page   1
 1                                      Wednesday, 10th June 2009
 2   (10.20 am)
 3   THE CHAIRMAN:  Sorry for the delay.  Technology fails
 4       sometimes.
 5           Who is the first witness you will call,
 6       Ms Carmichael?
 7   MISS CARMICHAEL:  The first witness today is David Thurley.
 8   THE CHAIRMAN:  Mr Thurley, you wish to take an oath.
 9               DAVID SAMUEL KENNEDY THURLEY (sworn)
10   THE CHAIRMAN:  Give your full name so that we have it on the
11       record.
12   A.  It's Stephen Samuel Kennedy Thurley.
13   THE CHAIRMAN:  Take a seat, please.
14                   Examined by MISS CARMICHAEL
15   Q.  Mr Thurley, I'd like to start by asking you a little bit
16       about your job in 1997.  You were a police officer with
17       the Identification Bureau of Strathclyde Police?
18   A.  Yes, that's correct.
19   Q.  Can you tell us a little bit about what the job -- I am
20       being told that not everybody may be able to hear you,
21       Mr Thurley, and we've found it's sometimes easier if
22       witnesses and indeed counsel are a little nearer to the
23       microphones.
24   A.  Okay with that, yes?
25   Q.  Yes, I think that's easier.  Thank you, Mr Thurley.
page   2
 1         I was asking you to describe for those who may not be
 2       familiar with the work of examiners in the
 3       Identification Bureau what your job in 1997 involved?
 4   A.  First and foremost, I was a police officer, in 1975
 5       joined Strathclyde Police and in 1980 I went to what was
 6       then the Identification Bureau which the function of
 7       that department was to examine crime scenes and record
 8       crime scenes with video and by photographic methods.
 9       Part of my role in that department was within the
10       fingerprinting side of things and in 1997 that's why I
11       was sent down to Irvine was to lead the team to examine
12       the house.
13   Q.  Were all the people who worked doing the sort of job you
14       did, recording the crime scene and dealing with
15       fingerprints at the crime scene, were they all police
16       officers?
17   A.  No, I was the only police officer that was there on that
18       day apart from my boss Chief Inspector Hogg.  He was
19       down initially after we had assessed the scene he then
20       went away so I would be the only police officer down
21       there from the Identification Bureau.  There were other
22       police officers there but not from the Identification
23       Bureau.
24   Q.  Just so that people who perhaps don't know the system as
25       it operated in 1997 can understand, you said you had an
page   3
 1       expertise in fingerprints but should we understand that
 2       your job was to find them rather than to say whose they
 3       were?
 4   A.  Yes.  My job was preserving scenes, scene preservation
 5       and in the finding of fingerprints.  It certainly was
 6       not to identify prints.  My job was solely to find the
 7       marks at the scene and record them by uplifting them or
 8       photographing them and then passing them on to the
 9       experts to identify.
10   Q.  You have given, I think, a written statement which you
11       have signed to the Inquiry.  Do you have that with you
12       there?
13   A.  I do, yes.
14   Q.  You're content that that is a truthful record of your
15       position on the things you were asked about?
16   A.  As I can recollect bearing in mind obviously the
17       time-frame, yes.
18   Q.  I would like to take you first to paragraph 5 of your
19       statement which is on page 2 and you tell us there about
20       a number of different branches and agencies and how they
21       would work together in investigating serious crime.
22         CID would be responsible for the investigation of the
23       crime, the Identification Bureau (which is you and your
24       colleagues) would be responsible for photographing the
25       scene and creating a video record and seeking and
page   4
 1       preserving fingerprint evidence.  You then indicate a
 2       third branch, forensics, who would obtain and analyse
 3       biological and chemical evidence and then finally the
 4       Scottish Criminal Record Office whose job was to try to
 5       identify the fingerprints?
 6   A.  That's correct, yes.
 7   Q.  You say each of the branches were based in separate
 8       offices.  Can you tell us where the Identification
 9       Bureau was located?
10   A.  The Identification Bureau was in the city centre at that
11       time I think -- I'm not sure whether we were still in
12       Pitt Street by the old High School at the back of Pitt
13       Street but certainly right in the city centre.
14   Q.  Sorry, I don't mean to interrupt you.  You were going to
15       add something?
16   A.  No, and that's where we were.  When I say separate
17       offices, the SCRO would be in a separate office
18       altogether, CID obviously for this particular
19       investigation, U Division at the time, which would be
20       Kilmarnock.
21   Q.  Where was the Scottish Criminal Record Office located in
22       1997?
23   A.  I'm not sure where it was, no.  You'd need to ask some
24       of the people that worked there.
25   Q.  I see.
page   5
 1   A.  I can't honestly remember where it was in '97.  For a
 2       period of time they were in Police Headquarters at Pitt
 3       Street and then they moved.  The date they moved, I'm
 4       not sure.
 5   Q.  It may be that they were in fact also in or about Pitt
 6       Street in 1997?
 7   A.  It could be, yes.
 8   Q.  And the forensic laboratory, where was that located?
 9   A.  It was located in Pitt Street.
10   Q.  It was located in Pitt Street as well.
11         You say at paragraph 6 that the branches were
12       independent with separate classes of function and you
13       say that that had advantages.  I wonder if you could
14       expand on what you mean by that.
15   A.  The main advantage, as far as I was concerned, was the
16       fact that we each had our own hierarchy, we had our own
17       chains of command.  Had we had the likes of this
18       particular job, the CID would contact my senior
19       management who would make -- who I would get my
20       instructions from, the lab would be contacted and the
21       forensic people would be contacted separately, they
22       would get their instructions.  Obviously SCRO, they
23       would get their instructions all independent of each
24       other.  So we didn't have one hierarchy trying to run
25       the whole show.
page   6
 1         The good thing about this, as far as I could see, is
 2       the fact there could be no collusion.  I worked myself,
 3       personally, because of what I did, I tended to visit
 4       scenes of serious crime.  I worked throughout
 5       Strathclyde; I wasn't tied to any particular area.  So
 6       therefore I had no association or affiliation with any
 7       CID, anybody in SCRO, the lab, whatever.  I worked
 8       totally independently and that to me was one of the
 9       strengths of the system, that we were all independent
10       departments.
11   Q.  I may have some more questions for you about that later
12       but the next thing I would like to ask you about at this
13       stage is what you write at paragraph 8 about the order
14       of examination of a crime scene.
15         You say that following the report of a serious crime
16       allegation, it would usually be organised in the
17       following order: first, the scene being photographed and
18       video taken; then forensic biologists and chemists
19       taking samples; finally, the fingerprint officers coming
20       in at that stage.
21         If I can jump on in your statement to paragraph 24,
22       which is at page 6 if you have that, Mr Thurley, you
23       tell us that you wouldn't begin fingerprinting until the
24       forensic scientists had finished for their purposes?
25   A.  That's correct.
page   7
 1   Q.  Are you certain in your own mind that the forensic
 2       scientists had in fact finished at the murder scene in
 3       Kilmarnock before you started your examination?
 4   A.  In general we would not.  Because of the forensic
 5       evidence that we were at risk of destroying or certainly
 6       compromising with powders and chemicals or whatever we
 7       might use to enhance fingerprints, in general we would
 8       not move into a scene until the forensic lab had
 9       finished what they were doing.  So it would be
10       photographed and videoed first before anything was
11       disturbed, the forensic scientists would go in and
12       remove any fragile elements in the way of DNA, hairs,
13       fibres, things like that, and then we would come in at
14       the end and, because we added something to the scene,
15       we're adding powders to the scene, chemicals to the
16       scene, therefore it's important that the forensic side
17       of things is removed first.
18   Q.  I understand that you're telling us that is how matters
19       normally proceeded?
20   A.  That's correct.
21   Q.  But I would like you to focus on -- I had understood
22       paragraph 24 of your statement to be telling us what
23       happened in the investigation in Kilmarnock with which
24       we are concerned today.
25   A.  That's certainly my recollection, yes.
page   8
 1   Q.  I would like to try to clarify that with you and I
 2       wonder if you would look, please, at SG0537 if we could
 3       have that on the screen at page 2, please.  I think if
 4       we look just about halfway down there we see you
 5       arriving with Detective Inspector McAllister and some
 6       other colleagues?
 7   THE CHAIRMAN:  That is at 12.10.
 8   MISS CARMICHAEL:  No, I think it's 10.55.
 9           It may be you are having difficulty ...
10   A.  I can see what you're ...
11   Q.  So that is the record of your arrival, I think, on
12       9th January.
13   A.  Yes.
14   Q.  I wonder if we could have the whole page back, please,
15       and if we can go back to page 1 you may want to take
16       just a moment to look at this but when you have had a
17       chance to do that I wonder if we could focus in on the
18       20.31 entry.
19   A.  Yes.
20   Q.  I think I am right in saying that the only mention of
21       forensic attendance there is a Mr Fairley at 20.31?
22   A.  That's correct, yes.
23   Q.  Could we have the full page back, please, and if we take
24       a moment to look at look at page 3, again you may want
25       to take a moment to look at this but it does not appear
page   9
 1       that there is any entry there -- and we are still there
 2       on 9th January -- there does not seem to be any
 3       reference to forensic attendance at that stage.
 4   A.  That's correct.
 5   Q.  If we move to page 4, you see the entry starting for
 6       10th January 1997 and then if you focus perhaps on the
 7       9.05 entry --
 8   A.  Yes.
 9   Q.  -- at that stage we see a Mr Fairley and Mr Sweeney
10       coming from the lab, again forensic staff?
11   A.  That's correct, yes.
12   Q.  So I mention this to you because it would seem to
13       suggest that there may have been some forensic
14       involvement after you had started your examination of
15       the scene?
16   A.  I don't know.  I'm not aware of what they did when they
17       came, if in fact they did anything.  I'm not sure.  I
18       can't comment on that.
19   Q.  I would like to take you back in your statement to
20       something that you say at paragraph 13 because I think
21       you have been involved in the development of crime scene
22       management as it has become a more specialised field
23       since 1997?
24   A.  That's correct, yes.
25   Q.  And you give us some explanation about that in your
page  10
 1       statement.
 2         I am interested particularly in what you say, in the
 3       last sentence of paragraph 13 you have been describing
 4       how crime scene management works in modern practice and
 5       you say:
 6         "It would not have been possible to set up the initial
 7       log station inside the house in modern practice."
 8         When you say "inside the house", what do you mean
 9       there?
10   A.  My recollection of it was when I attended the officers
11       were standing inside the porch, the glass porch, front
12       door effectively.  Under today's circumstances, that
13       wouldn't happen.  You would have outer cordon and inner
14       cordon you would have a log of the outer cordon, a log
15       of the inner cordon and then a log to get into the
16       house.  All of these people would be outwith the crime
17       scene.  There would be nobody within that crime scene.
18   Q.  You are saying police officers in the porch keeping a
19       log?
20   A.  Yes.
21   Q.  The Inquiry has heard a suggestion that there were, in
22       fact, officers involved in keeping watch and keeping the
23       log stationed inside the living room on the night of the
24       8th into the 9th.
25         Is that something of which you have any knowledge?
page  11
 1   A.  No, I've no knowledge of that at all.
 2   Q.  As an officer who is responsible for examining a crime
 3       scene, what would your reaction be to learning that that
 4       may have happened?
 5   A.  If you're asking me in today's circumstances, then I
 6       would -- I certainly wouldn't be happy about that at
 7       all.  Bearing in mind what I said earlier about
 8       contaminating a scene, I certainly wouldn't be
 9       happy about that at all.
10   Q.  When you say that, are you talking from the point of
11       view of forensic evidence, biological or chemical
12       evidence, or are you referring to any difficulties that
13       that might pose for the collection of fingerprint
14       evidence?
15   A.  Fingerprints is not such an issue because every police
16       officer in Strathclyde has their fingerprints taken when
17       they join the force and, because of the department I
18       worked in, I also, as other members of the department
19       do, have had DNA taken from us.  It's not uncommon to
20       find police officers' fingerprints at a locus.  It's not
21       uncommon to find DNA of police officers at a locus.
22       There isn't an issue with that at all.  The issue is
23       that they are eliminated and discounted, explained and
24       discounted.
25         My concern for police officers being in or anyone
page  12
 1       being into that scene to that extent would be for the
 2       forensic side of things that's maybe harder to
 3       eliminate.  It could be eliminated but you're talking an
 4       awful lot of work to do it.  The easy way that it's done
 5       nowadays is nobody goes into the crime scene at all.
 6       You have read in my statement that a Crime Scene Manager
 7       is appointed now.  Crime Scene Managers, in my opinion,
 8       are one of the best things that has happened in recent
 9       times to do with preserving crime scenes.  A Crime Scene
10       Manager is the one person who has control of the crime
11       scene.  Nobody goes in or out of that crime scene
12       without the Crime Scene Manager's knowledge and he is
13       one point of contact for all the departments, the
14       specialists we have.  We don't need to speak to the CID,
15       we don't need to attend briefings and things; it all
16       comes through the Crime Scene Manager.  To me, that's
17       certainly the biggest improvement since this.
18   Q.  I think you said that you were giving your reaction by
19       reference to modern day standards to the suggestion that
20       log keepers may have been stationed in the living room.
21       If you can put yourself back in 1997 is that something
22       that would have disturbed you in the same way at that
23       date?
24   A.  It would disturb me in as much as I could see a lot of
25       extra work coming out of it, not necessarily just for
page  13
 1       myself but for all the other departments involved as
 2       well in the eliminating of these people.  There is not a
 3       problem, as I said before there's not a problem with
 4       people being in a scene, a crime scene.  The problem is
 5       eliminating all these people.  If we know who has been
 6       in there, then we can eliminate them.  We can take
 7       samples of footwear, we can take samples of clothing, we
 8       can take their fingerprints, we can take DNA, we can
 9       take hair and all these things if we know they have been
10       in there.
11         If we don't know who has been in there, then we're
12       going into a separate bundle and basically start
13       searching to see who has been in there and it causes a
14       lot of work for other departments.
15   Q.  I would like to move on with you, Mr Thurley, to your
16       own examination of the scene on 9th January for
17       fingerprints.  I wonder if you could look, please, at
18       document SG0402.  If we can move on to page 3 of that,
19       please.  I think this is a certificate of authentication
20       by yourself you have been asked to prepare at a
21       particular stage.
22   A.  Yes.
23   Q.  And that is your signature there and if we move on to
24       the next page we see a table.  That appears to be a
25       table.  I wonder if you can tell the Inquiry what that
page  14
 1       is?
 2   A.  This whole production is a number of tables that have
 3       been put together to explain when the particular items
 4       were examined and when the marks were lifted and
 5       photographed, what the marks were, whether it was lifted
 6       or an impression and who the witnesses were.
 7   Q.  We can take that off the screen just for the moment,
 8       please.
 9         Could I refer you to paragraph 27 of your statement at
10       page 7.  You say that you had one of the secretaries
11       produce the document that we have just looked at from a
12       handwritten list.
13   A.  That's correct.
14   Q.  You say that it was not normal procedure but you felt a
15       typed version would be helpful.
16   A.  Yes.
17   Q.  Can you recall in this case when a typed version was
18       produced?
19   A.  Most serious crime you get involve in you do what you
20       do, you examine the scene, you mark things up and you
21       pass it on to the next in line and you move on to the
22       next one.  In Strathclyde it's a busy place, there's
23       always serious crime on the go; so you literally go from
24       one serious crime to the other.  What was happening here
25       was we kept on coming back and there were things being
page  15
 1       questioned time and time and time again -- nothing wrong
 2       with that.  You will notice on the original list, the
 3       original production, there is many different types of
 4       handwriting on it.
 5   Q.  We will take a look at that in a moment, Mr Thurley.
 6   A.  The reason for producing this though is because some
 7       people were having difficulty with the handwriting.
 8       Now, that's not really surprising considering that the
 9       list we're looking at in a moment is written at the
10       scene at the time when the place is being examined.
11       It's not in the best handwriting.  It's literally
12       written just as an aide-memoire for ourselves as to how
13       the examination's going and what has been found at the
14       scene.  This document would be referred to more and
15       more.  The clearest way and quickest way and the best
16       way I could think of of clarifying the document was to
17       get it typed in this form.  To me it made everything
18       very clear and there should be no problems with
19       handwriting and interpretations of handwriting on it.
20       So that's the only reason this was done.  It was not
21       done for any other reason.
22   Q.  Is it possible that the request may have come from the
23       Crown, from the Prosecution Service?  Is that something
24       that you recall?
25   A.  I can't recall that but I would suggest it was probably
page  16
 1       done before the Crown Prosecution asked us for it.
 2       There were a lot of requests to look at these various
 3       documents and the handwriting, as you will see when you
 4       look at that document, is maybe not as good and clear as
 5       it should be.  But it meant something to the people that
 6       wrote it.  Normally these documents wouldn't be produced
 7       in court at that time.  So this typing statement was
 8       just to make things a lot clearer.
 9   Q.  We will just now look at the handwritten document that
10       you have been telling us about, Mr Thurley, and that is
11       DB0003.  Can we look as an example at page 4, please.
12         So this is, as it were, the original version of what
13       we have seen typed up?
