R v Smart

3 On 14 October 2006, Ms Tanner had apparently arranged to visit a friend in Frankston for drinks and invited the accused to go with her. In his record of interview the accused described going to Frankston with Ms Tanner, arriving at the house where the function was occurring at about 7.00 pm and staying there until about 10.00 pm. He said that he and Ms Tanner drove back to Cranbourne North from Frankston and arrived home at about 10.30 pm.

4 After arriving home, the accused gave the following account of what happened:

She was sittin' on the couch playin' with her phone. We were havin' a talk. I said, "alright, darlin', I'm going to bed". She said "Okay, see you in the mornin'." And I went to bed, turned me tellie on. I reckon about 20 minutes later I was snoozin'.

6 The Crown case is effectively that there was some kind of conflict between the accused and Ms Tanner as a result of which the accused attacked Ms Tanner at the premises at Cranbourne North, causing her death, and then disposed of her body. The nature of the attack that will be alleged is by use of a rubber mallet which was located some weeks later in a "wheelie" bin at the premises of the accused and which had DNA potentially attributable to him on the handle and the blood and DNA of Ms Tanner on the head.

7 The property at Cranbourne North was examined twice by police. The premises were also inspected by a scientific expert, Ms Debra Maureen Ryan. Ms Ryan is a forensic scientist employed by the Victoria Police Forensic Services Centre. It is in relation to her evidence about blood and potential blood inside the house that issues of admissibility arise. Ms Ryan had not given evidence at the committal proceedings but has done so by way of Basha enquiry, following which application was made to exclude parts of her evidence.

8 Ms Ryan examined the premises on 31 October 2006 and in particular she did so for the purpose of identifying trace amounts of blood. The examination therefore occurred about two weeks after the time when the Crown alleges Ms Tanner was murdered by the accused.

9 It is appropriate to set out in detail the portions from the statement of Ms Ryan concerning the result of the use of luminol. The material is as follows.

There were a number of luminol positive areas detected on the floor of the main bedroom and the ensuite. A number of the luminol positive areas on the floor of the main bedroom appeared to be feet impressions. There were also linear parallel lines detected on the carpet that ran between the bed and ensuite and in between the two walls at the entrance of the main bedroom. In my opinion, one possible explanation for this pattern is that a bloodied object was dragged through this area. Four areas of carpet (labelled Markers 1 - 4) were cut out for further testing. A luminol positive area was also detected at the bottom of the vanity door in the ensuite. This area was sampled and labelled 6-1. Three areas of luminol positive staining were sampled from the floor of the ensuite and labelled 5-1, 5-2 and 5-3 respectively.

The tiled passage way between the lounge and bedrooms, the tiled laundry and the tested part of the tiled bathroom, just past the door, produced a general luminol positive reaction. This general reaction that occurred over all the tiling areas tested may be because of the presence of dilute blood over this area or the presence of chemicals or material in the tiles that have caused a generalised reaction.

There was a luminol positive line detected on the floor in the family/games room. This reaction extended from the door way of the laundry to the back sliding door. The line stopped at the timber porch outside the sliding door. In my opinion, one possible explanation for this pattern is that a bloodied object was dragged through this area. Three samples were taken of this area and labelled 7-1a, 7-1b and 7-1c.

10 In the course of her evidence Ms Ryan appeared to concede that her expressions of opinion concerning foot impressions, the explanation for linear parallel lines, and the possible explanation for the luminol positive line detected on the floor in the family/games room, were all opinions which anyone could form looking at the things that she had looked at in the premises. They were not opinions developed as the result of any particular expertise.

11 Ms Ryan is a forensic scientist employed as Senior Case Manager and Team Leader within the Biological Examination Branch of the Victoria Police Forensic Services Centre. Her authorisation is to report on the biological examination of exhibits and the interpretation of DNA profiles in forensic casework. She is authorised to examine crime scenes and items collected from crime scenes including those in relation to bloodstain pattern analysis. However, her area of expertise seems to me to be principally confined to biological examination rather than expert reconstructions based on crime scene observations.

