Bloodstain Pattern Analysis Evidence in the Sue Neill-Fraser matter
In the Sue Neill-Fraser case, much has been made, in some media, about blood spatters (or "splatters"), giving the impression that there was a lot of blood found in the cabin of the Four Winds yacht, blood that might even have been consistent with an attack by a weapon, such as a wrench (even though there was no wrench as an exhibit at court and the CCA found that there was no evidence that one was used).
A "spatter" is defined as (Wonder (2007) Bloodstain Pattern Evidence Elsevier at p.373):
A bloodstain that has resulted from a blood drop. Some investigators use spatter as a shortened version of impact spatter to mean only the blood spots resulting from impact.
A "splatter" is defined (in the same text) as:
Spatters distributed from a splash. Also a term used by individuals not adequately trained in bloodstain pattern analysis. (emphasis added)
I considered it important to address this issue, particularly fuelled by high profile print media, that the yacht was somehow "awash" with blood (See Andrew Rule's article, for instance, here: http://www.heraldsun.com.au/news/law-order/splatters-of-blood-missing-carpet-tiles-on-a-200000-yacht-and-what-really-happened-to-bob-chappell/story-fnat7jnn-1226589033493?nk=ef5ca1353df5b6609a34bc8f9396082c). (The dinghy is a separate issue and raises issues of conclusions drawn from presumptive testing and the need for confirmatory testing. An independent expert report has established that there was no confirmed blood from Bob Chappell in the dinghy).
As a starting point, it is useful to consider the evidence given at the preliminary hearing in July 2010 by one of the forensic scientists. When questioned by then Defence Counsel, she stated the following:
Q Yes. Now were there, to your memory, any clear spatter blood stains found on the boat?
A Again that's a question I can't answer definitively one way or the other.
And further on:
Q That's really the point I want to make with you, you were not convinced of any definitive blood spatter patterns throughout the boat?
A No. I wasn't prepared to be definitive and say that it was spatter.
Q Thank you -
A ... I saw several drops but I couldn't definitively say that they were - that it was a spatter pattern.
Indeed, a check of the court transcript will indicate that in her evidence at trial, the scientist never suggested that any blood detected was "spatter" (CT pp.638-675). In fact, she referred to transfer type staining and drop type staining (CT pp.641-642).
There is an interaction between the scientist and the DPP of particular interest about stains found on panels within the yacht (CT p.643):
Okay. These are very small drops are they? Yeah, several of them – well they’re all smaller – sorry, let me start that again. If you bleed from a wound and the blood falls to the ground just by the act of – falling under the act of gravity for example you get quite large stains, quite large drops, and they’re called passive drops. Now if that falling under the effect of gravity alone has been affected in anyway (sic) by a force, what happens is that the drops are broken up so that they become smaller and what you see here, in my opinion, are smaller drops so you’ve had blood that’s been acted upon by some force. And the smaller the drop the greater the force that’s been applied to it to produce it. (emphasis added)
There was no further "discussion" about this point.
Another forensic scientist, also did not refer to "spatter" (CT p.679). One wonders whether this was because it was not spatter or that neither of the experts were sufficiently qualified to comment on the issue of blood spatter. This was not made clear at court. It was also not made clear at court what qualifications each of these scientists had in Bloodstain Pattern Analysis (BPA). (I understand now from inquiries with the National Institute of Forensic Science (NIFS) that there are four levels of expertise).
In late 2012, a Right to Information (RTI) application was made for any information relating to photos, test methods and results of examinations relating to bloodstain pattern analysis and other issues. A response was received from Tasmania Police on 12 December 2012. Included in the material provided was BM 24 Bloodstain Pattern Analysis document said to be issued on 24 September 2008. It was stated that this method detailed “the limited analysis of bloodstain patterns by the Biological Examination Section”. (emphasis added)
The document also stated:
[E]xtreme caution must be exercised to ensure that statements given are within the scientist’s level of expertise/experience, and that bloodstain patterns are not over-interpreted.
In fact, the law on expert witnesses is quite clear that an expert should make it clear when a particular question or issue falls outside his/her expertise (Freckelton & Selby, 2009 p.325). Paragraph 8.2.2 of the BM 24 document deals with the issue of “Expiratory blood”. The document states (at p.2):
This is a type of spatter, caused by expelling blood present in the lungs or airways by air pressure, eg breathing, coughing, sneezing. Great care must be taken to consider expiratory blood in analysing bloodstain patterns, as it may mimic impact spatter. Occasionally it may be less vivid in colour due to dilution with saliva or show evidence of small air bubbles being present. (emphasis added)
An attachment to the BM 24 document is entitled “Australia and New Zealand recommended Bloodstain Pattern Analysis Glossary”. Therein “Expirated Pattern” is defined as:
Results from blood that is expelled from the nose, mouth or a wound as a result of air pressure and/or air flow (SMANZFL BPA SWG)
(Note, SMANZFL stands for Senior Managers of Australian and New Zealand Forensic Laboratories and SWG stands for Specialist Working Group).
The real issue is that there was quite a bit of bloodstain evidence in the Four Winds yacht, particularly on some wood panelling not far from the engine room where Bob was said to have been working and on a torch. However, there was extensive evidence from various witnesses to indicate that Bob Chappell had bled quite badly in various areas of the boat as a result of worrying nosebleeds. He actually had to leave the yacht shortly after it left Queensland in December 2008 and was hospitalised. He could not rejoin Sue and the crew as they sailed the Four Winds yacht down the East Coast to Hobart. The yacht arrived just in time for Christmas - only a month or so before he disappeared.
