Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Defendant)
File Number(s): 2012/294022
[2]
Judgment
The deceased was killed on 13 September 2012. The accused has been charged with her murder. The deceased was found lying on the floor of a living room of the house just to the left of the entrance hall with a large amount of largely diluted blood on or around her. Blood was found in the hallway leading up to the back door through the dining area and across the hall into a bathroom on the opposite side of the entrance hall.
Footprints were found in the blood. Pawprints from a dog or dogs were found including paw prints within a footprint at marker AN. Blood spatters were found.
The Crown seeks to lead evidence from Detective Sergeant Flippence in relation to two matters. The first concerns a footprint in blood at marker AG. The second concerns evidence about blood drying time.
A number of footmarks at the scene were identified with footprint ridge detail referred to in the statement of leading Senior Constable Searles. However, three footmarks at markers AG, AH and AN were not able to be identified using footprint ridge detail. The Crown accepts that the footmarks at AH and AN contain insufficient detail from which any conclusion can be drawn. The Crown seeks to lead evidence from Sergeant Flippence of his expert opinion about the footmark at marker AG.
The evidence the Crown wishes to lead is the opinion of Sergeant Flippence that the footmark at marker AG resembles the left foot impression of the accused in both layout and size. Sergeant Flippence reaches that conclusion by having obtained foot impressions of the deceased, Aminda Huynh and the accused. These three persons were known to have walked with bare feet at the scene of the killing.
The Crown says the purpose of the evidence is to show an inconsistency between what the accused says his movements were around the crime scene and the objective evidence. Footprints, most of which will be proved by the evidence of Detective Searles, will tend to highlight the inconsistency in the accused's statements. The Crown accepts that the accused was close to the deceased in the room but the question is whether he was close to the deceased in the manner in which he says he was or whether he was close to the deceased in a way that arises from his being responsible for her demise.
The Crown also wishes to exclude for the purpose of the jury's consideration that there was anyone else present apart from the deceased, the accused and Aminda. If the footprint at AG is similar to, or consistent with, the accused's footprint most of the footprints will be explained, and any inference that any other person had been present will be less likely. There can be no doubt that the footprint shown in the photographs at AG is significant by reason of its position near the deceased's body.
The evidence from Aminda Huynh is that she arrived home at about 8.30pm. She walked through the house to the kitchen without turning on any lights until she reached the kitchen. She let her dogs into the house. She went upstairs on two occasions. Shortly after midnight she went downstairs to let one of the dogs out of the house and as she turned on the light near the stairwell she saw the body of the deceased, her mother, lying in a pool of blood in the living room area of the house. She approached the body and touched her.
The accused's evidence in an ERISP taken on 20 September 2012 was that he arrived home at about 7.15pm and found the deceased lying in a pool of blood in the lounge room area of the house. He claimed to have gone to her assistance and attempted "to do CPR" by administering two breaths to her. It seems clear that what he meant by that was that he tried to perform mouth to mouth resuscitation. He thought she was dead. He attempted to wipe some of the blood away and went to the bathroom to wash his hands and feet. He thereafter left the house.
The defence opposes the evidence in relation to the footprints because it asserts that Sergeant Flippence does not have specialised knowledge in relation to footprint identification.
There were two footprints at AG. Detective Searles had identified the right foot using friction ridge identification. The left foot at that marker was unidentified.
Sergeant Flippence took impressions of the soles of the feet of the deceased, Aminda Huynh and the accused. He measured those impressions, the length overall, the length from the ball to the heel and the width of the foot. He also looked at the position of the toes of the foot. He prepared overlays of each of those three impressions for comparison with the photograph of the identified footprint at marker AG.
When the overlay of the impression of the accused's foot was put on the photograph of the unidentified footprint, whilst there were some slight differences, Sergeant Flippence concluded that the general shape of the foot was very similar.
A comparison of the impressions of the deceased's foot showed fairly clearly that they did not match. The deceased's foot was two centimetres shorter than the unidentified footprint. Further, the deceased had sunken arches which meant that more of the skin of her foot on the instep side of her foot made contact with the floor.
The impression from Aminda Huynh's foot was similar in length although slightly shorter than the unidentified footprint. However, the main difference was that she had a sunken arch so that there was a line going almost straight down from the ball to the heel.
The Crown does not seek to use the evidence as a formal identification of the accused's left foot in the way that ridge detail can be formal identification. It wishes to use the evidence to show that the accused cannot be excluded from consideration.
The defence concedes that there is a field of expertise in relation to footprints/marks/shapes and the field of forensic podiatry is a recognised area of specialised knowledge: R v Sica [2012] QSC 430; (2012) 232 A Crim R 486 and Smith v R [2013] NSWCCA 64. The defence challenges Sergeant Flippence's specialised knowledge in the area.
At the time of his statement of 10 July 2013 Sergeant Flippence had performed duties in the Forensic Services Group of the police force for 18 years. In 1999 he completed a Diploma of Applied Science (Forensic Investigation). Subjects relating to Blood Pattern Interpretation were these:
Blood Stain Evidence
Forensic Science
Human Anatomy And Physiology
Crime Scene Examination 1 and 2
Forensic Biology
Forensic Physics
Forensic Mathematics
In 2004 he completed a 40 hour course in Blood Stain Pattern Interpretation presented by the National Institute of Forensic Science. He has been assigned numerous cases directly relating to Blood Stain Interpretation and has previously given evidence before this Court in relation to the examination, interpretation and analysis of blood stain and blood stain patterns at crime scenes. He has supervised and assessed students in relation to interpretation and evidence collection. He is the author of a paper entitled "Calculating the area of origin of spattered blood on curved surfaces" published in September 2011 in the International Association of Blood Spatter Pattern Analysts Journal.
