R v So (No 3)

1. [1]

   HIS HONOUR: The accused was arraigned in the Supreme Court on 2 September 2022 on a charge that between 14 and 15 June 2016 at Elong Elong she murdered Robert Dickie. The trial commenced at Dubbo, to be determined by Judge alone, on Monday 14 August 2023. Pursuant to s 192A of the Evidence Act 1995 (NSW), the accused sought a pre-trial ruling as to the admissibility of certain expert evidence proposed to be led by the Crown in the trial.

2. [2]

   The accused does not concede that Mr Dickie is deceased. Accordingly, I shall refer to the alleged victim as Mr Dickie. The Crown Case Statement, insofar as it is relevant by way of background to the application, is to the effect that at the time Mr Dickie disappeared, he had resided alone on a rural property at Elong Elong (Mr Dickie’s property) for some years. He was last seen alive on the morning of Tuesday, 14 June 2016, when he and the accused, who had been staying with him since Saturday, 11 June 2016, visited the home of a neighbour. Mr Dickie’s mobile telephone last triangulated to a cell tower, which was near Elong Elong, shortly before 3pm on Wednesday, 15 June 2016.

3. [3]

   A family member reported Mr Dickie’s disappearance to police on the evening of Wednesday, 15 June 2016. Police attended his residence later that night and on multiple occasions in the following weeks and months without success in determining the whereabouts of Mr Dickie or, if he is deceased, his remains.

4. [4]

   The Crown case is that the accused killed Mr Dickie by physically attacking him while they were alone at his residence at a time between their return from visiting his neighbour on 14 June 2016 and the time that police attended Mr Dickie’s property the following day. The Crown alleges that in attacking Mr Dickie, the accused’s intention was to at least cause him grievous bodily harm. Her alleged motive was anger. She had travelled from New Zealand at Mr Dickie’s invitation with an expectation that he was committing to a long-term relationship with her but following the visit to a neighbour on 14 June, Mr Dickie told her that she could not stay with him on an ongoing basis, which enraged her to the point that she fatally assaulted him.

5. [5]

   On 22 July 2016, family members cleaned the bathrooms, kitchen, vacuumed the carpet and mopped other floors with cleaning equipment.

6. [6]

   On 4 August 2017, a forensic examination was conducted by police of the residence. The Crown Case Statement as to the examination of Mr Dickie’s bedroom, which for the purposes of this application was not challenged by the accused, is as follows:

7. [7]

   A key piece of evidence in the prosecution theory as to the place and cause of Mr Dickie’s death is the presence of dried blood, attributed by DNA analysis as being that of Mr Dickie, in his bedroom, as explained in the Crown Case Statement:

8. [8]

   The expert evidence in dispute is summarised in the Crown Case Statement thus:

9. [9]

   In her response to the Notice of Prosecution case, the accused gave notice that she intended to challenge the admissibility of the evidence foreshadowed in pars (188)–(196) and (226)–(233) of the Crown Case Statement. The primary basis of her challenge to this evidence, which she collectively described as “evidence of blood estimates”, is that the Crown has not demonstrated that there exists an “area of specialised knowledge”, as required by s 79(1) of the Evidence Act, upon which the opinions are based. Alternatively, that the experts relied upon by the Crown to establish the evidence (Senior Sergeant Scott Gane and forensic pathologist Dr Allan Cala) lack relevant expertise to provide such opinions. As a further alternative, that the probative value of the evidence is outweighed by its prejudicial effect: s 137 of the Evidence Act.

Relevant statutory provisions

1. [10]

   Sections 76 and 79(1) of the Evidence Act provide as follows:

The voir dire

1. [11]

   The evidence tendered by the Crown on the voir dire comprised the following:

   1. (1)

      a statement of, and photographs taken by, Senior Constable Redden, who was a technical investigator at the time he inspected the property on Sunday, 29 June 2016;

   2. (2)

      a statement of, and photographs taken by, Senior Sergeant Gane, who forensically examined the bedroom on 4 August 2017, a transcript of evidence given by Senior Sergeant Gane at the committal and his evidence on the voir dire; and

   3. (3)

      two statements by Dr Cala, dated 21 November 2018 and 11 May 2023. The earlier statement was accompanied by 18 photographs, upon which he based the opinion that he expressed in that statement. As well, a transcript of evidence given by Dr Cala at the committal and his evidence on the voir dire was tendered.

