The State of Western Australia v Pope [No 2] - [2019] WASC 345

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- POPE [No 2] [2019] WASC 345
CORAM:   DERRICK J
HEARD:   19 SEPTEMBER 2019
DELIVERED          :   20 SEPTEMBER 2019
FILE NO/S:   INS 260 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
MARINA GERTIE POPE
Accused

Catchwords:

Evidence - Objection to expert bloodstain pattern analysis evidence - Whether proposed expert witness lacks required expertise

Evidence - Objections to admissibility of bloodstain pattern analysis evidence and DNA analysis evidence - Whether evidence relevant - Whether evidence should be excluded on ground prejudicial effect exceeds probative value

Legislation:

Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)

Result:

Objection to admissibility of evidence dismissed

Category: B

Representation:

Counsel:

Prosecution	:	Mr L Hobson & Ms D Borkowski
Accused	:	Ms H E Prince & Ms H K Muhling

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Helen Muhling

Case(s) referred to in decision(s):

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
HCP v The State of Western Australia [2019] WASCA 38
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Mukevski v The State of Western Australia [2010] WASCA 138; (2017) 267 A Crim R 194
The State of Western Australia v Pope [2019] WASC 338

DERRICK J:

(These reasons were delivered orally on 20 September 2019 and have been edited from the transcript).

Introduction

The accused is charged on an indictment dated 7 April 2017 with one offence of murdering Mr Travis Patrick Wicker (the deceased) and three offences of making a threat to unlawfully kill. The three complainants the subject of the three threat to kill charges are Ms Pamela Roslyn Morrison, Mr Douglas Elvis McArthur and Mr Neil Edward Gerardi. The accused's trial on the charges commenced on Monday 16 September 2019.
By an application dated 28 August 2019 (the application) the accused applies pursuant to s 98(2)(a) of the Criminal Procedure Act 2004 (WA) for orders that are in substance as follows:
1.The evidence of Ms Julie Murakami, forensic scientist, relating to the location of the deceased's DNA on the accused's jumper (contained in her report dated 5 March 2019) is inadmissible; and
2.The evidence of Ms Michelle Hayes, forensic investigation officer, relating to bloodstains located on the accused's jumper (contained in her report dated 2 May 2019 and in her addendum report dated 10 September 2019) is inadmissible.
According to the terms of the application the orders are sought on the ground that the probative value of the evidence of Ms Murakami and Ms Hayes is outweighed by its prejudicial effect. However, in truth the primary ground on which the accused contends that each of the categories of evidence is inadmissible is that the evidence is irrelevant. The alternative contention is that if the evidence is relevant it should be excluded by the court in the exercise of its discretion on the basis that the probative value of the evidence is outweighed by its prejudicial effect.
The application is supported by an affidavit sworn by the accused's solicitor, Ms Muhling, on 28 August 2019.
On or about 5 September 2019, after the filing of the application, the accused notified the court and the prosecution that she was objecting to the admissibility of Ms Hayes' evidence on a further ground, namely that Ms Hayes was not sufficiently qualified to give the evidence.
On 9 September 2019 the accused filed a second affidavit sworn by Ms Muhling on that date in support of the objection to the admissibility of Ms Hayes' evidence on the asserted ground of Ms Hayes' lack of expertise.
In summary, I am now required to determine not only the application but also if Ms Hayes has the necessary degree of expertise to give the opinion evidence set out in her reports.

The preliminary views expressed by Corboy J in relation to the application

On 5 September 2019 Corboy J heard an application by the State to adduce evidence under s 31A of the Evidence Act 1906 (WA). His Honour reserved his decision.
Also on 5 September 2019 Corboy J, after hearing the State's application under s 31A, proceeded to hear argument from the parties in relation to the application.[1] After hearing argument his Honour, having previously been alerted to the accused's intention to challenge the expertise of Ms Hayes, decided not to finally determine the application.[2] However, his Honour indicated that when he delivered his reasons on the State's application under s 31A he would 'say something about the application…so that the trial judge has the benefit of what I would understand to be the issues, the arguments' and to avoid 'a rehearsal of the arguments' that had already been put before him.[3]
[1] ts 44 ‑ 65.
[2] ts 63.
[3] ts 63.
On 12 September 2019 Corboy J delivered his oral reasons for decision on the State's application under s 31A. His Honour refused the State's application. [4]
[4] ts 83 ‑ 91. Corboy J subsequently produced his oral reasons in written form: The State of Western Australia v Pope [2019] WASC 338. His Honour’s written reasons for decision have been provided to the parties but have been suppressed from further publication pending the completion of the accused’s trial.
Having delivered his oral ruling on the State's application under s 31A Corboy J then turned to the application. His Honour, before making his remarks in relation to the application, made clear that his intention was to provide 'some factual foundation' for what would have to be considered by the trial judge in determining the application, and to assist the trial judge to deal with the application.[5] His Honour also made clear that although he was going to express some tentative views about the merits of the application, his tentative views did not in any way bind the trial judge in determining the application and that he was expressing his tentative views to assist the trial judge and the parties given that the trial was listed to commence on the following Monday.[6] His Honour then made his remarks in relation to the application.[7] His Honour's remarks are, with respect, relatively detailed. In his remarks his Honour sets out the evidential background to the application, the arguments advanced by the parties in relation to the application and his tentative conclusions in relation to the application. His Honour's tentative conclusions were, for the reasons that he gave, that the categories of evidence the subject of the application are relevant and admissible.
[5] ts 83.
[6] ts 83.
[7] ts 91 ‑ 98.