12 In relation to the outlines which she suggested may have been left by foot impressions, her evidence indicated that she did not engage in any testing procedure using any of the shoes which were at the house to see whether they fitted the outline. As I follow it, there will be no evidence to that effect. She did not claim to be a crime scene examiner who was an expert in shoe impressions.

13 The first area of debate might be described as the areas of confirmed blood.

14 On the floor of the main bedroom, which is the room in which Ms Tanner slept, a blood sample was confirmed which contained a mixture of biological material in respect of which both Ms Tanner and Mr Smart could not be excluded as contributors. In addition to the evidence of blood in the bedroom which Ms Tanner occupied, there was also confirmed blood on a couch in the lounge room and blood on the carpet underneath a hall runner.

15 In respect of those areas of confirmed blood, Mr Toohey, who appears on behalf of the accused, objects to the evidence of the blood being admitted on the basis the amounts that are confirmed to be blood are small in quantity and properly described as droplets. He points out that there is evidence that Ms Tanner lived at the premises for something in the order of two months and that the evidence about how and when the blood got there is absent. In the course of his submission he argued that to admit this evidence would be to do no more than invite the jury to speculate.

16 Ms Cannon, who appears on behalf of the Crown, submits that part of the case involves a number of circumstances, including a bloodied mallet in the car port containing both the DNA of the accused and the blood of the deceased, which is not impugned in this application. There are also other circumstances including the mobile phone of Ms Tanner being smashed; cut up credit cards; and various other circumstances which will be put before the jury by the Crown in an effort to persuade them to draw the inference that Ms Tanner was murdered by the accused.

17 In my opinion the evidence relating to confirmed blood is admissible. The Crown case is that Ms Tanner was murdered by the accused at the premises. That case relies on, inter alia, the following:

• Ms Tanner has disappeared despite being the mother of two children;

• The accused had been into the room in which Ms Tanner slept on the day after she disappeared and the bed had been changed and made;

• A rubber mallet was found when police searched the premises which carried the blood of Ms Tanner on the head and the DNA of the accused on the handle;

• A car belonging to the estranged wife of the accused was borrowed by him on the day after Ms Tanner disappeared and the Crown will argue that various things that were done with that car indicate that it was used to dispose of Ms Tanner's body.

18 The fact that, in addition to these and other circumstances which I have not referred to, there is blood which can be identified at Ms Tanner's blood both in the lounge room and the bedroom she usually occupied, coupled with what may be argued to be attempts by the accused to conceal the blood and clean away the evidence is, in my opinion, relevant evidence for the jury to consider. These are facts from which they may or may not be prepared to draw inferences leading to guilt. It is, of course, a matter for them, and I will direct on they manner in which they may use such evidence in a circumstantial case as this is.

19 As Gleeson J said in Shepherd v R,[1] circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. Overall, it seems to me that the evidence in relation to the stains which are identified as being blood are relevant and admissible.

Luminol Positive Areas Not Confirmed to Be Blood

20 The second area of contention concerns evidence sought to be led by the Crown relating to a number of other areas which were identified by the use of luminol but in respect of which there was no testing to confirm the presence of blood or to establish whether a sufficient sample could be obtained for a DNA profile.

21 According to Ms Ryan's evidence, luminol is a chemical which, when placed into a solution that has hydrogen peroxide, and then brought into contact with blood, reacts with the hydrogen peroxide and causes a chemiluminescence which is a release of light as the result of chemical reaction. As Ms Ryan described it:

So when the Luminol is sprayed onto an area, it's usually done in the dark, and if there's any presence of blood there it will give off a light as a result of that. It will give off a fluorescence as a result of that.[2]

22 Ms Ryan's evidence demonstrates that luminol is used because it is a screening test for the possible presence of blood. However, it can cross-react with a number of other substances including nickel, copper, some rust surfaces and hyperchloride. It might also react with floor detergents. The only way to establish whether or not a substance which gives a positive reaction to luminol is in fact blood is to carry out further testing at a laboratory.

