杀害多人的谢联斌对其定罪提出上诉

Everred68

yuxuanlin 发表于 2018-12-15 19:58
没什么扮演正义， 犯不着。

良心过不去。

鄙视假装不知道谢性侵事实，是非不分那几个人。

猫儿不笨

hornsay 发表于 2018-12-15 14:50
On Detective Harkins’ analysis of the order of the killings, the piece of cloth, replete with the ...

还有Terry 和Henry 房间采取的所有80多个样品，也都没有Irene的丝毫DNA，而只有林暋夫妇的DNA。这可以说是凶手至少有两个的确切证据

四审检察官还是坚持她的起控：谢独狼行凶，按林暋夫妇，Irene，Henry，Terry顺序杀人，第三间房样品查不到IreneDNA，是因为警察採样品不足，採样多了就会查到

我很不明白，这种明显确切的使控方指控显得矛盾而无力的证据，检察官这种明显的强词夺理，都被陪审团直接无视了
我相信这种审讯就是媒介审讯，陪审员们都早被洗脑，先入为主，关闭心扉，见到这种证据也麻木不仁了。最后倒数第二个陪审员则屈服于大多数压力

hornsay

有本事在这里贴出你的分析，而不是去骂别人。

一个好好的技术贴，就是被你们这些号称正义的搞成一个泼妇骂街的地方。

有本事贴出你的分析，做一个文明人。

coolmate

猫儿不笨 发表于 2018-12-15 20:37
还有Terry 和Henry 房间采取的所有80多个样品，也都没有Irene的丝毫DNA，而只有林暋夫妇的DNA。这可以说 ...

关于陪审团这个，如果你们参加过就明白了，都是些普通民众，就是说，澳洲普通人啥文化水平和推理水平，陪审团就是个sample。对于谢这样的案子，忽然来一个有性侵情节，如果陪审团里面多几个文员或者中年妇女，就直接死定了。即使有犹豫的，也会服从于从众心理。还有时候拖着投票对于那些不在乎或者想早点结束的，就是压力。

相反，如果是贩毒案子，哪怕是数量巨大，性质恶劣。如果嫌疑人在场打悲情牌，比如说我是被迫的，我家里有老婆孩子，为了养活他们才干这个的。陪审团就会有人哭哭啼啼，想这个人应该被可怜。

hornsay

猫儿不笨 发表于 2018-12-15 20:37
还有Terry 和Henry 房间采取的所有80多个样品，也都没有Irene的丝毫DNA，而只有林暋夫妇的DNA。这可以说 ...

对，这个detective 的分析明显露出来破绽。

他故意避免讲这块泡满血的布，有没有被带进Irene的房间，而直接说进了小孩的房间。

假如被带进了Irene的房间，泡满血的布不可能不留下DNA，
假如没有被带进Irene的房间，要么杀人次序有问题，要么杀Irene有其他人。

hotornot

hornsay 发表于 2018-12-15 20:19
法律没有判谢性侵，即便法律判了，不同的人仍然可以有自己的看法。

你自以为是正义的代表？骂别人是人渣 ...

呵呵

这位大爷

请问，你咋知道谢没有性侵？

SoftSome

Hetbert 发表于 2018-12-15 10:49
你假设的DNA积累的情况，目前是几乎不可能证实的，应该不能作为上诉的突破口。

比如这篇研究真菌和细菌D ...

"比如这篇研究真菌和细菌DNA积累的论文，最多能看出不同来源的DNA比例。
https://journals.plos.org/ploson ... ournal.pone.0186295

这又回到了检方所谓的血渍91样本太少, 无法通过是否存在血红细胞作血液定性确认测试。两次Otol有反应，luminol没反应，说明是血液的概率还是很大的。

现在没办法分别血渍91的混合的每个人的DNA究竟是来自上皮细胞，毛囊细胞还是血液中的白细胞。
"""

我认为，两次Otol有反应，luminol没反应，说明是血液的概率是很小很小的。也就是说， 不是血迹的概率是很大很大的。

“现在没办法分别血渍91的混合的每个人的DNA究竟是来自上皮细胞，毛囊细胞还是血液中的白细胞。”
这说明不能排除全部都来自上皮细胞或毛囊细胞。当然更不能排除是日积月累形成的。

Hetbert

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hornsay

hotornot 发表于 2018-12-15 21:10
呵呵

这位大爷

00:01:38

小兄弟，这是几点几分几秒？

告诉大爷。

hornsay

猫儿不笨 发表于 2018-12-15 20:37
还有Terry 和Henry 房间采取的所有80多个样品，也都没有Irene的丝毫DNA，而只有林暋夫妇的DNA。这可以说 ...

按照控方说，这块布是用来作为cushion放在榔头前，那任何的打击都可以导致这块Soaked布鲜血四溅，怎么会在Irene的房间里找不到林夫妻的DNA，明显不合逻辑。

猫儿不笨

Hetbert 发表于 2018-12-15 21:22

第一审进行了约2-3 周，突然关闭，因为有了会改变审讯的重大新证据。陪审团解散，第二审新陪审团重组
第二审Brenda 上庭出证，指控性侵，完毕又宣布关闭，因为法官病了。当时我怀疑关闭的原因是法官失职或渎职，他没有禁止到庭记者报道Brenda证词里那些极其隐私，可能对Brenda造成损害的细节。那样做的结果是悉尼市民包括以后新的陪审员们都知道了这些细节。我记得当时查到那病法官几个月后出现在另两个案子，一般法官上任也必须有一定时间熟悉案子

又重新听了一遍这个这里分为6段的视频。从第三段里我们可以看到，Brenda就是到了第一审，见到现场发现的足迹与谢的一双鞋相符，有见到谢剪了“那个”鞋盒以销毁罪证，才终于同意谢是凶手，同意上庭出证那些她原来认为与凶杀无关的事

其实关于鞋印和剪鞋盒，足迹上的讨论已经使我们看的很清楚，谢一口气剪了“好几个”鞋盒而不是一个，里面也绝对不可能有“那个”鞋盒。警察可以制造这个视频，但不能欺骗民众包括陪审员，说被剪的鞋盒里有“那个”鞋盒，因为警察明明知道没有，有的话不可能会允许谢剪毁证据。还有现场发现的鞋印有40几个鞋印，不是20 几个，只是其中约一半的20几个鞋印符合包括Asics 鞋的共四种鞋子。如果Brenda当时就明白这几点真相，她是否还是会上庭出证？

猫儿不笨

除了案发后很快就有一封对谢的检举信（警察至今没有透露作者因为保护的原因），警察一早就知道了Brenda的事。Brenda的一个女同学案发后一早告诉警察，一次在露营帐篷里，她向Brenda透露有亲戚对她有性方面的兴趣，Brenda答以：我也是。后来她试图再谈这个话题，Brenda躲避

警察不可能不就这件事追查，最后使之成为谢定罪的强大有力武器了。这也部分解释了控方会做这个案子的底气

stellawan

猫儿不笨 发表于 2018-12-15 22:42
第一审进行了约2-3 周，突然关闭，因为有了会改变审讯的重大新证据。陪审团解散，第二审新陪审团重组
第 ...

她只是出来说事实，有错吗？

猫儿不笨

stellawan 发表于 2018-12-15 23:06
她只是出来说事实，有错吗？

谁说她有错？
我只是就事论事，讨论谢案审讯几个转折点的可能导因

rb

coolmate 发表于 2018-12-15 19:52
关于陪审团这个，如果你们参加过就明白了，都是些普通民众，就是说，澳洲普通人啥文化水平和推理水平，陪 ...

电影<失控陪审团>很清楚的讲了怎么来控制陪审团的事实，如果看过这部片应该能更好的理解陪审团的作用和局限性。

猫儿不笨

二审法官没有尽责，没有禁止可能损害Brenda的那些涉及极其隐私描述的详细记者报道，说明缺乏对受害人的真正保护之心。反而是为了做成案子不顾损害。不然，最后给出判决的是已经知道细节的陪审团，为什么还要不顾损害而公开报道？

hotornot

hornsay 发表于 2018-12-15 21:47
00:01:38

小兄弟，这是几点几分几秒？

你傻不拉叽的问我这个问题干什么，凌晨零点一分三十八秒，有啥问题吗

猫儿不笨

这几天看了部分足友们提供索引的法庭报告，才知道法庭上大部分时间，消耗在陪审员不在场的，控辩双方律师之间关于上庭证据，出现在陪审团面前的诸多证据的合理性的争斗，最后才让法官定夺。也就是说，到底哪些证据应该让陪审团知道，哪些不应该，是关键点，因此耗费了大量时间。这是因为陪审员的设计就是要那些普通民众，他们不免容易被不实之词误导

这也充分说明了陪审员制度的局限和过时。这些所谓背着陪审团关于一些证据是否合适出现在陪审团面前的讨论，其实都没有背着他们，他们都知道。因为讨论时虽然陪审团做样子规避了不在场，但记者在场，旁听听众在场，后来就把细节报道传播出去了。我们都知道了，陪审员们会不知道？

一开始陪审团制度的设计的一个重要原则是陪审员挑那些对案件了解不多，最好是没听说过，而没有看法的普通民众。审讯过程也不允许接触媒介或跟别人和家人讨论案件。那时候大家都住在乡下，媒介也只有报纸，这些基本要求做得到。但现在呢？除了前面谈到的控方长期，提前对未来陪审员们做多番洗脑，现有的手机，iPad，电视等媒介也使这些要求变成不现实。谁能没有手机而活着？ 被挑选为这个影响这么大案子的陪审员，有几个除了神秘感，会没有使命感，会不在打开手机时看看媒介报道？

试想想看，如果说，陪审员知不知道这些证据并不重要，或知道多一些证据无所谓，为什么控辩双方要花那么大时间和精力在法官面前争辩，而法官也要花相当大气力来做决定并解释决定的道理？

Hetbert

hornsay 发表于 2018-12-15 21:53
按照控方说，这块布是用来作为cushion放在榔头前，那任何的打击都可以导致这块Soaked布鲜血四溅，怎么会 ...