The alleged facts of the State's case

In delivering his ruling on the State's application under s 31A Corboy J summarised in some detail the alleged facts of the State's case.[8] His Honour's summary of the alleged facts was broadly consistent with the prosecutor's opening address at trial. I am not going to repeat what his Honour said. It is unnecessary for me to do so. I simply adopt his Honour's summary of the alleged facts.
[8] ts 84 ‑ 85; The State of Western Australia v Pope [3] ‑ [4].
The only additional point I will make about the alleged facts of the State's case that was not made by his Honour in summarising the alleged facts (although it was referred to by his Honour later in his remarks) is that the accused did not participate in an interview with the police.

The issues at trial

The accused has not made any formal admissions.
The accused has filed an alibi notice pursuant to s 62(1) and s 96(3) of the Criminal Procedure Act. In the alibi notice the accused asserts that she was not present at the unit when the deceased was allegedly stabbed or when any threats to kill were allegedly made to Ms Morrison, Mr McArthur and Mr Gerardi, and that at the time of the alleged events the subject of the charges she was walking around the vicinity of St Albans Road Nollamara and nearby streets.
In light of the alibi notice and in the absence of any formal admissions the State is required to prove each element of each of the charged offences. Accordingly, so far as the murder charge is concerned, the State is required to prove that the accused did the relevant act (that is, stabbed the deceased), that the act caused the deceased's death, that the act was done unlawfully, and that the act was done with the relevant intent. Having said this, it would appear, given the alibi notice and the way that the trial has been conducted thus far, that the primary issue for the jury's consideration so far as the murder charge is concerned is whether the accused was the offender; that is, whether she was the person who stabbed the deceased.
I note in this context that during the cross‑examination of Mr McArthur it was suggested to him that it was either Ms Morrison or Mr Gerardi that had stabbed the deceased and also that he did not know who had stabbed the deceased,[9] that during the cross-examination of Ms Morrison it was suggested to her that she knows that it was not the accused who stabbed the deceased and that it was 'family' that stabbed the deceased,[10] and that during the cross-examination of Mr Gerardi it was suggested to him that it was either he or Ms Morrison who had stabbed the deceased.[11]
[9] ts 227.
[10] ts 262.
[11] ts 309.
In attempting to prove that the accused was the person who stabbed the deceased the State relies primarily, but not exclusively, on the evidence of Mr McArthur, Mr Gerardi and Ms Morrison.

The DNA evidence the subject of the application

Turning to the DNA evidence the subject of the application.
Ms Murakami is forensic scientist employed by PathWest. The evidence which the State seeks to adduce from Ms Murakami, and which the accused by the application objects to and seeks to have ruled inadmissible, relates primarily to two stains located on the jumper, stain A and stain B, that was taken from the accused upon her arrest in Hillsborough Drive in Nollamara.
The evidence that is objected to is set out in detail by Corboy J in the remarks that his Honour made in relation to the application.[12] It is unnecessary for me to repeat what his Honour said in this regard. I simply adopt his Honour's statement of the evidence and make the following points.
[12] ts 91 ‑ 92.
First, stain A and stain B returned a positive result on the use of the Kastle‑Meyer test which is a presumptive chemical test for blood.
Second, stain A and stain B were not subjected to Hematrace testing to confirm the presence of human blood.
Third, it is not in dispute that the reason for not subjecting the stains to Hematrace testing is that Hematracing cannot identify in a mixed DNA sample if the DNA located in the sample was sourced from blood or some other source, for example, skin cells, saliva or semen.
Fourth, the net result, which is accepted by the State, is that the DNA evidence that the State proposes to adduce from Ms Murakami is incapable of establishing that the source of the DNA profiles recovered from the samples taken from stain A and stain B which matched the deceased's DNA profile was the deceased's blood as opposed to other potential sources such as the deceased's skin cells, saliva or semen.

The bloodstain pattern analysis evidence the subject of the application

I turn to the bloodstain pattern analysis evidence the subject of the application.
Ms Hayes is employed by the Western Australian Police Force (WAPOL) as a Police Auxiliary Forensic Science Officer. She is a forensic investigation officer attached to WAPOL's Forensic Field Operations Crime Scene Investigations Unit.
The proposed evidence of Ms Hayes as set out in her initial report dated 2 May 2019 and in a note made of a meeting that the accused's legal representatives had with her on 23 August 2019 is summarised by Corboy J in his remarks relating to the application.[13] It is unnecessary for me to repeat what his Honour said in this regard. Again, I simply adopt his Honour's summary of the proposed evidence.
[13] ts 92 ‑ 93.
Ms Hayes' addendum report (prepared at the request of the State) was disclosed on 10 September 2019. A copy of the addendum report was provided to the court on that date. However, in his remarks made in relation to the application Corboy J, although he made reference to the Ms Hayes' provision of the addendum report, did not attempt to summarise the proposed evidence of Ms Hayes as set out in the addendum report. The reason for this may well be that the content of the addendum report substantially reflects the content of the note made of the meeting on 23 August 2019. In any event, the material opinions expressed by Ms Hayes in the addendum report that are supplementary to the opinions expressed in her initial report, evidence of which the State seeks to adduce, are as follows:
1.There are four broad bloodstain pattern categories: bloodstains formed due to gravity; bloodstains arising from contact; bloodstains that have been exposed to an additional force (that is, spatter stains); and bloodstains that do not fit into any of these categories and are grouped as 'other';
2.On the basis of the physical characteristics of stain A and stain B (specifically size, shape and appearance) all bloodstain pattern types from the categories of 'gravity' and 'other' can be excluded;
3.The mechanism behind 'contact' bloodstains is described as when a wet bloody surface contacts a second surface as a result of compression or lateral movement;
4.Based on the physical characteristics of stain A and stain B (specifically size, shape, appearance, and no lateral movement) the bloodstain pattern types wipe pattern and swipe pattern from the category of 'contact' can also be excluded;
5.This leaves the bloodstain pattern types of transfer stain from the 'contact' category, and bloodstains and bloodstain patterns pertaining to the 'spatter' category for consideration;
6.A transfer stain is described as a bloodstain resulting from contact between a blood bearing surface and another surface. Bloodstains described as spatter bloodstains are the result of a blood drop being dispersed through the air due to an external force applied to a source of liquid blood;
7.Regardless of the type of external force, all spatter bloodstains are the result of blood droplets in flight depositing on a surface;
8.Although the definitions of transfer bloodstains and spatter bloodstains are clear, the differentiation between them on visual inspection at low magnification on fabric can be challenging but not impossible, and requires the analyst to exercise caution;
9.Based on her training, knowledge, experience and recreation of numerous bloodstains, due to the size and shape of stain A and stain B, the penetration of the weave of the fabric, the staining of both left and right loop legs and the lack of characteristics relating to transfer bloodstains on fabric, it is her opinion that the stains are indicative of spatter bloodstains, although it is within the realms of possibility that stain A and stain B could be transfer bloodstains (under certain circumstances); and
10.Due to the inability to age blood and the biological analysis of stain A and stain B resulting in mixed DNA profiles, from a bloodstain pattern analysis perspective they cannot be correlated to the scene of the stabbing incident nor the injuries sustained by the deceased or his subsequent death.