2. [12]

   The evidence tendered by the accused on the voir dire comprised reports and evidence by Dr Mark Reynolds, who is a consultant crime scene examiner, and Professor Johan Duflou, who is a consultant forensic pathologist.

3. [13]

   In his statement dated 3 January 2018, Senior Constable Redden recalled that at the time of his inspection of the interior of Mr Dickie’s residence, which was on the afternoon of the fifth day after the last confirmed sighting of Mr Dickie, the light provided by the light fittings was “extremely dim”. He took photographs of each room and did not notice anything untoward. I note that in two of the photographs that he took of Mr Dickie’s bedroom it is possible to discern lighter patches on areas of the carpet that correspond to patches that were later discovered to be in the same position as the dried blood stains on the underneath of the carpet. Thus, those two photographs are some evidence as to a date by which the blood underneath the carpet may have been deposited.

4. [14]

   The forensic officer referred to in par (226) of the Crown Case Statement was Senior Sergeant Scott Gane. In his statement dated 13 September 2018, Senior Sergeant Gane set out his qualifications as a crime scene investigator, which were not challenged. He had been a police officer since 1996. He had been attached to the Forensic Evidence and Technical Services Command, Crime Scene Services Branch, since 2002. His duties and training included the examination, recording and interpretation of scenes of crime and incidents, and the collection, preservation and, at times, examination of physical evidence from such scenes. In 2010, he was awarded a Certificate of Expertise in Crime Scene Methodology by the Australasian Forensic Field Sciences Accreditation Board (AFFSAB). He had completed multiple courses over his career, including the collection of biological evidence in 2001, the chemical targeting of trace evidence at crime scenes in 2003 and bloodstain pattern analysis in 2008.

5. [15]

   Senior Sergeant Gane opined:

6. [16]

   In his evidence on the application, Senior Sergeant Gane stated that the only confirmed indications for blood on the carpet was on its underside. The section of stained carpet became an exhibit on the voir dire. Based on the photographs taken by Senior Sergeant Gane of the carpet in the bedroom as it was peeled back to expose its underside, it appears that the blood-stained areas of the underside of the carpet align with the eastern side of the bed, immediately alongside it and an area that would have been slightly underneath it. All of the stains are irregular in shape. There are two major stains, both of which are elongated and approximately parallel to the bed position. One is approximately 30cm from the southern wall at its closest point, that is, the wall against which the head of the bed was placed, and is approximately 60cm long and 30cm wide. Approximately half of the area of staining is dark, the other half being of a lighter tone.

7. [17]

   The second major stain is approximately a metre in length and 45cm wide. Its position aligns with an area approximately ending in line with the foot of the bed. Although its area is significantly larger than the first major stain, the area of dark staining is much less. There are at least three smaller areas of light staining, approximately circular in shape, situated within a few centimetres of this stain. A smaller stain, also approximately circular in shape, is located approximately 30cm from, and in line with, the furthest edge from the southern wall of the larger major stain, and further from the area of the bed. It does not have a dark area. There is a small patch of dark stain further still from the southern wall, that has little light stain around it. Beneath the carpet is foam underfelt. The blood has seeped through the underfelt at one point, leaving a roughly circular stain that is approximately 3.5cm in diameter. It is mostly dark in colour.

8. [18]

   By consent, for the purposes of the voir dire, the Crown informed the Court that DNA testing that had been carried out on the blood droplets on the eastern, southern and northern walls of the bedroom established to a very high statistical probability that they matched Mr Dickie’s DNA profile.

9. [19]

   In his evidence on the application, Senior Sergeant Gane explained the basis for his opinion that a “significant bloodshed event” had occurred in the bedroom:

10. [20]

    A statement by Dr Allan Cala, dated 21 November 2018, was tendered on the voir dire. In that statement Dr Cala noted that police officers had provided him with a police report of Mr Dickie’s suspected death (known as a P79B) and 18 of the photographs taken by Senior Sergeant Gane of the main bedroom.