我觉得这块布应该不是绑在武器上，而是固定在左手上。

基于以下两个因素：

一是林家的位置。林家是斧头地，要经过77米长的Drive-way, 我数了一数，周围环绕着七户邻居。







The Boundary Road premises contain a two-storey dwelling on a battle-axe block. It is accessed by a driveway that is approximately 77 metres in length from the street frontage

凶手面临的首要难题是，行凶时如何不被邻居觉察。如果有呼救，那么夜深人静的时刻，很可能会惊动邻居。

所以凶手最优先的考虑是防止林家人呼救，特别是同一张床上睡着两个人。

如果像检方假设的那样，只有一名凶手。我认为那块折起来的布是左手用来掩住其中一人口面的，右手用凶器快速击杀。

林家人死因都是窒息和头部脸部的钝器打击。

The Crown case is that there is an overwhelming inference that each deceased was quickly incapacitated. The concentration of blunt force injury to the head and face, together with asphyxial injuries, indicate that there may have been action taken to prevent the deceased from vocalising. The Crown contends that there is an available inference that all of the deceased were attacked whilst they were asleep, rather than earlier in the evening.

但是，我觉得如此精确周密的灭门，计划时就应该考虑到同一张床上睡着两个人可能会呼救，更不用说惊醒其他两个卧室的人。

所以两人实施把握会大很多。

现场42个血鞋印,发现了不同的鞋的鞋跟印记，10个是警靴或者急救人员留下的血鞋印，24个是同一双鞋，还有八个细节不足以进行分析比较。

Shoe Prints in the Boundary Road Premises (CCS [73]-[74])












A detailed forensic examination of the carpets on the first floor of the Boundary Road premises revealed approximately 42 shoe impressions or shoe marks in blood. An examination of these impressions and marks revealed a number of different sole pattern types. Eight of the impressions/marks had insufficient detail to allow a comparison. A further 10 of the impressions/marks were identified as either police or ambulance footwear or similar.

A further 24 of the impressions/marks located in blood were made by a shoe with the same tread pattern. The majority of these 24 shoe impressions had been matched to the tread used on five models of ASICS brand men’s running shoes, and one model of ASICS brand women’s running shoe. A number of those 24 ASICS impressions were found to have been made by a men’s US-size between 8.5 and 10.5.


警方的数据库里没有鞋印记录对应的鞋的数据。从谢妻那里得知谢最爱的鞋的品牌是日本品牌阿瑟士ASICS。

针对性调查之后，发现ASICS的五款男鞋和一款女鞋的鞋底纹路，和现场的血脚印一样。

警方继而在2006年的旧照片里，发现谢有一双"GEL EVATION II TN333", 是五款男鞋ASICS中的一款。

谢妻说谢2006年穿的这双鞋被她扔掉了，但是警方认为她在撒谎为谢脱罪。

ASICS的鞋并不贵，我个人认为，穿一两年扔掉的可能性很大，而且即使还在穿，磨损程度也高，而现场的血脚印鞋纹很清晰。

The Accused owned a number of pairs of ASICS brand runners in men’s size US9.5. Kathy Lin said that ASICS was the Accused’s favourite brand of sports shoes. Police located a number of photographs taken in 2006 at different times and locations, showing the Accused wearing a pair of one of the matched-model ASICS men’s running shoes, being a “GEL EVATION II TN333”. An extensive police search of the Accused’s home in May 2010 failed to locate the shoes shown in these photographs.

meteordust

hornsay 发表于 2018-12-15 21:53
按照控方说，这块布是用来作为cushion放在榔头前，那任何的打击都可以导致这块Soaked布鲜血四溅，怎么会 ...

按照控方说，这块布是用来作为cushion放在榔头前，那任何的打击都可以导致这块Soaked布鲜血四溅，怎么会在Irene的房间里找不到林夫妻的DNA，明显不合逻辑。

你觉得不合逻辑是因为你自己没有逻辑，根本推理不出可能的情况。同时你又不是理性自然人，看到别人的推理也不理解不接受，所以你永远想不通这些逻辑。

让我来告诉你为什么会形成这种情况的。

1. 证据中发现有东西是缠在榔头前可能是用来降低噪音的，并且是破损的，说明凶手刻意准备了这个东西并且超出凶手的预期破损了。注意这里，降低噪音的目的是不想惊动别的被害人。
2. 房间中血迹最多的是主卧，其次是孩子房间，血迹最少的是Irene的。
3. 在Irene房间发现了别的房间都没有的血绳印。
4. 孩子房间一共才取样80多血迹，那么Irene房间里血迹就更少。
5. 墙上的血迹是怎么形成的？是砸到被害人后喷溅，凶手甩凶器时飞溅等情况造成的。
6. 凶手杀完所有人后还回到主卧搬动尸体。
7. 车库血迹含有至少3人DNA，但不能排除含5人的DNA。

基于以上的事实和证据。

真实的情况就可能是：

凶手在主卧行凶过程中包裹的布损坏，导致榔头本体沾上了林氏夫妻的DNA。这显然是凶手不想发生的情况。于是凶手结束主卧行凶后换了一块布重新包裹榔头（也可能是原来的布反过来包裹，所以使凶器沾上林氏夫妻DNA），并且这次为了保险起见，凶手还用绳子加固了布的缠绕，才进入Irene房间行凶。由于布阻隔了林氏夫妻的DNA从凶器飞溅，Irena房间没有检测出林氏夫妻DNA。而这时发生了另外一件意外，用来连接榔头、手腕并缠绕那块布的绳子脱离了出去，于是凶手行凶完又要简单处理一下凶器才行。凶手处理完凶器后把绳子和布都收了起来，因为已经没必要再控制噪音了，最后的两个孩子就算醒了也不足为患。这时榔头已经没有布和绳子缠绕了，而上面只有林氏夫妻的DNA，没有Irene的。所以凶手最后行凶用的是没有布和绳子的榔头，造成混合血液的飞溅，因此孩子房间只有他们和林氏夫妻的DNA，并没有Irene的。

这里是最后一个关键，凶手行凶完后回到主卧搬动尸体，肯定会把凶器放下，不见得一手拿榔头一手拉尸体吧？他会把榔头放在哪里呢？当然是跟布和绳子放在一起，到时候一起包起来处理掉就好了。就是在这里，榔头、布和绳子一起接触形成了混合5人DNA的血液，最后他回到车库处理时不慎划过地面留下了痕迹，最后成为了关键证据。

hotornot

Hetbert 发表于 2018-12-16 00:00
我觉得这块布应该不是绑在武器上，而是固定在左手上。

基于以下两个因素：

你看的不对

一共42个鞋印，10个是警察的，8个无法辨认，其他能辨认的24个是同一双鞋，asic

10 + 8 + 24 = 42

所以，说单人作案，完全没有问题

meteordust

Hetbert 发表于 2018-12-16 00:00
我觉得这块布应该不是绑在武器上，而是固定在左手上。

基于以下两个因素：

现场的血鞋印也不能排除两名凶手的可能。

现场除了10个警靴留下的血鞋印。

还有42个血脚印，发现了不同的鞋的鞋跟印记，但其中八个细节不足以进行分析比较。

谢谢你找来这么多资料。

不过显然你的英语不行。

A detailed forensic examination of the carpets on the first floor of the Boundary Road premises revealed approximately 42 shoe impressions or shoe marks in blood. An examination of these impressions and marks revealed a number of different sole pattern types. Eight of the impressions/marks had insufficient detail to allow a comparison. A further 10 of the impressions/marks were identified as either police or ambulance footwear or similar.

A further 24 of the impressions/marks located in blood were made by a shoe with the same tread pattern. The majority of these 24 shoe impressions had been matched to the tread used on five models of ASICS brand men’s running shoes, and one model of ASICS brand women’s running shoe. A number of those 24 ASICS impressions were found to have been made by a men’s US-size between 8.5 and 10.5.