The application - analysis and determination

It is convenient to deal with the application before dealing with the objection to the evidence of Ms Hayes on the ground of lack of expertise.
I will commence to deal with the application by saying something about the general principles relating to the concept of relevance and the discretion to exclude relevant evidence.

Relevance and the discretionary exclusion of relevant evidence - general principles

The general principles relating to the concept of relevance may be stated as follows:[14]
1.The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues at the trial;
2.Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue at the trial;
3.The general rule is that relevant evidence will be received as qualified by other rules;
4.Evidence can have the effect of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue at the trial if it assists in the evaluation of other evidence;
5.Evidence is either relevant or it is not. No question of discretion is involved;
6.A decision as to whether evidence is relevant is based on logic and general experience;
7.If evidence is not relevant, no further issue arises as to admissibility. Irrelevant evidence will not be received;
8.The rules of exclusion at common law arise for consideration only with respect to evidence which is relevant.
[14] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2]; HCP v The State of Western Australia [2019] WASCA 38 [45] ‑ [46].
The court has a discretion to exclude otherwise relevant and admissible evidence on the ground that its prejudicial effect exceeds its probative value. In relation to the exercise of this discretion in Festa v The Queen[15] McHugh J said:
But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
[15] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [51]; see also Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [190].
If evidence is relevant, but is inherently weak and non‑conclusive, a court may exercise its discretion to exclude the evidence on the basis that its prejudicial effect outweighs its probative value.[16]

The accused's argument

[16] Mukevski v The State of Western Australia [2010] WASCA 138; (2017) 267 A Crim R 194 [35].

The accused's argument in support of the application is set out by Corboy J in his remarks made in relation to the application.[17] Although his Honour set out the accused's argument, I take this opportunity to summarise my understanding of the argument in the following terms.
[17] ts 93 ‑ 94.
Even if it is accepted that the deceased's DNA was found in stain A and stain B, and accepting that stain A and stain B are bloodstains, the evidence is incapable of establishing the source of the DNA. That is, the evidence is incapable of establishing that the deceased's DNA came from the deceased's blood rather than some other source such as saliva or skin cells. This is particularly so given that the accused had spent the night at the unit with the consequence that the location of the deceased's DNA on the jumper may be the result of secondary transfer from surfaces inside the unit which the deceased had come into contact with. Further, the DNA results cannot establish a time when the deceased's DNA was deposited on the jumper. Therefore, the DNA evidence, that is, the evidence of the finding of the deceased's DNA on the jumper, is incapable of proving or going to prove that the accused was in the presence of the deceased at the time that the deceased was stabbed. Accordingly, the evidence is irrelevant to the fact in issue, namely whether it was the accused who stabbed the deceased. Alternatively, the probative value of the evidence is exceeded by its prejudicial effect.

As to the bloodstain pattern evidence, given that the DNA evidence is incapable of establishing that the source of the deceased's DNA found in stain A and stain B was the deceased's blood, the bloodstain pattern evidence taken at its highest is capable of proving only that at some time before the jumper was seized blood from an unknown person was deposited on the jumper and the jumper was in close proximity to the blood source at the time. Therefore, the bloodstain pattern evidence is incapable of proving that the accused was in close proximity to the deceased at the time that the deceased was stabbed. The bloodstain pattern evidence is therefore irrelevant to the fact in issue, namely whether it was the accused who stabbed the deceased. Alternatively, the probative value of the evidence is outweighed by its prejudicial effect.
So that is a summary of the accused's argument on the application.

