CRIMINAL LAW - practice and procedure - whether trial judge bound by orders of previous judge in respect of pre-trial orders made for service of evidence
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CRIMINAL LAW - practice and procedure - whether trial judge bound by orders of previous judge in respect of pre-trial orders made for service of evidence
Judgment (3 paragraphs)
[1]
Solicitors:
Director of Public Prosecutions (Crown)
Kidman Legal (Accused)
File Number(s): 2011/147183
[2]
Judgment
HER HONOUR: A significant aspect of the Crown case concerns the pattern and array of blood deposited in each of the rooms in which each of the deceased were murdered, and the spread of blood between those rooms, and what that evidence is capable of establishing about the nature and extent of the attack on each of the deceased and the actions of the assailant or assailants before, during and after the deceased were killed.
It is the Crown case that the accused inflicted the wounds which caused the death of all five deceased by wielding a hammer-like weapon to which was attached a length of rope, and that he acted alone in doing so.
It is the defence case that the forensic evidence either positively contradicts the Crown case that there was only one assailant or at least the Crown cannot exclude the reasonable possibility that there was more than one assailant and, that being the case, the accused should be acquitted.
Detective Sergeant Shawn Harkins of the Forensic Services Group, Training and Development Services of the NSW Police Force, prepared a statement extending over 188 pages, which he signed on 12 July 2012, and which was served by the Crown in advance of committal proceedings in November 2012. His statement divided the crime scene at 55A Boundary Road into a number of numerically designated areas within each of the three bedrooms in which the deceased were found and a number of designated areas in other parts of the house. Each area within each of the three bedrooms was the subject of a comprehensive blood pattern analysis by Detective Sergeant Harkins, where a wide range of blood deposits are identified by him referable to a glossary of terms, tendered in the trial as Exhibit QQQ, and his opinion as to the likely provenance of the blood and the mechanism and direction of the blood deposit. A section of his statement is committed to what, in his opinion, was the nature of the attack in each of the three bedrooms.
Detective Sergeant Harkins gave evidence at the committal proceedings and was cross-examined by senior counsel for the accused. There was no challenge at that time to Detective Sergeant Harkins' expertise in the analysis and interpretation of bloodstain patterns or to the admissibility of his opinion as to the event or sequence of events that resulted in the deposition of blood and the bloodstain patterns in each of the three bedrooms where the deceased were found based upon that expertise. Neither was there any challenge to his entitlement as a witness with specialised knowledge as a blood pattern analyst to give an opinion as to the location, position and movement of the deceased within the crime scene and how they were killed, including the type and level of force that was applied, and his opinion as to the sequence of blood shed events in each bedroom and the deposition or spread of blood between the bedrooms.
In advance of Detective Sergeant Harkins giving evidence before the jury, the Crown Prosecutor indicated his intention to invite Detective Sergeant Harkins to offer his opinion as to the number of weapons that might have been used to inflict the fatal injuries on the deceased, the type of weapons that might have been utilised and the number of assailants (if there be more than one) involved in the attack, which resulted in the death of the five deceased. Those questions were not the subject of focused consideration in Detective Sergeant Harkins statement of July 2012.
At the time that I was advised of the Crown's intention to adduce that evidence, I was informed by Mr Turnbull SC that the evidence would be challenged as being beyond expertise and, even if the evidence were relevant and admissible under s 79 of the Evidence Act 1995 (NSW), I would not allow the Crown to adduce the evidence in the exercise of the discretion in ss 135 and 137 of the Evidence Act. Argument on that issue was reserved until Detective Sergeant Harkins had given evidence, in accordance with his statement, of the comprehensive and detailed analysis undertaken by him of the blood shed or deposited at the crime scene.
There was no objection to Detective Sergeant Harkins giving evidence by the use of a PowerPoint presentation as to what bloodstain pattern analysis (BPA) involves and its role in forensic investigations. That PowerPoint presentation (tendered as part of Exhibit QQQ) incorporated the following:
BPA is the examination of the location, size, shape and distribution of bloodstains and bloodstain patterns in association with knowledge of the underpinning sciences (physics, mathematics and biology) to provide informed opinion on the event or sequence of events that resulted in the deposition of bloodstains or bloodstain patterns.