42个是发现的脚印总数，其中8个无法辨认，10个是警察或救护人员的，24个是ASICS的。

我记得最早是有两个警察上去查看的吧？随便看了看没有到处走就留下了近10个鞋印，而且警察应该会刻意避开血迹不去踩的。另一方面当时案发已经一段时间，大量的血迹已经凝固。谢氏夫妻之前也上去探查过，应该比警察看得更仔细，所以肯定也留下了鞋印的，很可能就是那8个，因为之前你们哪一个分析过谢的鞋应该是磨损挺严重的，所以鞋纹不清晰。那么24个血脚印是凶手（们）留下的。凶手可不是像警察和谢他们一样随便看看啊，他（们）在现场可是到处走动的，行凶过程中都会留下大量的鞋印。如果是两个凶手，三个房间杀人，还返回主卧移动尸体肯定也留下大量脚印，可这样总共只留下24个鞋印你不觉得太少了吗？你看看你自己贴的那张图片，一个平方米内差不多都有8个脚印了，如果三个房间脚印数量差不多的话，正好24个。

Hetbert

meteordust 发表于 2018-12-16 00:36
谢谢你找来这么多资料。

不过显然你的英语不行。

嗯， 已经更正过了。

我有先入为主的观念，所以就理解错了。

Hetbert

下面我讲一下检方和辨方针对血渍91的攻防战。

比较长。

猫儿不笨

hotornot 发表于 2018-12-16 00:07
你看的不对

一共42个鞋印，10个是警察的，8个无法辨认，其他能辨认的24个是同一双鞋，asic

好像这是在这里我第一次给你加分
你终于举出一个相当重要的信息

这也说明以前我们的讨论，不少是基于一些缺乏详细真像的资料或猜测
这也解释了四审的检察官对第三卧室样品没有第二卧室受害者DNA的事实会有那样的解释

Hetbert

先贴原文，辨方的战线：

Segment #5
Reference was made to Davidson v R [2009] NSWCCA 150; 75 NSWLR 150 at 165 [74] where Simpson J (Spigelman CJ and James J agreeing) said that an intermediate fact will be “indispensable” where the absence of evidence of that fact means there is no fit case to go to a jury.

The Accused submits that the question whether the stain is blood is indispensable. If it cannot be proved that the stain is blood, the Accused submits that the stain is not relevant as there is no link to the murders. If the stain is not blood, it is submitted that it must not be placed before the jury.

The Accused submits that the very highest the experts can put it is that the stain is “possibly blood”. In light of the evidence given by expert witnesses at the committal proceedings and the pretrial hearing, it was submitted that it is now even less possible that the stain is blood, with the issue involving no more than speculation.

The Accused sought to rely upon Armstrong v R [2013] NSWCCA 113 as being illustrative of the dangers of the admission of presumptive testing. There, Harrison J (Simpson and Bellew JJ agreeing) stated (at [24]) that a presumptive test does not positively establish the presence of blood, and that the jury was arguably misled by a Crown submission that there was in fact blood found when the evidence in support of that submission did not rise above presumptive testing (at [29]).

Further submissions were made for the Accused pointing to aspects of the evidence of Dr Perlin, Mr Walton, Dr Walsh, Mr Goetz and Ms Neville. It was submitted that this evidence did not advance the Crown case that Stain 91 was blood.

It was noted that the Crown case was that Stain 91 involved at least three contributors mixed into the one sample (see [103] above). The Accused submitted that the Crown case that, because there were a number of contributors mixed into the sample, it was inevitable that they were mixed before being deposited on the garage floor, was pure speculation. It was submitted further that the manner of collection of the swab will affect the DNA analysis. It was submitted that Ms Campbell could not guarantee that she swabbed the stain, and the stain only, in taking the sample which is Stain 91.

The submissions summarised so far constituted the defence challenge to the relevance, and thus admissibility, of Stain 91.

Submissions of the Accused on the DNA Evidence (MFI29)

The Accused made separate and detailed written submissions directed to the exclusion of the DNA analysis and opinion evidence.

A range of topics were explored in cross-examination of Crown witnesses called at the pretrial hearing and, in particular, Dr Perlin. Not all challenges apparently made in the course of cross-examination, in particular of Dr Perlin, have translated into submissions for the Accused objecting to the tender of the evidence.

The Accused challenges the admissibility of the DNA evidence arising from Stain 91 (Item 550). It was submitted that, in order for this evidence to be relevant, the Crown has to establish:

(a)   the stain swabbed in May 2010 in the Accused’s garage was blood - if the Crown cannot prove that the stain swabbed is blood, there is no need to turn to the analysis of the DNA said to come from the stain;

(b)   the blood-to-blood sample from the garage is the same as the sample from the crime scene - the Crown refers to “evidence to evidence” comparisons in the CCS (at [107] above) - the Crown seeks to establish that the samples came from the same source, being the victims’ blood shared and mixed at the time of their deaths in the Boundary Road premises;

(c)   the sample in the garage was a part of a larger sample from the crime scene - the alleged killer, the Accused, transported it from the Boundary Road premises to the Beck Street premises.

The Accused submitted that Item 550 was a degraded and inhibited sample, and a complex mixture of related people. These aspects are relevant to the analysis of the sample and how the results are interpreted.

The Accused submitted that Dr Perlin’s TrueAllele program had not been validated for five-person related mixtures. It was submitted that TrueAllele had not been validated by FASS and, although a limited TrueAllele program is used, FASS is still in the process of preparing it and getting it ready for use. The Accused submitted that STRmix is the only validated program used by FASS.

It was submitted further that TrueAllele has not been validated for PowerPlex 21.

The Accused pointed to evidence that scientific staff from New South Wales Police and FASS carried out an evaluation of the Cybergenetics TrueAllele expert system and prepared an evaluation report for the Biologist Specialist Advisory Group (“BSAG”), a group with a senior representative from each of the Australasian jurisdictional forensic DNA laboratories. This group, in consultation with the Australasian Scientific Working Group on Statistics and Interpretation, identified that a move towards a continuous probabilistic model was the way forward for DNA interpretation and national standardisation (statement of Sharon Neville, 4 February 2014, Exhibit PTK1, Tab A). However, the Accused submitted that the BSAG evaluation process revealed a number of problems, including analytical artefacts, the modelling of stutter and other matters referred to in the Accused’s written submissions on DNA evidence (MFI29, paragraph 43).

The Accused submitted that Dr Perlin’s first report of 23 September 2013 was prepared before TrueAllele was validated.

A submission was developed that TrueAllele does not produce a relevant sample-to-sample comparison. TrueAllele generates likelihood ratios which are a measure of the extent to which the evidence changes beliefs in a hypothesis. A submission was developed by reference to the use by TrueAllele of inferred genotypes, and not actual evidence samples.

The Accused submitted that the TrueAllele analysis has no relevance to the fact in issue. It is entirely possible that one contributor to the garage mixture is the same as one contributor to the crime scene. However, the issue is whether all the contributors to the garage sample are found in the crime scene samples. The Accused submits that this is the only relevant hypothesis which supports the Crown case and that Dr Perlin’s analysis does not address this question, let alone resolve it.

It was submitted further that TrueAllele is not capable of dealing with contributors who are related. It is not capable of dealing with a different number of contributors in each alternate hypothesis that the software considers. As a result, the likelihood ratios generated are said not to be relevant.

It was submitted further that the likelihood that individual persons may have contributed to the mixture is not relevant to the question of whether the sample is inevitably a combination of contributors, all of whom must be deceased to support the Crown theory.

The Accused submitted that TrueAllele will only answer the question it is asked. In this case, it was asked to identify the inferred genotypes for the deceased, and then identify the individual genotype in various evidence samples. It did not consider whether there were unknown contributors. It did not consider whether Ms AB’s inferred genotype was in the mixture in the same manner. It did not consider if any other known reference sample, other than the Accused, was in the mixture.

The Accused submitted that the Crown case in relation to the DNA evidence may end up being that there are at least three contributors to Stain 91, with at least three in the major component or probably at least four or more taking into account minor contributors. The results of the Profiler Plus testing raised the possibility of interrelatedness amongst contributors based upon common alleles. Min Lin, Henry Lin and Terry Lin could not be excluded as possible contributors to Stain 91 (see [101] above). The CCS noted that Mr Walton applied the RMNE formula, and determined that one in five people in the general population could not be excluded as a potential contributor. It was noted that Mr Walton adopted this formula due to uncertainty over the number of contributors to the mixed profile (see [101] above).

The Accused submitted that no expert who had given evidence at the pretrial hearing had determined the number of contributors to Item 550. Reference was made to the evidence of Mr Goetz, noting that he could not say there were five contributors in the mixture. Submissions were made, as well, on this topic by reference to the evidence of Dr Perlin.

Submissions were made by reference to the defence request to Dr Perlin to have Ms AB’s sample tested using TrueAllele Casework. I note that Dr Perlin readily agreed to undertake this task. An adjournment of the pretrial hearing was allowed to permit the Accused’s legal representatives to consider Dr Perlin’s report in response to their request, and to take advice from their own expert advisor or advisors on the issues raised in it.