Some of the evidence to be given by Sergeant Flippence is factual evidence and some purports to be expert evidence. The factual evidence concerns the taking by him of foot impressions, measuring those impressions and measuring the footprint taken at the crime scene. The preparation of the overlays has enabled him to make comparisons between the footprint at the crime scene and the other foot impressions.
However, his evidence of the comparison of those impressions is opinion evidence. So too is his evidence about the impression a person with sunken arches would make compared to a person with a more normal arch over their instep. This evidence must therefore satisfy the requirements of s 79(1) of the Evidence Act 1995 (NSW).
I am not satisfied that Sergeant Flippence has demonstrated an expertise in these matters as a result of his study and experience. Although he has studied Human Anatomy and Physiology, no details were given about his learning in relation to footprints and foot anatomy generally. In my opinion, it would be necessary for a podiatrist or a person with similar training and experience to give such evidence.
Sergeant Flippence should be entitled to give factual evidence of the taking of the photograph of the footprint at the scene, the foot impressions from the feet of the deceased, the accused and Aminda, the preparation of the overlays, and the measurements he made of the foot impressions. These matters are factual matters. Comparisons made from the use of the overlays is likely to be something that the jury can perform for themselves: Honeysett v The Queen [2014] HCA 29; (2014) 88 ALJR 786 at [44]. Inferences can be drawn by the jury although they may need to be warned about the limits of the inferences that can be drawn. As noted, the Crown expressly eschews the notion that the evidence amounts to identification evidence.
The making of such comparisons could not be said to based wholly or substantially on specialised knowledge of podiatry in any event. It would appear to be based on general knowledge and common sense. That is why it is open to the jury to use the overlays themselves. Sergeant Flippence should not be allowed to give that evidence.
An opinion on the impression a person with sunken arches would make on a surface whether in blood or otherwise would be substantially based on specialised knowledge, but Sergeant Flippence does not have that specialised knowledge. Sergeant Flippence should not be permitted to give evidence about sunken arches explaining the impressions obtained from the feet of the deceased and Aminda. Evidence should be permitted generally to show that Aminda and the deceased had sunken arches or flat feet.
The result is that I make the following rulings concerning Sergeant Flippence's statements:
1. Statement dated 10 July 2013, paragraph 25 - in the second sentence, omit the reference to "AG"; omit the material in the first two bullet points; paragraph 42 d - in the third last sentence commencing "The footmarks at marker AG…" it should be made clear that it is not being asserted that the unidentified footmark is that of the deceased. It is accepted that the right foot at that marker is identified by Detective Searles.
2. Statement dated 17 February 2015, paragraph 7 - omit the material in the last bullet point; paragraph 8 - omit the material in the last bullet point; paragraph 9 - omit the material in the last bullet point.
The second matter about which the Crown seeks to lead evidence from Sergeant Flippence concerns the drying time of blood. In summary, Sergeant Flippence's evidence is that spattered blood dries between five and fifteen minutes depending on the surface. His evidence will also be that pooled blood takes longer to dry and if it is diluted with water or some other liquid it may take longer to dry.
The purpose of the evidence sought to be led by the Crown relates to the time of death of the deceased. The Crown accepts that it will not be in a position to lead any evidence of the time of death. However, the evidence provides certain indicators. The accused suggests that he arrived home somewhere between about 7.15pm and 8.00pm and the deceased was then dead. Aminda says that she arrived home at about 8:30pm and let the dogs into the house. As noted earlier paw prints were found indicating that a paw had been placed in wet blood. That could have occurred when the dogs were first let into the house. Paw prints were found going towards the back door.
The Crown says that the jury need to understand that there are many uncertainties concerning the blood found at the crime scene and that that is why they cannot be presented with evidence that establishes a time of death. The jury need to understand that the blood may have remained wet for some time after the death because it had been diluted with the water that was found at the scene.
The defence says that it is because of all of the variables that the evidence has such little probative value and that when that is set against the unfair prejudice as s 137 of the Evidence Act requires the evidence should be excluded.
I am entirely satisfied that Sergeant Flippence has the specialised knowledge to give evidence about the drying time of blood. His training and experience well qualifies him in that regard. The defence accepts at least that he has expertise in blood stain pattern interpretation. The summary that I provided earlier of his training and experience satisfies me that he has the specialised knowledge to give his opinion about blood drying times.
It seems to me that the evidence has some probative value because in a circumstantial case such as the present the jury is likely to see the time of death as a significant matter. In that regard they need to be given maximum information to understand why it is difficult to pinpoint a time of death. It is for that reason that the variables concerning the time pooled and diluted blood take to dry is of some significance. It acquires greater significance because of the paw prints that indicate that blood was not dry when the dogs were in the house, probably not before 8.30pm.
It is difficult to see what unfair prejudice arises from the admission of this evidence for s 137 to have any work to do. It is suggested that the jury might wrongly apply a timeframe of five to fifteen minutes. If the whole of the evidence is given regarding blood drying times and the variables involved at the crime scene it does not seem to me that the jury are likely to misuse the information. If they were only permitted limited information about the drying times of blood spatter that may be the case. If all of the evidence is given concerning the variables the jury are far less likely to misuse the evidence.
Accordingly, the whole of the evidence contained in the Statement of Sergeant Flippence of 13 February 2015 is admissible.
[3]
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Decision last updated: 19 March 2015