The same PowerPoint presentation identified the capacity of BPA to indicate where (within a crime scene) people and or objects were located or positioned and their associated movements within a crime scene, including how a crime was committed, the type of implement or weapon used and the sequence of blood shed events. He also gave the following evidence in addressing the PowerPoint presentation (at T3024):
Most importantly, though, it [BPA] can identify and assist with the how of the crime and very few forensic disciplines allow that to happen, where we can identify how a crime has taken place, rather than just what the physical evidence is that's in the crime scene itself.
...
It can certainly indicate the nature and extent and location of a person's injury, simply by virtue of having a look at where that deposition has occurred, and by "deposition" I mean a bloodstain being deposited on the surface. We're looking at how much blood is within the scene and we're certainly looking at the location that we see that bloodstain, if we are looking at, for example, a person's clothing, to determine where the injury may have occurred.
After leading evidence before the jury of Detective Sergeant Harkins' qualifications in blood pattern analysis, the Crown also sought to qualify him as a crime scene analyst with a view to adducing from him the evidence which is the subject of challenge. Questions were asked in the presence of the jury directed to his training, study and experience as a crime scene analyst as follows:
Q. Sergeant, as part of your role, from time to time, are you asked to provide an analysis, general analysis, of crime scenes?
A. Yes, that's right.
Q. What sort of analysis are you asked to do and would you tell us what your experience is, in which areas?
A. Certainly. My career in the Forensic Services Group started as a crime scene investigator from 2001. During that time, I was responsible for attending a wide variety of major crime investigations and examining those scenes for forensic evidence. So, that includes sexual assaults, shootings, homicides, incidences of a serious nature. During my time completing that role, I examined in excess of 650 scenes for major crime, prior to then switching across to my current role as a trainer in that particular area.
So, my new role is to train crime scene investigators in the analysis and examination of a wide range of different crime scenes.
Q. Is that limited to blood spatter analysis?
A. No, it's certainly not.
Q. What other areas does your expertise cover?
A. Certainly. I also provide training in relation to general crime scene investigation, forensic photography, fire scene investigation, including wildfire or bushfire examination and the chemical targeting of crime scenes for trace biological evidence using an assortment of chemicals and chemical processes.
Q. Have you been asked to analyse crime scene by taking together a whole lot of different types of findings that have been made at a crime scene, from a variety of sources?
A. Yes. Previously to my role as a trainer, I was responsible for the carriage or the overall carriage of many complex investigations and that would include taking information in from a variety of different forensic sources.
Q. Does that include blood spatter analysis?
A. Yes.
Q. DNA evidence?
A. Yes, that's right.
Q. Fingerprints?
A. Yes.
Q. Tool marks, like gouge marks?
A. Yes.
Q. Marks on bodies that have been found during autopsies?
A. Yes.
Q. Taking all of that material into account and coming to conclusions about crime scenes?
A. Yes, drawing conclusions within those areas, while allowing the relevant expert to provide an in‑depth analysis of the particular item of evidence itself.
Q. So, your role in that respect is to accept the findings of those other experts, put them all together and come to an overall conclusion?
A. Yes, that's correct.
In addition, the Crown Prosecutor established Detective Sergeant Harkins' academic qualifications, including a Bachelor of Forensic Science in Crime Scene Investigation and the post-graduate studies he is currently undertaking with a view to obtaining further qualifications in Public Safety, in which his major area of study is crime scene examination. The Crown also established Detective Sergeant Harkins' certification as an expert in the Methodology of Crime Scene Investigation by the Australasian Field Forensic Science Accreditation Board (AFFSAB).
Detective Sergeant Harkins then gave evidence in chief, without objection, as to his examination of each of the areas of blood staining and blood deposition in each of Bedrooms 1 and 2 and his opinion, based on his analysis and interpretation of that information, as to the events that occurred, including, in Bedroom 1, that:
…each of Min Lin and Lily Lin were struck multiple times with a blunt weapon, that the origin of the impact spatter patterns were close to the head of the bed in which they were found and completely contained to the confines of the bed.
He also said that, in his opinion, both deceased were stationary for a period of time following the assaults but that their upper bodies and heads were likely to have been moved after the assault by the assailant or assailants. He also gave evidence that Min Lin was covered with the doona after the assault.
Insofar as Bedroom 2 was concerned, he gave similar evidence as to the nature of the weapon used to strike Irene Lin. He also gave evidence that the region of origin of the blood spatter patterns was close to the head of the bed in which she was found and that the attack was completely contained within the confines of the bed. He offered the opinion that the weapon which struck her was wielded a minimum of eight times, but he was unable to indicate how many times she was actually struck with the weapon. He also gave evidence that the lower part of her body was moved after the assault and that the doona on her bed was also moved after the assault.