14   A.  Yes, that's correct.  It carries a lot of the same
15       information.  It doesn't carry exactly the same
16       information but it does tell you when the specific marks
17       were found, where they were found and the letter that
18       was assigned to them.
19   Q.  So we see in the second column from the left the date
20       when the item was found; would that be correct?
21   A.  Yes, that's correct.
22   Q.  And the wide column just to the right of that we see
23       where it was found?
24   A.  That's correct.
25   Q.  Under the heading "Mark", we see that, letters and I
page  17
 1       think further on in the table letters and numbers have
 2       been given to marks?
 3   A.  That's correct.
 4   Q.  And I would be right in saying the last two columns are
 5       columns that are used once the marks and document have
 6       been passed on to the SCRO Fingerprint Bureau, as it was
 7       in 1997?
 8   A.  Yes, that's correct.
 9   Q.  And the examiners there would use that to record their
10       findings?
11   A.  Yes, that's correct.
12   Q.  I would like to move on, please, to paragraph 33.  You
13       can take that off for now; we may come back to that
14       document.
15         You record at paragraph 33 of your statement that you
16       dusted the bathroom doorframe at the crime scene at
17       Kilmarnock with aluminium powder?
18   A.  That's correct.
19   Q.  And that you in fact found some prints by that method.
20       I would like you to look, please, at page 13 of ST0003.
21       I think we have a slightly edited version of this
22       photograph, sir.
23         When you're referring to the bathroom doorframe, are
24       we looking in this photograph straight at the doorway to
25       the bathroom?
page  18
 1   A.  That's correct, yes.
 2   Q.  Can we take the image off the screen just for now.
 3         Can you describe to us just what you do physically
 4       when you go about dusting an item like this with
 5       aluminium powder?
 6   A.  The first thing you would do is examine the surface,
 7       give it a visual examination first.  What you've got to
 8       do when you're examining any surface is go down the
 9       least destructive method of examining a surface first
10       and then if you do it in the correct order, if you
11       examine the surface in the correct order, then you can
12       have several bites at the cherry.  If you use aluminium
13       powder first, you can then move on to different, other
14       different powders and then, if you want, you can also
15       move on to chemicals.
16         If you do this in the wrong order, if you come in with
17       the chemicals first then you miss your other options.
18       So you use the most -- the least destructive method of
19       examining the surface first.  The least destructive
20       method, as per the Home Office guidelines, is aluminium
21       powder.  Aluminium powder is put on with what is known
22       as a zephyr brush, which is a fine fibre glass brush.
23       Aluminium powder is a flake powder, it appears to be
24       dust to the normal eye but if you look at it through a
25       microscope, it's a flake powder and the way that that
page  19
 1       adheres to prints is it adheres to the fats and acids
 2       the print leaves, that a person leaves when you touch
 3       something.  A lot of people don't like using aluminium
 4       powder because it involves -- it's pretty messy because
 5       it's so fine that it flies about everywhere and it
 6       involves a fair amount of work to do that.
 7         What you do with aluminium powder, because it's a
 8       flaked granule, is you build it up on the print so
 9       you're constantly working at the print to build the
10       print up; whereas some other powders that you use it's
11       the other way.  There's a high contrast, for example,
12       black powder or black magna there's a high contrast on
13       that putting something black on to a light surface you
14       can just put the brush over it, look at it, ascertain
15       what's there and that's it.  Yes, you can do that but if
16       you use the aluminium first, you get the result from
17       that and then you can consider if you want to re-examine
18       using other powders and ultimately chemicals as well.
19         So the advantage of using aluminium powder first is
20       that you have an extra bite at the cherry before you use
21       other powders, before you use chemicals.
22         These are all written down in -- not by me but by Home
23       Office guidelines.  There is a book that's produced that
24       comes out periodically and is updated.  These are
25       methods that are acknowledged methods of recovering
page  20
 1       marks, finger-marks, at a scene.  These are tried and
 2       tested methods done by the Home Office.  One of the
 3       people responsible for the production of this book is a
 4       fellow called Terry Kent and he has -- he is not a scene
 5       examiner, he is a scientist and he has done an awful lot
 6       of work regarding this.  It's put into this book so that
 7       all scene examiners work to a recognised pattern.
 8         But as I've said before, sometimes you'll find that
 9       you'll get younger inexperienced people possibly will go
10       straight to black powder because it's simpler to use and
11       it's easier to see, there is less work involved because
12       aluminium powder you have to work at it to get the
13       print.  That is the logic for using aluminium powder
14       before anything else.
15   Q.  There are some points I would like to follow up with you
16       from what you have just told us, Mr Thurley.  You have
17       talked about building the print up using aluminium
18       powder.
19         What exactly do you mean by that?
20   A.  By building it up what I mean is when somebody touches
21       something they can leave fats and acid deposits on the
22       surface.  If you rub that surface, brush it carefully
23       with the zephyr brush I referred to with aluminium
24       powder on it initially you may find that there is
25       nothing appears but because of the structure of the
page  21
 1       aluminium powder, if you keep brushing it, if you work
 2       at it, then what happens is the print develops, the
 3       print builds up.  So what you do is you're putting
 4       layers of aluminium powder on top of the fats and acids.
 5       So it's almost like a photograph developing in front of
 6       you.  The more you brush it, the more clear this print
 7       gets but in order to do that that takes a fair amount of
 8       work and knowledge by the operator.
 9   Q.  I would take it from that then that in order to build up
10       a print using aluminium powder you have to have seen
11       something there first to make you think that there is
12       something further to build up?
13   A.  Yes.  You would go down the -- talking about a door
14       facing here, you would go down the whole door facing
15       brushing on the aluminium powder and you will see traces
16       of a mark appearing.  Where you saw traces of a mark you
17       will then work at that.
18         Now the mark might very well be in any form of
19       contaminant that's on there, it needn't necessarily be a
20       finger-mark, but you would still work on it to see if a
21       finger-mark appears within that.  If it doesn't, it
22       doesn't, you move on to the next mark that has been
23       enhanced by your initial covering with the aluminium
24       powder and you work down each mark like that.  It does
25       take a lot more work involved in it but it's one of the
page  22
 1       most commonly used and least destructive methods for
 2       examining for fingerprints.
 3   Q.  Does it also involve from what you have told us about
 4       building up whether they turn out to be marks or not but
 5       items that you have observed that it will come to be
 6       that on a doorframe, like the one we're thinking about
 7       here, some areas of it come to be more thickly covered
 8       with the aluminium powder than others?
 9   A.  If somebody had -- to take it to the extreme -- oil on
10       their hands and there was a contaminant of oil on the
11       surface, if you put an aluminium powder over that it
12       would adhere to the oil.  The aluminium powder would
13       adhere to the oil straight away and very thickly.  So,
14       therefore, you probably couldn't clean that out because
15       of the -- it would just adhere to the aluminium powder.
16       So, yes, it builds up at different speeds in different
17       areas.
18         The other advantage of aluminium powder is in general
19       aluminium powder is used for fresher prints.  This
20       doesn't mean to say that it can't be used on older
21       prints, but aluminium powder is acknowledged to bring up
22       fresher prints easier than a lot of other powders.  That
23       again comes from Home Office guidelines.
24   Q.  On areas where the examiner hasn't observed anything
25       that he wishes to bring up there may come to be a rather
page  23
 1       less amount of powder than on an area where he has
 2       observed something in the first instance.
 3   A.  Yes, he would have a background, if you want, of
 4       aluminium powder over the whole surface and then you
 5       would have highlighted areas where a contaminant was
 6       present, a contaminant either being a finger-mark or
 7       some other form of contaminant.
 8   Q.  Would I be correct in saying that where a surface is
 9       contaminated with grease or grime or nicotine or
10       something of that sort, it can be that aluminium powder
11       just doesn't take?
12   A.  That's always an option and that's why if you examine
13       something in the correct order of powders or chemicals
14       or whatever then you have a second and a third and a
15       fourth shot at it.  Aluminium powder has always got to
16       be your first port of call.  You would use aluminium
17       first and then you would move on to other powders.  But
18       it is feasible that you go over a surface because of
19       contaminants there that it may not -- the aluminium may
20       not adhere to it so you would go on to other powder.
21   Q.  As you are dusting a surface with aluminium powder, how
22       do you tell whether it has taken or not?
23   A.  Usually the amount of other marks that you're getting.
24       If you're getting -- in a house in general, you know, I
25       would be looking to get 200 plus marks out of a house.
page  24
 1       If we were examining a house and getting next to
 2       nothing, like below 50, then I would seriously be
 3       considering that there was a reason for that and the
 4       marks weren't coming up and we would have to look at a
 5       way of doing it.
 6         However, I would still go ahead and do the aluminium
 7       examination first before I went on to other powders
 8       because it's the least destructive, because there is an
 9       order of doing these things and if you use the least
10       destructive first, as I've said before, you can then
11       move on.  It gives you other options.
12   Q.  Aluminium powder isn't suitable for all surfaces as a
13       first port of call, is it?
14   A.  No, if you go down the lines of paper or, you know,
15       stone or emulsion paint or things like that then I would
16       say most definitely not.  It depends what we're talking
17       about, a hard shiny surface, are you talking about a
18       gloss-painted piece of wood?  If it was raw wood then I
19       would say, no, we wouldn't do that we'd go down the
20       other way with that but certainly for gloss-painted
21       wood, it was contaminated, what you're referring to was
22       contaminated with the nicotine, there was nicotine
23       throughout the house but whilst it was heavily
24       contaminated it wasn't sticking to the brush, it wasn't
25       contaminating the brush or the aluminium powder.  The
page  25
 1       brush was still flowing over it and this is backed by
 2       the amount of marks we got through the aluminium powder.
 3       Had we not, as I said before, had we not been getting
 4       that amount of marks I would be concerned but at the end
 5       of this, as you know, we got over 300 marks out of this
 6       house and most of them with aluminium.  So, no, I don't
 7       consider we made a bad selection there.  I consider we
 8       made the correct selection.
 9   Q.  I wonder, Mr Thurley, if I could ask you to move the
10       microphone a little closer to you if you possibly can.
11   A.  Sorry, yes.
12   Q.  The Inquiry may hear evidence from others who say that
13       visually they thought that the powder hadn't taken on
14       the doorframe.
15         Do you have any comment on that?
16   A.  Again I would refer back to the amount of marks that we
17       got throughout the house.  Round about that door and the
18       doorframe I think we had a total of 15 marks.  I believe
19       the black powder referred to later brought an additional
20       three marks on to that.  It doesn't particularly
21       surprise me.  As I said before, the powders complement
22       each other.  There is no magic powder that does every
23       surface all the time, it doesn't exist.  Depending what
24       the surface is, what the contaminant is as to what you
25       would be using on that.  Each scene you've got to assess
page  26
 1       in its own way.  As I said to you before, I've regularly
 2       attended scenes of serious crime throughout the years
 3       that I was in the Serious Examination Branch
 4       Identification Bureau, and I don't think I was ever
 5       treated to two scenes the same.  Every scene is
 6       different and has got to be assessed in a different way.
 7       There are guidelines that you can follow, but you've got
 8       to be doing a judgment call on every scene you attend.
 9   Q.  You have mentioned the light at the scene not being the
10       best, Mr Thurley; is that correct?
11   A.  That's correct.  That comment was in comparison to what
12       you would have in a controlled environment.  For
13       example, if I took something and put it into our
14       fingerprint lab back at the office, the conditions there
15       would be termed as "ideal" because we have many lights,
16       we can put on weak lighting, we can put on fuller
17       lighting, so it makes it very easy to look at and
18       examine articles within the fingerprint laboratory at
19       the office.
20         Where you have a normal house, even a building as well
21       lit as this, it's not ideal.  There's very few places
22       that are ideal unless you can control the lighting
23       100 per cent.  So, therefore, we have fairly good
24       torches and things that we can use.  That is the best
25       that's available.  So that was the best available at
page  27
 1       that time.  It's by no means ideal because it's not
 2       laboratory conditions but it suffices, it manages to
 3       find over 300 marks within that house so it does work.
 4       It's the best that we had available to us at the time.
 5   Q.  What I am interested in is whether any difficulties in
 6       the lighting, albeit it may have been inevitable
 7       difficulties in the lighting, might have meant that
 8       there was a mark that was not observed with aluminium
 9       powder to be further brought up with aluminium powder.
10       Is that a possibility?
11   A.  If you're asking me was that mark there and I didn't
12       bring it up then the answer is, no, that mark wasn't
13       there.  I examined that door facing and the mark was
14       there or wasn't there.  Had it been there, I would have
15       brought it up.
16   Q.  When you say it definitely wasn't there, are you saying
17       that aluminium powder did not reveal it so you could
18       bring it up or are you saying the mark simply was not
19       there and only appeared after you put the powder on?
20   A.  No, what I'm saying was that when I used the aluminium
21       powder it did not bring up any mark at that point.
22       That's what I'm saying.
23   Q.  Your statement records that you came upon it at about
24       4.00 that day when you were contacted by laboratory
25       staff and you were asked to stop what you were doing and
page  28
 1       do something else.
 2   A.  Yes.
 3   Q.  I think what you were asked to do was in relation to the
 4       bannisters; is that correct?
 5   A.  That's correct.  We were asked to remove a section of
 6       the bannister.  Requests like this are not unusual.  In
 7       serious crime then I'm afraid we have to have little
 8       regard for the house; what we are after is as much
 9       evidence as we can out of that house, out of that
10       premises.  So taking the bannister off is -- it wouldn't
11       be an unusual request.
12   Q.  At that time you also removed the door of the bathroom?
13   A.  That's correct.  Bearing in mind where the deceased had
14       been lying when she was discovered, I felt it prudent to
15       remove the door because we could to take it back to the
16       fingerprint laboratory and examine it further then, as I
17       did with the carpet that was below and around the
18       deceased as well.  I was only requested to remove the
19       bannister which we did but, as I say, I saw fit to
20       remove these other two items as well because they were
21       there and I very much go down the lines of if you take
22       possession of something, then you can examine it at a
23       later date in ideal conditions.  If you don't take
24       possession of that item then something could be lost.
25   Q.  You dusted the doorframe before you took the door off;
page  29
 1       is that correct?
 2   A.  That's correct, yes.
 3   Q.  Did the presence of the door make your job more
 4       difficult in dusting the doorframe?
 5   A.  Not particularly, no.  The door was free to open and
 6       close.  It wasn't -- it wasn't in my way in any way at
 7       all.  It opened into the bathroom, into the room.  It
 8       didn't stop me doing what I wanted to be doing.
 9   Q.  Your colleague on 9th January was a Mr Ferguson?
10   A.  Yes.
11   Q.  Did Mr Ferguson express any view about the choice of
12       aluminium powder for the doorframe?
13   A.  Not that I'm aware of.  I certainly can't recall some
14       12 years ago whether he commented or not.  I would
15       suggest that, you know, had he commented then I would
16       have certainly taken it on board and I would have given
17       the same explanation to him as I've given to you.  These
18       are not things that I've decided that works, these are
19       things that the Home Office have decided that works.
20   Q.  Paragraph 35 of your statement, if you would look at
21       that, please, for a moment at page 10, you say the area
22       around the bathroom door was heavily nicotine stained
23       and you have told us about the nicotine staining but you
24       go on, the presence of steam might have called for the
25       use of black.
page  30
 1         In the light of what you are saying in your oral
 2       evidence today how does that sentence fit in,
 3       Mr Thurley?
 4   A.  Again, it was back to what I said.  If you do things in
 5       the correct order then there is not a problem.  If you
 6       put on black powder and got nothing you could not go
 7       back to putting on aluminium powder.  So, therefore, by
 8       using aluminium powder first it didn't stop someone
 9       using black powder at a later date.
10   Q.  I am just curious about the words that you have used
11       there.  You say it might have called for the use of
12       black powder, which to the reader might suggest that
13       you're saying there that black powder might be the first
14       port of call?
15   A.  No, what I mean by that is that that decision really
16       didn't need me to be making it because that decision was
17       made for me at a later date when the door was examined
18       by somebody else using black powder.  So I didn't have
19       that decision to make whether I was going to put black
20       powder on that or not.  I still maintain that I would
21       always use aluminium first and then move on to black
22       powder.
23         So, as I say, I didn't have that decision to make
24       because in that house somebody had examined it with
25       black powder and there is nothing wrong with that.  It
page  31
 1       was fine.  It was examined with aluminium, then moved on
 2       to black powder.  There's nothing wrong with that.
 3   Q.  In the next sentence in that paragraph you say that:
 4         "Given that we were obtaining a large number of prints
 5       we were happy with the use of aluminium powder."
 6         Can I just clarify with you there who the "we" is when
 7       you refer to that?
 8   A.  "We" would be at that point I was working with David
 9       Ferguson.  We would be happy and had he not been happy
10       then I assume that he would have said to me.  Had I not
11       been happy then I would certainly have been looking at
12       another way of examining the items.  As I say, because
13       of the large number of prints we were getting, I think
14       that speaks of itself the fact that we were going down
15       the right way, we were examining the items properly and
16       we were getting results.