The Accused seeks to rely upon part of Dr Perlin’s report dated 26 March 2014 as providing evidence of Ms AB’s DNA being contained in Item 550, noting that this conclusion would mean that Item 550 cannot be linked to the crime scene, as Ms AB is alive (MFI29, paragraph 80).

The Accused made submissions concerning the concept of shadowing, mentioned in Dr Perlin’s evidence with respect to this report. Further submissions were made by reference to Dr Perlin’s report, the results of which were said to indicate that Ms AB was present in the crime scene samples and, in particular, Item 223, a swab taken from a wall in Bedroom 3 (the bedroom of Henry and Terry Lin). This sample was a direct swab of blood and it was noted that Ms AB was not present and did not bleed. This aspect was relied upon to challenge the reliability of Dr Perlin’s evidence.

Submissions were made by reference to Dr Perlin’s evidence concerning mixture weights. It was submitted that Dr Perlin’s report of 26 March 2014 (Exhibit PTK20), being the report provided by Dr Perlin in response to the defence request (concerning Ms AB) made in the course of the pretrial hearing, provided an insight into the complexity of the mixture. Reference was made to concepts of shadowing and false positives, which were said to manifest the actual difficulties which TrueAllele has in dealing with five-person related mixtures which are compromised. It was said to constitute effectively an acknowledgement of an important area of imprecision in TrueAllele’s capacities, being an imprecision previously demonstrated by the differing likelihood ratios in Dr Perlin’s first two reports, and the error corrected in the third report that arose in applying an incorrect theta value.

The Accused noted that the Crown case is that the mixed profiles from Stain 91 (Item 550) and Item 626 (based upon PowerPlex 21 testing) are “consistent, with a large amount of overlapping information, present in similar proportions”. The Crown bases its case on this aspect on Dr Walsh, who said there was a “very high degree of similarity for complex mixed profiles of this nature, particularly considering these observations under a proposition that the mixed profiles arose independently from each other” (see [108] above).

The Accused submits that Items 550 and 616 are not, in fact, the same. There are features of the DNA profiles which are different. Peak heights and peak-height ratios, within and between loci, are different. There are 61 alleles in the mixed profile of Item 616. Those Item 616 alleles are present in the mixed profile from Item 550, but there are an additional 14 alleles designated in Item 550. It is submitted that the proportion of the allele distribution is not identical.

The Accused submitted that there were limitations on Dr Walsh’s analysis. It was submitted that he had no specialised knowledge or experience in comparing complex mixtures. He had never made a comparative analysis such as this before. It was this aspect which led to a s.79 objection to this evidence of Dr Walsh.

Dr Walsh was also unfamiliar with the performance of 3500s, a particular machine that works on PowerPlex 21. He did not have any direct involvement using those instruments. For the interpretation of the profiles, he was almost entirely reliant on the FASS staff. Dr Walsh sought advice in relation to criteria applied to interpret profiles, and stated that if there were questions regarding the profile designation itself, he would defer to the FASS laboratory.

The Accused developed a submission by reference to the additional 14 alleles in Item 550 which were not in Item 616. It was submitted, as well, that the fact that the sample comprised people who were related raised further difficulties when trying to establish similarities, and their significance.

Particular reference should be made to the following part of the Accused’s written submission on the DNA evidence (MFI29, paragraphs 105-106):

“105.   The evidence in this case will be that [Ms AB], Henry and Terry Lin spent significant time at the home and in the garage at 4 Beck Street, which was only 250 metres away from their house. All the deceased had been to 4 Beck Street. Min, [Ms AB], Henry and Terry had been in the garage. The children played in the garage. Kathy Lin’s parents and [Ms AB] lived at Beck Street for around 10 months before the garage was sampled in May 2010. Numerous items from the Boundary Road house, from the newsagency, and Jimmy Hue were placed inside the garage before the garage was searched in May 2010. None of these items were filmed as police and forensic biologists moved them. With regard to these items, their nature, position, location, source and time of placement were not accounted for.

106.    There is therefore a very clear explanation for the presence of their DNA in the garage.”

I will return to this aspect later in the judgment. It is appropriate to observe at this point, however, that there was no evidence of these factual matters adduced at the pretrial hearing. Further, these matters seem to foreshadow evidence which may be adduced at the trial which would be available to a jury to take into account in determining whether there is, in effect, an innocent explanation for the presence of DNA from persons including some of the deceased persons in the garage and, in particular, in Stain 91.

This aspect of the Accused’s written submission appears to raise issues for a jury, and not matters bearing upon the question of admissibility.

As has been noted earlier (see [153], [157]-[159] above), the fact that the Accused advances these matters in submissions, as a possible alternative explanation for the presence of Stain 91 (and its DNA components), does not support the exclusion of the evidence. Indeed, it serves to fortify the view that the evidence ought be admitted, with the jury to assess the use to be made of this evidence, in light of all evidence adduced at the trial.

The Accused submitted that one of the significant failings of TrueAllele is that it cannot deal with related people. It was submitted that proportions in the profiles are not the same, with reference being made to parts of the evidence of Dr Walsh. The Accused noted that Dr Walsh made no statistical assessment of similarities.

It was submitted that there is no scientific basis upon which it can be concluded that Item 550 is relevantly similar to the crime scene sample.

The Accused submitted that there was no evidence upon which a reasonably instructed jury could conclude that the garage sample is relevantly or probatively similar to the crime scene sample. In order to have probative value, it was submitted that the similarities must advance the proposition that the DNA derived from blood at the crime scene. It is not in dispute that there are some generic similarities between the garage sample and the crime scene samples - the sample contains DNA, it is a complex mixture, it has multiple contributors, the contributors are male and female and the samples contain a number of very common alleles. It was submitted, however, that DAL analysed about 640 samples from the crime scene and not one of these samples has the same DNA profile as Item 550, despite emanating supposedly from the same location.

The Accused submitted that a points of similarity approach has no scientific validity. It was submitted that comparing profiles does not involve adding up alleles in common.

The Accused submitted that it is not possible to determine if Items 550 and 616 were once part of the same mixture. It was submitted that there is no evidence that one sample is a sub-sample of the other sample. It was said that the Crown case has to be that Items 550 and 616 have come from the same pool of blood, but there is no evidence to support this.

With respect to the discretionary exclusion of the DNA evidence pursuant to ss.135 and 137 Evidence Act 1995, the Accused relied upon the following contentions:

(a)   there is no true statistical phenomenon for something as complex as low template DNA profiles;

(b)   TrueAllele is the “new frontier”;

(c)   TrueAllele is a work in progress.

The Accused submitted that the time line of TrueAllele’s analysis of the sample, and the time line of various TrueAllele studies, suggest the real possibility that TrueAllele is racing to provide a result in advance of proper scientific analysis and verification. It is said that its approach here is case specific, not conceptually or scientifically specific. It was submitted that the orderly development of reliable science and its implementation is evident from the significant work done by sanctioning jurisdictions before implementation.

The Accused submits that, no matter what the future holds for probabilistic analysis, it is clear that at this point the Accused in this case is the experiment and that it would be utterly unfair, unreliable and dangerous to admit this evidence.

Other matters are relied upon in support of discretionary exclusion were identified (without elaboration) (MFI29, paragraph 136):

(a)   the quality of the sample involved;

(b)   the complexity of the science involved in the matter;

(c)   the emotional effect that the staggering numbers that TrueAllele generates will have on the jury;

(d)   the subtlety of the distinction between the CCS and the notion of a sample-to-sample comparison;

(e)   the probative value of the evidence is substantially outweighed by the danger that the evidence might cause or result in an undue waste of time;

(f)   the probative value of the evidence is substantially outweighed by the danger that the evidence might be misleading or confusing;

(g)   the evidence led by the Crown will have to be addressed by a significant defence case;

(h)   there are contrary approaches to statistical analysis of DNA profiles (the work of Dr Mitchell and Professor Balding) which have not been explained or considered.

The Accused submits that the Crown’s DNA evidence should not be admitted or, alternatively, should be excluded in the exercise of the Court’s discretion.

Hetbert

检方的回击：

Submissions of the Crown on the Question Whether Stain 91 is Blood (MFI25)

The Crown submits that the evidence is that the appearance of Stain 91 is consistent with an aged blood stain. The forensic scientists used a scale to describe stains and what could be seen of the stain is consistent with the characteristics of an old blood stain.

The Crown points to the joint report authored by Ms LeCompte, Ms Campbell, Ms Gerhard and Dr Hallam which states (paragraph 13):

“Whilst this stain did not exhibit a classic red-brown colour of a fresh or well-preserved blood stain the appearance of the stain fell within the expected range for an aged blood stain considering the surface upon which it was deposited, and the environmental conditions to which it may have been subjected."

In response to the defence submissions concerning presumptive screening tests, the Crown submits that it is necessary to keep in mind that the area of the garage was not outdoors and that Stain 91 was in a well-protected area of the floor, under furniture. There was no evidence that the floor was in fact exposed to oxidising agents that would have generated a false positive. The Crown submitted that, in essence, the entire floor was itself a control, indicating that a false positive was highly unlikely.

