Challenges to Bloodstain Pattern Analysis Evidence
Bloodstain Pattern Analysis (BPA) appears to be a well researched and documented discipline of forensic science although one doesn't generally do a degree course in this area. As in all disciplines, research is ongoing and new developments will emerge, including legal challenges. One particularly noteworthy development, which was discussed at the Australian and New Zealand Forensic Science Society (ANZFSS) International Symposium in Hobart in September 2012, which I attended, involved a legal challenge to BPA expert evidence in SA. My thanks go to Ted Silenieks in SA for promptly providing me with information on this case when I contacted him just recently. He also provided me with two papers, "R v Kelleher: Outcomes from a Court Challenge for BPA in South Australia", written with Dr Mark Reynolds and Dr Andrew Donnelly and presented at the 2012 ANZFSS conference, and "Legal Challenges to a South Australian Blood Pattern Analysis Case: R v Kelleher" from a Fabrics BPA Workshop in 2011. I have drawn heavily from both of these papers in writing this blog.
The case of R v Kelleher involved the trial of Steven Kelleher in 2010 for the crime of murder in which the accused had allegedly struck the victim several times with an iron bar to the head. He left the victim severely injured but returned some time later and again struck the victim several times to the head. The defence counsel in the case took objection to some or all of the bloodstain evidence contained in the statements of two blood pattern analysts, one from Forensic Science SA (FSSA) and the other from SA Police. These objections related to the interpretation of blood clots at the scene and on clothing examined, and that the SAPOL analyst was not qualified to provide an expert opinion as to BPA.
In relation to both "expert" witnesses, defence counsel took objection to any evidence that might be led about blood clotting on the following basis:
That evidence about blood coagulation rates, as it relates to blood pattern analysis, is not part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.
And in the alternative:
If blood coagulation rates, as they relate to blood pattern analysis, is part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, then neither witness is qualified to give that evidence.
In particular, defence objected to the proposition that there must have been at least two separate sustained attacks, as evidenced by clotted blood stains and spatter.
Defence counsel argued that there was no body of organised knowledge in relation to: how long it takes blood to clot; how different surfaces affect the clotting process; and differentiating betweeen blood that had clotted on the blood source and elsewhere. Hence no person could hold sufficient expertise to proffer opinion as to the likelihood of these assumptions.
As stated above, the alternative argument was that, if such a body of organised knowledge did exist, then neither the FSSA expert or the SAPol expert were sufficiently qualified to give expert evidence on the topic.
Her Honour, Justice Vanstone, found in favour of the alternative argument, namely that neither the FSSA expert nor the SAPol expert were qualified to proffer the impugned opinion, making no ruling either way on whether there existed an organised body of knowledge in relation to aspects of blood clotting.
In relation to the SAPol expert, defence took objection to his entire statement and in particular all conclusions drawn from his observations on the basis that the expert was not qualified to provide an expert opinion as to BPA.
The challenge to the SAPOL expert's qualifications was based on the level of his training. Defence counsel argued that the 40 hour Level 2 workshop undertaken by the SAPOL expert did not qualify him as an expert. Quoting from a declaration as to that workshop:
The core syllabus is of basic content and does not create an instant expert.
The prosecutor argued that, in addition to the course, the SAPOL expert's experience in attending over 100 crime scenes, in giving evidence in Court in the most serious of criminal cases, in conducting blood spatter training, and particularly in passing proficiency tests conducted through the National Institute of Forensic Science (NIFS), attested to his expertise.
Her Honour rejected any argument for the SAPol's expert's expertise stemming from his giving evidence in court in previous cases. Her Honour could not put any great weight on the proficiency testing without further details about what was involved. There was "tacit" acceptance that the SAPOl's expert's experience in attending many crime scenes and conducting courses was relevant to his qualification as an expert.