17   Q.  As you said, others I think you have already referred
18       yourself there did come on to examine the doorframe with
19       black powder.
20         In what proportion of cases where one has used
21       aluminium powder would one then go on to examine with
22       black powder as well?
23   A.  Again, all options are available to you.  Because of the
24       time restraints on what I would term "volume crime" the
25       chances are that you wouldn't be using many different
page  32
 1       types of powders and chemicals for volume crime.
 2         Serious crime is slightly different.  When you do
 3       examine a house such as this one, whilst everyone is
 4       wanting a result straight away, there is never, ever any
 5       pressure put on us at the scene to get a move on and to
 6       hurry up and get a result or whatever.  That doesn't
 7       happen.
 8         The officers who were examining that scene, it takes
 9       the time it takes and that's it.  If the job's to be
10       done, it's to be done properly.  Time restraints are
11       not -- that's a problem for the CID to manage the time
12       they were taking.  We take the time that we take and
13       that's it.  So we can use -- at a serious scene we can
14       use as much, as many different powders and chemicals and
15       things as we want.  There is nobody on our back pushing
16       us to hurry up at any stage in this at all; whereas with
17       volume crime, then there's always the next job to move
18       on to so, therefore, you would either make that judgment
19       call, use aluminium, use chemicals, use black powder,
20       you get one shot at it and move on.
21   Q.  There are two or three points I would like to follow up
22       with you from what you have just told us, Mr Thurley.
23       First of all, just so that everyone listening will
24       understand what you are talking about, when you talk
25       about "volume crime" are you referring to things like
page  33
 1       house break-ins and car thefts?
 2   A.  That's correct, yes.  That's what we would term as
 3       day-to-day crime, yes.
 4   Q.  Serious crime speaks for itself.  It's serious assaults,
 5       murders, attempted murders, rapes?
 6   A.  Yes.
 7   Q.  Leaving aside then the volume crimes and thinking about
 8       the serious crimes, the question that I asked you was
 9       whether you could say in what proportion of cases you
10       would go on to examine with black powder after you
11       examined with aluminium powder?
12   A.  I personally would do that as a matter of course for
13       serious crime.  There is no reason not to do it.  If
14       there is the slightest chance at all of bringing one
15       extra mark up, then it's worth doing.  As I say, I've
16       never been aware of time restraints on me when I am
17       examining the locus of a serious crime; so, therefore, I
18       am quite happy to use black powder after aluminium
19       powder.  This, again, is a thing that -- it's an
20       experience thing.  How often you do it?  Do you get
21       results with it?  Yes, you do.  You only need one result
22       to make it worth your while and so it's not an uncommon
23       thing to do.
24   Q.  Is it something you would do in every case?
25   A.  Serious crime, yes, I would probably do it.  I wouldn't
page  34
 1       examine the whole house twice or so I can say but I
 2       would pick certain areas as in fact was done on this
 3       occasion.  The whole house wasn't examination with the
 4       aluminium and then black.  What happened was it was
 5       examined with aluminium powder and a number of areas
 6       were done with black powder as well.
 7   Q.  So does it come to this then, that there will ultimately
 8       be selections on the basis of experience --
 9   A.  Yes.
10   Q.  -- in any crime scene rather than there being a process
11       whereby powders would routinely be used serially?
12   A.  Yes.  Technology is always moving on.  There are always
13       different ways to do it.  Had this happened nowadays or
14       today, then things would have been entirely different.
15       Things have moved on.  This is 12 years ago.  Things
16       have moved on in leaps and bounds in the fingerprint
17       world.  It wouldn't be handled like this nowadays.  We
18       have more technology available to us, non-destructive
19       technology that we would use.  So what you're asking me
20       refers back to 1997 and is not necessarily relevant
21       today.
22   Q.  In fairness, I should be clear and say that I am asking
23       you to put yourself back in 1997 and when I am asking
24       you about what proportion of cases certain things
25       happened in I am asking you to put yourself in that
page  35
 1       position.
 2   A.  Yes, I appreciate that.  Back in 1997, yes, routinely in
 3       serious crime of what you have said before I attended a
 4       large amount of, then yes I would routinely use more
 5       than one powder.
 6   Q.  The other thing that you said was that there was no
 7       pressure on you as regards timing in serious crime
 8       investigations.
 9         Was that the case in the investigation into the murder
10       in Kilmarnock?
11   A.  Yes.
12   Q.  The Inquiry discovered some evidence that aluminium
13       powder might be favoured because when you preserve the
14       fingerprint that you found that way you use a lift which
15       is instantaneously available; whereas if you use black
16       powder the mark has to be photographed which takes more
17       time to develop and pass on to the fingerprint
18       examiners.
19         With that in mind, was that -- it might be thought
20       that aluminium powder could be used because it was going
21       to produce quicker results?
22   A.  No, I would suggest -- I don't know where that's come
23       from but I would suggest that's possibly from somebody
24       that's maybe not aware of the system.
25         What would happen at the end of each day is we would
page  36
 1       take fingerprint lifts which would be the aluminium
 2       lifts, I would take the film that we used to photograph
 3       the black powder impressions and they would go up
 4       together to my office in Glasgow and the next morning
 5       they would be processed, and by processed I mean what
 6       you've got to do to the aluminium lift is to photograph
 7       it.  You've got to photograph the lift and produce a
 8       photographic print for the Scottish Criminal Record
 9       Office to look at; whereas with the impressions you have
10       the negative there and you print up the negative.  So
11       it's really the same amount of work.  There's no
12       additional work in one over the other.
13   Q.  I would like to take you on, please, to paragraph 48 of
14       your statement, Mr Thurley, at page 13.  You say that
15       you came to see the mark which came to be identified as
16       mark Y7 on the doorframe on 15th or 16th January.
17   A.  Yes.
18   Q.  How did it come about that you were looking at that, not
19       having been one of the officers who found it?
20   A.  Some of the days, a number of the days previous to that
21       I had been attending the High Court.  So that is the
22       reason why I hadn't been at the locus.  When I came down
23       on the 15th or the 16th, because I was in charge of that
24       scene I didn't just look at Y7, I looked at all the
25       additional marks that had been found.  I felt that it
page  37
 1       was my position if I was going to be asked any question
 2       about it it was my position to know what additional work
 3       had been done in my absence.  In an ideal world I would
 4       be there from start to finish and we don't have an ideal
 5       world with the High Court intervening and I was
 6       sidetracked to that.  I lost maybe about two days in
 7       total to the High Court.
 8         When I came back, I felt it was my duty to see what
 9       additional work had been done, where the marks were.  As
10       regards to my statement, when I was making the statement
11       I was specifically asked about Y7.  Had I been asked
12       about other marks, my answer would have been exactly the
13       same.  It meant nothing to me.  Y7 meant no more to me
14       or no less to me than any other mark found in that
15       house.  My responsibility is recovering every mark out
16       of that house and ensuring that they are sent to the
17       SCRO.  That is what my responsibility is.  Y7 meant
18       nothing to me over any other mark.
19   Q.  You were simply updating yourself as to any marks that
20       had been found and any work that had been done while you
21       were away?
22   A.  That's correct.
23   Q.  Moving on to paragraph 49 of your statement, you say it
24       is difficult to tell if aluminium powder is disturbed.
25   A.  That's correct.
page  38
 1   Q.  When you looked at the doorframe when you got back on
 2       15th or 16th, were you looking at it with a view to
 3       seeing whether it had been disturbed?
 4   A.  No, I wasn't.  I was really just looking at the marks
 5       that had been found and where they had been found when I
 6       came back.  I didn't -- I wasn't looking -- again, I had
 7       no reason -- Y7 meant nothing else to me than any other
 8       mark so I had no reason to specifically look at this any
 9       more carefully than any others.  I wasn't particularly
10       surprised or shocked or horrified that an additional
11       mark had come up over an area that had already been
12       examined.  It's not particularly uncommon for that to
13       happen.  So I wasn't looking to see whether the
14       aluminium powder was disturbed, I wasn't looking to see
15       whether, you know, was the print on in black powder, in
16       the aluminium powder or whatever.  It didn't concern me.
17       What concerned me was that mark was there, it was
18       photographed and it was recorded and up to SCRO.  That's
19       what my responsibility was.
20   Q.  In any event, you tell us that you did not notice any
21       disturbance in the powder that day?
22   A.  No, I didn't notice any particular disturbance over
23       anything else.
24   Q.  Is it possible, based on your own experience and
25       knowledge, to say whether mark Y7 was deposited before
page  39
 1       or after you put the aluminium powder on?
 2   A.  No.
 3   Q.  I would like to move on please just to clarify something
 4       at paragraph 61 of your statement where you describe how
 5       photographs of marks are taken, Mr Thurley.
 6   A.  Yes.
 7   Q.  The aim of the exercise, I suppose, will be to try and
 8       get actual size images of finger-marks?
 9   A.  That's correct.  Where you have clearly a lift clearly
10       that's a one-to-one scale.  The size of the mark that is
11       on the item is the same size of mark that you lift with
12       the tape that you put on the acetate and it's the same
13       size of mark that is photographed and it's the same size
14       of mark that the SCRO get for their comparisons.
15         They have an impression, that's when it's photographed
16       using a camera.  We have a camera and on the camera we
17       have a frame, a fixed frame, so that you're taking each
18       impression the same distance away as all the rest and on
19       that frame at the bottom there are two small needles
20       come up and they are -- I can't remember exactly what
21       they are, I think they are 3 inches apart -- so that
22       when that photograph is produced on the enlarger the
23       technician will check that these prints are still three
24       inches apart.  So what you are getting is a one-to-one
25       photograph, getting a life-sized photograph.  So this is
page  40
 1       a fixed, a camera on a fixed frame which is about maybe
 2       about 12/14 inches long.  So what you do is you put the
 3       camera and the frame above the mark and you photograph
 4       it and that's it.  So you cannot be too far away, you
 5       cannot be too closed, it's a fixed focus, a fixed frame
 6       and that's what you take.
 7   Q.  One sometimes sees photographs of -- I am sorry, I
 8       wonder if -- I am struggling with it myself, Mr Thurley.
 9       One sometimes sees photographs of fingerprints where
10       there is a little scale or a little ruler down the side?
11   A.  Yes.
12   Q.  Can I take it from what you're telling us that the fixed
13       frame system that you've described avoids the need for
14       that?
15   A.  Yes, it does but like all these things there are
16       exceptions.  Sometimes you cannot get the camera --
17       there's not enough room to get the camera and the frame
18       in.  If you were talking about high up on a window frame
19       and there's not enough room to get the frame and the
20       camera in because the ceiling's too close or whatever,
21       then what you would do, as you say, you put on a scale
22       and then you will photograph the scale so that when the
23       technician came to print that photograph up he could
24       produce it life-size again.  So that would be the only
25       time that you would not use the fixed focus frame if you
page  41
 1       couldn't physically get the camera and the frame in.
 2       But then you would put down a small scale, sticky scale,
 3       next to the print so the technician could then print it
 4       to life size.
 5   Q.  Mr Thurley, moving on to a different topic, did you
 6       yourself have any role in liaising with the SCRO
 7       Fingerprint Bureau?
 8   A.  Not that I'm aware of and the only reason -- after
 9       12 years I find it difficult to remember but the only
10       thing I would say is I was down there on a daily basis.
11       I was starting my work at 7.00 in the morning and
12       finishing at, you know, whatever time at night.  I
13       wouldn't have imagined I would have any contact with
14       them at all apart from at any meetings or whatever I may
15       have attended.
16         There was one day in the middle of that lot where
17       there was a meeting that I think all the CID, SCRO,
18       maybe the Fiscal attended.  These are commonplace at
19       serious incidents and it's really just to bring everyone
20       up-to-date with what's been done, what's still to do and
21       try to prioritise things because when you have 300 marks
22       or a lot of blood from a scene or whatever, then it
23       clearly can't all be done straight away.  You have got
24       to try and prioritise things to some extent.  For
25       example, if there was a forced entry in this house, then
page  42
 1       I would be interested in getting the prints that we got
 2       round about the point of entry looked at first.
 3         So you have got to try and prioritise, you've got to
 4       bear in mind the SCRO, they are only working with what
 5       they are given.  If we can prioritise things in any way
 6       at all it may possibly help another department, be it
 7       SCRO or the lab or whatever.  But everything will get
 8       examined anyway, it's just to try and put some sort of
 9       priority on some sort of whatever we've managed to find
10       at the scene to let other departments know what in fact
11       should be prioritised and what should be left to a bit
12       later.
13   Q.  The reason I am asking you about any liaison role you
14       had is if you look, please, at document DB0264 and if we
15       can scroll through that page by page, please, what this
16       appears to be is a series of notes if you could stop
17       there, please, and I can tell you this was found in
18       association with papers from the Scottish criminal
19       record office and if we can focus in here on page 3 just
20       at the bottom left-hand corner there's an entry that
21       seems to read:
22         "Elims D Thurley will liaise re elims where to
23       compare."
24         Having found that I certainly wanted to ask you if you
25       could tell us what that was about?
page  43
 1   A.  I'm sorry, no idea at all.  You'd possibly be better
 2       asking the author of whoever wrote the thing.  I
 3       certainly can't remember speaking to them.  I'm not
 4       saying that I don't speak to them.  During the course of
 5       an investigate then they are a part of a chain and I
 6       would expect I would speak to them.  I can't imagine
 7       what this is about.  However, if you're saying I did
 8       speak to them then I wouldn't deny that.  It's not
 9       beyond the realms of possibility.  They are colleagues.
10       It's perfectly acceptable to speak to them and
11       communicate.
12   Q.  But you have no specific recollection at this time of
13       anything that you liaised with them about?
14   A.  No.
15   MISS CARMICHAEL:  Sir, I am noticing the time and I wonder
16       if this might be a convenient point at which to pause.
17   THE CHAIRMAN:  Yes.
18   MISS CARMICHAEL:  I was just conscious of the normal time
19       planning to give the stenographer some break at around
20       this time.
21   THE CHAIRMAN:  We normally stop at 11.40.
22   MISS CARMICHAEL:  I believe the normal scheduled time is
23       around 11.30.
24   THE CHAIRMAN:  Oh right.  That is my fault then.  Very good.
25       We will sit, again at 11.45.
page  44
 1   (11.30 am)
 2                         (A short break)
 3   (11.48 am)
 4   THE CHAIRMAN:  I need to reprogramme.  I'm not used to these
 5       rather strange hours we are sitting.  I am also told 15
 6       minutes isn't quite enough for people to get coffee; so,
 7       maybe as a punishment for me, we will extend it to 20
 8       minutes in future if you would be good enough to remind
 9       me.
10   MISS CARMICHAEL:  Thank you, sir, I have just one more
11       question for Mr Thurley and I apologise perhaps for
12       returning to ground that we have covered to some extent
13       already.
14           You told the Inquiry that you could not tell whether
15       Y7 the mark on the doorframe had been deposited before
16       or after you put aluminium powder on?
17   A.  That's correct.
18   Q.  Why is it that marks will sometimes show up with black
19       powder when they haven't shown up with aluminium powder
20       despite already having been there?
21   A.  It can be the age of the mark, it can be how fresh or
22       not the mark is, the age of the person concerned is an
23       issue as well, the older a person their skin tends to be
24       drier so they don't leave as many or as clear a
25       fingerprint as a young person would leave.  The state of
page  45
 1       mind has a lot to do with it as well.  Somebody who is
 2       perspiring a lot will certainly leave a mark a lot
 3       clearer than somebody who is a bit cooler or whatever.
 4         Their occupation has a lot to do with it actually as
 5       well.  Where you get the likes of bricklayers and
 6       slaters and to some extent housewives as well who are
 7       using their hands and their skin gets dry then they
 8       don't tend to leave marks as readily as a younger sort
 9       of office worker for argument's sake whose skin is soft.
10       There are a number of various reasons why some people
11       leave marks and others don't.
12   THE CHAIRMAN:  If, for example, you had just dried your
13       hands in the bathroom walking out, would that be less
14       likely to show?
15   A.  Not really because even though you're just drying your
16       hands, if your skin is soft and producing oils, then,
17       you know, you always do that.  Coming back to the
18       bricklayer, for topic's sake, or the slater, if they
19       wash their hands or not wash their hands there's no
20       difference.  Their hands are hard and the fats and oils
21       adhere to their hands what we're looking for.  But
22       somebody who is young, like an office worker whose skin
23       is soft even if they do wash their hands they still tend
24       to leave a better mark than the likes of a slater.  So
25       it's really got to do a lot with your occupation, what
page  46
 1       you use your hands for.
 2   MISS CARMICHAEL:  So should I be taking from what you say,
 3       Mr Thurley, that if I can put it this way, the oilier
 4       marks are the ones that aluminium would pick up and the
 5       drier ones are the ones that might be picked up with
 6       black powder when they are not being picked up with
 7       aluminium powder?
 8   A.  In general that would be fair to say, yes.
 9   Q.  And in this case the Inquiry has learned that some of
10       the marks that were discovered with black powder were
11       marks that were left by the lady who had been murdered,
12       Miss Ross.  So we can say with some certainty that at
13       least some of the marks that were brought up with black
14       powder were there before they were powdered with
15       aluminium?