11. [21]

    In his statement, Dr Cala stated:

12. [22]

    Dr Cala’s only reference to his qualifications in that statement were: “I have specialised knowledge based on the following training, study, and experience: MB, BS, FRCPA [1] ”. In the course of giving evidence at the committal, Dr Cala said he had been a forensic pathologist since 1994.

13. [23]

    In neither of his statements did Dr Cala refer to what specialised knowledge he possessed, consequent to his training, study or experience, that was the basis of his opinion as to the quantity of blood that caused the stains on the underneath of the carpet. The issue of his expertise was explored at the committal and in his evidence on this application.

14. [24]

    At the committal, Dr Cala offered that he was “not aware that there’s been very much written, at all, in relation to this area of forensic pathology”. He said that “it is inexact, by its very nature it’s inexact and blood volumes, it seems, are very difficult to measure”. He agreed that studies since the mid-1990s involving medical professionals estimating quantities of blood at mock crime scenes have produced “mixed results”. On this application, in evidence Dr Cala said, as to blood volume estimation:

15. [25]

    Dr Cala stated that his expertise on the subject of blood volume derived from three areas: firstly, forming opinions from having viewed numerous crime scenes where there were blood shedding events; secondly, from an experiment he conducted in 1994 in which he invited a group of pathologists to estimate quantities of blood that he had poured onto a tiled floor; and, thirdly, certain training courses.

16. [26]

    Dr Cala stated that, on occasion, usually during cross-examination, he has been asked to estimate “volumes of blood at various scenes”. On this application, in evidence in chief he was referred to a case (R v Ruttley (No 2) [2017] NSWSC 878) in which he gave evidence for the Crown, in the absence of a body, as to the quantity of blood that had caused blood stains, as they appeared in photographs, on grass, dirt and carpet.

17. [27]

    Dr Cala was asked whether, apart from the case of Ruttley (No 2), he had previously given an opinion as to blood quantity in circumstances where there was no body. Dr Cala was unable to refer to any other instance.

18. [28]

    The results of Dr Cala’s experiment were presented at a conference of the Royal Australasian College of Pathologists, held in Adelaide in 1994. Dr Cala said that the result of the experiment, as he recalled it, was that there was a tendency to overestimate the smaller volumes of blood involved and underestimate the larger volumes.

19. [29]

    Dr Cala gave further evidence about the experiment on this application, saying that he showed the participants photographs, each of a different quantity of pure blood that he had placed onto a square-tiled floor using a 20ml syringe, and invited them to estimate the volumes. The photographs were taken immediately after each amount was placed on the floor and included a ruler alongside to assist the participants in making their estimates. Professor Johan Duflou was a participant. In response to a subpoena, Dr Cala produced three of the photographs, for the quantities 500ml, 750ml and 1.5 litres. He was unable to locate any other material in relation to the experiment.

20. [30]

    After Dr Cala’s evidence was completed, Professor Duflou located an abstract of the experiment in an issue of the Journal of Pathology (vol 29, issue 1, 1995), which is the official journal of the Royal College of Pathologists of Australasia. The abstract was tendered without objection and is as follows:

21. [31]

    Dr Cala said:

22. [32]

    The most recent training course that Dr Cala had undertaken was in 2000 in Florida:

23. [33]

    As to his opinion in the present case, Dr Cala agreed that the blood shed on the carpet may have been diluted while wet through a cleaning process, which was partly relevant to his determination of the quantum of blood involved. He accepted that the “cleaning and dilution” made it more difficult to assess the blood volume. His opinion was:

24. [34]

    I note that the only visible dried blood was on the underside of the carpet. Dr Cala clarified in his evidence on the application that his opinion was based on the bleached areas on the surface of the carpet as well as the blood stains underneath it. He thought that the darker stains looked like “frank” or “pure” blood. As to the lighter areas, he said:

25. [35]

    In evidence on the application, Dr Cala said that he took the lighter areas into account as well:

26. [36]

    At the committal, Dr Cala was asked in cross-examination whether the volume could be less than one litre, having regard to the unknown degree of dilution and the absence of a body. He replied:

27. [37]

    Dr Cala agreed that, in determining the volume of a quantity of poured or spilt blood, the surface area occupied by the blood, the porousness of the surface and any external mechanism that has been applied to the blood after it is poured or spilt, are important factors. He was asked:

28. [38]

    Dr Cala stated that a body weighing 70kg typically has a blood volume of slightly more than 5 litres. He stated:

29. [39]

    The Crown submitted that the role of a forensic pathologist, as explained in the 2023 edition of the “Trainee Handbook of the Royal College of Pathologists of Australia” (the Trainee Handbook), which it tendered, encompassed the evidence that it sought to adduce from Dr Cala. Forensic pathology is defined in the Trainee Handbook at par (14), as follows:

30. [40]

    A report prepared by Dr Reynolds, dated 30 May 2023, was tendered on behalf of the accused.