The State's argument on the application

The State's argument in opposition to the application, as the argument was put to Corboy J at the time of the hearing on 12 September 2019, is set out by his Honour in his remarks made in relation to the application.[18] However, since the hearing before Corboy J, and following on from the provision by Ms Hayes of her addendum report, the State's argument has on my understanding been broadened slightly. Accordingly, I will summarise the argument that is now, as I understand it, advanced by the State. I summarise the argument in the following terms.
[18] ts 94 ‑ 95.
The State seeks to adduce the DNA evidence to prove that stain A and stain B are bloodstains, and further that the deceased's DNA was recovered from the samples taken from each of the stains.
The fact that the deceased's DNA was found on the accused's jumper is a fact or circumstance which, taken in conjunction with other evidence, including the evidence of the three eye witnesses Ms Morrison, Mr McArthur and Mr Gerardi, goes to prove that the accused was at the unit at the time that the deceased was stabbed. Accordingly, the evidence is relevant to a fact in issue, namely whether it was the accused who stabbed the deceased.
The bloodstain pattern evidence, taken at its highest and considered in conjunction with the DNA evidence, is capable of proving the following:
1.The blood in stain A and stain B must have been in liquid form prior to coming into contact with the accused's jumper;
2.The stabbing of the deceased, or more precisely the stabbing of the deceased and the consequential infliction of the stab wound, was a bloodletting event; that is, was an event which would either at the time of the infliction of the wound or at some point thereafter, have resulted in blood loss and droplets of blood travelling through the air;
3.Stain A and stain B are spatter bloodstains, that is, are the result of a blood drop being dispersed through the air due to an external force applied to a source of liquid blood and depositing on a surface (namely, the jumper);
4.The jumper was in close proximity to a source of liquid blood as the liquid blood travelled through the air in the form of droplets; and
5.If stain A and stain B are not spatter bloodstains, they are transfer bloodstains; that is, they resulted from contact between a blood bearing surface and another surface (namely, the jumper).
Other evidence adduced, or still to be adduced, from a number of witnesses, taken at its highest, is capable of proving that the accused was wearing the jumper during the evening before the deceased was stabbed, that the accused was at the unit on the morning that the deceased was stabbed, that the accused was arrested in Nollamara in a location that was relatively close to the unit in which the deceased was stabbed, that the accused was arrested a short time after the deceased was stabbed, that the accused was wearing the jumper at the time of her arrest, and that the jumper was seized from the accused at the time of her arrest.
Finally, the only inference that can reasonably be drawn from the fact that the accused was wearing the jumper during the evening before the deceased was stabbed, the fact that the accused was at the unit on the morning that the deceased was stabbed, the fact that the accused was arrested in Nollamara in a location that was relatively close to the unit in which the deceased was stabbed, the fact that the accused was arrested a short time after the deceased was stabbed, the fact that the accused was wearing the jumper at the time of her arrest, the fact that the jumper was seized from the accused at the time of her arrest, the fact that the infliction of the stab wound was a bloodletting event, the fact that stain A and stain B were bloodstains, and the fact that they were spatter bloodstains or transfer bloodstains is that the deceased was present at the unit at the time that the deceased was stabbed and in close proximity to the deceased at the time that he was stabbed.
Thus the State accepts that like the DNA evidence the bloodstain pattern evidence is by itself incapable of establishing the source of the bloodstains on the jumper. However, the State's submission is that when the bloodstain pattern evidence is considered in conjunction with the other evidence to be adduced by the State it supports the inference that the accused was not only present at the scene at the time that the fatal stab wound was inflicted, something which the accused denies, but was also in close proximity to the deceased, and is therefore relevant to proving the State's allegation that it was the accused who stabbed the deceased.