16   A.  Oh, yes, yes.
17   Q.  And ultimately Y7 is in no different position except
18       that we cannot say for certain whether it was there
19       before or after the powdering with aluminium?
20   A.  That's correct.
21   MISS CARMICHAEL:  Thank you very much, Mr Thurley.  I do not
22       have any further questions for you.
23   THE CHAIRMAN:  Are there any applications to cross-examine?
24   MR SMITH:  Mr Smith, sir, I have a few questions I would
25       like to ask.  I'm not sure if protocol requires me to
page  47
 1       speak to counsel to the Inquiry first.
 2   THE CHAIRMAN:  Well, it does normally in the hope that they
 3       will cover it for you but if you just tell me the nature
 4       of the enquiry.
 5   MR SMITH:  I will just explain, if I may, what they are.  I
 6       think we heard from you earlier that this was a scene
 7       where as much time as required would be given.  The
 8       information from the log in the case suggests that two
 9       or four Scene of Crime Officers left.
10   THE CHAIRMAN:  If you want to ask about the time --
11   MR SMITH:  The second area relates to the officers who were
12       in the living room we heard some evidence about
13       yesterday and whether this would be expected to be
14       advised about that and, finally, it's to deal with
15       document DB0251 which has been writing on it "ident
16       required for deceased" and ask this witness if he has
17       any knowledge of those inquiries.
18   THE CHAIRMAN:  I give you leave to ask about all three.
19                    Cross-examined by MR SMITH
20   Q.  Mr Thurley, you have heard the areas I would like to ask
21       you about.  The first of these is you would be allowed
22       as much time as you required to carry out the
23       examination.  I would like you to look at the log of
24       these which were shown earlier.  I will try to get you
25       the number for you.  SG0537.  Can we have that, please.
page  48
 1         I think if we can look at the second page and the main
 2       area of this document we were looking at was the one
 3       with the time, 10.55.  It's not particularly clear -- I
 4       have a photocopy myself -- but we can see:
 5         "DI McAllister arrives at locus" and then "Chief
 6       Inspector Hogg IB".
 7         That's the investigation branch bureau?
 8   A.  Identification Bureau, yes.
 9   Q.  Then your name appears with IB next to it and then
10       scenes of crimes officers Stewart Wilson, Graham Hunter
11       and David Ferguson and as we see that was at 10.55.
12         If we go down the page we can see the time at 12.10 so
13       we're talking about, what, an hour and 15 minutes later
14       we see DI McAllister, your goodself and Scenes of Crime
15       Officer Dave Ferguson depart the locus; do you see that?
16   A.  I see that.
17   Q.  Some individuals, one would assume, are engaged in
18       gathering evidence are leaving the scene.  Are you able
19       to help us how does that reconcile with the suggestion
20       that you would just take your time with enough personnel
21       to examine the scene as required?
22   A.  The specific time and date you've mentioned there I
23       can't remember, as I say, from 12 years ago what I was
24       doing at that particular time.  What I would say was the
25       first day we were down there we had five personnel
page  49
 1       available to us.  There wasn't -- we couldn't all get in
 2       the house because of the type of house it was and the
 3       layout within.  We sent two to go away.  So we had
 4       plenty of manpower, we identified what manpower we
 5       needed for a house of that size under normal
 6       circumstances and the interior of that house wasn't
 7       normal, I think it's fair to say.  It had more of the
 8       floor space was covered than we anticipated so,
 9       therefore, we had to send people away.  So we had more
10       than enough people to cover it to the extent we could
11       send people away, these people weren't being sent away
12       because they were needed elsewhere, these people were
13       sent away because we couldn't constructively use them
14       within that scene.
15   Q.  So a combination of a difficulties; is that fair?
16   A.  Yes, very much so, yes.  I am sure you've seen
17       photographs of the inside of the house and I think if
18       you have seen them you're aware of the fact that there
19       wasn't a tremendous amount of floor area available for
20       equipment and personnel to be in there.
21   Q.  Can I ask you this directly: at the time that you were
22       there, the time that this log indicates during that
23       period, was it your impression that the investigations
24       were into suicide rather than a suspicious death, if I
25       put it like that?
page  50
 1   A.  What my initial instruction was was that it was a
 2       suspicious death.  That's what I was told that it was at
 3       the beginning and that's what I went down to look at, a
 4       suspicious death.  The fact that it was a suspicious
 5       death made no difference to me whatsoever.  It would
 6       always be treated as a murder until I was told
 7       differently.
 8   Q.  I wonder if you could look at another document and ask
 9       you for your comments.  This is CO1327 which will be
10       shown to you.  What this document is for navigation
11       purposes is an e-mail that was received by Mr McKie from
12       Mr Ferguson, David Ferguson.  I think what we are
13       looking at is the title sheet.
14         Can I ask you to move on to the next page, I think you
15       can see at the top of the page there it does appear to
16       be an e-mail received.
17         What I am interested in and, of course, Mr Ferguson
18       was someone who was known to you, I take it you have
19       never seen this mail before, have you?
20   A.  No, I haven't.
21   Q.  I will come on to ask you whether you have any knowledge
22       of the content of it.  If you haven't seen it, I will go
23       to the e-mail with you.  But if you look at the third
24       paragraph down, he explains, and I will just read this
25       out:
page  51
 1         "I am not a fingerprint expert and cannot comment on
 2       the identification, although I have no doubt that SCRO
 3       have got it wrong.  I have heard this from other
 4       Scottish experts who have analysed the print on the
 5       website and bow also to the greater knowledge of the
 6       experts around the world.  I also read with interest
 7       Mr Wertheim's comments with regard the accusations made
 8       by the SCRO regarding the crime scene photograph.  I can
 9       confirm that this is indeed the mark found at Irvine
10       Road."
11         Then he goes on in the next paragraph:
12         "I attended the scene on the morning after the
13       discovery of the victim's body.  I was tasked, along
14       with a colleague, PC David Thurley, to carry out an
15       examination of the scene.  I started at the porch area
16       while PC Thurley carried out the examination within the
17       hall."
18         Pause there, so far does that fit in with your
19       recollection of the position?
20   A.  I wouldn't say it's drastically different.  After this
21       time I can't remember which part of the building I was
22       in at any specific time but, yes, it's not a million
23       miles away I wouldn't say, yes.
24   Q.  Just reading on:
25         "We were contacted some time later that day by CI", is
page  52
 1       that Chief Inspector --
 2   A.  Yes.
 3   Q.  "... Hogg of our department to stop what we were doing.
 4       When the photographer and forensics attended originally
 5       everyone seemed to believe that victim had taken her own
 6       life and ruled out foul play, I think based on her
 7       diagnosed schizophrenia.  No forensic had been carried
 8       out because they were awaiting the result of the
 9       post-mortem."
10         Now, you understand what they are suggesting is the
11       feeling about this examination was that because it was
12       suicide rather than a crime then the forensic analysis,
13       including yourself, was, if I put it this way, somewhat
14       soft-peddled.  You disagree with that, don't you?
15   A.  I most certainly do.  I can honestly say in 32 years in
16       the police about 20 years within that department I've
17       never seen five scene examiners at the scene of a
18       suicide and examining the house along with productions
19       officers and senior police officers.  So I would most
20       definitely disagree it was soft-peddled as you put it.
21   Q.  What we looked at in the log was to some extent a
22       down-manning at one point, would that not fit into --
23   A.  That's certainly an interpretation of it but it
24       certainly was not the case.
25   Q.  Can you think of any reason why Mr Ferguson might have
page  53
 1       had a different impression of what was going on?
 2   A.  That's a question you'd need to ask him.
 3   Q.  I am sure you understand why I'm putting it to you, that
 4       there seems to be a difference between his position, if
 5       he speaks to what is said in this e-mail, and your
 6       position appears to be different impressions to what was
 7       going on at the scene?
 8   A.  That's why I say you should really speak to him.  I've
 9       given you what my impressions were.  I've given you what
10       my instructions were.  I've told you as honestly and
11       straightforward as I possibly can as I have done in
12       previous hearings as to what my situation is in this.
13       There's no doubt in my mind at all that this was not
14       soft-peddled from the beginning.  This was treated as a
15       murder inquiry.  For the reasons I've also put in my
16       statement the reason that we do deal with it like that
17       is because, as you appreciate, it's far easier to, if
18       you deal with the most serious first, it's easier to
19       close something down than it is to try and gain speed on
20       it.  So if you let a scene be contaminated, then it's
21       very, very difficult to recover that scene again.
22   Q.  On that point perhaps it is appropriate to ask you at
23       this stage, we've received some information which tends
24       to suggest that possibly up to six police officers were
25       in the living room at the house at some stage prior to
page  54
 1       you attending; do you follow?
 2   A.  Yes.
 3   Q.  You explained earlier that that was something that you
 4       would be concerned about, if I put it that way?
 5   A.  I would be concerned, yes.
 6   Q.  I take it that, for example, people in there, as much as
 7       leaving fingerprints, they might have accidentally
 8       removed fingerprints that may have been of some
 9       importance by putting their arm on a table or something
10       of that kind?
11   A.  In the ideal world you do not want a scene to have
12       anyone in it apart from people who are moving evidence
13       out of it.  The fact that when we were there on the 9th
14       and we left prints -- we enhanced prints and covered
15       them with tape and left them at the scene, I certainly
16       wouldn't have done that had I been aware of the fact
17       that there was six people within that house.
18         Going back to referring to nowadays, if I leave a
19       house or a premises and say to the Crime Scene Manager
20       that I have stuff in there, I don't wish anyone to
21       be there at all, it's evidence, I can guarantee that
22       that wouldn't happen.  Clearly in '97 that may not have
23       been the case.  However, I would be concerned at that
24       amount of people being in there, yes.
25   Q.  Mr Thurley, I take it you agree it's common sense, even
page  55
 1       in '97 it would be common sense, that you preserve the
 2       scene, you shouldn't have people going in to the scene,
 3       particularly in the room that was of particular interest
 4       to the Inquiry.  That's right, is it not?
 5   A.  I would certainly prefer that nobody went into the room,
 6       yes.
 7   Q.  It is something that's not even best practice, but
 8       common practice and probably any practice ought to have
 9       ensured that no-one was in, who didn't have a good
10       reason to be there no-one was in the room where there
11       may be forensic evidence whether fingerprints, fibres,
12       blood stains, DNA all of these things.  That would be
13       what would be expected in 1997, would it not?
14   A.  Well, I would think whoever authorised that you would
15       have to ask them.  As I've said all along I would be
16       concerned with that amount of people, with anyone being
17       in that room at all.
18   Q.  And I take it then when you are carrying out the
19       forensic investigation it's something that had there
20       been people in that room you would have expected to be
21       told, would you not?
22   A.  Possibly, yes.  However, the ones, the main people that
23       need to be told that are the experts who are doing any
24       eliminations, be it the forensic lab for hairs and
25       fibres or blood or body fluids or whatever or SCRO who
page  56
 1       have to try and eliminate every mark, every fingerprint
 2       that's found in that house.
 3         It's more important -- my job as I've said all along
 4       is to find marks and recover marks.  Whether they belong
 5       to whoever that is not my concern.  I don't have the
 6       expertise to identify these marks.  So had I got, you
 7       mentioned six police officers going into that room, I'd
 8       have six police officers prints in that were it would
 9       mean no more or no less to me than any other print in
10       that house.  My main function would be to recover
11       whatever marks are found in there and forward them to
12       the experts at SCRO and these experts within SCRO would
13       then have to eliminate whoever was in there.  That's
14       their function not mine.  Mine is to recover.
15         I would rather that there was nobody in there.
16       However, if you are telling me there are six people in
17       there then that's a question for somebody else.
18   Q.  Just to pick you up on that point if I may about SCRO's
19       job and your job, they were quite different, weren't
20       they?
21   A.  Oh, yes very much so.  My job is to recover marks from
22       the scene.  SCRO's job is to identify, eliminate and
23       identify.
24   Q.  Can I ask you this: at some stage to your knowledge did
25       people from SCRO come to the house?
page  57
 1   A.  I believe they did.  I don't think I was present.  I'm
 2       not avoiding the question there.  I can't honestly
 3       remember but I believe they did.
 4   Q.  Bearing in mind the division of labour up to that point
 5       between your job and their job, can you help us with
 6       this: is there any reason you could think of why they as
 7       fingerprint examiners would look at stuff you have given
 8       them, photographs, et cetera, why they would have to
 9       attend at the particular house?
10   A.  It's not uncommon -- when we send a lift or a print or a
11       photograph up of a particular print, it's only -- you
12       only see a very small snapshot of what I'm looking at,
13       if you want to follow that.  They only see a small
14       part of that piece of wood.  What can sometimes help
15       them if they can see the orientation of that mark of
16       that print that's on a specific item.  So had it been,
17       for topic's sake, the print of a plastic cup we can
18       certainly take the plastic cup to them, take them to the
19       productions officer and let them see the plastic cup and
20       how the print was on there.
21         In this particular instance where you have print Y7,
22       it was on a doorframe.  It would possibly have helped
23       them to see the orientation of the print, see which way
24       the print was sitting on that doorframe.
25         So, again, it's not a common thing to have SCRO coming
page  58
 1       out to a scene to look at how the print was on an item
 2       but it's not unheard of.
 3   Q.  If there's going to be analysis between a mark by a
 4       fingerprint left somewhere and a fingerprint, an inked
 5       print, if you like, why is it that the orientation or
 6       positioning of it would affect, as far as you understand
 7       it, their views as to whether or not there's a match?
 8   A.  This is where -- what I said to you earlier, my
 9       expertise is in recovering prints.  These were
10       recovered.  You'd need to speak to the experts regarding
11       why they support it.
12   Q.  I am not sure you've addressed this.  Did you share
13       premises with SCRO at this time?
14   A.  Well, it was suggested to me that we shared a building.
15       I honestly can't remember whether they were still in
16       Pitt Street or not at that point.  There are, you know,
17       hundreds if not thousands of people work in that
18       particular building.  It's reasonable at that point they
19       were still in the building, not in the same -- they
20       weren't certainly in the same department as us, a
21       separate department.  But as you appreciate within that
22       building there are many departments all within one
23       building.
24   Q.  I understand that but from what you said and your
25       working relationship with SCRO were they people that
page  59
 1       you, for example, were on first name terms with when you
 2       saw them?
 3   A.  I think it's fair to say that if you work 30 years in
 4       anything that you do get to know the people who you
 5       supply and who you work with.  I'm sure with respect you
 6       are on first name terms with people in this room because
 7       you know them, because of your occupation.  It doesn't
 8       mean to say that there's anything untoward in that.
 9   Q.  I wasn't suggesting anything, Mr Thurley.  I was simply
10       asking if you would be on first name terms?
11   A.  With some of them, yes.
12   Q.  Finally, can I ask you this: if you look at another
13       document, DB0251, please.  Are you able to help us with
14       what this document is?  Have you seen this type of thing
15       before?
16   A.  Yes, this is what is referred to as a form 13B.  It's an
17       internal form and it's used within the Identification
18       Bureau.
19   Q.  Is it filled in by the Identification Bureau or filled
20       in by people who send it to the Identification Bureau?
21   A.  This is filled in by somebody within the Identification
22       Bureau.  It's referring to items that have been examined
23       within the examination room and it's referring to items
24       that have been Quasered.
25   Q.  So you understand people say Quasered?
page  60
 1   A.  It's like a high-powered light source for looking for
 2       marks, contaminants.
 3   Q.  Thank you.  Do you see in the middle of the page two
 4       asterisks we see something that appears to be:
 5         "Ident required for deceased."
 6         Do you see that?
 7   A.  Yes.
 8   Q.  Have you seen this document before?
 9   A.  Not that I'm aware of, no.
10   Q.  As far as that part that's been subject to highlighting
11       is concerned, "Ident required for deceased", if you
12       received this what would you understand was being
13       referred to there?
14   A.  Possibly just as it says, an ident required for the
15       deceased.  I can't read anything -- I don't know in what
16       context that was written which makes it difficult to
17       comment but by reading what is there it says, "Ident
18       required for deceased."
19   Q.  It is my fault, the use of the word "required" perhaps
20       conveys a sense of urgency or a request that something
21       specific is being looked for, hunted for.
22         Is that a fair way of reading that as far you can
23       tell?
24   A.  Again, I think it would be fair to ask the author of the
25       document.  I don't know in what context that was asked
page  61
 1       for.  I think you can only decipher that if you know
 2       what context it's asked for, what the term "required"
 3       means and I don't know.
 4   THE CHAIRMAN:  Mr Holmes, have you any questions you want to
 5       ask?
 6   MR HOLMES:  Just two matters, sir, one arises from the
 7       questions that were asked by my learned friend Mr Smith
 8       and that's in relation to the division of expertise
 9       between SCRO and the Identification Bureau.
10   THE CHAIRMAN:  Yes.
11   MR HOLMES:  The other arises from my learned friend
12       Miss Carmichael's questions and it relates to the use of
13       scales in photographs.