31. [41]

    Dr Reynolds is a consultant forensic examiner. According to his curriculum vitae, which was not challenged, he served in the Western Australian Police Force (WAP) for 30 years until 2017, holding the position of Forensic Science Consultant and Manager, Quality Assurance, between 2009 and 2017. His forensic fieldwork experience includes the forensic investigation of more than 450 cases of homicide, fatal shootings involving police officers and other deaths under suspicious circumstances.

32. [42]

    Dr Reynolds’ academic qualifications include a Bachelor of Applied Science (Biology) from Curtin University of Technology in 1987, a Diploma of Policing from the West Coast College of TAFE in 1998, a Diploma of Forensic Investigation: Crime Scene Investigation from Canberra Institute of Technology in 2004 and a Master of Science (Forensic Science) (MSFS) and a Doctor of Philosophy, both awarded in 2008 by the University of Western Australia (UWA). The research topic for his PhD concerned an aspect of blood pattern analysis. Between 2011 and 2017, he was an adjunct Senior Lecturer and Associate Professor at the UWA and Murdoch University respectively, teaching post graduate science programs and supervising post graduate students undertaking forensic research at Honours, MSFS and PhD levels. During this time, he also performed MSFS and PhD thesis assessments and grading for several Australian and New Zealand universities.

33. [43]

    Dr Reynolds noted that the scientific literature in relation to publications of studies that have examined the estimation of the volume of a blood pool at a crime scene is relatively sparce. However, there are some published articles as to estimations by medical personnel:

34. [44]

    Dr Reynolds noted, in relation to these studies:

35. [45]

    Dr Reynolds concluded, in relation to the capacity to form an accurate opinion as to the quantity of blood that stained Mr Dickie’s bedroom carpet:

36. [46]

    In evidence, Dr Reynolds elaborated:

37. [47]

    Dr Reynolds was of the opinion that the 1994 blood volume experiment conducted by Dr Cala did not assess, or enhance, his personal capacity for correctly estimating blood volume, since he was not a participant in it. Nor could he have been, since he designed the experiment. He was of the view that Dr Cala’s experience in assessing blood volume, when there was no capacity to test his accuracy, did not in itself provide a basis for expertise, since it remained possible that some or all of his estimates were incorrect.

38. [48]

    Dr Reynolds agreed that the dark areas of stain were likely frank blood, and gave an opinion that the lighter areas may be blood components that had wicked through the carpet following a decomposition of the blood, which is known as “diffusion”. He cited a passage from a text titled, “Principles of Bloodstain Pattern Analysis”, which he said accorded with his training and experience:

39. [49]

    Another possibility, he said, was that it was a combination of fluid from a cleaning process and diffusion:

40. [50]

    Professor Duflou is a forensic pathologist, who has been registered as a full-time specialist forensic pathologist since 1988. He prepared a report that is dated 1 June 2023, in which he offered the following opinion:

41. [51]

    In evidence, Professor Duflou revised his estimate of, “as low as less than 500ml”, as follows:

42. [52]

    The issue was revisited in cross-examination:

43. [53]

    Professor Duflou was asked:

Submissions of the accused

1. [54]

   As noted, the accused’s primary submission was that the Crown has not demonstrated that there exists an “area of specialised knowledge” upon which the opinions of Senior Sergeant Gane and Dr Cala are based. The accused submitted that Dr Cala’s experience as a forensic pathologist did not qualify him to formulate accurate opinions of blood volume. The studies that were referenced by Dr Reynolds in his report demonstrated that proposition to be true, for persons performing a range of medical roles.

2. [55]

   In the alternative, the accused submitted that the probative value of the evidence is outweighed by its prejudicial effect: s 137 of the Evidence Act.