In the course of giving evidence of the blood patterns and bloodstains in Bedroom 3, the bedroom in which the children were found, objection was taken to evidence concerning what has been described as a partial friction ridge detail, located in blood on a timber acoustic guitar in the bedroom and the circumstances in which that mark was applied to the guitar and the likely identity of the person who made the mark. The controversial friction ridge detail has been identified in the evidence by Ms Te as carrying the designation "V1". She has given evidence in the trial, without objection, concerning her treatment of the mark and her observations as to the likely provenance of the mark.
The area in which the guitar was located in Bedroom 3 attracted a designation of "Area 17B" in Detective Sergeant Harkins' July 2012 statement. In summary, his evidence, led without objection before the jury, is to the effect that the guitar was, at least for a period of time during the course of the attack on the children, upright in the corner of the bedroom, since a "void" was discernible on the wall between two areas where blood was deposited in the course of the attack. He also gave evidence of the direction and flow of patterns of blood on the guitar, which, in his opinion, demonstrated that the blood travelled from body of the guitar toward the base of the guitar whilst it was upright. The diagonal flow of other blood deposits on the guitar further reinforced his opinion that the guitar was leaning upright against the corner of the bedroom for some period of time during the attack in the course of which one or both of the boys struggled with the person or people attacking them, which further reinforced his opinion that the transfer pattern in blood, designated as V1, had been deposited after the flow pattern described by him. He was ultimately permitted, without objection, to offer the opinion expressed in the July 2012 statement that the most likely deposition scenario was that the guitar was upright and leaning when blood came into contact with it, causing it to "flow", and that the transfer mark at V1 was applied after that event.
The Crown intends to call a qualified fingerprint expert, Detective Sergeant Bush, who I understand will give evidence that that transfer pattern or mark, identified as V1, had identifiable friction ridge details but was not otherwise able to be identified as belonging to any of the deceased by comparison with fingerprints and palm prints taken post-mortem.
Detective Sergeant Bush's evidence has been relied upon by the accused in a bail application or applications prior to the commencement of his trial in May 2012 as supporting his case that he was not the killer.
In December 2014 (that is, after the second trial was discontinued but before the trial commenced before me), Detective Sergeant Harkins was invited by the Crown to give further consideration to the circumstances in which the friction ridge details identified as V1 (and also V2 and V3, which are not relevant for presented purposes) were deposited. Detective Sergeant Harkins' further statement signed in January 2015 sets out the scope of the opinion sought, the assumptions he made and the limitations he imposed on his reasoning to any concluded view on the likely deposition scenario, including that it was based upon or limited to his knowledge, experience or training in the field of bloodstain pattern analysis. He also nominated the material he had access to in forming his opinions, including, in particular, the statements of Detective Sergeant Bush, dated July 2011, June 2012 and February 2014. In that regard, Detective Sergeant Harkins confirmed his understanding that the source of the friction ridge detail in V1 (and V2 and V3) is undetermined, although the blood through which, or across which, the transfer pattern in V1 was applied, is a mixture, and that neither Henry Lin nor Terry Lin could be excluded as contributors. He also noted that the deceased have not been excluded as being the source of those marks in the view of Detective Sergeant Bush, however, in Detective Sergeant Harkins' view, he could safely exclude Min Lin, Lily Lin and Irene Lin as the course of the mark based upon his previously expressed opinion that they were deceased or dying before the assaults on Terry Lin and Henry Lin were launched.
On that assumption, Detective Sergeant Harkins hypothesised three scenarios as to who might be responsible for causing the friction ridge details on the guitar, namely Terry Lin, Henry Lin or the assailant or assailants. He then sets out his reasoning in ultimately expressing the view that he could not exclude the possibility that the assailant(s) or Henry Lin contributed to the making of the mark, but that the most likely deposition scenario was that the transfer mark was caused during the assault on Terry Lin by reason of his hands or feet, or a combination of them, having come into contact with the guitar and causing it to fall to the ground.