Ruling

Consistently with the views tentatively expressed by Corboy J, I am of the opinion that the DNA evidence and the bloodstain pattern evidence is relevant and admissible. I am of this opinion substantially for the reasons expressed by Corboy J.[19] I will, however, state my reasons.
[19] ts 97 ‑ 98.
I am satisfied that the evidence already adduced and to be adduced by the State is, taken at its highest, capable of proving the facts which the State asserts the evidence is capable of establishing, those facts being the facts that I have identified in summarising the State's argument on the application. It may be that ultimately the jury does not find all of the identified facts established but, as I have said, in my view the evidence, taken at its highest, is capable of establishing those facts.
I note in this context that evidence that has already been given by Mr McArthur, Ms Morrison and Mr Gerardi, as well as other civilian and police witnesses who attended the unit and saw the deceased lying on the floor in the bedroom after he had been stabbed, is capable, if accepted, of establishing that the infliction of the stab wound to the deceased was a bloodletting event.[20] I further note in this context, that although the stains on the jumper were not subject to Hematracing it will still, in my view, be open to the jury, on the basis of the evidence to be given by Ms Murakami that stain A and stain B returned a positive result on the Kastle‑Meyer test, to find that stain A and stain B were blood stains.
[20] See for example, statement of Gerardi (prosecution brief p 6, par 61), statement of McArthur (prosecution brief, p 20, par 35) and statement of Harmer (prosecution brief p 115, par 12).
The fact that the accused had two, albeit very small, bloodstains on her jumper, if this finding is made by the jury, when considered in conjunction with the other facts which the State asserts are capable of being established by the evidence, (specifically that the accused was at the unit on the morning that the deceased was stabbed, that the accused was arrested in Nollamara in a location that was relatively close to the unit in which the deceased was stabbed, that the accused was arrested a short time after the deceased was stabbed, that the accused was wearing the jumper at the time of her arrest, that the jumper was seized from the accused at the time of her arrest, and that the infliction of the stab wound to the deceased was a bloodletting event) is relevant to the allegation that it was the accused who stabbed the deceased. To put it another way, the fact that the accused had two bloodstains on her jumper, even though the source of the bloodstains cannot on the forensic evidence be proved, is a circumstance which, considered in conjunction with the other facts, could rationally affect, directly or indirectly, the jury's assessment of the probability of the existence of a fact in issue, namely whether the accused was present at the time that the deceased was stabbed and therefore whether the accused was the person who stabbed the deceased. The existence of the bloodstains is consistent with the accused being present at the time of the stabbing of the deceased. As Corboy J put the matter in expressing his tentative views, 'those matters are by themselves without further evidence concerning DNA or blood pattern analysis admissible as circumstances relevant to proof of the accused's presence when, on the State's case, [the deceased] was stabbed'.[21] It therefore necessarily follows that the evidence to be given by Ms Murakami that the stains produced a positive result on a presumptive test for blood is relevant.
[21] ts 97.
The correctness of this proposition can be tested by considering the following hypothetical situation.
If the accused, at the time of her apprehension, had been found with a large amount of blood staining on her jumper but the blood was, due to some oversight, not subjected to any form of forensic analysis so that the source of the blood could not be proved by forensic evidence, it could not realistically be suggested that the evidence of the accused being found with the bloodstained jumper was not relevant. Similarly, the fact that the bloodstains in the present case are small and cannot on the DNA evidence be proved to have come from the deceased does not deprive the evidence of the existence of the blood stains on the jumper of its relevance.
Turning to the evidence of the DNA analysis proposed to be given by Ms Murakami.
The fact that the source of the DNA matching the deceased's DNA profile found in the stains on the jumper (hereafter referred as 'the deceased's DNA' for ease) cannot be said to be blood does not, in my opinion, deprive the evidence of its relevance. The accused has, by her alibi notice and by the way in which the witnesses called to this point have been cross‑examined, put in issue that she was the person who stabbed the deceased. Therefore any evidence which, whether considered alone or in conjunction with other evidence, is capable of linking the accused to the deceased is evidence that could rationally affect, directly or indirectly, the assessment of the probability of the fact in issue, namely whether it was the accused who stabbed the deceased.
The fact that there may be explanations for the location of the deceased's DNA on the accused's jumper consistent with her innocence arising from her presence at the unit during a period of time prior to the time at which the deceased was stabbed (for example, secondary transfer of the deceased's DNA from furniture within the unit) does not render the DNA evidence irrelevant. The likelihood of the deceased's DNA ending up on the deceased's jumper by means other than the accused being in close contact with the deceased in the course of stabbing him, is a matter that will be able to be taken into account by the jury in assessing the weight to be placed on the fact of the location of the deceased's DNA on the jumper in determining if the accused was the person who stabbed the deceased.
There is another reason why the evidence of the location of the deceased's DNA on the jumper is relevant. If Ms Murakami's evidence is confined to evidence of the fact that stain A and stain B returned a positive result on the Kastle‑Meyer test, the jury may well speculate or conclude impermissibly on the basis of the forensic evidence alone that the bloodstains contain the blood of the deceased. However, and as I have pointed out, the forensic evidence is by itself incapable of proving that fact. Therefore, once it is accepted that the evidence of the stains returning a positive result on the Kastle‑Meyer presumptive test is relevant, the evidence of the location of the deceased's DNA on the jumper, and more specifically the evidence that it cannot be said that the relevant DNA profile comes from blood as opposed to some other source, needs to be adduced in fairness to the accused.
That leaves the bloodstain pattern evidence.
Evidence to be given by Ms Hayes that stain A and stain B, that is, the two bloodstains, were spatter bloodstains or transfer bloodstains is, if accepted by the jury, capable of establishing, when considered in conjunction with the other facts which are capable of being established to which I have referred, that the accused was in close proximity to the relevant bloodletting event, namely the stabbing of the deceased. Accordingly, the evidence could rationally affect, directly or indirectly, the assessment of the probability of the fact in issue, namely whether it was the accused who stabbed the deceased, and is therefore relevant. To put it another way, if the jury are ultimately satisfied beyond a reasonable doubt on all the evidence that the accused was present at the unit at the time that the deceased was stabbed, the bloodstain pattern evidence to be given by Ms Hayes could rationally affect, directly or indirectly, the assessment of the probability of whether it was the accused, as opposed to one of the other people present in the unit at the relevant time, who stabbed the deceased.
It is the position that ordinarily a bloodstain pattern analysis is not undertaken by a forensic investigation officer where there is a mixed DNA profile. The reason for this is that ordinarily bloodstain pattern analysis is undertaken as a crime event reconstruction tool; that is to provide evidence of the event or sequence of events that resulted in the deposition of the bloodstains and bloodstain patterns. However, the fact that the evidence of Ms Hayes is not sought to be adduced for this purpose does not render her evidence inadmissible.
That leaves the accused's submission that the evidence of Ms Murakami and Ms Hayes, even if it is relevant, should be excluded on the basis that its prejudicial effect exceeds its probative value. The essence of the accused's submission in this regard is that there is a risk that the jury will give the evidence much greater weight than should be accorded to it.
I do not accept the accused's submission. There will be an obligation on the State not to attempt to make use of the evidence beyond what is permissible. Further and in any event, any risk that the jury will uncritically overvalue the evidence will be able to be dealt with by directions from me to the jury as to the use that they are permitted to make of the evidence.
In summary, in my opinion the objected to evidence proposed to be adduced from Ms Murakami is admissible, and the objected to evidence proposed to be adduced from Ms Hayes is, subject to the issue of her expertise, also admissible.

The objection to the bloodstain pattern evidence on the ground that Ms Hayes lacks the necessary expertise

I turn now to deal with the objection to Ms Hayes giving the opinion evidence set out in her reports on the ground that she lacks the necessary degree of expertise to give the evidence.
In order to deal with the challenge to the expertise of Ms Hayes I yesterday heard evidence on the voir dire from Ms Hayes and Dr Mark Reynolds, a forensic consultant. Dr Reynolds was called to give evidence on the voir dire by the accused. The accused's contention that Ms Hayes' lacks the required degree of expertise to give the proposed opinion evidence is founded on the evidence given by Dr Reynolds.