14   THE CHAIRMAN:  Yes.
15   MR HOLMES:  I am obliged.
16                  Cross-examination by MR HOLMES
17   Q.  Mr Thurley, you explained a bit about the division of
18       skills between you as an officer of the Identification
19       Bureau and the officers who were comparing fingerprints.
20       Your expertise, if I understand your answers correctly,
21       is in developing marks and in photographing them.
22         Do you ever compare fingerprints?
23   A.  No.
24   Q.  Would it be appropriate for you to comment on the
25       comparison of a fingerprint?
page  62
 1   A.  No, I would never comment on it at all.  It's not my
 2       field of expertise.  I would not comment on it.
 3   Q.  Does the same go for any officer employed by the
 4       Identification Bureau?
 5   A.  I can only speak for myself but if they do not have the
 6       right expertise they most certainly shouldn't be
 7       commenting on them.
 8   Q.  Thank you.
 9         The second matter is just to be clear about this, you
10       mentioned earlier on the use of fixed position cameras
11       so you get a consistent sized photograph and I think you
12       said the photographs taken where you get that camera in
13       position there would be no scale used, there would be no
14       ruler within the picture or anything like that.  I think
15       you also said that in certain circumstances where you
16       can't get the camera in position you sometimes used a
17       scale within the picture.  Is that right?
18   A.  That's correct, yes.
19   Q.  Did you use a scale in any of the pictures you produced
20       in this case?
21   A.  I cannot honestly recollect.  If it was that important I
22       could look at the particular marks and tell you but I
23       can't recollect offhand.
24   Q.  My particular interest is in Y7.  Do you recall if you
25       used a scale in production of any of the photographs of
page  63
 1       that?
 2   A.  You would really need to let me see it.  I can't
 3       remember.
 4   Q.  Were you able to access Y7 and place the camera as uoi
 5       usually would?
 6   A.  I didn't photograph it.
 7   MR HOLMES:  I see, sorry.  Thank you.
 8   THE CHAIRMAN:  Does anyone else have any application to
 9       make?  I was going to give you an opportunity to
10       re-examine.
11   MISS CARMICHAEL:  I would seek a brief opportunity to
12       re-examine.
13   THE CHAIRMAN:  This would be your moment.
14   MISS CARMICHAEL:  Thank you for that, sir.
15                Re-examination by MISS CARMICHAEL
16   Q.  Mr Thurley, Mr Smith asked you some questions about the
17       matter of the possibility that the lady had committed
18       suicide and what effect that might have had.  I would
19       like you to look at document, please, BS0019.
20         Can you tell us what this note is, please?
21   A.  This was a briefing note that I was asked to produce for
22       Chief Inspector Hogg.  It was for no other reason than
23       to explain to him who had done what on what day.  It was
24       not meant as a court document; it wasn't meant as any
25       form of report; it was purely just to give him a summary
page  64
 1       of what had happened and what had occurred on what day.
 2   Q.  When did you write it?
 3   A.  That I can't remember.  It was clearly after the
 4       examination had been completed because of what is on the
 5       other pages here, but when exactly I couldn't tell you.
 6   Q.  Are we talking about within a month, within two months?
 7   A.  With respect it's 12 years ago.  I honestly can't
 8       remember.
 9   Q.  With that caveat in mind, I think if we look just at the
10       top of page 1 there, we see a record that "DT", which I
11       think is yourself, "GH", possibly Graham Hunter?
12   A.  Yes, that's correct.
13   Q.  "SW", Stewart Wilson and "DF", that would be David
14       Ferguson?
15   A.  That's correct, yes.
16   Q.  "... attended 43 Irvine Road, Kilmarnock, where they
17       were instructed by DCI Heath and DI McAllister to treat
18       the incident as a murder until the pm result."
19   A.  That's correct, yes.
20   Q.  Looking at that note, what is your best recollection
21       today as to how you were treating the scene?
22   A.  That would be accurate at the time, if that's clearly
23       what was written there.  It wasn't written last week,
24       last year.  That would be written nearer the time of the
25       investigation, you know, a number of years ago.  What
page  65
 1       I've written there is what I was told.  I've highlighted
 2       that for a specific reason.  I've written that because I
 3       was told to treat it as a murder.  It came to me
 4       initially as a suspicious death but treat it as a murder
 5       and that's exactly what we did do.
 6   MISS CARMICHAEL:  Thank you, Mr Thurley.
 7   THE CHAIRMAN:  Just two matters I wanted to ask you about.
 8           So far as using that aluminium powder is concerned,
 9       as I understand your evidence if you use black powder
10       then you have ruled out the use of aluminium powder and
11       so that's the logical reason why you use aluminium
12       before black?
13   A.  Yes.
14   THE CHAIRMAN:  Because you cannot use aluminium after black?
15   A.  That's correct, yes.
16   THE CHAIRMAN:  Is black powder -- I gathered from your
17       evidence it is quite difficult to use; messy, I think
18       you said.
19   A.  It's a carbon powder.  It's almost like soot.  It's very
20       light, it floats about, it's filthy, dirty, the
21       advantage of using it is it's very contrasting.  It lets
22       you see the marks very, very clearly if they are in fact
23       there.  It lets you see them very clearly.
24   THE CHAIRMAN:  If I could put it this way, would officers
25       find it more convenient to use black powder than
page  66
 1       aluminium powder?
 2   A.  It's easier to use and less --
 3   THE CHAIRMAN:  And less time-consuming.
 4   A.  Yes.
 5   THE CHAIRMAN:  Of course on the point that was being raised
 6       with you about people being allowed into this room when
 7       they were looking after the scene, that would really add
 8       to your work because there would be more prints that
 9       would have to be analysed because more prints would have
10       to be eliminated.
11   A.  There's certainly a possibility that.  There would be
12       more prints in theory and more prints could be recovered
13       from the scene and that obviously has a knock-on effect
14       for everyone else who comes on board as far as SCRO or,
15       in fact, if it's forensic samples that are found it
16       involves more work for the forensic lab.  So really it's
17       got a knock on effect.
18   THE CHAIRMAN:  But you would not expect to be told when you
19       begin that officers had been using a particular room.
20   A.  Not necessarily.  I would like to have been told but
21       that's not really answering your question.  I wouldn't
22       necessarily expect to have been told.  As I said, my job
23       entailed the recovery of whatever marks were in there.
24       Had I not been told I would have expected certainly SCRO
25       to be told because ultimately they are the ones who are
page  67
 1       going to have to try to eliminate.  If we get 300 marks
 2       out of a scene they have really got to try to answer as
 3       many of them as possible, whether it's the fact that
 4       they are insufficient, whether they are eliminated to
 5       people who have legitimate access to the house or
 6       whatever.
 7   THE CHAIRMAN:  When you receive the marks they would know or
 8       be told where they had come from, the area, the general
 9       area?
10   A.  Yes.  We saw earlier the handwritten form that was up
11       there that SCRO had used, the last two columns to reply
12       if you want to, to answer each mark individually.  They
13       get a copy of that form when the prints go to them, when
14       the marks go over to them.  So, yes, they would know
15       exactly where these marks were from in as much as they
16       were on the door face 5-foot 6 up or on the skirting
17       board 3 inches or whatever.  It doesn't show the
18       orientation of them but it certainly does show -- it
19       would tell them roughly where they were.
20   THE CHAIRMAN:  Just if you knew the number of police
21       officers who had been using the room that these prints
22       had come from or marks you would then know to expect to
23       eliminate some from that or would that advice not be
24       given.
25   A.  You would be looking at where they came in, in the
page  68
 1       hallway, the hall and then into the room.  These would
 2       be the three areas the porch, the hall and the -- we
 3       heard it was a lounge area.  You would be looking at
 4       these three areas to be highlighted, at least to SCRO,
 5       to say any marks coming out of these areas in
 6       particular, these are the individuals you need to
 7       compare against them just in a normal list of
 8       elimination.
 9         It means nothing to the scene examiners and it means
10       nothing to SCRO the fact that these prints have been
11       identified to whoever.  These individuals are not known
12       to myself or to SCRO.  We all work totally independently
13       of the divisions.  It would mean something to CID
14       whether it was a police officer who was in that lounge
15       or whether it was an accused for a particular crime or
16       the deceased or whatever, it would be up to the --
17       information would go back to the CID and they make a
18       judgment call on the relevance of that.
19   THE CHAIRMAN:  On a different topic, you were good enough to
20       describe the limitations, if I can call it that, of your
21       expertise, that you would not venture opinion on
22       interpretation of a mark.
23           May I take it that your expertise would not or would
24       it extend to how a mark may have been deposited?
25   A.  Sorry --
page  69
 1   THE CHAIRMAN:  If you understand what I mean.
 2   A.  How it might have been --
 3   THE CHAIRMAN:  Well, if you saw a mark on some part of a
 4       window or something like that, would your expertise go
 5       to the extent of saying, well, that looks very like
 6       somebody climbing in through that window in a particular
 7       direction or something of that sort?
 8   A.  If it was the likes of a point of entry for the purposes
 9       of a housebreaking, you could clearly see four prints
10       coming in the window, yes, I would make a decision on
11       that these were marks coming in the window as opposed to
12       going out the window.  Yes, I would do that.  But I
13       would always stand corrected by -- if my theory was
14       disputed by SCRO I would go on the side of SCRO because
15       they are ultimately experts in identifying marks.  Yes,
16       I would say, and have said, what these marks are
17       consistent with is somebody coming in the window, for
18       topic's sake, but certainly if I was questioned and SCRO
19       said they are clearly not that, then I would go on the
20       side of what SCRO said.  They are the experts.
21   THE CHAIRMAN:  Of course you would defer to their opinion
22       but you would only express an opinion if it was
23       something that was reasonably obvious?
24   A.  If it was reasonably obvious, I would express an
25       opinion.
page  70
 1   THE CHAIRMAN:  So you wouldn't, for example, with a mark
 2       like Y7, have expressed an opinion --
 3   A.  Absolutely not.
 4   THE CHAIRMAN:  -- as to how that could have been placed
 5       there?
 6   A.  No opinion on that at all.
 7   THE CHAIRMAN:  Thank you very much.  Thank you for your
 8       assistance.  You are free to go as far as the Inquiry is
 9       concerned, thank you.
10                      (The witness withdrew)
11   MISS CARMICHAEL:  The next witness is David Ferguson.
12                  DAVID WILLARD FERGUSON (sworn)
13   THE CHAIRMAN:  Your full name, please, for the record.
14   A.  It's David Willard Ferguson.
15                   Examined by MISS CARMICHAEL
16   Q.  Mr Ferguson, I think you have provided a written and
17       signed statement for the Inquiry.
18   A.  I have, yes.
19   Q.  That is, as far as you are concerned, a truthful record
20       of the things you were asked about?
21   A.  It is, yes.
22   Q.  Going back to 1997, Mr Ferguson, how long had you been a
23       scene of crimes officer in January 1997?
24   A.  I'd started as a Scenes of Crime Officer in March 1995;
25       so it was just short of two years' service at that
page  71
 1       point.
 2   Q.  I would like to ask you first, please, about what you
 3       say in paragraph 16 of your statement if you can look at
 4       that for me, please.  It is at page 4 of your statement.
 5   A.  Yes.
 6   Q.  What you say there is that you think that the work had
 7       been done by forensics the night before you came on the
 8       scene, you coming on the scene on 9th January?
 9   A.  That's correct, yes.
10   Q.  I wonder if you could look for me, please, at a document
11       SG0537 at the first page, please, and I wonder if you
12       could look at the entry in about the middle of the
13       page 20.31.
14   A.  Yes.
15   Q.  What we are looking at here is a log of people coming
16       into the scene on 8th January.  That is the night they
17       get there.  At 20.31 we see a Mr Fairley from the
18       forensic lab.
19         Is that a name you are familiar with?
20   A.  Yes, it is, yes.
21   Q.  If we can enlarge the page again please, I think I am
22       right in saying that we see him leaving at about
23       23.00 hours?
24   A.  Yes, I can see that.
25   Q.  So that might suggest that there had been at least some
page  72
 1       forensic presence or consideration of the matter in the
 2       hours before you had attended?
 3   A.  Yes, that would be correct.  It would be consistent with
 4       something that would be regarded as a strange or
 5       suspicious death that somebody from the forensic lab
 6       would attend initially at the premises.
 7   Q.  So it certainly wouldn't necessarily be right to say no
 8       work had been done by forensics?
 9   A.  Obviously I don't know what Mr Fairley did at the scene
10       but certainly it was suggested he was there and he left
11       at that time but as to what he did --
12   Q.  I quite understand that.  This shows he was there.
13         If we can go on to page 4, please, I think the Inquiry
14       has already heard that the next we see of forensic staff
15       attending is on the 10th which is, of course, the day
16       after that you start your examination on the 9th?
17   A.  Yes, I can see that, yes.
18   Q.  Is that consistent with your own recollection of what
19       happened?
20   A.  I can't actually remember the forensic lab attending but
21       certainly if they were on the log they would have been
22       there at the time.
23   Q.  The Inquiry has heard a suggestion that perhaps a total
24       of six officers in three pairs of two were present in
25       the living room the night before you came to do your
page  73
 1       examination.  As a Scenes of Crime examiner, what would
 2       be your reaction to learning that that would be the
 3       case?
 4   A.  It would certainly be extremely unusual for any form of
 5       scene where there would be a forensic examination taking
 6       place where there should be no people within that
 7       location at all until the examination is started and, in
 8       fact, completed before anyone should have any entry into
 9       the scene.
10   Q.  Would it have any impact on the collection of
11       fingerprints?
12   A.  It certainly would if they touched any surfaces in the
13       living room as you suggest they may have been placed,
14       yes, I mean, not just in the fingerprint examination but
15       certainly any forensic examination as well, the fact
16       there was any form of traffic going through the location
17       would certainly have compromised the forensic
18       examination.
19   Q.  Focussing on the fingerprints, in what ways might it
20       have compromised the collection of fingerprint evidence?
21   A.  If they had touched any surfaces, if they had even
22       rubbed against surfaces these fingerprints could have
23       been remove from the surface itself.
24   Q.  So they could have left fingerprints or could --
25   A.  -- could have left fingerprints or accidentally removed
page  74
 1       fingerprints.
 2   Q.  I think you say in paragraph 17 of your statement that
 3       whatever the position may be regarding forensic work
 4       having been done overnight there was not necessarily any
 5       consequence for the fingerprint examination as regards
 6       when the investigation was officially designated as a
 7       murder investigation?
 8   A.  Yes and what I was explaining there was that certainly
 9       as far as our fingerprint examination goes it would be
10       the last part of the examination of a location after the
11       forensic examination had taken place.  No forensic
12       examination takes place when a fingerprint examination
13       was going on and any forensic material there could
14       potentially be either compromised, disturbed or even
15       destroyed.
16   Q.  Moving on, I would like to ask you a little about in the
17       next section of your statement where you talk about the
18       use of aluminium powder.
19   A.  Yes.
20   Q.  You say that yourself and Mr Thurley were working at the
21       house that day on 9th January and you tell us that
22       Mr Thurley applied aluminium powder to the bathroom
23       doorframe while you were away doing something else in
24       the porch.
25   A.  Yes, that's correct.  I was examining the glass porch
page  75
 1       area as was instructed by David Thurley.  During this
 2       time, he was within the hall area examining door frames
 3       and facings and the doors themselves.
 4   Q.  Did you yourself that day view the treated doorframe of
 5       the bathroom?
 6   A.  Yes, I did.
 7   Q.  What did you observe when you viewed it?
 8   A.  The doorframe had been powdered using aluminium powder
 9       but, as far as any sort of material on the doorframe,
10       coming back to that, I didn't actually view the surface
11       of the doorframe prior to aluminium powder being applied
12       to it.
13   Q.  The Inquiry may hear evidence that sometimes aluminium
14       powder doesn't take on a surface.  What would you
15       understand by that expression, it not taking?
16   A.  The use of powders at a crime scene ultimately come down
17       to the individual choice of the scene examiner who
18       attends the scene.  Some surfaces react better to
19       aluminium powder, some surfaces will react better to
20       black powder and some surfaces wouldn't react to any
21       powders and would have to be removed and chemically
22       treated.  It was of my opinion, and certainly the
23       training I received up to that point, that for surfaces
24       such as white door facings, especially when they have
25       been painted and can sometimes have a slight texture to
page  76
 1       them, are best treated with black powder.  It makes it
 2       easier to see the marks especially with the light
 3       conditions that were in the hall at the time.
 4   Q.  I will come on to that in a minute but if aluminium
 5       powder does not take, can you see that it has not taken?
 6   A.  Yes.  When I'm examining crime scenes I may start using
 7       aluminium powder and quickly realise as I start to dust
 8       the surface that the powder doesn't seem to be adhering
 9       to that surface.  I would then maybe change to a
10       different type of powder, say an aluminium magneta
11       powder, or maybe even on to a black powder for the
12       surface.  The experience is built up over the years.
13       You certainly judge when you look at a surface what the
14       best powder is to use.
