad of possibilities, does not in my assessment assist the jury as to the timing and placement of the shoe marks underneath the doona, which were identified by Dr Raymond as consistent with an ASICS-style shoe print impression, and does not rationally support the assessment of whether the marks were deposited by a person other than the wearer of the ASICS-style shoes. The position would be the reverse if SM1 or SM2 were capable of being positively identified, or even possibly identified by Dr Raymond as an unidentified shoe print, but the oral evidence does not go that distance. Constable Davis’ sketch of the marks and their general or representative dimensions, and what I understand Mr Turnbull would invite the jury to conclude from MFI 136, namely that there might be a shoe print from someone other than the person or people who were wearing ASICS-style shoes, has the capacity to invite the jury to disregard the expert opinion of Dr Raymond without any cross-examination of her on that issue.

15. For that reason, I reject the tender of MFI 136. It will be a question for consideration later in the trial as to what, if any, submission Mr Turnbull does seek to advance to the jury as to the use they may make of the oral evidence as to the relative placements of SM1 and SM2 on the doona and their nomination by Constable Davis as possible shoe marks.

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Decision last updated: 01 March 2017