Applicable legal principles

The relevant legal principles in dealing with the accused's objection to the evidence of Ms Hayes on the ground that she lacks the required expertise may be summarised as follows.
Opinion evidence of the kind proposed to be given by Ms Hayes is admissible only if given by a witness of specialised knowledge, derived from study or experience, on a subject for which unqualified persons require that assistance to form a sound judgment. [22] Accordingly, an affirmative answer must be given to the following four questions before opinion evidence on a scientific subject matter will be admissible:[23]
1.Is the opinion relevant; that is, could the evidence rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings?
2.Is a person of ordinary experience unable to form a sound judgment on the subject matter without the assistance of an 'expert' witness with special knowledge or experience in the area?
3.Is the subject matter part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience?
4.Has the witness acquired, by study or experience, sufficient knowledge of the subject to render their opinion of value in resolving the issues before the court?
[22] Liyanage v The State of Western Australia [2017] WASCA 112 [122].
[23] Liyanage v The State of Western Australia [123].
Given my ruling on the application the first of the above questions can in the present case be answered in the affirmative. Further, it is not in dispute that the nature of the bloodstain pattern evidence is such that the second and third of the above questions can be answered affirmatively. It is the fourth of the above questions that the accused submits cannot, in the case of Ms Hayes, be answered affirmatively.

The evidence given on the voir dire

The evidence adduced on the voir dire from both Ms Hayes and Dr Reynolds was relatively lengthy and detailed. Given the time limitations that I have been operating under in considering this matter, I do not propose to attempt to provide in these remarks a detailed recital of what Ms Hayes and Dr Reynolds said. I will confine myself to referring to the most salient aspects of their evidence. However, the fact that I am going to adopt such an approach should not be taken as an indication that I have not read and considered all of the evidence given by both Ms Hayes and Dr Reynolds. I have read and considered all of the evidence adduced on the voir dire and taken it into account in determining the accused's objection to Ms Hayes' evidence.

Evidence of Ms Hayes

The evidence in chief of Ms Hayes was comprised in the main of paragraphs 1 to 23 of a statement signed by her on 10 September 2019.[24] In her statement, the content of which was not directly challenged in cross-examination, Ms Hayes records the following matters:
[24] Exhibit 1 on the voir dire.
1.She has two and a half years' experience as a Forensic Crime Scene Investigator examining, interpreting and recording crime scenes for the New South Wales Police Force;
2.She has over seven and a half years' experience as a Forensic Crime Scene Investigator examining, interpreting and recording crime scenes for WAPOL;
3.She has successfully completed the following training courses specific to bloodstain pattern analysis for porous (fabric) and non‑porous surfaces:
(1)In 2007, the National Level I (Introductory) Bloodstain Pattern Analysis Course (level I course) through the Canberra Institute of Technology and NSW Police Force;
(2)In November 2012, the National Level II (Intermediate) Bloodstain Pattern Analysis Course (level II course) through WAPOL;
(3)In September 2018, the National Level III (Advanced) Bloodstain Pattern Analysis Course (level III course) through WAPOL.
4.In March 2013 and February 2017 she assisted in the instruction and assessment for the level I course, and in March 2016 she assisted in the instruction and assessment for the level II course;
5.With specific reference to the analysis of blood stains and blood stain patterns on fabrics, she has completed approximately 30 hours formal training through undertaking the level I course, the level II course and the level III course, and through teaching the level I course and the level II course. The courses include theoretical knowledge, laboratory based examinations, mock clothing examinations and subsequent mock reporting, and mock court presentations;
6.Through her studies, training, teaching and experience she has achieved the current learning outcomes outlined for the theoretical and practical components of the 80 hour Advanced Fabrics Course conducted by Dr Reynolds and Mr Edmund Silenieks (the advanced course);
7.She meets the requirements outlined in the State, national and international training guidelines to conduct bloodstain pattern examinations and interpretations, and to provide expert evidence to the court regarding bloodstains and bloodstain patterns on both porous (fabric) and non‑porous surfaces;
8.Between February 2016 and April 2017 she was attached to the WAPOL Bloodstain Pattern Analysis Unit under the guidance of Sergeant David Spivey who was at the time the Bloodstain Pattern Analysis Discipline Manager, and who has completed the advanced course;
9.Between April 2017 and February 2019 she was attached to a WAPOL Crime Scene team where she was mentored by Sergeant Brett McCance who is a level III Bloodstain Pattern Analyst and the former Bloodstain Pattern Discipline Manager;
10.Since February 2019 she has been attached to a Crime Scene team where she is the sole level III Bloodstain Pattern Analyst responsible for required bloodstain pattern analysis examinations and expert reporting;
11.With specific reference to bloodstain pattern analysis she has been involved in the investigation of over 45 cases that have included multiple examinations and interpretation of bloodstains and bloodstain patterns on porous (fabric) and non‑porous surfaces; and
12.She is a member of the International Association of Bloodstain Pattern Analysts and of The Australian and New Zealand Forensic Science Society, and is bound by their code of ethics.