15   Q.  When you look at the treated doorframe yourself that day
16       was there anything to indicate to you that the aluminium
17       powder had not taken?
18   A.  No, the use of aluminium powder throughout the house had
19       revealed good fingerprints and good quality fingerprints
20       were certainly being developed using aluminium powder.
21       From that point of view it would have been the powder I
22       would have used.
23   Q.  The Inquiry has heard from your colleague, Mr Thurley,
24       that he would always use aluminium powder first because
25       that's the least destructive option.
page  77
 1         Do you have any comment on that?
 2   A.  Yes.  It's certainly something I've never done.  I have
 3       like 14-years' service.  I wouldn't use aluminium powder
 4       and then go over the surface again, with the black
 5       powder.  I certainly haven't done it in my 14-years'
 6       service up to this point.
 7   Q.  Would you accept that if you treat with black powder
 8       first you wouldn't be able to go back and have another
 9       go with aluminium powder?
10   A.  Yes.  If you treat a surface with black powder then you
11       are certainly covering the whole area with black powder.
12       Any marks that are there come up fairly well on that
13       type of surface using black powder and after you have
14       used black powder, there's no reason you can't go on to
15       use some form of chemical process as well which would
16       leave the black powder and leave chemical traces behind.
17   Q.  But you wouldn't be able to go back to aluminium powder
18       after black powder?
19   A.  No.
20   Q.  Whereas you can use black powder after you have used
21       aluminium powder?
22   A.  It's something I've never done, to be honest.  Obviously
23       it was done on this occasion and further prints were
24       revealed, but it's certainly something I've never done
25       in the past.  After using aluminium powder, I wouldn't
page  78
 1       have a reason to go back and use black powder.  If that
 2       was the powder I used, first chosen to use, then I
 3       wouldn't have seen any need to go back and use a
 4       different powder.
 5   Q.  Mr Thurley gave evidence today that there's some form of
 6       Home Office guidance that indicates that aluminium
 7       powder comes first in the order ahead of black powder.
 8       Do you disagree with that?
 9   A.  There's certainly -- the Home Office have produced a
10       series, there's a manual of fingerprint development
11       techniques and it's like a flow chart system, gives you
12       a sort of sequential process of examining any type of
13       surface with it, be it a gloss-painted doorframe, for
14       instance, whether it be paper, whether it be wall, and
15       it gives recommendations of how you would process that
16       surface.  It always starts with the visual examination
17       if there's something there you can see visually you
18       photograph it, then recommends you go on to use possibly
19       a light source, for instance, a fluorescent
20       light similar to the Quaser that was mentioned earlier
21       or you would then go on to use, after that, powders and
22       from the powders on to chemical treatments but I don't
23       recall, as I say, I haven't seen anywhere in this manual
24       that suggests you would use aluminium powder and then
25       follow it with black powder.
page  79
 1   Q.  To the lay mind, if you forgive me, Mr Ferguson, if
 2       there's one powder that you can use first that won't
 3       stop you using other powders afterwards it would seem to
 4       make sense to use that powder first, wouldn't it?
 5   A.  I don't -- I would have to probably disagree with that.
 6       I think, as I said earlier, it's down to the individual
 7       scene examiner to look at a surface and that surface
 8       really would determine which powder you would use.  The
 9       powder -- if the surface itself is a fairly textured
10       surface you wouldn't use, for instance, something like
11       aluminium, which is a flaked powder, you use black
12       powder which is a granular powder and tends to adhere
13       better within the textures.  Something like a white
14       painted doorframe that might have a slight texture where
15       the brush marks of the white gloss may react to black
16       powder.  Certainly it's something I've never done in
17       14 years.  I don't know other Scene of Crime Officers
18       who have used aluminium powder when they would want to
19       use black powder.
20   Q.  Just on that very point, Mr Ferguson, in the case that
21       we are dealing with here there was a mark, assuming it
22       was there before the aluminium powder was -- well, in
23       fact, I will start again.
24         We know that there were marks that were identified as
25       belonging to Miss Ross, the lady who died, which were
page  80
 1       revealed by the black powder but not by the aluminium
 2       powder?
 3   A.  That's correct, yes.
 4   Q.  So from that we can take it that there will be times
 5       when even if you've had a relatively, perhaps even a
 6       relatively productive dusting with aluminium powder
 7       there still might be a point to using black powder
 8       afterwards because you may find something else?
 9   A.  Yes, I would suggest that we used black powder at the
10       start, all the marks from that doorframe would have been
11       developed using the black powder and none would have
12       been missed using the aluminium powder.
13   Q.  But if I have understood your evidence correctly, your
14       position is that if you had, for whatever reason,
15       started with the aluminium powder in any case you would
16       never think of going back over it with black powder?
17   A.  It wouldn't be something I would do unless you examine a
18       scene, a surface, and a realise right away that powder
19       hasn't particularly taken to it you then start using a
20       different powder but I would always try and choose the
21       best powder for that surface at that time and wouldn't
22       go over a surface again with a second powder.  The only
23       time I've ever done that where I was using the black
24       granular powder and sometimes you can actually enhance
25       it, make the mark slightly better if you go over it with
page  81
 1       the black granular powder.  It's basically the same
 2       powder but just fine and that is purely from a contrast
 3       point of view when it comes to photographing that mark.
 4   Q.  Is it your position that any mark that would come up
 5       with aluminium powder would come up with black powder?
 6   A.  Yes, that would be my position.
 7   Q.  As to your view of matters, Mr Ferguson, we know that
 8       mark Y7, the mark perhaps that we are all interested in
 9       in this Inquiry, was developed by black powder but
10       not -- it certainly wasn't developed by aluminium
11       powder, whether or not it was there at the time.
12         Can we reach any conclusion as to whether it was there
13       before the aluminium powder was applied or whether it
14       must have been deposited after the aluminium powder was
15       applied?
16   A.  I think the fact that Miss Ross' prints were also found
17       in the doorframe we can't make any inference as to
18       whether that mark was there before or after we examined
19       it with aluminium powder.
20   Q.  Would there have been, on the basis of your experience,
21       any disturbance in the aluminium powder if it had been
22       deposited on the surface treated with aluminium powder?
23   A.  It's hard to say whether it would be noticed by anyone
24       who decided to then go over it with a different powder.
25       The aluminium powder is, once it's on the surface,
page  82
 1       especially if the surface is slightly sticky, would
 2       maybe not be disturbed with any mark that then went over
 3       the top of it.  But I wouldn't be able to make any
 4       informed decision at the time.  I certainly wasn't
 5       present when mark Y7 was found.
 6   Q.  You have told us that you would have preferred the use
 7       of black powder on the surface that Mr Thurley used
 8       aluminium powder on?
 9   A.  Yes.
10   Q.  Did you say anything to him about it at the time?
11   A.  No, I didn't.  I was a relatively junior Scenes of Crime
12       Officer at that time, as I said, with less than two
13       years' service.  David Thurley was obviously a Scene of
14       Crime police officer with many years' service.  I
15       believe I made a comment when we came to examine the
16       bannister or a question, maybe slightly a loaded
17       question as, "David, do you want me to use aluminium
18       powder", and it was probably, you know, the answer was
19       obviously, yes, but it was maybe a slightly loaded
20       question in just confirming, "You are happy with me
21       using aluminium powder".
22   Q.  But you certainly did not voice any disagreement about
23       what he had done with the bathroom doorframe?
24   A.  No, I didn't say to him that we should have used black
25       powder.
page  83
 1   Q.  But you have criticised Mr Thurley's decision about that
 2       in the past to other people, have you not?
 3   A.  Yes, I think with greater knowledge and probably greater
 4       understanding of the various events and the fact that
 5       when the area was gone over with black powder and
 6       further prints were developed that the black powder
 7       should really have been the powder that was used at the
 8       time and not aluminium powder.
 9   Q.  I would like you to look, please, at a document CO1327,
10       page 2.  I think that is an e-mail from you to Iain
11       McKie copied to -- it's written as "Wertenheim" but I
12       think it is meant to be Wertheim?
13   A.  Yes, that's correct.
14   Q.  You wrote that in January 2000?
15   A.  Yes, this was after the various trials and obviously the
16       acquittal of Ms McKie.  At that point I was working
17       within the identification branch of Lothian & Borders in
18       the same capacity as in the Crown Office.  I had been
19       obviously reviewing various items on the Internet and
20       various discussions that were going on with the experts
21       round the world.  I'd also, for want of a better word,
22       had some banter and some ribbing from my colleagues in
23       Edinburgh who were joint fingerprint experts and Scene
24       of Crime Officers.  So it was possibly an e-mail written
25       in frustration and sort of venting my opinions on what I
page  84
 1       thought was the case.
 2   Q.  I would like to ask you particularly in the first
 3       instance about the last paragraph on this page.  Now you
 4       write:
 5         "By the time the entire hall area had been examined by
 6       myself and PC Thurley using aluminium powder I disagreed
 7       with this choice of powder, the areas being examined
 8       were white facings and doors and felt black or magna
 9       powder was in fact the correct powder which should have
10       been used."
11         You accept that whatever you may have thought at the
12       time you did not voice any disagreement to Mr Thurley or
13       give him the chance to comment on that at the time, did
14       you?
15   A.  Yes, that's correct.  Probably the e-mail is not very
16       grammatically correct I would suggest.  Certainly I
17       didn't believe we were using the correct type of powder
18       for the surfaces but I didn't say that to Mr Thurley at
19       the time.
20   Q.  You say:
21         "Had the hall been examined in black powder at the
22       start this whole sorry affair would never have
23       happened."
24         You have told us, I think, that we cannot know whether
25       Y7 was deposited before or after the aluminium powder
page  85
 1       was put on so I wondered if you could explain to us how
 2       it would be that the events that subsequently came to
 3       pass involving the controversy with Ms McKie might have
 4       been avoided by dusting with black powder?
 5   A.  Yes, I can understand your point certainly.  If the
 6       print Y7 was there at the time and had been developed
 7       using black powder Mr Thurley had examined the scene it
 8       still may have been misidentified.  I think I was
 9       explaining the circumstances there that inferred an
10       officer had entered the scene and placed a fingerprint
11       on a surface that had already been examined and which
12       was then later reexamined with black powder then the
13       affair wouldn't have happened in the first place.  We
14       would actually have examined that door facing with black
15       powder we wouldn't have got into a situation where other
16       officers felt the need to go over it with black powder.
17       So I really feel it may have actually brought up the
18       prints on the doorframe itself.
19   Q.  It might have bought it up but of course Y7 -- we don't
20       know -- might have been deposited after the aluminium
21       powder was put on?
22   A.  Yes, that's correct.
23   Q.  In that event it would make no difference would it?
24   A.  No, but certainly if the print Y7 was deposited after
25       the door facing had been examined with black powder,
page  86
 1       then it would probably never have been recorded in the
 2       first place.
 3   Q.  You say it may have been clearer if it had been dusted
 4       with black powder in the first instance rather than the
 5       second.  Is that your position?
 6   A.  Yes.  If the print had been there -- I don't know if,
 7       for instance, print Y7 could also have been a print that
 8       was previously lifted on that door in which, when you
 9       lift a print off a frame using aluminium powder and you
10       then go over that surface with black powder you may well
11       be going over a print that's already been printed in
12       which case you are actually duplicating your work.
13   Q.  But if somebody has lifted a print out of aluminium
14       powder surely the tape must leave some sort of mark?
15   A.  The tape would leave a residual mark but certainly if
16       you are then going over it with black powder and every
17       mark that comes up then you will be photographing marks
18       that possibly may have been lifted as well.
19   Q.  But any dusting with black powder should see where tape
20       had been lifted with the aluminium powder surface?
21   A.  Yes but I can't suggest -- I don't know whether the
22       other Scene of Crime Officers would know these were
23       lifted parts or not.
24   Q.  I wonder if we could take that of the screen for now.
25       Your own fingerprint, I think, was found on a piece of
page  87
 1       tape?
 2   A.  Yes, that's correct.
 3   Q.  And can you tell us how that came to happen?
 4   A.  Yes.  When you are carrying out a fingerprint lift it
 5       can be quite tricky to move -- at the end of the day,
 6       the fingerprint lift is used using a piece of sellotape,
 7       a fairly broad piece of sellotape and it's quite tricky
 8       to try and manipulate the sellotape when you have gloves
 9       on.  When we were lifting the prints sometimes we remove
10       gloves to make it easier to place that piece of
11       sellotape on to the acetate itself, the acetate sheet.
12       At some point I inadvertently managed to put my finger
13       on the underside of the tape which has then been
14       identified or eliminated by the Scottish Criminal Record
15       Office.
16   Q.  And is that something that happens quite often or --
17   A.  It's not something that happens often.  It's quite
18       embarrassing when it does happen, obviously, but on this
19       occasion it did happen.  I cannot remember exactly what
20       surface my print was found but it was certainly found
21       on -- it was a lateral reversal which I understand it to
22       be on the underside of a piece of tape and not actually
23       a fingerprint that has been left on a surface.
24   Q.  I wonder if you could look again at document CO1327,
25       this time on page 3.  I would like to focus on a part
page  88
 1       that starts in fact halfway down the first paragraph do
 2       you see a passage:
 3         "In fact, I was also used to setup Ms McKie."
 4   A.  Yes.  As I said, hopefully a way of venting frustration
 5       and anger at the whole affair that went on.  I felt -- I
 6       found it strange that for a case that relies so much on
 7       fingerprint evidence at that time was relying then went
 8       on to have a police officer denying that her fingerprint
 9       had been found at a scene.  I felt when I went to give
10       evidence at the trial of Mr Asbury that my main evidence
11       was really about the fact that I had left a fingerprint
12       at the crime scene and was used to introduce something
13       like the Strathclyde Police record card, which is
14       completed for all Scene of Crime Officers and police
15       officers when they enter the service, when your
16       fingerprints are taken, and felt it was almost as if I
17       was being set-up for Ms McKie to then come in and
18       allegedly perjure herself.
19   Q.  I wonder if we can look at what you write there.  You
20       say:
21         "My print was eliminated by SCRO.  They had identified
22       a lateral reversal of one of my fingers, inadvertently
23       left on the underside of the lifted tape."
24         And you don't dispute you had inadvertently left it
25       there?
page  89
 1   A.  It does happen.
 2   Q.  And you don't dispute that it happened?
 3   A.  No.
 4   Q.  You go on to say:
 5         "They made me look incompetent trying to show that
 6       police officers' prints are left at crimes scenes."
 7         The fact is that police officers are like the rest of
 8       humanity.  They are not always perfectly careful and
 9       they sometimes leave their marks where they shouldn't
10       be?
11   A.  Yes.
12   Q.  And that's not altogether unusual, is it?
13   A.  No, obviously the first attendance of a major scene,
14       where there may be a distinct possibility that life
15       could be preserved, police officers when they enter the
16       scene are more concerned with watching what they touch
17       and what they don't touch their first objective is to
18       preserve life.  So they may touch inadvertently touch
19       surfaces and leave prints behind.
20   Q.  It is not altogether unusual to find police fingerprints
21       at a scene?
22   A.  No, it's not.
23   Q.  And that's why there are elimination prints kept on
24       file, isn't it?
25   A.  That's correct.
page  90
 1   Q.  So, frankly, Mr Ferguson, nobody would need your
 2       fingerprint on a piece of tape to demonstrate that
 3       police officers left their fingerprints at scenes, would
 4       they?
 5   A.  No, it certainly does happen but whether they felt they
 6       needed to use me to introduce that I don't know.
 7   Q.  It is simply a fact of police procedure, is it not, that
 8       police prints are, generally speaking, kept on file for
 9       elimination purposes?
10   A.  Yes, my understanding would be that when fingerprints
11       are taken from a crime scene and they are submitted to
12       SCRO for checking, the SCRO would have a list of people
13       who had some form of involvement in that scene whether
14       the first police officers who attended and also the
15       Scene of Crime Officers who attended and, I believe, a
16       first port of call would be to eliminate any of these
17       marks against the people who had, if you like,
18       legitimate access to the crime scene being police
19       officers and crime scenes officers as well.
20   Q.  Just about any police officer can tell you the prints
21       are routinely kept on file?
22   A.  Yes.
23   Q.  So, again, one might think there wasn't any particular
24       need to have you brought into this matter to show: (a)
25       sometimes prints get left at scenes; and (b) that police
page  91
 1       officers have files kept of their prints for elimination
 2       purposes?
 3   A.  I certainly couldn't understand why I was brought in to
 4       court to explain my own fingerprint being found at a
 5       crime scene.
 6   Q.  You don't understand that at all?
 7   A.  I don't understand why I was asked to give that evidence
 8       at court.  I didn't think -- certainly, obviously, I
 9       wasn't party to the discussions about that.  I didn't
10       understand why there was any requirement for me to go in
11       there and speak about that, other than my examination of
12       the crime scene.
13   Q.  So in the case where there was an unexplained
14       fingerprint or at least a disputed fingerprint and a
15       case where there was a great deal of importance placed
16       on fingerprint evidence you cannot -- your position is
17       you cannot understand why you were called to give
18       evidence about the presence of your print?