3. [56]

   Implicit in the accused’s submissions was the proposition that, absent the contested opinion evidence, evidence of the bloodied section of carpet from Mr Dickie’s bedroom, the images and forensic testing of it lacked relevance to a fact in issue.

Submissions of the Crown

1. [57]

   As to the term “specialised knowledge” in the context of s 79(1) of the Evidence Act, the Crown cited R v Niguidula (No 2) [2023] NSWSC 476, in which Dhanji J referred to judgments that considered how that notion should be considered:

2. [58]

   The Crown also relied upon the judgment in Ruttley (No 2), in particular, the finding by Payne JA that a forensic pathologist’s experience may equip them to form an expert opinion as to a volume of blood based upon photographs of the blood on dirt and carpet.

3. [59]

   The Crown submitted that Dr Cala appropriately explained the limitations to his estimation, which would minimise or avoid a danger of the tribunal of fact falling into an error of speculation as to the volume of blood.

Consideration

1. [60]

   As noted, Dr Cala gave evidence in 2017 for the Crown as to blood volume in Ruttley (No 2). The evidence upon which he based his opinion was, in some respects, similar to his evidentiary basis in this case. In Ruttley (No 2), Payne JA referred to it thus, at [6]:

2. [61]

   The criteria to be satisfied on the balance of probabilities if opinion evidence is to admitted pursuant to s 79(1) of the Evidence Act is, firstly, that the witness has “specialised knowledge” which derives from their “training, study or experience” and, secondly, that their opinion is “wholly or substantially” based on that specialised knowledge: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32].

3. [62]

   The facts in issue to which the opinion evidence of Senior Sergeant Gane and Dr Cala is submitted to be relevant are whether Mr Dickie suffered a wound in his bedroom that was life-threatening, which in turn is relevant to whether he is deceased and, if so, the place and cause of his death. I do not understand there to be any contest as to the relevance of the evidence, and I find it to be so.

4. [63]

   It became common ground that there is no course of training or study that could equip a witness to give an opinion as to the quantity of fresh blood on a surface, let alone the quantity of blood that caused a dried blood stain, as captured on an image, on the underneath of a membrane through which it had drained (in this case, carpet) and without a corresponding image of the blood on the top of the carpet. Accordingly, the question devolves to whether Senior Sergeant Gane, and particularly Dr Cala, have “specialised knowledge” that is derived from their experience upon which their proposed opinions are based.

5. [64]

   Senior Sergeant Gane’s opinion took into account the combination of dried blood spatter on the walls as well as the dried blood underneath the carpet and on the beading of the mattress; in other words, that the blood in each of those locations was from the same person and was deposited in the same incident. He did not qualify the quantity of blood involved, other than it being a “significant blood shedding event”.

6. [65]

   Dr Cala went further, in his first statement estimating that the blood loss “could be well in excess of one (1) litre” and “the volume of blood cannot be quantified exactly but appears large and is possibly of the order of several litres”. In his evidence at the committal, when asked if the quantity could be less than 1 litre, he replied “I don’t think so”, having regard to the staining on the underside of the carpet. He adhered to that position in his evidence on this application.

7. [66]

   The evidence of Dr Reynolds and Professor Duflou was to the effect that it is not possible to accurately estimate quantities of blood in ideal circumstances, far less in those that applied in this case. Their opinions were based on published research undertaken in various studies that examined the accuracy of estimations made by medical personnel and professionals on both non-absorbent and absorbent surfaces. Professor Duflou’s opinion was also based on his own experience, as a participant in the 1994 blood volume experiment that was conducted by Dr Cala.

8. [67]

   Dr Cala said in evidence that he has not partaken in an exercise of assessing blood volumes where his estimates were checked, although he conducted the 1994 blood volume experiment. It was suggested by the Crown that providing opinions in circumstances where it cannot be discovered whether the opinion is correct is part and parcel of the work of a forensic pathologist, and Dr Cala’s opinion as to blood volume is no different. I do not accept that submission. A forensic pathologist’s opinion following an autopsy is based on their training, study and experience, which equips them with an awareness of reference points; they know what a gunshot wound or knife wound looks like, because on multiple occasions they have observed wounds that were known to have been made by a projectile or a knife.