In her evidence in chief Ms Hayes also gave the following supplementary oral evidence.
The Bloodstain Pattern Analysis Discipline Manager has the role of overseeing the teaching and instruction of bloodstain pattern analysts. The Discipline Manager supervises training, remains aware of the current research and is responsible for conveying current research information to the other bloodstain pattern analysts working within WAPOL. The Discipline Manager also sits on the National Bloodstain Pattern working group to look at training and contemporary knowledge.
As part of her training Ms Hayes has undertaken mock examinations through the national bloodstain courses which are assessable. She also does general training as part of a team where mock scenes are set up for an analyst and the analyst then examines, documents and reports on the findings. These scenes include a variety of bloodstain pattern types, a variety of inanimate objects such as furniture, and also mannequins and clothing.
In cross‑examination Ms Hayes gave the following evidence.
The level I course is a basic introductory course that provides a foundation to go onto further studies.
The level II course is a 40 hour face to face course which also involves pre‑reading and a post‑course assignment. Therefore in total the course runs for between 40 and 60 hours.
During the level III course she and the other participants in the course were sent to a set of units in which a mock scene had been set up that included mannequins dressed in clothing, various clothing items, and various bloodstains and bloodstain patterns within the unit. She was required to go into the unit, assess and examine the scene, record her findings and interpret her findings as she would in a real case.
In completing the level III course she spent around seven and a half hours dealing specifically with bloodstain pattern analysis of bloodstains on fabric.
Part of her training was to be given fabric which had bloodstains on it and then to determine whether they were spatter or transfer stains. Alongside creating bloodstains on fabric and looking at them, she was also given clothing items that had bloodstains created on them by instructors. She was asked to interpret the pattern types and sequencing of these bloodstains.
Since completing the level III course she has been under constant mentorship.
There is no 'full' accreditation that she can attain. There are minimum training requirements and these are State, national and international guidelines. She meets the minimum training requirements to practice as a bloodstain pattern analysis analyst.
This case is the first occasion on which she has been requested to provide an expert report for a trial.
She is aware that bloodstain pattern analysis involving fabrics presents different challenges to bloodstain pattern analysis involving non‑porous surfaces. She is aware that synthetic and natural fibres can alter bloodstains and bloodstain patterns in different ways. She is aware that there is a difference between how blood stains present on natural and synthetic fibres.
From what she has read there is a preferential diffusion effect which impacts on the shape of blood stains differently in synthetic fibres as opposed to natural fibres. She is aware that with synthetic fibres the blood absorbs onto the outside surface of the fibre and can therefore preferentially diffuse along fibres, whereas in natural fibres blood can saturate through to the core and potentially not diffuse as much. However, whether this occurs is specific to certain fabrics.
Her training has included being taught about the different constructions of fabrics. During the level III course there were discussions surrounding the difference between natural fibres and synthetic fibres. Throughout the practical components of the course the differences between the appearance of bloodstains on fabrics made of natural fibres and fabrics made of synthetic fibres was addressed.
Over the three courses that she has completed and also from her experience in re‑creating scenes she has looked at small blood stains on different types of fabrics.
She is trained to recognise the difference between synthetic fabrics and natural fabrics. Further, she is aware through her personal study of research that relates to the difference between natural fibres and synthetic fibres, and how bloodstains may look on these different fabrics.
Since completing the level III course she has not completed any formal courses. However, she attends bloodshed events on a weekly basis and at every scene she is always assessing bloodstains and bloodstain patterns. She has undertaken numerous clothing examinations and numerous scene examinations. She has occasionally been asked to examine an item in isolation from the crime scene (as in the present case).
She has examined many items of fabric and carried out assessments of them to determine whether they contain bloodstains and, if they do, the kind of bloodstain pattern that is present. This is different to then going on and providing a report or an interpretation. Examinations are done very regularly. A report is prepared when it is requested.