The principal objection to the Crown seeking to adduce that opinion, is that the statement in which it is expressed was served in breach of an order made by Johnson J on 25 November 2013 that the Crown serve the evidence on which it proposed to rely by 6 December 2013. At the date of that order, his Honour had been appointed the trial judge and was invited by the parties to consider a number of pre-trial applications relating to the admissibility of evidence, including, it seems, setting a timetable for the serving of evidence upon which the Crown intended to rely in accordance with Pt 3 Div 3 of the Criminal Procedure Act 1986 (NSW). The terms in which his Honour expressed the order made on 23 November was that no variation to that order would be allowed otherwise that in "exceptional circumstances". It is not clear from the judgment which culminated in the making of that order (R v Xie (No 1), Supreme Court (NSW), Johnson J, 25 November 2013, unrep) why his Honour imposed the requirement that exceptional circumstances be shown before there could be any variation to that timetable in circumstances where, in a judgment in which that order was varied two weeks later (R v Xie (No 2), Supreme Court (NSW), Johnson J, 6 December 2013, unrep), his Honour noted service by the Crown of the evidence in a complex case is "a progressive exercise" which "is not completely stopped at a particular point in time".
Section 141 within Div 3 was introduced into the Criminal Procedure Act following the passage of the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013. That section provides for a regime within which the prosecution is to give notice of its case to an accused person in accordance with the contents of the prosecution's notice set out in s 142, and for the defence to respond to service of that notice as provided for in s 143. Section 141(2) provides that the timetables within which pre-trial disclosure is to take place is to be determined by the Court. Section 141(3) provides that that timetable may be varied if the Court considers that it would be "in the interests of the administration of justice" to do so. The section does not, in its terms, require either the prosecution or the defence to seek a grant of leave to make the necessary disclosure outside the timetable fixed by the Court. Rather, it would seem to me that any variation in the timetable that is opposed for some legitimate reason should be raised with the list judge, or the trial judge if one has been appointed, in order that the Court might then give consideration to whether the variation under contention should be allowed in the interests of the administration of justice.
Mr Turnbull submitted that I was bound by the terms of his Honour's order and that since the Crown has not satisfied me that there are exceptional circumstances which would justify or allow for the evidence in Detective Sergeant Harkins' most recent statement to be adduced in the accused's trial, I should refuse to admit the evidence. I raised with counsel whether s 130A(3) of the Criminal Procedure Act, also within Pt 3 Div 1 of that Act, had any application. That section provides that, as the judge who is now presiding over the accused's trial, I am bound by any "pre-trial order" made in discontinued trial proceedings (the trial proceedings which commenced before Johnson J in May 2014 and which re-commenced before his Honour in August 2014, having been discontinued), subject only to it being, in my assessment, not in the interests of justice that I be so bound.
On the working assumption that the orders his Honour made under Div 3 for pre-trial disclosure are capable of being characterised as a pre-trial order with continuing effect, I do not consider that it is in the interests of justice in the trial which is proceeding before me for the timetable his Honour set in November 2013 to bind the way in which I consider this trial should be conducted, or that the interests of justice will be served by considering myself bound by that restraint. With unfeigned respect for Johnson J and his conduct of earlier proceeding, I could not properly regard myself as bound by an order, the terms of which refer to a test against which a variation of the order might be allowed in the exercise of discretion different from the discretionary test specified in s 141(3) of the Act.
The defence have been on notice of the additional evidence the Crown proposes to lead from Detective Sergeant Harkins before the trial commenced before me. The trial has been in progress just short of three months. Mr Turnbull does not identify any prejudice to the accused, or to the case he is to meet, by the service of an additional statement from Detective Sergeant Harkins before the trial before me commenced, or that he is in any other way unable to meet the further evidence the Crown wishes to adduce concerning the V1 mark on the guitar in his conduct of the accused's case generally or, in particular, in the cross-examination of Detective Sergeant Harkins which is yet to commence.
Although neither Detective Sergeant Bush, nor the forensic biologist who identified the DNA profiles of Henry Lin and Terry Lin have given evidence, and although Detective Sergeant Harkins' further opinion is based in part on their evidence, there is no application that Detective Sergeant Harkins' further evidence bearing upon the circumstances in which V1 was deposited on the guitar should await their evidence or that their evidence is a pre-condition to the admissibility of his evidence.
I am also satisfied that there is no occasion on this application for the exclusion of Detective Sergeant Harkins' further evidence to undertake the balancing exercise involved in the exercise of the general discretion under s 135 of the Evidence Act to exclude evidence. To the extent that s 137 Evidence Act is relied upon, I do not regard the probative value of Detective Sergeant Harkins' additional evidence to be outweighed by the danger of unfair prejudice to the accused, in particular, where no submission is advanced as to any particular prejudice suffered by him, the risk of which may be ameliorated by delaying the calling of the evidence or adjourning proceedings to allow further inquiries to be made by the defence.
