R v Warwick

The Witness' Qualifications and Relevant Experience

1. Detective Sergeant Harkins holds a range of formal qualifications in forensic science. He holds a Bachelor of Forensic Science from the Canberra Institute of Technology, and he is certified as an expert by the Australasian Field Forensic Sciences Accreditation Board in the Methodology of Crime Scene Investigation.
2. Detective Sergeant Harkins is currently enrolled in a Doctorate of Philosophy in Science at Western Sydney University where his thesis work relates to the distance that blood droplets will travel when created under force. He has also completed a number of training programs which specifically relate to bloodstain pattern analysis.
3. Additionally, Detective Sergeant Harkins' current duties include training forensic practitioners in the forensic discipline of bloodstain pattern analysis in the New South Wales Police Force, the Queensland Police Service and at the Victoria Police Forensic Services Centre. In the past, he has delivered a course in bloodstain pattern analysis for the National Institute of Forensic Science and assisted in the delivery of a similar course in Western Australia. He tutors in that area at the Canberra Institute of Technology and has delivered a range of lectures relating to bloodstain pattern analysis to a variety of organisations.
4. Since 2008, he has been the New South Wales Police Force representative for the Bloodstain Pattern Analysis Scientific Working Group within the National Institute of Forensic Science, and was the Chairperson of that group for a number of years. He is currently the Chairperson of the Crime Scene Ballistics Special Advisory Group of the Australia and New Zealand National Policing Advisory Agency at the National Institute of Forensic Science. This group encompasses the work of the Bloodstain Pattern Analysis Group.
5. In my assessment, Detective Sergeant Harkins is well-qualified to give expert opinion evidence on bloodstain patterns, the type of bloodstains which can be found at the scene of crimes, and the way in which estimations can be made of the quantity of blood which has been observed at crime scenes.
6. In addition to the qualifications which I have recited, for about 6½ years, Detective Sergeant Harkins was attached to the Penrith Crime Scene Section as a forensic investigator. In that role, his duties included the investigation of serious crime, coronial and incident scenes, which also involved the recording of the scene by way of photographs, the collection of physical evidence for analysis, and the interpretation of evidence from those scenes. He has also given evidence in a number of courts about his expertise.
7. In summary, I am satisfied that Detective Sergeant Harkins is qualified to give expert evidence in a field of identifiable scientific endeavour relating to the interpretation and analysis of bloodstain patterns. As well, he is qualified to give evidence about what is to be observed at crime scenes and has had extensive experience through his teaching work of understanding the reaction of non-expert individuals to crime scenes and, in particular, the amount of blood to be observed at a crime scene.

Nature and Purpose of the Evidence

1. In paragraphs 1, 2 and 3 of his statement, Detective Sergeant Harkins outlines, in summary form, what his statement covers.
2. The first part of his statement deals with two demonstrations showing increasing quantities of blood dripped separately onto a carpet and plastic sheeting. Detective Sergeant Harkins describes the purpose of these demonstrations as being: "to provide the reader with an appreciation for the visual appearance of increasing volumes of blood when dispersed into a space of similar proportions to those found in nominated areas of the Kingdom Hall".
3. In this summary of his evidence, Detective Sergeant Harkins notes that he offers no opinion regarding the actual volume of blood likely to have been located in the Kingdom Hall following an apparent break and enter event on 14 July 1985. Nothing further needs to be said about this fact.
4. Detective Sergeant Harkins then notes that he offers an expert opinion, that, in his experience: "Actual volumes of blood are often greatly overestimated by laypeople, forensic students and experienced Police and counsel."
5. It is to be seen, then, that the debate about the admissibility of Detective Sergeant Harkins' report can be dealt with separately with respect to the demonstrations to which I first referred, and the expert opinion to which I have just referred. It is convenient to deal with that expert opinion first.
6. On page 19 of his statement, in section (F), Detective Sergeant Harkins sets out the background expertise and experience which he has had in dealing with individuals who have had no particular qualifications in blood pattern analysis. He records, as a teaching technique, the use of known quantities of blood in setting up crime scenes. Students and other participants are then asked to estimate the amount of blood distributed in these scenes.
7. Based upon his expertise in bloodstain pattern analysis, analysis of crime scenes and his experience of the reactions of laypeople, that is to say those without a background in forensic science or policing, Detective Sergeant Harkins records his expert opinion as to what the common lay opinions are.
8. In my view, notwithstanding the submissions made to the contrary on behalf of the Accused, this opinion is admissible. It is an expert opinion, in a field of endeavour with which the witness is familiar, and it is wholly or substantially based upon his experience as a teacher and his expertise as a bloodstain pattern analyst. It thereby complies with the fundamental rules for admissibility of evidence in accordance with s 79 of the Evidence Act 1995: Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [32].