Her Honour found that the SAPol employee was qualified to give expert evidence on blood spatter, but with some limitations. Her Honour ordered that his evidence be limited to his observations of what he saw and photographed at the scene, and his opinions as to the direction of blood droplets indicated by the spatter. Evidence related to cast-off and hence the possible number of blows could not be led.
In summary, the paper by Silenieks comments that in relation to clotting, an organised body of knowledge on clotting rates and the effect of different surfaces on these rates needs to be identified. The paper also comments that, in preparing the matter for trial, the DPP sought a more comprehensive curriculum vitae from the SAPOL analyst. This more comprehensive cv, along with more detail about the content of the proficiency testing he had undertaken, was required to establish his current expertise. Silenieks notes that Justice Vanstone also expressed concern with some of the wording of the SAPol analyst's declaration. Importantly, the paper states:
It is apparent that more care needs to be taken in clearly setting out observations on which any opinion is based, stating the principles that can be applied by reference to training and knowledge, and then founding the opinion in that training and knowledge.
In relation to the SAPol analyst's qualifications, Silenieks stated that the DPP believed that further training was required to bolster his experience if he was to give evidence beyond the direction of blood spatter in future cases. The DPP apparently felt that analysts with qualifications akin to Level 3 were ideally placed to give expert blood spatter evidence.
Silenieks also stated in his 2011 paper that an important piece of evidence in any serious crime of violence is the number of blows struck by the alleged offender. Ideally a blood spatter expert would be able to look at a pattern or group of patterns and, by reference to their training, be able to allocate distinct spatters to distinct blows.
The 2012 ANZFSS presentation covered the outcomes of the Kelleher case which included:
- Peer review should ensure analysts remain in their area of expertise.
- Ruling potentially supports current BPA SWG training guidelines.
Whilst peer review is clearly important, I was somewhat concerned that there was such reliance on this mechanism to ensure that analysts remained in their area of expertise. I was interested in the reference to the BPA Specialist Working Group (SWG) training guidelines and therefore emailed the Director of NIFS in June 2013 requesting a copy of the SWG BPA training guidelines and any other documentation about required levels of expertise and training to qualify as a BPA expert. I received preliminary information from NIFS in June 2013 stating that:
The different levels of BPA training are as follows:
Level One: Awareness - teach people that bloodstains can be of value and they should ring someone to come and assess.
Level Two: Technician - teach people to identify patterns, record, document and sample bloodstains appropriately. NOT authorised to give reconstructive opinion evidence.
Level Three: Analyst - teach people advanced BPA methods/techniques and are permitted to give expert opinion evidence on reconstructive matters.
Level Four: Trainer/Mentor (self explanatory)
I am still awaiting, and have chased up with NIFS, who have been very helpful to date, the actual training qualifications framework that underpins these classifications. Whilst I recognise that there needs to be flexibility in this regard, there would seem to be a real need for a clear understanding of relevant and required training and qualifications in this area.
Freckelton and Selby in Expert Evidence: Law, Practice, Procedure and Advocacy (4th Edn 2009 Law Book Co) talk about the expertise rule and state that there is an apparent trend by courts, frequently on their own instigation, to query the sufficiency of experts' expertise for the case before them (p.25). For instance, in at least one Australian jurisdiction, biologists have been held not to be experts on blood spatter patterns (R v Broughton (unreported, Queensland Court of Criminal Appeal, 22 September 1988). In that decision, Matthews, Carter and Ambrose JJ, in a joint judgement, bemoaned the failure on the part of counsel to adequately qualify two forensic biologists, specifically in terms of their own expertise and also in terms of whether such an area of expertise existed at all (Freckelton & Selby 2009, p.33).
In light of the above information and case law, I am currently carefully examining various issues of expert evidence in the Sue Neill-Fraser case concerning blood stains. Such evidence, it would seeem, was important in establishing that Bob Chappell was actually dead, the nature and location of any incident or attack within the yacht Four Winds (possibly/allegedly with a wrench) and the disposal of the dead body in the Four Winds dinghy.