The Crown emphasised that it does not rely on the presumptive test to establish that the stain was blood, but a combination of all the evidence. The strong reaction to Otol does not conclusively prove that the stain was blood, but it is a persuasive matter that a jury can consider.

With respect to the defence submissions concerning lack of confirmatory testing, the Crown submitted that there is no requirement for such a test. It is not a precondition for admissibility. As there was a small sample, DNA testing would clearly yield the most information. It was noted that, in answer to a question in cross-examination as to whether, if confronted with a situation where a sample would be consumed by a confirmatory test for blood, a DNA test instead would be chosen, Dr Hallam, the defence expert agreed. The Crown submitted that what had occurred in this case accords with that approach.

With respect to the defence submission based upon the lack of a control test concerning Stain 91, the Crown submitted that control tests near the stain were not necessary, as the testing method employed on the floor was essentially a control test in itself, with reference being made to aspects of the evidence of Ms Campbell and Ms Gerhard.

The Crown noted that each of Ms Campbell and Ms LeCompte were cross-examined in relation to the measurements of Stain 91 and the level of care that was taken to ensure that only the stain itself, and not areas outside its edges, were swabbed. Ms Campbell confirmed that she would have ensured to swab the discolouration only, therefore avoiding the swab getting into contact with any of the surrounding areas.

The Crown submitted that Ms Campbell was a trained and skilled forensic biologist. It was her evidence that she tried not to get into any areas outside of the stain. She was at the scene to test stains and to perform this task.

It was submitted that there is no precondition for admissibility that the swab be taken from the stain only. If this were the case, the Crown observed that there would be very little forensic evidence of this nature admitted in criminal trials. Any perceived deficiencies with the sampling process could be explored before the jury, to be taken into account by the jury in assessing the evidence.

With respect to the defence submission that Stain 91 gave a negative reaction to Luminol testing, the Crown observed that the Luminol testing was not performed by the examining biologist, but by crime scene officers following the examination and swabbing of the garage floor. The Crown addressed the inconsistency in the positive result of Stain 91 to Otol testing as opposed to the negative reaction to the Luminol testing, referring in this regard to the evidence of Ms Gerhard.

With respect to the defence submission concerning possible transfer and the possibility that the moving and clearing out of furniture and boxes during the search of the garage may have caused an item to move onto Stain 91 and thus being responsible for the stain, the Crown pointed to the evidence of Ms Campbell that she did not believe that this was the case “as there was furniture already on top of that stain”. Stain 91 was detected in a protected area. The Crown submitted that Stain 91 was not located in an area that could be regarded as a suitable thoroughfare for a person to travel through the garage to put out a refuse bin.

The Crown noted the defence submission that the biological source of the stain cannot be determined. The Crown submitted that the presence of a great deal of DNA information from Stain 91 is indicative that the stain is not from small amounts of trace DNA.

It was submitted, in any event, that proving the biological source of Stain 91 is not a precondition for admissibility. It was submitted that the defence contention that what could have been on this stain was skin cells, blood, saliva, semen or a mixture of those materials was simply an alternative hypothesis for a jury to consider. Putting aside what the Crown submitted was the inherent improbability of the deposition by a combination of licking or dribbling, ejaculation, bleeding or rubbing off of skin cells onto the identical tiny protected spot in the garage, the Crown submitted that a jury would be entitled to conclude, from all the evidence, that the stain was blood.

The Crown pointed to the joint report of the four blood experts (both Crown and defence) which observed that, in determining whether Stain 91 is of human origin, the DNA profile should be considered as it would assist in determining whether the stain has human origins.

It was noted that Ms Gerhard and the defence expert, Dr Hallam, possessed relevant qualifications to comment on the DNA result. They provided an addendum report addressing the DNA profile obtained from Stain 91, which resulted in the consensus position:

“Based on the DNA profile generated it is agreed that the stain is of human origin.”

Ms Gerhard stated that this opinion was based on the amplification test and the DNA analysis itself which is human specific.

The Crown submitted that Dr Hallam’s evidence that there was a small amount of DNA recovered from Stain 91 should be considered in the light of Dr Hallam’s vastly lesser degree of relevant experience relative to the other DNA experts who have described the DNA quantities as possessing a lot of information.

As part of its submission that the question of admissibility of evidence concerning Stain 91 involved consideration of all evidence bearing upon that question, and not a narrow enquiry focusing upon discrete parts of the scientific evidence, the Crown relied upon what is said to be the Accused’s admissions to Witness A as to the need to account for the finding of blood in his garage. It was submitted that the jury would be entitled to find that the Accused had made admissions as to the presence of blood in that location give Witness A’s statements that:

(a)   the Accused planned to invent a story of some mechanical work with Min Lin in his garage to explain Min Lin’s blood on the floor of the garage; and

(b)   alternatively, he attempted to explain the blood on the garage floor as having originated from the prior ownership of the home by a vet with it being animal blood.

The Crown submitted that the fact in issue in this trial, the existence of which the evidence in question is said to be rationally capable of affecting, is whether or not the Accused committed the five alleged murders. It was submitted that the CCS makes clear (see [110] above) that the Crown case is that the stain on the garage floor links the Accused to the crime scene, because it is the blood of the deceased from that crime scene.

The Accused agrees that this is the relevant fact in issue.

The Crown submitted that, if the jury was satisfied that the stain was mixed blood from the crime scene, which the Crown contends is the overwhelming inference, this is powerful evidence in the Crown case. It is submitted that the evidence undoubtedly has the capacity to rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue.

The Crown contends that the overwhelming inference is that the stain is mixed blood from the crime scene. Alternatively, any assessment of competing hypotheses is a question of fact for a jury to resolve.

The Crown accepts that its case is that Stain 91, part of which became Item 550, is a blood stain yielding a mixed DNA profile from which the deceased cannot be excluded as contributors. The Crown accepts that the tribunal of fact would need to be satisfied beyond reasonable doubt that Stain 91 is blood, indeed blood from the crime scene, to use it to reason towards guilt. However, the Crown submits that such a conclusion is not an indispensable link in a chain of reasoning towards an inference of guilt of the type referred to in Shepherd v The Queen. The Crown submits that this not a “link in the chain” circumstantial case.

The Crown does not accept that a tribunal of fact would be confined in their consideration of that question to the evidence of the blood experts, being Ms Gerhard, Ms LeCompte, Ms Campbell and Dr Hallam. The fact that the experts put it no higher than “possibly blood” is, the Crown submits, of little moment. The experts have considered but a small part of the Crown case in expressing that expert opinion. The Crown notes that the jury will be asked to consider the Crown case in its entirety.

The Crown relies upon the following factors in establishing that the biological source of Stain 91 (Item 550) is human blood:

(a)   the results of presumptive testing - specifically the strong positive reaction to an Otol test;

(b)   the appearance of the stain, which is within the range of what might be expected of an aged blood stain;

(c)   the method or mode of deposition of the stain - a transfer mechanism - being consistent with deposition from a “wet” source;

(d)   the presence of human DNA;

(e)   the presence of a mixed profile with three, four or more contributors;

(f)   the presence in that profile of alleles consistent in all respects with the DNA profiles of the deceased;

(g)   the similar DNA profiles resolved from what were blood stains at the crime scene, such as Item 616 - both in terms of the alleles present and the peak heights and ratios of the DNA mixtures;

(h)   evidence indicating the presence of the Accused in the garage in the period shortly after the murders (his statement to police that he cleaned up the dirty garage floor on the morning of Saturday, 18 July 2009 - see [55] above) - evidence of at least one opportunity to have deposited the blood from the crime scene; and

(i)   admissions by the Accused to Witness A.

Whilst noting that the blood experts cannot state definitively that Item 550 is blood, the Crown submits that definitive proof is not the applicable legal standard. The blood experts jointly opine that it is “possibly blood” based on factors which they took into account. Their opinion is based upon the realms of scientific possibility. Their joint opinion forms part of a larger circumstantial Crown case.

The Crown submits that the tribunal of fact will also have before it the evidence of mixed samples from the crime scene, including Item 616 which was described by Dr Walsh as displaying a “very high degree of similarity” to Item 550, with Item 616 having been sourced from a swab of an apparent blood stain on a mattress in the bedroom in which Henry Lin and Terry Lin were killed.

The Crown submits that the tribunal of fact will be entitled to engage their common sense in determining what possible sources of DNA could have yielded the DNA profile extracted from Item 550, with it being inherently unlikely to come from mixed saliva or mixed epithelial cells. In the circumstances, the Crown submits that it will be open to the tribunal of fact to be satisfied beyond reasonable doubt that Item 550 is blood, and that it is blood that has been deposited from the crime scene.

The Crown submits that the defence focus upon the blood experts’ opinion that Stain 91 was “possibly blood” involves misconceived reasoning, which divorces impermissibly that expert evidence from other persuasive evidence in the Crown case which will be before the jury, including the presence of human DNA and the analysis of that DNA.