19   A.  I don't think I was actually fully aware of the
20       circumstances at the actual trial as to why I was going
21       in to do that.  I understand that there was a print that
22       had been identified.  I was not aware that Ms McKie
23       would be attending and that her fingerprint had been
24       found.
25   MISS CARMICHAEL:  Sir, I do not think I have anything
page  92
 1       further for this witness but I suspect -- I note the
 2       time.
 3   THE CHAIRMAN:  We will return at 1.50.
 4   (1.00 pm)
 5                      (Luncheon Adjournment)
 6   (1.50 pm)
 7   MISS CARMICHAEL:  Sir, I have no further questions for
 8       Mr Ferguson.
 9   THE CHAIRMAN:  Are there any applications to cross-examine
10       this witness?
11   MR SMITH:  Sir, there is one matter that I need to ask the
12       witness a question about.  It relates to clarification
13       of his position on the issue of the status of the
14       Inquiry of whether it was a suicide.  There is reference
15       in his precognition at paragraph 10 on that.
16   THE CHAIRMAN:  On that one subject, yes.
17   MR SMITH:  Thank you, sir.
18                  Cross-examination by MR SMITH
19   Q.  Mr Ferguson, you were referred earlier to your statement
20       prepared for the purposes of the Inquiry.  It is
21       probably easier if I read out the short part of the
22       statement, simply paragraph 10.  What you appear to say
23       in paragraph 10 is this:
24         "The fact that Graham Hunter and Stuart Wilson were
25       sent away and David Thurley thought that we only needed
page  93
 1       to examine the porch area were indicative that suicide
 2       was being considered.  Had it been a confirmed murder
 3       from the outset Stuart Wilson and Graham Hunter would
 4       not have been sent away."
 5         Do you remember saying that in your statement?
 6   A.  Yes, I do.
 7   Q.  Can I ask you to explain a little bit about that.  I
 8       think this chimes in with the e-mail you sent to some
 9       extent?
10   A.  It's probably a reflection of my experience now compared
11       to my experience then, but certainly if it had been
12       confirmed that Miss Ross had been murdered from the
13       outset, then I would suspect that Mr Wilson and
14       Mr Hunter would not have been sent away from the locus.
15       They would have been asked to go in and examine
16       different areas, as Mr Thurley said in his testament
17       this morning, that we are required to clear a path
18       through the locus as such.  That may well be the case as
19       to why he sent him away -- sent away the two individuals
20       away.  But certainly from my experience now for a murder
21       inquiry, a team of four would probably be a norm for a
22       house of that size to carry on with an examination.
23   Q.  Can you just clarify, you say from your experience now.
24       Obviously we are dealing with events in 1997.
25         Was the practice any different in 1997 to the practice
page  94
 1       at this stage?
 2   A.  No, in 1997 it would have been exactly the same.  If it
 3       was definitely confirmed as murder, I would have
 4       suspected that a team of possibly four individuals would
 5       be the team that would be requested to examine a scene
 6       of that size.
 7   Q.  Obviously, we have some evidence from other areas in the
 8       police inquiry, one end obviously murder and at the
 9       other end you would have suicide but in between you have
10       "suspicious death" which might cover a multitude of
11       sins.
12         Can I just be clear about the position, having regard
13       to the fact that some Scenes of Crime Officers left, we
14       understand, within about an hour and a quarter of the
15       locus correct.
16         Are you able to give any comments whether that would
17       indicate to you what the general understanding was of
18       the status of Miss Ross' death, where it fits into that
19       spectrum?
20   A.  My own understanding of the circumstances surrounding
21       Miss Ross' death was that when the pathologist had
22       attended with the lab and the Scenes of Crime Officer
23       the night before when they found her body, that suicide
24       was certainly an implication that may be the case of the
25       cause of her death.  I believe that's because the locus
page  95
 1       itself was secure.  I believe Miss Ross was diagnosed
 2       schizophrenic although that was obviously -- I don't
 3       know if that was true or not -- and certainly suicide
 4       had been mooted as a possible cause of death.  That's my
 5       understanding of how the scene was at the time.
 6         Later on when Mr Thurley received a phone call
 7       indicating that Miss Ross' death had been confirmed as a
 8       murder, that's when I understood that no forensic work
 9       had been carried out and that's why we were instructed
10       to stop.
11         I don't know what forensic work had been carried out
12       the night before but certainly David Thurley intimated
13       to me by saying that we have to stop what we're doing
14       because no forensics has been done.
15         Now, as I say, I don't know what forensics had been
16       done the night before, if the body had been examined by
17       the lab or whether there had been no forensic work at
18       all taking place.  The fact that Mr Wilson and Mr Hunter
19       were sent away suggested to me that we were going to
20       examine the porch area and the hall area that that would
21       be enough done for that day and by that point we would
22       have confirmation whether it was murder or suicide.  The
23       fact we were asked to do any form of examination would
24       have indicated that it was possibly a murder but
25       certainly from the outset we were told that there was
page  96
 1       indication it possibly could be a suicide rather than a
 2       murder.  I think it was as a result of the post-mortem
 3       that it was confirmed murder was the case.
 4   Q.  I follow.  From what you say there was a shift in gear,
 5       as it were, when it was confirmed that it was a murder
 6       inquiry.  Is that fair?
 7   A.  The impression I got with the fact that no forensic work
 8       had been done and it's the impression I got I have just
 9       now but obviously something in this may indicate that
10       that wasn't the case and that wasn't how it progressed.
11       But the impression I got at the time was that the lab
12       had done no work because suicide was suspected and they
13       were waiting for the result of the post-mortem.
14         Whether that was actually communicated to Chief
15       Inspector Hogg who ultimately tasked us to examine the
16       crime scene, whether that was communicated to DCI who
17       was the Senior Investigating Officer that no lab work
18       had been done, if that had been communicated at the time
19       then I certainly suspect that we wouldn't have even done
20       a single thing that day at the scene at all.  Nowadays,
21       that certainly would be the case if a body was found and
22       it was suspected that it could either suicide or murder,
23       then I would suggest that because it's a house and the
24       locus is secure it would be a case of putting a police
25       officer on the door, no-one in or no-one out of that
page  97
 1       house until such time as the post-mortem confirms.
 2   Q.  Thank you.
 3         I would just like to understand if I can about the
 4       communication that was ongoing.  Clearly it was an
 5       important matter as to whether or not it was suicide or
 6       murder or just a suspicious death.
 7         How did the systems operate?  How would that be
 8       communicated to the likes of yourself?
 9   A.  Mr Thurley would be the senior in charge.  He would be
10       in charge of the crime scene examination from the point
11       of view of the staff there myself and my colleagues who
12       attended.  So he would be the point of contact between
13       the police, the CID dealing with the scene at the time,
14       certainly speaking to Mr Thurley and to Chief Inspector
15       Hogg as the two experienced and senior members of staff.
16       That communication would then come from Mr Thurley down
17       to ourselves as to what would be required.
18         My understanding from the outset though was DCI Heath
19       did say treat the scene as a murder in which case, you
20       know, that's what we did from the point of view of
21       carrying out examination.  As to Mr Thurley, he felt
22       that -- certainly listening to his testimony this
23       morning suggested that because we needed to clear a part
24       through the actual hall, as such, it made sense to send
25       two people away.  Obviously my recollection of it at the
page  98
 1       time was it was possibly because it could be a suicide.
 2   Q.  I am not sure I understand your position.  You were
 3       indicating that your understanding was DCI Heath had
 4       said treat the scene as a murder from the outset; is
 5       that right?
 6   A.  That's my recollection of events, yes.
 7   Q.  But it sounds as though it moved up a gear when it was
 8       confirmed to be a murder?
 9   A.  When it was confirmed murder then obviously, I believe,
10       I was also told at the time that not all photographs had
11       been taken of the scene.  I don't know what photographs
12       had been taken the night before by the Scenes of Crime
13       Officer who attended but my indication from that was
14       that no forensic work had been done because, as I say,
15       they were waiting on the result of the post-mortem.
16   Q.  I understand that but the difficulty I have on the one
17       hand you are indicating -- I am not criticising, I am
18       just trying to clarify -- you are indicating that DI
19       Heath said treat this as a murder, you act in a
20       particular way.  Your precognition your statement to the
21       Inquiry gives an indication that it wasn't being
22       approached actually as though it was a murder until it
23       was confirmed to be a murder.  Do you follow?
24   A.  Yes, the fact that forensic scientists attended the
25       following day would suggest that no forensic work had
page  99
 1       been done at the scene.
 2   Q.  I heard you say that but I am just not sure I can follow
 3       and reconcile these two positions.  You were told to
 4       treat it as a murder but I think the reality from what
 5       you said is it wasn't actually treated as a murder.  Is
 6       that correct?
 7   A.  Yes.  Yes, that is correct.  At the end of the day if no
 8       lab work had been done at the scene, then it would be
 9       again treated as a murder if the lab had went away prior
10       to doing any forensic work then to me that's not
11       treating the scene as a murder.
12   Q.  Are you able to help us as to how that came about,
13       instruction given and not actually followed?
14   A.  No.  DCI Heath would have instructed Chief
15       Inspector Hogg to treat the scene as a murder at that
16       point and tell the departments.  Assume there would have
17       been some form of communication between, you know, the
18       lab, the CID and our department that would have
19       indicated that forensic work had been done at the scene.
20       Certainly we wouldn't have carried out any form of
21       fingerprint examination if we were aware no forensic
22       work had been done at the scene.
23   Q.  In fairness to you, you were only two years --
24   A.  I was only two years in the job and I was part of a team
25       and David Thurley was the, if you like, the senior, he
page 100
 1       was the person who was in charge if you like of
 2       supervising.
 3   Q.  You were told that's --
 4   A.  That is the case, yes.
 5   MR SMITH:  Thank you very much.
 6   MR HOLMES:  There are two matters.  The first concerns
 7       photographs that were taken at the scene; the second
 8       concerns the e-mail, if I may put those to the witness?
 9   THE CHAIRMAN:  Yes.
10                   Cross-examined by MR HOLMES
11   Q.  Mr Ferguson, did you yourself take any photographs --
12   A.  No.
13   Q.  Am I right in thinking that you were not present when Y7
14       was found?
15   A.  That's correct.  I was down on 9th and 10th January
16       after that -- I was there from 9th to 10th January but
17       no further involvement after that.
18   Q.  You yourself are not a fingerprint examiner?
19   A.  No, I'm not.
20   Q.  So in the absence of any qualifications or direct
21       knowledge allowing you to do so, what inspired you to
22       write to Mr McKie and express an opinion as to who was
23       the donor of Y7?
24   A.  I don't think I actually expressed any opinion as to who
25       the donor of Y7 was.  As I say, I was working in Lothian
page 101
 1       & Borders at the time and various experts through there
 2       who had also examined Y7, albeit I think from the images
 3       that were on the Internet, and they were telling me that
 4       the print didn't belong to Ms McKie.  I put in my e-mail
 5       to Ms McKie that I have no expertise in the
 6       fingerprints.  I mean, at the end of the day Ms McKie
 7       was acquitted and there was various experts who stood
 8       there and said, yes, it was her print, and who said it
 9       wasn't her print.  At the end of the day, the jury
10       acquitted to Ms McKie.  I have to bow to the jury.
11   Q.  Mr Ferguson, you did express an opinion in the e-mail as
12       to whose fingerprint Y7 was not.
13   A.  Yes, I did.  I mean, at the end of the day, as I said,
14       the court of law had indicated the jury had indicated
15       and they were happy beyond any reasonable doubt it
16       wasn't her print.  I had other experts on the Internet,
17       other experts that I worked beside who would tell me it
18       wasn't her print as well.  I made an indication in the
19       e-mail to Mr McKie that I believed SCRO had got it
20       wrong.
21   Q.  Mr Ferguson, many fingerprint experts, including my nine
22       clients all of whom identified Y7 as a fingerprint of
23       Shirley McKie and I am sure including those individuals
24       that indicate will have an opportunity to give evidence
25       to this Inquiry, what weight should be attached to you
page 102
 1       opinion which is expressed in the e-mail?
 2   A.  It was -- all it was is a personal opinion and as a
 3       result of the jury reaching that decision in the courts
 4       in the case of Ms McKie.  As I said in the e-mail, I
 5       have no expertise on fingerprints.  I cannot say whose
 6       fingerprint it was.  Hopefully at the end of this
 7       Inquiry we may actually have some indication as to whose
 8       print it was.
 9   Q.  Indeed.
10         It was a personal opinion based on no direct knowledge
11       of Y7 and no expertise of your own.
12   A.  That's correct, yes.
13   Q.  So the correct answer to my earlier question is that no
14       weight should be placed on the opinion you gave in that
15       e-mail?
16   A.  As I say, I've no fingerprint expertise.
17   Q.  We heard evidence from Detective Chief Inspector Heath
18       and I think also from Mr Thurley this morning that it
19       was not uncommon to find fingerprints of officers at
20       crime scenes.  Is that correct?
21   A.  Yes, that's correct.
22   Q.  We heard evidence from Detective Chief Inspector Heath
23       that it was not a critical matter if such fingerprints
24       were found.  Is that correct?
25   A.  That's correct, yes.
page 103
 1   Q.  You yourself describe it as embarrassing.
 2   A.  It is embarrassing certainly, I believe, police officers
 3       are told and certainly CID officers are told when they
 4       enter a scene to put hands in their pockets so they
 5       don't touch anything.  It's a sort of common knowledge
 6       thing that goes around CID.  But it does happen
 7       especially with police officers who are attending, as I
 8       say, to help preserve life.  Their main remit for being
 9       in there is to do that and to preserve life and they
10       don't consider a forensic scene examination that may
11       take place afterwards.
12   Q.  You are still employed?
13   A.  Yes, I am.
14   Q.  The reason I ask is that in your e-mail you also say
15       that with regard to the finding of your fingerprint at
16       this particular crime scene that, "they made me look
17       incompetent".
18         To your knowledge, who is it that decides what
19       witnesses are called and what questions are asked at
20       criminal trials?
21   A.  Obviously, it's down to the Procurator Fiscal and to the
22       defence as to how a trial progresses.
23   Q.  Not to the officers of SCRO?
24   A.  No.
25   Q.  So when you say, "they made me look incompetent", what
page 104
 1       you mean is that the finding of your fingerprint at the
 2       scene made you look incompetent?
 3   A.  Yes.  I felt incompetent leaving my fingerprint at the
 4       scene.  In the e-mail when I say "they", I wasn't
 5       meaning SCRO made me look incompetent, it was more the
 6       fact that the defence and the prosecution were making me
 7       out to look incompetent, the fact I left a fingerprint
 8       at the scene.
 9   THE CHAIRMAN:  Any other questions?  Any further matter
10       Miss Carmichael.
11   MISS CARMICHAEL:  No, thank you, sir.
12   THE CHAIRMAN:  Just so I can get the use of aluminium powder
13       and black powder, am I right if I take from your
14       evidence that what you are saying is that on this
15       particular surface you would have used black powder
16       immediately rather than aluminium powder first.
17   A.  Yes, sir that would be correct.
18   Q.  But there would be other circumstances, I gather, you
19       will use aluminium powder first?
20   A.  Yes, it really depends on the surface you are being
21       asked to examine.  I would say probably 90 per cent
22       of surfaces I examine I examine with aluminium powder.
23       On this particular surface I would have used black
24       powder.
25   THE CHAIRMAN:  So it is really a question of opinion as to
page 105
 1       what one would use on that particular surface and your
 2       opinion happens to be different.
 3   A.  Yes, sir, and it would become a personal choice for the
 4       scene examiner.  Some scene examiners prefer to use
 5       aluminium powder, some prefer black powder.  There's no
 6       real difference in either powders.  Aluminium is better
 7       for some surfaces, black is better for other services.
 8       It really comes down to the individual scene examiner.
 9       At scene of a major incident like that I would bow to
10       Mr Thurley's request to use aluminium powder.
11   THE CHAIRMAN:  And your experience at that time?
12   A.  I was two years in the job at the time --
13   THE CHAIRMAN:  And just one other matter for my own
14       interest, when you are examining a scene, do you wear
15       two pairs of gloves or just one single pair?
16   A.  Depends on the scene.  If it's something like, say, a
17       house break-in we would maybe use only one pair of
18       gloves.  The reason for using two pairs of gloves, it's
19       when you are handling productions.  Nowadays, with the
20       sensitivity of DNA, if you handle production you would
21       remove your upper pair of gloves and put another pair of
22       gloves on.  So it's more a convenience rather than a
23       necessity.
24         I believe some work was done at the time on
25       fingerprints transferring through latex gloves.  I
page 106
 1       believe that was a process called vacuum deposition
 2       where we had been experiencing marks coming through on
 3       to polythene bags that were being examined and the
 4       examiner who was actually handling the bags was only
 5       wearing one pair of gloves.  I believe experiments were
 6       actually done that showed that when your hand is
 7       sweating through latex gloves it would possibly leave
 8       some ridge detail.