23 In this case there are a number of areas which were luminol positive but in respect of which no further testing occurred to establish whether the positive reaction was caused by blood, and if it was, whether the identity of the donor of the blood could be established. I should add that to the extent that it is suggested the luminol screening reveals possible foot imprints, no testing procedure using any of the shoes at the house was pursued.

24 The witness was requested to examine the scene for trace amounts of DNA in particular bedrooms by spraying luminol within those rooms. She communicated to the police officers who were present that there were possible foot impressions on the floor of the bedroom, but that was the limit of her examination. She said she asked what other items needed to be examined and it was a matter for them. In relation to the luminol positive reaction in the tiled area of the house, no testing was done within her biology division to establish what chemical caused the reaction. DNA testing is done on items which in the opinion of those at the crime scene are most likely to yield a DNA result. Generally, an attempt is made to target areas that give a stronger reaction.

25 In relation to the observation of parallel lines between the bed and the en suite and in between the two walls at the entrance to the main bedroom, there was luminol positive staining. The witness did not take any further samples from that area and agrees that there is no way of knowing whether those lines are blood or not. Blood is one possible explanation. In relation to one area in the tiled section of the house, as shown in photograph 112, there was a luminol positive area that was sampled and further testing was done. That testing was unable to confirm the presence of blood.

26 The learned Crown prosecutor accepts that the only reason why luminol positive areas were not tested at the scene was because of a pre-arranged list of priorities for testing. That meant that swabs were taken from some areas but not from others. On the one hand, there are luminol positive areas where the presence of blood has been confirmed, and the biological donors of that material has been established by DNA profile. However, because judgments were made by investigators not to test other areas, the highest the Crown can put its case in relation to those areas is that the jury should draw the inference that the luminol positive areas are in fact blood, and indeed the learned prosecutor submits that the jury would be entitled to infer that it is not only blood but that it is the blood of Ms Tanner.

27 As Redlich JA noted in R v Berry & Wenitong,[3] an expert will not be permitted to speculate as to inferences when there is no evidence that could support such an inference. Also dealing with blood and luminol testing conducted after a prison stabbing, in that case issues arose as to how much of what an expert said in the interpretation of luminol footprints was speculative. The witness giving evidence about such matters was not an expert in shoe impressions and the learned trial judge considered the evidence which had been cross examined upon by counsel for the accused was speculative. The Court of Appeal agreed. The witness was not an expert in the particular area and the evidence itself did not permit the introduction of an expert opinion as to the possibilities.

28 In this case all that is known is that there are some droplets of blood in the lounge room and bedroom. In the vicinity of one such area the Crown claims that there is a pattern in the shape of a shoe, but which shoe in the house (if that be the case) made the impression is unknown and there is no witness with that particular expertise to assist. The remaining luminol positive areas have not been tested to confirm the presence of blood. No witness is to be called who would claim to be able to interpret what the patterns might mean. It follows that the evidence concerning the luminol positive areas is almost entirely speculative. That it is blood is to be inferred without ever being able to exclude other substances, including cleaning substances, that might have caused the reaction. If the substance were to be inferred to be blood, the donor of the blood could never be identified. The time at which such substance was placed there could not be known either. All this occurred in circumstances where further testing could have been done to establish whether the reaction to luminol was caused by blood and by attempting to obtain a DNA profile to identify the donor.

29 Thus, although I would admit the evidence in relation to the blood stains which are confirmed to be blood by scientific analysis and which produce relevant DNA profiles, I would not admit the evidence in relation to the luminol positive areas where there is no confirmatory testing.

[1] [1990] HCA 56; (1990) 170 CLR 573 at 579.

[2] Transcript of Proceedings, R v Smart (4 March 2008, Supreme Court of Victoria, Lasry J) at 13.

[3] [2007] VSCA 202 at [69].