In relation to the evidence of apparent "spatter", one also needs to consider the following entry on the Police Investigation Log (PIL) for 16 April 2009:
Sice called [...]. Query hair removed from near bottom of wheelhouse steps which has not been examined and pattern of blood spots on cushion in saloon ... Believes that the small droplets of blood would not be consistant (sic) with blood falling through gravity, some energy would needed (sic) to be imparted. This could potentially be through an impact or cough/sneeze. Will check. (emphasis added)
There is no follow up entry on the PIL to further advise on this issue. The issue also appears to have been not adequately dealt with in the final investigation report of police dated 19 June 2009 (although some of the report has been redacted).
It is clear from the evidence that Sue Neill-Fraser gave at the trial that Bob had indeed been sneezing during his nosebleeds. For instance, consider the following interactions between Sue Neill-Fraser and her defence counsel during evidence in chief:
At page 1109 of the Court Transcript (CT):
And there was a nosebleed? ... Yes, there was.
Thank you. And how prolific was that? ... Well it seemed prolific because he was sneezing everywhere, but I don't think it was more than just a - a quick drip.
Right ..... I - I don't think - I - from - if it had been gushing we'd have called an ambulance -
And at page 1112 of the CT:
Right. All right. When he was bleeding was it just a flow or drops or did he sneeze or anything like that? ... He certainly sneezed, but I - it never ever - the nose never ever gushed blood.
There was also the issue of the small drops of blood found on the yellow Dolphin torch. Again, during evidence in chief, there was the following interaction about one of the torches on board at CT p.1131:
Now when you were at Southport you've told us that Mr Chappell had a nosebleed and you said it was in the engine room ...
In the engine room, yes.
Thank you. Now did he have a torch with him whilst he was working there? ... In the engine room?
Yes ..... Yes, he did. ...
And do you remember whether the torch, whether it was orange or yellow, had any blood on it as a result of the incident in the engine room? ... It could have, I can't really remember. I know it was left in the engine room for sometime after so I don't know.
Then there was the evidence of blood on the cushions. One needs to consider the Forensic Biology Report in relation to one of the cushions from the vertical part of a seat in the saloon (item 65). The Description in the Forensic Biology Report dated 1 July 2009 states:
Many small red/brown stains on front surface (including possible drops), most on upper left side and most within luminol positive areas. Some altered by apparent dilution and some appeared to be mixed with another substance. (emphasis added)
One wonders why the issues of dilution and alteration were not examined in any depth. For example, what is the other substance that appeared to be mixed with the blood? Could it have been saliva or nasal excretions? Or was it simply as a result of immersion in water?
Consider the following from evidence in chief of Sue Neill-Fraser (CT p.1112):
The second visit to the general medical practitioner, did that follow a particular (sic) bad nosebleed? ...
Yes, thank you ... Yes, he'd - it had been dripping all night on and off, yes.
Right. And where did he spend that night? ... Well I don't know where he spent some of the afternoon because I -
Just - ... Yeah
Did he sleep on the yacht? .... Oh yes.
Thank you. .... Yes.
Where did he sleep? ... Partially on the deck on the cockpit -
Yes .... - and partially downstairs.
Thank you. Did he sleep in the rear cabin or in the saloon? .. On the starboard couch in the saloon and in the cockpit. ...
Right. All right. When he was bleeding was it just a flow or drops or did he sneeze or anything like that? He certainly sneezed, but I - it never ever - the nose never ever gushed blood.
The relevant male forensic scientist, in his evidence at trial, as noted above, did not refer to "spatter" (CT pp. 676-684). He acknowledged that the scattered red/brown stains included “drops, transfer stains and some apparently diluted stains” (CT p.678) (emphasis added). He also noted that the ones that appeared to be drops were “very small” (CT p.678). He acknowledged that the Forensic Biology Report stated (CT p.679):
In my opinion, the presence of many small blood drops on an item indicates that the item was close to wet blood that was subject to some force.
The interaction with the DPP continued (CT p.679):
Right. And when we say “close to red (sic) blood” does that include close to red blood that breaks out of the skin as it’s being hit with an object? That’s possible.
Thank you. Did I say ‘red’ or ‘wet” I meant wet blood. (emphasis added)
Discussion then turned to item 5, a toothbrush used as a DNA reference sample. There was very limited cross examination of the male forensic scientist, particularly about the torch. Most importantly, he also did not get the opportunity, as with the other forensic scientist, to say that any scattered blood spots could or could not have come from a sneeze or cough. This issue was also not covered in any written report tendered to the court.
In light of the PIL entry for 16 April 2009, the evidence given about Bob’s nosebleeds and sneezing, and the evidence of the forensic scientists, it appears that the seemingly "old" blood found on a torch and on some panelling and furnishings, such as cushions, could well have come from the nosebleeds (particularly those stains that were said to be altered or diluted). Current forensic techniques apparently cannot age blood stains, as acknowledged by one of the forensic scientists during her evidence at trial (CT p.660) (although I did attend a session at last week's ANZFSS international symposium in Adelaide where a Dutch scientist reported on a process of spectral imaging that appeared to assist in this regard). Hence, it was not possible for the forensic scientists at that time to undertake testing to determine the age of the blood. The only apparently visibly “fresh” blood that was found on the yacht on the morning of 27 January 2009 were the blood droplets found on the wooden steps (referred to as “Red/brown apparent transfer staining” in the forensic crime scene report of 12 June 2009).
It would seem that some of the bloodstains may well have been spatter but the possibility of spatter or expiratory blood from a cough or a sneeze was not properly raised in the court. The issue is that some of the bloodstain patterns observed in the Four Winds yacht may well have been pre-existing. The issue of BPA will be coming under further close examination by the Sue Neill-Fraser legal team.