The Crown distinguishes Armstrong v R which relates to the use of the evidence, and not its admissibility.

The Crown submits that the two separate bodies of expert evidence concerning Stain 91 and DNA evidence, and any conclusions as to its biological origin as human blood, are inextricably connected. There is little or no significance in a blood stain being found in the garage of the Accused’s home if it cannot be said to be the blood of one or more of the deceased. Similarly, there is little significance in a collation of the DNA of one or more of the deceased being found in the garage of the Accused’s home unless it is in some way connected to the crime scene, most obviously as blood from the crime scene. The Crown submits that the evidence must be considered collectively in resolving each issue.

The Crown submits that the combination of all the evidence surrounding Stain 91 (Item 550) is overwhelmingly capable of proving that the stain is blood. It is relevant and admissible evidence having that clear capacity, with issues surrounding its deposition and composition being proper questions for the jury to consider and determine.

Crown Submissions Concerning DNA Evidence (MFI32)

The Crown submissions summarised the evidence in a manner which I accept and incorporate later in the judgment. The Crown then responded to the defence submissions concerning the DNA evidence (MFI32, paragraph 77ff).

By way of general observation, the Crown noted that challenges to scientific innovations are routine. Reference was made to the statement of Thomas LJ in R v Reed [2009] EWCA Crim 2698; [2010] 1 Cr App R 23 at [111] that there is no closed category where evidence cannot be placed before a jury, and that it would be wrong to deny to the law of evidence the advances to be gained from new techniques and new advances in science with particular reference, in this context, to DNA evidence.

The Crown submitted that there is nothing unfairly prejudicial in the DNA evidence. There is no inflammatory or emotional quality to the evidence. Directions will ensure that no improper use is made of the evidence. If the jury determined that the DNA evidence establishes a link between the Accused and the crime scene, this evidence is highly probative. There is simply no unfair prejudice against this that needs to be weighed in the balance.

Alternatively, if there be a risk that the evidence would be accorded more weight than it deserved, any such risk would be ameliorated by directions.

In response to the defence argument concerning Dr Walsh’s evidence, the Crown submitted that it does not assert, and does not need to demonstrate, that Item 550 is the same as any of the crime scene samples. It is inevitable that there would be differences between the samples. The relevance, the Crown submits, arises from the connection to the crime scene.

In response to the defence submission on the issue of similarity, the Crown submits that evidence of similarity is routinely admitted. The illustration is provided of evidence of identification being admissible in a circumstantial case, even where it is weak evidence: Festa v The Queen [2001] HCA 72; 208 CLR 593 at 611 [56].

The Crown referred expressly to the decision of the Court of Appeal (Criminal Division) in R v Dlugosz and Ors [2013] EWCA Crim 2; [2013] 1 Cr App R 32 in support of this submission.

The Crown submitted that, in the present case, Dr Walsh’s opinions about the similarities between Item 550 and other crime scene samples are analogous to evidence allowed in R v Dlugosz. It was submitted that Dr Walsh’s appropriate caution when expressing those opinions was apparent, and the limitations on the evidence would be crystal clear to the jury. The experts themselves were at pains to point out the limitations. The Crown noted that Mr Goetz and Ms Neville, coming as they do from a rubric of statistical reporting, had referred the Crown to Dr Perlin, having noted the “interesting similarities”. The provision of Dr Perlin’s statistical evidence did not mean that evidence of the noted similarities is inadmissible.

The Crown joins issue with a number of particular submissions advanced on behalf of the Accused, contending at different points that the submissions are not supported by the evidence. It was submitted that the defence contention that a degraded sample causes real limitations to a TrueAllele analysis is not supported by the evidence. Further, the Crown submits that degradation is a known phenomenon that is routinely observed, and taken into account, in the process of DNA profile interpretation and analysis.

In response to the defence submissions that TrueAllele had not been validated for five-person related mixtures, the Crown referred to the 2013 New York State Police Crime Laboratory System TrueAllele Validation Addendum (four-person mixture and familial study) which extended the TrueAllele validation beyond three-person mixtures (Exhibit PTK2, Perlin, Tab 9). The Crown submitted that this study concluded that the validation findings supported and extended the previous New York State Police data for low template samples and three-person mixtures, and strongly recommended the current methods of autosomal STR interpretation be replaced by TrueAllele for mixtures involving related and unrelated individuals.

The Crown submitted that what is clear from the validation is that all of the data is capable of being reliably used. The increased complexity of the samples was accounted for, and a reduction in match statistics is the result of any less clear-cut separation of genotypes because of shared alleles in family members or for mixture weight similarities.

Hetbert

The Crown pointed to a 2014 publication in which Cybergenetics, in collaboration with the Kern Regional Crime Laboratory in California, assessed TrueAllele’s capacity to deal with five-person mixtures: “TrueAllele Genotype Identification on DNA Mixtures Containing Up to Five Unknown Contributors” (Exhibit PTK2, Perlin, Tab 10).

The Crown submitted that the validation studies contained in the evidence provide clear support for TrueAllele’s robustness and suitability for analysing the complex data in this case. Stringent validation has included shared alleles and multiple contributors up to five. What those studies illustrate is that where the capacity of TrueAllele to extract information is logically and necessarily reduced by levels of complexity, this is reflected in lower and hence more conservative LRs and not in any compromised data. More complex samples produce more conservative results.

The Crown points to Ms Neville’s evidence in which she expressed her belief that TrueAllele is capable of carrying out an interpretation of a complex mixture such as has occurred in this case (PT907).

The Crown noted that Dr Perlin had been cross-examined upon the basis that TrueAllele could not be adequately tested because it was a “black box”. The Crown observed, however, that no submission had been made on this topic by the Accused.

The Crown submitted, in any event, that both Ms Neville (PT894) and Dr Perlin (PT587) had rejected the characterisation of TrueAllele as a “black box”.

The Crown referred to the decision in R v Karger [2001] SASC 64; 83 SASR 1, where Mullighan J rejected a challenge to the admissibility of evidence obtained by way of a Profiler Plus system upon the basis, inter alia, that it was a “black box” (at 96-100 [449]-[465]).

The Crown submitted that it was not accurate to state that Dr Perlin’s first report had been completed before PowerPlex 21 validation. Further, the Crown pointed to evidence from Ms Neville concerning the BSAG report and the introduction of STRmix at FASS, none of which involved a critical conclusion or rejection or non-validation of TrueAllele.

Contrary to the defence assertion, the Crown submitted that Dr Perlin did in fact make an evidence-to-evidence comparison, which he explained in some detail in evidence. He made this comparison by reference to genotypes. The same process of inferring genotypes was applied to each of the samples. The inferred genotypes were then used for the purposes of comparison. The raw data of the samples was necessarily converted into information (the inferred genotypes) that could be used in the formulation of an LR. The mathematical underpinning of the LR calculation was described in evidence.

In response to the defence submission that there had been no consideration of whether Ms AB’s genotype was in the mixture, the Crown pointed to Dr Perlin’s supplementary report (Exhibit PTK20) in direct response to the defence request (Exhibit PTK19) dealing with the reference sample of Ms AB. Ultimately, Dr Perlin provided a probability figure and concluded that “in light of all the data, [Ms AB], there’s no statistical support for [Ms AB] having contributed her DNA to item 550 or item 616” (PT1088).

In response to the defence submission that there was no evidence of the number of contributors to the garage mixture, the Crown submitted that there was consistency across the evidence of all the experts that there were at least three contributors. The evidence was summarised in the following way (MFI32, paragraph 170):

Expert

Item 550

Clayton Walton

At least 3 in the major (2 males, possibly one female)

Robert Goetz

At least 4 (at least 2 males)

Sharon Neville

Possibly 4

Dr Simon Walsh

550A: at least 3 (Terry, Henry, Min Lin)

550B: at least 4 (Terry, Henry, Min Lin, Yun Bin Lin)

Dr Mark Perlin

3, 4 or 5

In response to the defence submission that Dr Perlin had not referred to “shadowing” in earlier reports, the Crown noted that Dr Perlin explained that the presence of a relative at a lower match statistic may result in a “false positive”. To address this issue, Dr Perlin used a “peeling” process to provide further clarity in relation to any statistical support for the presence or absence of the DNA profile of Ms AB in Items 550 and 616. The Crown referred to evidence given by Dr Perlin concerning shadowing.

The Crown indicated that it did not seek to rely on evidence of “peeling” in evidence in chief at the trial. The Crown would necessarily rely on this evidence to rebut any defence suggestion that there is scientific support for the presence of Ms AB’s DNA in Items 550 and 616. The Crown submits that, in light of the material in Dr Perlin’s most recent report, to do so would be misleading. In these circumstances, the Crown submitted that it was not necessary for there to be any ruling on the evidence derived from the “peeling” process at this stage.