I turn now to consider whether the further evidence the Crown seeks to adduce from Detective Sergeant Harkins, as summarised at [6] above, is admissible as opinion evidence under s 79 of the Evidence Act.
Although, in anticipation of leading the further evidence, the Crown qualified Detective Sergeant Harkins before the jury as a crime scene analyst, that is, that he has specialised knowledge in crime scene analysis based on his training, study or experience in addition to his expertise as a blood pattern analyst. When argument, in the absence of the jury, was directed to the question of his expertise as a crime scene analyst, the Crown led additional evidence on the voir dire to elaborate upon or explain the source of that expertise.
On the voir dire, Detective Sergeant Harkins confirmed that he obtained his graduate qualifications as a Bachelor of Forensic Science in July or August 2014 with his degree awarded after a number of years studying part-time. He also confirmed that he was certified by the AFFASB in May 2014, and that both his tertiary qualifications and certification encompass crime scene examination and investigation.
He gave evidence that his certification as an expert in the methodology of crime scene investigation involved a minimum of 4 years of investigative duties as a crime scene examiner attending and managing major crime investigations from a forensic perspective and that his tertiary degree also met the minimum academic requirements for accreditation. Finally, his accreditation was awarded following a 4-hour interview by a panel comprised of forensic science specialists, with a viva voce testing of his ability to analyse and reason to a conclusion based a brief of evidence prepared by him and questions arising from that work. He was also examined, without advance notice, on a hypothetical crime scene scenario, inclusive of photographs and interactive crime scene recordings.
Finally, he gave evidence that he has assisted investigating police from time to time by providing an analysis of a crime scene from a number of informed forensic perspectives, not limited to blood pattern analysis, with a view to identifying alternate avenues of enquiry, which have a potential to reveal evidence of forensic significance that might be pursued by investigators.
I am satisfied that Detective Sergeant Harkins is qualified to offer his opinion as to the following matters on the basis that he has specialised knowledge as a crime scene analyst, based upon his training study and experience, and the opinions sought to be adduced from him are substantially based upon that knowledge:
a) Whether there is any evidence available to him from his analysis of the crime scene, inclusive of, but not limited to, the bloodstain patterning identified by him, which is consistent with the use of a weapon or weapons, in addition to the weapon which inflicted the blunt force injuries on the deceased. I note that Mr Turnbull did not ultimately object to Detective Sergeant Harkins offering his opinion that there was no evidence that he saw within the crime scene, having regard to the blood patterning, consistent with a second type of weapon. He maintains his objection, however, to that opinion being expressed on the basis of his purported qualifications as a crime scene analyst. I regard the evidence the Crown seeks to lead as being properly adduced on the basis of the intersection Detective Sergeant Harkins' of overlapping areas of expertise in BPA and crime scene analysis;
b) Whether there is any evidence available to him from his analysis of the crime scene, inclusive of, but not limited to, the bloodstain patterning identified by him, consistent with the use of more than one "type of rope" (that is, the rope identified by Dr Raymond as having made each of the marks she examined with Detective Sergeant Harkins). Mr Turnbull did not ultimately object to Detective Sergeant Harkins offering his opinion that there was no evidence that he saw within the crime scene, having regard to the blood patterning, consistent with another type of rope. He maintained his objection, however, to that opinion being expressed on the basis of any qualifications Detective Sergeant Harkins as a crime scene analyst. I regard the evidence the Crown seeks to lead on this issue as being properly adduced on the basis of the intersection of overlapping areas of expertise;
c) Whether there is any evidence available to him from his analysis of the crime scene, inclusive of, but not limited to, the bloodstain patterning identified by him as to the probable sequence of events at 55A Boundary Road, including, in particular, the order in which the deceased were killed, whether any of them were moved after their bleeding injuries were sustained and whether and where the assailant moved within the crime scene during or after the attacks on each of the deceased. As I have already noted, his opinions as to those issues were covered in his statement of July 2012. I also note that in the PowerPoint presentation, as to which there was no objection, he stated that BPA allows for insight into the sequences in which events occur in a crime scene (see [8]).
It is a matter for the Crown to adduce the evidence so as to make patent for the jury the facts, inferences from facts or assumptions grounding the Detective Sergeant Harkins' opinion about each of those three subject areas. However, on the question of admissibility, I am satisfied from what is set out in his statement that there is a sufficient foundation for the opinion evidence under challenge to be admitted and considered by the jury. The ultimate weight the jury attach to his opinion about these and the other matters in contention that emerge from the crime scene are quintessentially within the province of the jury.