9. [68]

   I do not accept that Dr Cala’s conduct of the 1994 blood volume experiment enhanced his ability to provide accurate, or more accurate, estimates of blood volume. It does not logically follow that by demonstrating the inability of pathologists and medical staff to accurately assess blood volume he enhanced his own accuracy in such an exercise.

10. [69]

    The opinions of Dr Reynolds and Professor Duflou, which are informed by published studies, and the abstract of the 1994 blood volume experiment, are persuasive to a point that I do not find, on the balance of probabilities, that Dr Cala’s opinion as to the quantity of blood that resulted in the staining of the carpet in Mr Dickie’s bedroom is based, either wholly or substantially, on specialised knowledge that derives from his experience. While the work of a forensic pathologist routinely involves dealing with blood and forming opinions that involve its presence, absence and nature, as the studies referenced by Dr Reynolds demonstrate, that familiarity does not of itself provide forensic pathologists with a capacity to accurately estimate its volume. That is particularly so when what is sought is an opinion as to the original volume of blood that has left dried stains on absorbent material that may have subsequently absorbed other fluids that may have dissipated the original blood stains.

11. [70]

    Dr Cala has not explained the pathway by which his experience has so informed him to make an estimation of the blood involved being at least a litre and “possibly … several litres”: Dasreef Pty Ltd v Hawchar at [37] (see Dhanji J at [13] of Niguidula (No 2), reproduced above at [57]); and Makita (Australia) v Sprowles at [85].

12. [71]

    Dr Cala’s evidence, as I understand it, is that he was principally guided by the darker stains, which he assumed to be frank blood, meaning pure blood, although he also made certain assumptions as to the quantity or spread of blood that there would have been on the upper surface of the carpet before it was cleaned, and that the lighter staining underneath the carpet may in part be due to those cleaning agents having seeped through and diluted the blood on the underneath of the carpet. It is not apparent how he took those various possible contributing factors into account, or how his experience as a forensic pathologist equipped him to do so.

13. [72]

    I am satisfied that Dr Cala’s opinions as to the medical consequences of blood loss and his opinion that is referred to in par (232) of the Crown Case Statement concerning blood spatter, are within his specialised knowledge based on his training, study and experience as a forensic pathologist, and are admissible pursuant to s 79(1) of the Evidence Act.

14. [73]

    The concerns identified with respect to Dr Cala’s evidence do not apply to the evidence of Senior Sergeant Gane’s opinion. I am satisfied that his opinion, that a significant blood shedding event had occurred in the bedroom, is admissible pursuant to s 79(1) of the Evidence Act.

15. [74]

    The evidence of the carpet, including the photographs and procedures conducted by Senior Sergeant Gane and subsequently by forensic specialists, are relevant to facts in issue and admissible.

16. [75]

    I note that my determination, at first blush, may seem contrary to the determination in Ruttley (No 2). It concerned evidence by Dr Cala of blood volume that was based exclusively on five photographs of blood stains on the upper surface of a carpet and earth, each image including a ruler. Professor Duflou gave evidence in that case to the effect that it was not possible to accurately estimate blood volume. The Court determined that the evidence of both Dr Cala and Professor Duflou was admissible, pursuant to s 79(1) of the Evidence Act.

17. [76]

    I also note, however, that studies that featured in the evidence of Dr Reynolds were not before the Court in Ruttley (No 2). Indeed, the paper by Townend and Byers was published the year after, in 2018. The only expert material referred to by Professor Duflou in that case was his recollection of the 1994 blood volume experiment, without the benefit of the published abstract concerning it.

Orders

1. [77]

   Pursuant to s 192A of the Evidence Act 1995 (NSW), I make the following orders:

   1. (1)

      The proposed evidence of Dr Cala concerning the volume of blood that produced stains on carpet in Mr Dickie’s bedroom is inadmissible;

   2. (2)

      The proposed evidence of Dr Cala concerning the volume of blood loss that may be fatal in the absence of medical care is admissible;

   3. (3)

      The proposed evidence of Senior Sergeant Gane that a significant blood shedding event occurred in Mr Dickie’s bedroom, and his reasoning for that opinion, is admissible; and

   4. (4)

      The stained carpet from Mr Dickie’s bedroom, images of that carpet and the results of forensic procedures that were conducted on it are admissible.