Relevance and Probative Value of the Opinion Evidence

1. It is necessary, before determining if the evidence is admissible before the Court, to be satisfied that it is relevant.
2. The Crown has led lay opinion evidence of a qualitative kind from a number of witnesses, most recently Mr Philip Clapp. Mr Clapp observed blood at the Kingdom Hall on 14 July 1985 and described it as being, variously, "a large amount of blood", "quite a fair amount" of blood, "a lot of blood", "a splatter of blood" and, in one instance, "a pool of blood". Mr Clapp also gave evidence that "there was that much blood behind the stage that [he] had trouble stepping without touching it".
3. These are all qualitative assessments of what it was that he observed. In addition to the Crown leading such evidence from Mr Clapp, the solicitor for the Accused has cross-examined Mr Clapp on that evidence, suggesting that such was the amount of blood, one would wonder how seriously hurt the person was.
4. There is a real issue in these proceedings as to the identity of the individual who broke into the Kingdom Hall on the evening of 13 July 1985 or the early morning of 14 July 1985. It is the Crown case that the Accused was the intruder.
5. As I understand the case for the Accused, he denies that fact and submits that the surrounding circumstances, including a physical examination of him by Police officers about 2½ weeks after the break-in, made it clear that he had not sustained any injury of a kind which would have resulted in such a loss of blood.
6. It will be necessary for the fact-finding tribunal, here the presiding Judge, to make an assessment of the evidence about the extent of the blood found in the Kingdom Hall on the morning of 14 August 1985.
7. Given that, at this stage of the trial, the evidence is of a qualitative kind, then I am satisfied that it is relevant for the challenged opinion evidence to be given, to enable a balanced and informal assessment of the lay opinion of Mr Clapp. As well, I am satisfied that such evidence is of significant probative value to the fact-finding tribunal in attempting to assess the weight to be accorded to independent lay observations of blood found at the scene.
8. The Accused submits that the provisions of s 137 of the Evidence Act would result in the Court refusing to admit the expert opinion evidence to which I have been referring because it is of little, if any, probative value, and because there is a danger of unfair prejudice to the Accused if it is admitted.
9. In my view, the evidence has a significant probative value. I am unable from the submissions of the Accused to identify any unfair prejudice to the Accused by its admission. The opinion is expressed clearly, the basis for it is identified adequately, and there is no reason to think that the opinion cannot be tested properly and fairly by thoughtful cross-examination.
10. In those circumstances, I am not persuaded that an application of s 137 of the Evidence Act to this expert opinion would result in the exclusion of the opinion evidence.

Relevance and Probative Value of the Demonstrations

1. It is now necessary to consider the evidence of the demonstrations. The nature of the demonstrations can be shortly summarised.
2. Detective Sergeant Harkins laid out accurately the floor plan and spaces of two parts of the Kingdom Hall where witnesses had observed blood. The first space was between the window, which was found to be broken on 14 July 1985, and the platform, which exists at the eastern end of the Hall ("Area 1"). The second space was a passage behind the raised platform and the curtain on it ("Area 2").
3. The first demonstration dealing with Area 1 involved a sequential application of a measured quantity of blood to the carpet floor, with that sequential application being photographed. The second demonstration relating to Area 2 involved the sequential application of a measured quantity of blood to a piece of plastic sheeting, designed to replicate the concrete floor found in the area behind the curtain.
4. In essence, as I have earlier remarked, the purpose of the demonstrations was to visually replicate the appearance of various blood quantities on surfaces that are, arguably, similar to those to be found at the Kingdom Hall in July 1985.
5. I am informed in the course of submissions that the Crown does not intend to lead any evidence of a quantitative kind about blood loss in the course of its case. The Crown identified the fact that it is possible, if so requested by the Accused, that it may lead two quantitative assessments of blood by two identified individuals. As yet, it is not certain whether any quantitative assessment of blood by any person will be placed before the Court as part of the case of either the Crown, at the request of the Accused, or as part of the case for the Accused himself, whether that be through cross-examination of Crown witnesses, or else by the calling of evidence independently.
6. Given the absence, at this stage, of any evidence of a quantitative kind referring to blood, and specifically the blood to be found at the Kingdom Hall on 14 July 1985, I am not presently satisfied that the demonstrations of Detective Sergeant Harkins are relevant to any issue in the proceedings.
7. Accordingly, given that they are not relevant, although they otherwise qualify as expert evidence, I would not be prepared to admit the demonstrations. It follows that it is unnecessary to consider any submission about the application of s 137 of the Evidence Act to this evidence.
8. I note, by way of caution, however, that this ruling is one which depends upon the state of the evidence, and it is given in respect of the state of the evidence as it presently exists, and as it is presently anticipated in the Crown case.

Determination

1. Accordingly, I will permit the Crown to lead the evidence of Detective Sergeant Shawn Harkins, as set out in his statement signed 17 January 2018, except that I do not permit the Crown to lead, as part of the evidence-in-chief of Detective Sergeant Harkins, the following parts of his statement dated 17 January 2018, namely section (E), comprising paragraphs 30 to 48 inclusive, and all attachments to the statement commencing immediately after page 22 to the end of the report.

Amendments 31 August 2018 - Addition of transcript reference. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2018