I reject the submission advanced by Mr Turnbull that the evidence sought to be adduced in 33(a), (b) and (c) is beyond or not otherwise within Detective Sergeant Harkins' expertise as a crime scene analyst and blood pattern analyst. I also reject the submission that the evidence is irrelevant or ought be rejected in the exercise of discretion because, when properly scrutinised, it is sought to be adduced by the Crown for no other reason than to provide a pseudo-expert opinion to provide evidential support to a speculative Crown case theory and, in that way, impermissibly deflecting the jury from its fact-finding task.
I accept the Crown's submission that Detective Sergeant Harkins is not only qualified to offer the opinions the Crown proposes to lead from him, but that it is appropriate for the jury to be given assistance from a suitably qualified forensic expert when that opinion is expressed in a disciplined, rational and transparent way by invoking the principles of inductive and deductive analysis within the bounds of relevant expertise and based upon specialised knowledge. The adequacy of the expert's reasoning, and any flaws in it, and the conclusions that are expressed to be based upon it, can be tested in cross-examination. The cross-examination will also assist the jury in their ultimate consideration of the crime scene, which, in this case, has multiple layers of factual complexity.
Finally, the Crown also seeks to adduce from Detective Sergeant Harkins an answer to the following question:
Q. Did you see any positive evidence at 55A Boundary Road of the presence of or involvement of more than one assailant?
It is anticipated that Detective Sergeant Harkins will say that he did not, although he could not exclude the possible involvement of another or others. The Crown also intends that Detective Sergeant Harkins identify the process by which he reasoned to that conclusion, inclusive of the evidence that he relied upon as grounding that opinion. Mr Turnbull objected to the question posed in that particular way. In his submission, the only permissible question would be to have Detective Sergeant Harkins confirm that there was no evidence, having regard to the bloodstain pattern analysis, which is capable of confirming the number of assailants or limiting the number to only one assailant.
In my judgment, the Crown should adduce the evidence as to the number or possible number of assailants by asking the following question:
Taking into account the evidence available to you from the crime scene and your analysis of that evidence from your experience as a blood pattern and crime scene analyst, and taking into account the opinions of others who have applied their expertise in DNA profiling and shoe print impressions of which you are aware, what, if anything, is there which is consistent with there being more than one assailant being implicated in the crime scene?
When the trial reconvened, but before Detective Sergeant Harkins was recalled to give further evidence consistent with my various rulings, the Crown identified another question on the voir dire which he submitted could be legitimately asked of Detective Sergeant Harkins consequent upon his analysis of the crime scene.
He reminded me that in addition to the defence case that the accused was not the killer because of the real possibility that there was more than one assailant, questions asked of witnesses earlier in the trial were directed to raise the possibility that the deceased Min Lin, Lily Lin and Irene Lin were killed between when the computer Henry Lin was using was turned off and when Min Lin was last seen delivering newspapers and 10.30pm when the accused and his wife dropped Henry Lin and Terry Lin at 55A Boundary Road.
When the trial reconvened, but before Detective Sergeant Harkins was recalled to give further evidence consistent with my various rulings, the Crown identified a further question which he omitted to ask on the voir dire and which he submitted could be legitimately asked of Detective Sergeant Harkins based upon his analysis of the crime scene.
The Crown reminded me that in addition to it being the defence case that the accused was not the killer because of the real possibility that there were a number of assailants responsible for the killings, questions asked of witnesses earlier in the trial were directed to raise the further possibility that the deceased Min Lin, Lily Lin and Irene Lin were killed after Min Lin was last seen delivering newspapers at 9.47pm, and before 10.30pm when the accused and his wife dropped Henry Lin and Terry Lin at 55A Boundary Road, and that the children were killed after that time and after Henry Lin concluded his chatline conversation at 11.26pm.
The Crown submitted that, consistent with my ruling, he was entitled to ask Detective Sergeant Harkins whether there was anything from his analysis of the crime scene which suggests that any significant time elapsed between the attack on Min Lin, Lily Lin and Irene Lin, on the one hand, and the attack on the children and, if not, his reasons for coming to that view. For the reasons already given, I am satisfied that is a question that calls for an opinion within Detective Sergeant Harkins' expertise as a bloodstain pattern analyst and a crime scene analyst and that the Crown should be permitted to ask it.
[3]
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Decision last updated: 01 March 2017