With respect to the defence argument that there is an alternative hypothesis or competing inference available to explain the mixed DNA sample in Stain 91 (see [280] above), the Crown submitted that to assert that the mixed sample from the garage came to be there by way of family members’ overlaying DNA samples, from disparate biological sources at separate times, is manifestly absurd. In any event, the Crown submits that these are questions of fact for the jury to determine with the assistance of directions. The availability of a competing inference does not make the evidence inadmissible.

The Crown responded to the defence submission that TrueAllele was not validated and that it constituted a “work in progress”. The Crown submitted that TrueAllele is not an unfinished product. It is a highly validated method that has been in use, in its current 25th version, for over five years.

Reference was made to evidence of 20 TrueAllele validation studies having been done, five of them peer reviewed. It was noted that low template, complex three, four and five person mixtures were studied in the Kern Report (Exhibit PTK2, Tab 10).

The Crown submitted that TrueAllele is validated, and has been accepted in other jurisdictions on numerous occasions. In addition to Dr Perlin’s evidence given in more than 20 trials, there have been a number of admissibility hearings in different overseas jurisdictions. These include:

(a)   Commonwealth v Foley (2012) 38 A.3d 882 - evidence admitted at first instance with the decision being affirmed by the Superior Court of Pennsylvania;

(b)   R v Duffy and Shivers [2012] NICC 1 - Hart J of the Northern Ireland Crown Court allowed Dr Perlin to give evidence with respect to TrueAllele results;

(c)   Commonwealth of Virginia v Brady (unreported, Virginia Circuit Court, 17 December 2013) - the Court overruled an objection to evidence from Dr Perlin of TrueAllele analysis;

(d)   R v Broughton (unreported, Oxford Crown Court, 29 June 2010) - Eccles J excluded TrueAllele evidence, notwithstanding his view that “this evidence is capable of being admitted in evidence in the United Kingdom”, with his Honour indicating that reasons would later be given but with this (for reasons unknown) not having occurred;

(e)   California v Lawton, Langston and Harper (unreported, Superior Court of California (Kern County), 1 October 2013) - the Court admitted evidence concerning TrueAllele analysis.

The Crown noted that, whenever there is a new advance in DNA technology or analysis, there is inevitably a challenge to the admissibility of the evidence garnered as a result. The Profiler Plus kit was challenged extensively at first instance in South Australia before the decision of Mullighan J in R v Karger.

In R v McIntryre [2001] NSWSC 311, Bell J considered the admissibility of opinion evidence regarding DNA results using the Profiler Plus system. Her Honour declined to exclude the evidence, referring to R v Karger.

The Crown pointed, as well, to R v Fuller [2013] SADC 150, where a challenge to STRmix evidence was rejected and the evidence admitted.

The Crown referred to authorities, including R v Karger at [179], which emphasised the roles of the prosecution, defence counsel, expert witnesses and the trial Judge in the process of adducing expert DNA evidence, addressing the jury and giving directions to the jury in a manner intended to reduce or remove any tendency of such evidence to mislead, prejudice or confuse the jury.

Reference was made to R v MK [2012] NSWCCA 110; 223 A Crim R 572, where the Court of Criminal Appeal allowed a Crown appeal from the exclusion by a trial Judge of mixed DNA evidence involving a major component and a weak minor component, with the Profiler Plus kit having been used as well as Y-Filer testing. There was uncertainty surrounding the number of contributors. The Crown referred to the decision of the High Court in Aytugrul v The Queen [2012] HCA 15; 247 CLR 170 in support of the admission of the evidence in the present case.

The Crown submitted that, if there was any prospect of a danger that the jury would attribute weight to the DNA evidence that was unjustified because it was complex evidence, directions would ensure that that was not the case.

The Crown submitted that the evidence of DNA analysis was relevant and that it was the product of appropriate expertise. It was submitted that it should be admitted, with scope for any appropriate challenge to the evidence being available by way of cross-examination, evidence from defence experts and submissions concerning the evidence.

It was submitted that the evidence in this trial was not collected from a sterile environment, but from a garage floor and a biologically complex crime scene. Complexity is inherent in any such collected profile and information is lost if human methods of interpretation are applied.

In a complex mixture such as Item 550, it was noted that much data is lost in the calculation of LRs because of the complexity of the mixture and the application of arbitrary thresholds. The DNA evidence extracted from evidence items undoubtedly contains relevant information.

The Crown submitted that TrueAllele’s significant advantage over human methods is that it uses all of the data obtained in the analyses performed, and assigns corresponding probabilities to different hypotheses that explain the data. TrueAllele calculates an accurate result based on the entirety of the available data. In addition, there is no prospect of contextual bias as the analysis is an objective one, a situation reflected in the LRs generated.

The Crown submitted that the DNA evidence is relevant, admissible evidence and ought not be excluded on any discretionary basis.

Summary of the Evidence of Mr Walton, Mr Goetz, Dr Walsh and Dr Perlin

The Crown submissions (MFI32) contain a summary of the evidence of Mr Walton, Mr Goetz, Dr Walsh and Dr Perlin which I consider (for the purpose of this ruling) to be accurate, and incorporate in this part of the judgment.

Mr Walton gave evidence of the steps he had taken in the laboratory in respect of the testing of Item 550. The first round of testing conducted on Item 550 did not return a result. Item 550 was then subjected to a process of robotic automation called Microcon, which allows the washing of the DNA to try to remove inhibitors. A second amplification process took place which permitted more effective testing and results.

Mr Walton outlined the process of Y-filer, Identifiler and PowerPlex 21 testing. His evidence on 28 March 2014 (PT1015) involved an explanation by him of the concepts of threshold, artefacts, stutter and post-stutter. Mr Walton concluded that there were no alleles present in Item 550 that could not be accounted by reference to the combined DNA profiles of the deceased.

Mr Walton gave evidence about the number of contributors to Item 550. The statistical opinions expressed by Mr Walton were summarised in a table contained in the Crown written submissions (MFI32, paragraph 13) which constitutes an accurate summary. That table is reproduced below (excluding footnotes):

Report

Opinion

Genetic kit

Calculation

Report 2

(16 December 2010) and Report 6

(9 July 2012)

Approximately 1 in 5 people in the population cannot be excluded as major contributors to the mixture.

Profiler Plus/ Identifiler testing

Random Man Not Excluded

('RMNE')

Report 6

(9 July 2012)

All patrilineal related male relatives and approximately 1 in 760 unrelated males in the general population cannot be excluded.

Y-filer testing

Counting method

Report 8

(16 October 2013)

Approximately 1 in 210,000 people in the Australian Southeast Asian population cannot be excluded from the major component of this mixture.

Approximately 1 in 730,000 people in the Australian Caucasian population cannot be excluded from the major component of this mixture. Approximately 1 in 620,000 people in the Australian Aboriginal population cannot be excluded from the major component of this mixture.

PowerPlex

21 testing

RMNE

Mr Goetz stated that each of the alleles designated in Items 47, 223, 550 and 616 were consistent with alleles in the reference samples of the five deceased. He described the similarities between Items 550 and 616 as (PT 673):

“… interesting, because I've looked at thousands of profiles over the years … and to see two that are that similar, it is quite interesting.”

Mr Goetz later described his use of the term “interesting” as meaning that the similarities “have some sort of scientific merit”. However he was unable to attribute statistical significance to the similarities. Mr Goetz later stated:

“… I found the similarity between the profile in the house on the mattress in particular and the profile in the garage to be unusual, that is why it was interesting because the amount of alleles that were there were similar, the peak heights were similar, and you don't tend to see that in two in theory unrelated scenes”.

Mr Goetz did not agree that the samples were “low template mixtures”. He considered that the sample “had a reasonable quantity of DNA present” (PT708).

Mr Goetz was of the view that there were at least three, and possibly four or five contributors to Item 550 (PT684). He later stated that “there are at least four” (PT690). Concerning the possibility of five persons, Mr Goetz said (PT684):

“... the relationship between the mattress and the garage, it is throwing doubt on the whole possibility you are dealing with related people in the garage and therefore you could not be sure that you are dealing with only four people. It could be five”.

Mr Goetz considered that the DNA profile taken from Item 550 showed signs of relatedness amongst contributors (PT 688). He considered that the sample in the garage (Item 550) was a stronger sample than the sample from the bedroom mattress (Item 616) (PT686).

It was Mr Goetz’s belief that the validation of TrueAllele by FASS had been completed, but had not been written up. He stated that, in part, FASS had moved in another direction, utilising STRmix, due to considerations such as cost and the length of time TrueAllele took to generate results. A concern about the reliability of TrueAllele was not a factor and he agreed that he considered TrueAllele to be a reliable system (PT707). Mr Goetz was confident in the results generated by TrueAllele (PT708).

In re-examination, Mr Goetz was asked concerning the comparative validation of STRmix and TrueAllele (PT707):

“Q. In terms of comparison between STRmix and TrueAllele is either system more validated than the other insofar as you are aware?

A. In my opinion probably TrueAllele is. It has been around a lot longer and has been used in overseas cases. It has undergone scrutiny by overseas experts and had a couple of documents written about the validation of it. To me it probably had more inspection of the system than STRmix had. Given another year STRmix would have probably been just the same.”