Dr Reynolds

I turn to the evidence of Dr Reynolds.
Dr Reynolds as is revealed by his curriculum vitae[25] is a highly qualified private forensic consultant. He served with WAPOL as either a sworn police officer or an unsworn public servant from 1988 through to 2017.
[25] Exhibit 3 on the voir dire.
In his evidence in chief Dr Reynolds said, among other things, the following.
His interest in bloodstain pattern analysis began in around 2000.
After he developed his interest he went through an introductory 40 hour course the content of which he believes is similar to the level II course. He then undertook in Canada a course equivalent to the level III course. He also undertook in Canada a course in maths and physics pertaining to bloodstain pattern analysis.
From about 2006 he was involved in the development of a discipline specific bloodstain pattern analysis unit within WAPOL.
The level I course, the level II course and the level III course are all aimed primarily at scene based analysts.
The level I course is aimed towards detectives and new forensic personnel. The course is aimed at giving detectives and forensic personnel a basic awareness of the capabilities of bloodstain pattern analysis.
The level II course contains a fabric component. As a 'guestimate' he would say that the fabrics component is about 15% of the total course content. The level II course is aimed more at developing the skill set to enable a person to assist a level III analyst at scenes with things such as scene recording, sampling blood stains and proper documentation.
The level III course is probably at least 25% fabrics based. It also contains some generic units.
From approximately 2009 through to the present he has assisted in the development of the advanced course. He has delivered the advanced course in excess of 20 occasions around the world.
The fabric components of the level III course may have some basic similarities with the advanced course. However, in the advanced course the concepts are greatly expanded. Further a large number of new concepts are introduced. In addition, the advanced course is constantly evolving. New content is added to the advanced course almost every year due to new research and new understanding. The level III course, on the other hand, has probably remained the same or relatively the same over time.
The analysis of bloodstain patterns on fabric is completely different to the analysis of bloodstain patterns on non‑porous surfaces.
The analysis of bloodstains on fabrics is an area of endeavour within the bloodstain pattern analysis discipline that is completely under researched and also has levels of complexity not well understood. There is ongoing research around the world both in the law enforcement environment and also academia.
In the level III course there are approximately 10 areas that are looked at that are fundamental to the examination of fabrics. However, these areas are covered in a relatively short period of time. Therefore, the level of detail on how these areas have expanded is quite confined.
In his opinion a person who has completed the level III course is not qualified to undertake bloodstain pattern analysis on fabrics. In his opinion the level III course, unlike the advanced course, does not reveal how complex the analysis of bloodstains on fabrics is and how different types of features can be present. In his view the level III course consideration of analysis of blood patterns on fabrics is undertaken in a quite superficial way. A person who successfully completes the advanced course would know that research conducted on natural fibres cannot be applied to synthetic fibres in any way shape or form. The advanced course demonstrates that the 'rule book' in the level III course cannot be applied to fabric.
There are a number of jurisdictions around the world that now require a person to complete the advanced course before they are allowed to give expert evidence in relation to bloodstaining on fabric. For example, the Ontario Provincial Police and the Royal Canadian Mounted Police do not allow their analysts to comment at all on fabrics unless they have undertaken the advanced course.
Up until the development of the advanced course he probably would have thought the completion of the level III course to be sufficient to permit a person to undertake bloodstain pattern analysis on fabrics. It was not until he developed and delivered the advanced course that he formed the opinion that the level III course training is insufficient to permit the undertaking of bloodstain pattern analysis on fabrics.
In 2006 he was the facilitator of a critical issues workshop for bloodstain pattern analysis in Australia. The workshop was conducted under the auspices of the National Institute of Forensic Science. At the workshop he and others developed a plan for enhancing the bloodpattern analysis discipline and part of the enhancement was the development of national training guidelines. The guidelines, which are currently under review, do not stipulate that completion of the advanced course is required to enable a person to examine bloodstains on fabrics.
The assessment of any bloodstains on synthetics is fraught with danger and requires caution. Such stains generally do not look like they did at the time of deposition and this might result in misdirection so far as the deposition mechanism is concerned.
Sergeant Spivey is an outstanding expert in bloodstain pattern analysis. However, the knowledge base in relation to analysis of bloodstain patterns on fabric is changing rapidly. Therefore if Sergeant Spivey came to him he would probably recommend that Sergeant Spivey re‑do the advanced course because the content has changed significantly since Sergeant Spivey completed the course.

Submissions of the parties

Based on the evidence given by Dr Reynolds, the accused submits that that Ms Hayes has not acquired, by study or experience, sufficient specialised knowledge in relation to analysing and reporting on bloodstain patterns on fabrics to give the evidence proposed to be adduced from her. The accused submits that although the level III course does include some limited content in relation to the analysis of bloodstain patterns on fabrics, the course is not sufficient to give Ms Hayes the necessary specialised knowledge given the complexities which the bloodstain pattern analysis community has come to recognise is associated with assessing bloodstains on fabrics. The accused submits that simply because Ms Hayes meets the minimum State, national and international requirements for giving expert bloodstain pattern analysis does not mean that she is sufficiently qualified to give the evidence sought to be adduced from her in this case. The accused submits that in order for Ms Hayes to acquire the requisite degree of specialised knowledge in relation to analysing and reporting on bloodstain patterns on fabrics she would need to have undertaken the advanced course.
The State submits, without any elaboration, that Ms Hayes is 'well qualified as an expert to give an opinion about blood spatter analysis on fabrics.'

Ruling

The following is apparent from Ms Hayes' evidence.
Ms Hayes has completed all the courses that state, national and international guidelines stipulate are required to be completed before a person can give expert evidence in relation to the examination and interpretation of bloodstain patterns on all surfaces, including fabrics. There is no higher level of recognised accreditation that she can obtain. Although this is the first time that she has been required to actually provide a report to a court as a bloodstain pattern analysis expert she has, through her training and work, gained a significant amount of experience in the examination and interpretation of bloodstain patterns on fabric surfaces. From 2016, which was well after she completed the level II course but before she completed the level III course, up until February 2019, which was after she had completed the level III course, she worked in the area of bloodstain pattern analysis under the guidance and mentorship of two experienced senior bloodstain pattern analysts one of whom has completed the advanced course, albeit some time ago. Further, in my view she demonstrated, under questioning during cross-examination aimed at demonstrating her lack of relevant expertise, knowledge and understanding of the specific issues and concepts associated with the analysis of bloodstain patterns on fabrics comprised of both natural and synthetic fibres.
There will always be degrees of expertise. It may well be that there are other expert witness, for example Dr Reynolds, who are more highly qualified and/or experienced in the area of analysis of bloodstain patterns on fabrics than Ms Hayes. However, this does not mean that Ms Hayes is not sufficiently qualified to give expert opinion evidence in this field.
In summary, even though Ms Hayes has not undertaken the advanced course (something that she is not actually required to do to gain accreditation as a bloodstain pattern analysis expert), I am, taking into account the way in which she answered questions put to her in cross‑examination, satisfied that the training that she has undertaken, the qualifications that she has obtained, and the work that she has performed in the area of bloodstain pattern analysis is sufficient to justify the conclusion that she has acquired by study or experience sufficient knowledge of the subject of bloodstain pattern analysis of bloodstains on fabrics to render her opinion of value in resolving the issues before the court. I am so satisfied despite the opinion expressed by Dr Reynolds to the contrary. Of course, it will be for the jury to decide whether to accept any or all of Ms Hayes' evidence in light of the challenge to her degree of expertise and her opinions generally which will presumably occur when she is cross‑examined.
For the reasons I have stated I dismiss the objection to Ms Hayes' evidence on the basis that she lacks the necessary degree of expertise to give the evidence proposed to be adduced from her.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
1 DECEMBER 2020