Hetbert

Dr Simon Walsh is an important witness in the Crown case. The Crown written submission described his background and experience in the following way, which I consider to be accurate (MFI32, paragraph 36) (footnotes excluded):

“Dr Walsh holds the position of Chief Scientist at the AFP in Canberra. He has been employed with the AFP since November 2006. In 2009, Dr Walsh completed a PhD in forensic science on the topic of ‘Evaluating the role and impact of forensic DNA profiling on the criminal justice system’. Dr Walsh has been involved in the field of forensic DNA and forensic criminal casework for almost 20 years, and has regularly interpreted complex mixed DNA profiles. Dr Walsh has published widely, and given evidence in Court on numerous occasions. He is the co-author of three books, two of which have been published (with the third awaiting publication): ‘Forensic DNA Evidence interpretation’ and ‘Case Study in Forensic Science’. Dr Walsh maintains membership of a number of relevant professional organisations and holds the position of adjunct Professor at the University of Canberra Dr Walsh is a pre-eminent DNA practitioner in Australia and New Zealand. The Crown relies on Dr Walsh’s experience in interpreting complex DNA samples in the forensic area.”

Dr Walsh’s experience and training are of particular significance given the s.79 objection taken to part of his evidence.

Dr Walsh considered the results obtained by FASS from the Profiler Plus, Identifiler, Y-Filer and PowerPlex 21 for Item 550 and compared them to other items from the crime scene that he considered similar, namely Items 47, 224 and 616.

Dr Walsh initially interpreted Item 550 relying on two separate profiles obtained by FASS as a result of two amplification processes. Profile 550A was obtained on 10 June 2010 following amplification with the electrophoreses system, whilst Profile 550B arose from a further amplification on 18 June 2010. Dr Walsh expressed the opinion that Profile 550A contained the profile of at least three different individuals that could be explained by Terry, Henry and Min Lin. In relation to Profile 550B, Dr Walsh concluded that this profile arose from at least four individuals, with the additional DNA present in that sample being explained by Yun Bin (Irene) Lin further to Terry, Henry and Min Lin.

Dr Walsh gave evidence concerning similarities with other samples from the crime scene. He undertook a comparison between Item 550 and Item 616 following PowerPlex 21 testing. Whilst Dr Walsh stated that his familiarity with the PowerPlex 21 kit, and the associated capillary electrophoreses machine 3500s, is limited due to the recent introduction of the kit, his experience with the performance of the established kits informed his ability to interpret PowerPlex 21 data. Dr Walsh was asked (PT934):

“Q. When you did consider item 550 against item 616, what was your opinion about the relative similarity of those two mixed profiles?

A. Well, my opinion is that they are similar. There was a high level of consistency between the two profiles, a high level of overlapping

information”

The following similarities between Item 550 and Item 616 were observed by Dr Walsh and were considered significant:

(a)   all 61 alleles designated in Item 616 were present in Item 550;

(b)   there was an observable similarity between those samples in terms of the proportions of the alleles they have in common;

(c)   there was no example of a considerable departure from the general consistency;

(d)   each sample was in itself a complex mixture arising from at least three contributors;

(e)   there was no association or reason for these profiles to be similar.

The cross-examination of Dr Walsh focused on, inter alia, dissimilarities observed between samples. Dr Walsh acknowledged the presence of dissimilarities, but maintained his position. Dr Walsh was of the opinion that “there is a lot more similar information in there than there are dissimilar pieces of information” (PT941).

A challenge was made to Dr Walsh in cross-examination concerning his capacity to express an expert opinion in relation to similarity (PT942):

“Q. You just - I mean, really this is your evidence: "I've looked at it,

I'm an expert and I reckon they are relatively similar"; that's it, isn't

it?

A. I would probably summarise it a little differently. I would say that

what I am looking at are two objective pieces of scientific data, each of which are highly complex with a high amount of information. To generate any of those complex pieces of data can only occur under a certain limited amount of circumstances.”

The Crown relies on Dr Walsh’s expertise in the area of forensic DNA interpretation and submits that he is qualified to comment on the observed similarities between Item 550 and Item 616, which he considers significant, without the provision of a statistic. I will return to this topic.

In relation to the haplotype present in Item 550 that was consistent with Min, Terry and Henry Lin, Dr Walsh consulted the “Y chromosome haplotype reference database”, the largest of its kind (PT982-983).

The evidence reveals Dr Perlin’s substantial background and expertise in the area of DNA mixture interpretation. He is the Chief Scientific Officer and Chief Executive Officer of Cybergenetics, a bio-information company based in Pittsburgh, PA, United States which was formed 20 years ago. Dr Perlin is an expert on DNA mixture interpretation and the likelihood ratio. He holds a PhD in computer science, a PhD in mathematics and a medical degree.

TrueAllele is the software system developed and employed by Cybergenetics and Dr Perlin. It is currently in its 25th version, and has remained the same since 2009. The software in its first form was designed 20 years ago.

TrueAllele applies a probabilistic method of DNA typing. The system objectively infers genotypes from the entirety of the data. Contrary to the defence submissions, the Crown submits that is this one of the qualities of the TrueAllele system. It means that there is no loss of information due to thresholds, and that the system looks at the data without considering any of the known reference samples. These inferred genotypes then allow comparisons to be made with other evidence items of reference samples, producing a match statistic in the form of a likelihood ratio, that is the probability of a match.

Having considered the evidence given by Dr Perlin over several days, there is force in the Crown submission that the probabilistic method utilised with TrueAllele represents a strength, and not a weakness, in assessing issues relevant to the admissibility of the evidence.

Dr Perlin gave evidence concerning the relationship between evidence items, inferred genotypes and reference samples.

Cybergenetics received electropherograms (“EPGs”) for Items 550, 616, 13, 47, 205, 221, 223, 224 and 229, and the reference samples from the five deceased, the Accused and Ms AB, together with all of the results of the Profiler Plus, Identifiler, Y-Filer and PowerPlex 21 testing runs.

TrueAllele requires the human operator to provide a range of contributor numbers to be considered prior to the start of the computer process. For Item 550, three, four or five contributors were assumed. The number of peak heights that are observed are a decisive factor in this consideration. TrueAllele can be set to assume any number of contributors up to 10. Once a sufficient number of contributors are assumed, the behaviour of the system is the same statistically (PT626) and the system does not overstate (PT790).

Dr Perlin explained that the way the system expresses the challenge to use all of the information results in a conservative approach, a negative log likelihood ratio (“LR”).

The probability statistics (LRs) provided in Dr Perlin’s updated report dated 21 March 2014, taking into account the higher theta value (co-ancestry coefficient), are reflected in the following table (MFI32, paragraph 76):

Reference

Item 550

Yun Bin LIN

28.5 thousand times (Asian person)

       
1.68 million times (Caucasian person)

Yun Li LIN

289 times (Asian person)

       
15.7 thousand times (Caucasian person)

Min LIN

226 thousand (Asian person)

       
367 million (Caucasian person)

Henry LIN

2.21 Billion times (Asian person)

       
1.73 trillion times (Caucasian person)

Terry LIN

50.4 quadrillion times (Asian person)

       
80.8 quintillion times (Caucasian)

Item 47 [door handle]

Item 550

Contributor to 550 matches a contributor to 47: 1.08 billion (relative to an Asian population) 1.4 trillion (relative to a Caucasian population)

Item 223 [bedroom wall]

Item 550

Contributor to 550 matches a contributor to 223: 4.29 million (relative to an Asian population) 7.33 trillion (relative to a Caucasian population)

Item 616 [bedroom mattress]

Item 550

Contributor to 550 matches a contributor to 616: 1.11 quadrillion (relative to an Asian population) 4.23 quintillion (relative to a Caucasian population)

Hetbert

我总结一下辨方对于血渍91的主要攻击：

1.血渍91对Orthotolidine ('Otol') 和hydrogen peroxide有反应，对Luminol没反应。

这两个测试都是通过血红蛋白的铁作为催化剂来进行反应。




[yt]wh-SICcf-58[/yt]

[yt]Hl8CZwbctzo[/yt]



https://science.howstuffworks.com/luminol1.htm

检方的回应是：三名法医目测像血渍，Otol有反应，含有林家遇害者的DNA，所以唯一合理的结论是血渍91是血。

Crown observed that the Luminol testing was not performed by the examining biologist, but by crime scene officers following the examination and swabbing of the garage floor. The Crown addressed the inconsistency in the positive result of Stain 91 to Otol testing as opposed to the negative reaction to the Luminol testing, referring in this regard to the evidence of Ms Gerhard.

还说Luminol测试是另一名法医在Otol测试之后做的，暗示有可能棉签已经采集了大部分的痕迹，剩下的不足以产生反应了。

值得注意的是, Luminol是破坏性测试，喷过以后，就没办法做确认测试confirmatory testing了。

https://projects.nfstc.org/works ... ity%20of%20Four.pdf