 9   THE CHAIRMAN:  I am not quite sure I have it clear.  Does
10       that mean that on a murder scene, for example, you would
11       wear two pairs of gloves or --
12   A.  Yes, sorry to interrupt.  Yes, I would -- at that
13       particular scene, I would have worn a cloth pair of
14       gloves and then a pair of latex gloves, more from a
15       public point of view.  Nowadays when we attend scenes we
16       wear two pairs of gloves.  We can handle a production;
17       because there is a transfer of DNA on to that production
18       we remove and put a new pair of gloves on.  At that
19       time, I remember wearing a cotton glove with a latex
20       glove over the top.
21   THE CHAIRMAN:  Thank you very much indeed.  Thank you for
22       your assistance.
23                      (The witness withdrew)
24   MISS CARMICHAEL:  Sir, the next witness is Graham Hunter.
25                      GRAHAM HUNTER (sworn)
page 107
 1   THE CHAIRMAN:  Could we have your full name, please, for the
 2       record.
 3   A.  Graham Hunter.
 4                   Examined by MISS CARMICHAEL
 5   Q.  Mr Hunter, I think you have given a signed statement to
 6       the Inquiry already.
 7   A.  I have, yes.
 8   Q.  And are you content that that is a truthful account in
 9       relation to the matters that you were asked about?
10   A.  Yes.
11   Q.  I think you tell us at the outset of your statement that
12       you are now a mark enhancement recovery officer?
13   A.  That's correct, yes.
14   Q.  Now we've heard about people who are perhaps Scenes of
15       Crime Officers back in 1997.
16         Was that your job title then?
17   A.  It was, yes.
18   Q.  What's the difference between the two?
19   A.  I've taken the role of a scene examiner or I've been
20       tasked with the role of a scene examiner which has been
21       extended to laboratory-based examinations, which is
22       chemicals, and we've learned now to use the chemicals at
23       scenes which we couldn't at the time of this inquiry but
24       there's a wider range of chemicals.  We also use lasers
25       and Quasers which we didn't at that time.
page 108
 1   Q.  So is your work now lab-based rather than scene-based?
 2   A.  We do both.  The majority is lab-based but we still
 3       attend major scenes but our remit is mainly chemical and
 4       laser examinations, both at mortuaries and the scenes,
 5       and that's opposed to powders as it was in 1979 (sic).
 6   Q.  It is about powders I would like to ask you first,
 7       please, Mr Hunter and I wonder if you would have a look,
 8       please, at paragraph 11 of your statement at page 3, if
 9       you have that there.
10         I think you record there that you were told by
11       Mr Thurley to use aluminium powder?
12   A.  That's correct, yes.
13   Q.  And you say it was not usual to be told what powder to
14       use.
15   A.  It was normal that we would arrive at a site which
16       powder to use ourselves at a murder.  Stewart and myself
17       had quite considerable experience with 16 years in but
18       it wasn't entirely unusual.
19   Q.  When you're talking about Stewart are you talking we
20       Stewart Wilson?
21   A.  I am, yes.
22   Q.  Would I be right in thinking that Mr Thurley was the
23       head of the team of examiners at the scene?
24   A.  Yes, that's correct.
25   Q.  Now you also say in your statement that aluminium powder
page 109
 1       was a reasonable choice in the circumstances.
 2   A.  Yes, I do.
 3   Q.  What do you mean by that?
 4   A.  For the surface I felt that Mr Thurley had made a
 5       reasonable choice.  It was the first choice of powder to
 6       use.
 7   Q.  Just to be quite clear when we are talking about the
 8       "surface" are we both talking about the surface of a
 9       painted doorframe?
10   A.  We are, yes.
11   Q.  You say that's the first choice?
12   A.  Normally, yes.  David and myself have roughly the same
13       experience in going to scenes.  We would both use
14       aluminium first thereby leaving other options open to
15       us.
16   Q.  The Inquiry has heard views to the contrary that it may
17       be more appropriate on that sort of surface immediately
18       to go to black powder.
19         What would be your comment on that?
20   A.  The younger members of the, you know, the staff tend to
21       use black powder because it is easier, they get an
22       instant result, it's an instant contrast and you can see
23       the print.  The older members tend to do it aluminium
24       first and then black powder.
25   Q.  So you observe a generational difference perhaps?
page 110
 1   A.  There is.
 2   Q.  I want to take you to the part of your statement that
 3       deals with events on 14th January 1997 at 43 Irvine
 4       Road, Kilmarnock.  You will find that at paragraph 18A
 5       onwards at page 6.
 6         It came to be that there was a decision to apply black
 7       powder to the doorframe of the bathroom.
 8   A.  Yes.
 9   Q.  Whose decision was that?
10   A.  Stewart Wilson and myself.
11   Q.  Was it something you discussed?
12   A.  Yes.  We did notice there was, as you have mentioned
13       before with other people, that the aluminium hadn't
14       taken, it didn't look right on the surface.
15   Q.  I think I've said to witnesses that we might hear some
16       evidence to that effect.  Is that your position that you
17       thought it hadn't taken?
18   A.  Yes, it is.
19   Q.  Why do you say that?
20   A.  Aluminium when it's applied to a surface it builds up
21       and gives an even coating.  The coating that was on the
22       surface was even in parts but you could actually see the
23       paint through some other parts.  It's an experience just
24       by looking at the surface.  It's not something that's
25       easily described but it certainly didn't look properly
page 111
 1       dusted which wasn't the fault of the practitioners.  It
 2       was the fault of what was on the paint.
 3   Q.  What was on the paint?
 4   A.  We believe it to be a combination of grease or
 5       condensation.  The alcove where the prints were found
 6       where we went over areas in black powder was near the
 7       bathroom and in approximation to the kitchen.  The fumes
 8       from the kitchen would have access to these painted
 9       surfaces readily.
10   Q.  I think we heard from Mr Thurley that the way that
11       aluminium powder works is that if an examiner sees
12       something, he may build up over the mark that he
13       observes to make the mark develop better?
14   A.  Yes, that's correct.
15   Q.  So might it be that when observed something that isn't
16       immediately clear to you, it may be because particular
17       marks haven't been built up in that way?
18   A.  That is possible but it's also easy to tell when someone
19       has done that.  That's why I say it's difficult to
20       explain to you in words what the surface looks like when
21       it's a contamination issue as supposed to somebody who's
22       actually -- there's more powder on one bit than another.
23       There is a distinct difference between the two.
24   Q.  If you can do your best perhaps to tell us what you can
25       see in the situation where you think the powder has not
page 112
 1       taken.
 2   A.  You could readily see staining underneath as has been
 3       mentioned, well, the staining within the property.
 4       There was also staining in that area which was visible
 5       through the powder.  On a normal surface, a clean
 6       surface, that would not be visible.  The powder would
 7       coat the surface entirely.
 8   Q.  So how did the discussion about using black powder
 9       begin?
10   A.  Stewart and myself both have experience at many scenes
11       and we realised there was contamination issues in that
12       area.  The next step after aluminium is to use black
13       powder, which is what we did.  It was quite a
14       straightforward process.
15   Q.  I take it from what you said that you may have had quite
16       a close look at the aluminium powdered surface before
17       you did this?
18   A.  Yes, we both did.
19   Q.  Can you tell us what sort of lighting was available to
20       you when you were examining the aluminium?
21   A.  We had portable lights we could hold up to the surface.
22       I don't know what type they were.  They were quite
23       large.
24   Q.  You are making a motion with your hands about 18 inches
25       apart perhaps?
page 113
 1   A.  Yes, it's quite a large light that was available to us.
 2   Q.  Were you able to see whether there was any disturbance
 3       in the surface of the aluminium coating?
 4   A.  Not a disturbance as you're maybe indicating to me,
 5       something that touched it, no, I certainly couldn't see
 6       anything like that.
 7   Q.  So putting it bluntly, it didn't look as if there was a
 8       fingerprint into the aluminium powder?
 9   A.  No, there didn't.
10   Q.  So who was doing what at this stage in terms of applying
11       the black powder?
12   A.  Stewart Wilson was applying the black powder.  I was
13       holding the light so he could see what he was doing, and
14       Michael Moffat was also present while we were doing this
15       and he was on stand-by because black powder is so messy,
16       he was clean and he was going to be taking the
17       photographs if required.
18   Q.  I wonder if you have a look for me at page 13 of ST0003
19       and I think we have a slightly edited and enlarged copy
20       of that image for you.
21         I think we have one that focuses slightly more closely
22       in.
23         Can you indicate to us I think you may actually have a
24       mouse that let's you do this with your screen.  No, you
25       don't.  Well, I think we are looking into the bathroom
page 114
 1       as we look into this image?
 2   A.  That's correct, yes.  Sorry.
 3   Q.  You see -- can we take it this is the right-hand
 4       doorframe that we are talking about here?  I think
 5       somebody may be bringing you something that will let you
 6       demonstrate here because I think it may be possible for
 7       you to make a mark to show us all where you found ... I
 8       think you are being helped with an arrow at the level
 9       where you found the mark.
10   A.  Yes.
11   Q.  Mine shows two big arrows but I think it's the top one
12       that is your one?
13   A.  The top one is approximately where we found the
14       impression.
15   Q.  If I could take you please to paragraph 22 of your
16       statement, you say that the mark was orientated pointing
17       towards 3.00 on a clockface as we look at it.
18         Sorry, before we get to the next question, I have been
19       reminded, Mr Hunter, where you have placed the arrow is
20       that simply an indication of the level or where it was
21       actually found?
22   A.  Just the level, not where.
23   Q.  Can you indicate more precisely perhaps with help just
24       where it was found.  If you could perhaps try that ...
25   A.  So if you take the top arrow and move it sort of just a
page 115
 1       fraction on to the door casing that's facing the hall of
 2       the bathroom door.
 3   Q.  It may be this exercise complicates matters more than it
 4       is helpful.
 5   THE CHAIRMAN:  It looks as though lightning has struck it.
 6   MISS CARMICHAEL:  I think what I am getting at is whether it
 7       is your recollection that the mark was found on the flat
 8       bit we see facing into the hall or the part that's more
 9       at right angles.
10   A.  It's the flat bit that's facing the hall.
11   Q.  I was going to ask you I think next about the
12       orientation of the mark and what you said was it was on
13       the door facing and was orientated facing towards 3.00
14       on the clockface as you look at it.
15         I would like you to look if you could, please, at an
16       image PS0002 at page 1.
17         The Inquiry understands this to be a photograph of the
18       mark Y7 in question and I am wondering when you're
19       talking about an orientation of 3.00 if you can explain
20       to us by reference to the photograph just what you mean?
21   A.  The camera in this instance has -- if you take the
22       doorframe as going straight up and down, if you turn the
23       camera that way (indicated) so the camera is up and down
24       as opposed to that way up (indicated).
25   Q.  It is taking what one might call a portrait image rather
page 116
 1       than a landscape image?
 2   A.  That's correct.  So if you put the camera the correct
 3       way up and turn the image of the print, and the way I've
 4       said that there, that it's pointed towards 3.00, that's
 5       my opinion.  That's not an expert opinion if you can
 6       understand.
 7   Q.  Can we take it that what we see at the right-hand side
 8       of this photograph is the edge of the piece of the wood
 9       going up and down as it would in situ?
10   A.  In my opinion, the sort of print is pointing towards
11       3.00 on that screen if that's any help.
12   Q.  So you think the print is pointing --
13   A.  If you take the top of the screen as 12.00, the print,
14       in my opinion, is pointing 3.00 that way.
15   Q.  I am sorry, just to try and get this into the record
16       here, the left-hand side of the photograph, the up and
17       down of that would be 12.00 in your view?
18   A.  No.  Can you see where I put my finger.
19   Q.  I think you may be getting some assistance.
20         I see a small mark at the top?
21   A.  Yes.  So 12.00 is that way straight up.
22   Q.  Straight up and down as we look at the photograph?
23   A.  Yes.  And, obviously, to the right of the screen is
24       3.00.
25   Q.  So in your view the orientation of the mark was at right
page 117
 1       angles to the upright of the photograph?
 2   A.  Yes.
 3   Q.  And pointing to the right as we look at this photograph?
 4   A.  Yes but again as I point out I've no expertise
 5       in ... it's my guess that's the way it's pointing.
 6   Q.  I see.  You say you have no expertise in the
 7       orientation, would that be the same for any Scenes of
 8       Crime Officer who was attempting to give orientation of
 9       a mark?
10   A.  Through experience we'll have a stab at it but we're not
11       always right.
12   Q.  And we should take what you say there in that context?
13   A.  Exactly.
14   Q.  Thank you.
15         At paragraph 33 of your statement, if you have that to
16       look at, you say there was nothing about the mark Y7
17       that gave you the impression it might have been placed
18       there after the aluminium powder had been applied and
19       you say that it is difficult to age prints and not
20       possible to tell when the print may have been placed?
21   A.  That's correct, yes.
22   Q.  You also say that you have in the course of your career
23       seen a print left in aluminium powder after it has been
24       applied but you've also seen somebody touch aluminium
25       powder without leaving a mark?
page 118
 1   A.  That's also correct, yes.
 2   Q.  So can we take it from what you say there that on the
 3       basis of your own professional experience you wouldn't
 4       think it possible to draw a conclusion about whether Y7
 5       was there before or after the aluminium powder was
 6       applied?
 7   A.  No, I couldn't draw a conclusion on that.
 8   Q.  I would like to move on, please, to paragraph 36 of your
 9       statement.  I would like you to tell us to the best of
10       your recollection when you first heard from Mr Moffat
11       about an officer whose glove may have burst at scene.
12   A.  My best recollection is it was after the event when we'd
13       actually finished with the scene.  I'd heard other
14       people talking about it beforehand but I actually
15       discussed it with Michael after the event when we were
16       actually finished with the scene.
17   Q.  How long after you had finished with the scene, did you
18       talk about it with Mr Moffat?
19   A.  It's difficult to give a time.  It was quite soon after
20       we'd finished with the scene but it's been discussed
21       again afterwards.  So within a month possibly of
22       finishing with the scene.  But as I've mentioned here in
23       my statement, we were interviewed by an outside force
24       and it was brought up again then.
25   Q.  Might that have been perhaps as late as 2000 when you
page 119
 1       were interviewed by the outside force?
 2   A.  Yes, that could be.
 3   Q.  But within a month of finishing your scene examination
 4       you had had a conversation with Mr Moffat about it?
 5   A.  Yes, just in the office.
 6   Q.  What did he say to you?
 7   A.  Just that he'd seen this happen.
 8   Q.  Did he tell you who the officer involved was?
 9   A.  He did, but unfortunately I can't remember.
10   Q.  At the time when you and Mr Wilson discovered mark Y7, I
11       think you have said that Mr Moffat was there on stand-by
12       as the man not covered in dust to take the pictures?
13   A.  That's correct.
14   Q.  Did he say anything about the possibility that Y7 might
15       have come from this officer at the time that you
16       discovered the mark at the scene?
17   A.  Not at the time.
18   Q.  At the time about a month after finishing with the scene
19       and you spoke with Mr Moffat about the matter, did he
20       tell you anything about any discussions he had had with
21       DI McAllister regarding the mark and the possibility
22       that it might have been deposited by the officer with
23       the burst glove?
24   A.  Yes, I can't honestly recall discussing that with
25       Michael at the time or the month after and I can't
page 120
 1       remember him mentioning the name McAllister to me, no.
 2   Q.  If I could take you on, please, to paragraph 39 of your
 3       statement, I think that in the course of Ms McKie's
 4       trial you gave evidence?
 5   A.  I did, yes.
 6   Q.  And you were shown the doorframe itself in the course of
 7       your evidence?
 8   A.  I was, yes.
 9   Q.  And you record here that you noticed that the mark
10       looked different on the door frame from how it had
11       looked to you when you first saw it?
12   A.  Yes, that's correct.
13   Q.  What I am interested in here is that you say that you
14       mentioned this in an interview that took place under
15       caution and what I would like to clarify with you is
16       when the interview under caution took place.
17   A.  I believe it was 2000.  It was from an outside force but
18       the dates escape me.  I've never seen a transcript of
19       that interview.  It was in an office.  Off Chief
20       Inspector Hogg's office, there's a little ante room.  I
21       was taken in there.  I was given a caution before
22       interview.  I was then interviewed about the mark, how
23       it was found and my involvement at the locus and that
24       just seems to have ...
25   Q.  Is it possible perhaps that this was an interview by
page 121
 1       officers of Tayside Police in about 2000?
 2   A.  Yes, it was.
 3   Q.  Are you certain that a caution was administered?
 4   A.  I'm fairly certain -- it made me very nervous.
 5   Q.  Yes, I can see why that would be.  Were you given any
 6       idea why the interview was under caution?
 7   A.  No, none whatsoever.
 8   MISS CARMICHAEL:  Thank you very much, Mr Hunter.
 9   THE CHAIRMAN:  Does anyone wish to apply to cross-examine?
10                   Cross-examined by MR HOLMES
11   MR HOLMES:  Just one matter, sir, I wondered if I could
12       clarify with Mr Hunter whether he himself took any
13       photographs of Y7 or not.
14   A.  I took no photographs of Y7.
15   MR HOLMES:  Thank you very much.
16   THE CHAIRMAN:  There's your answer.
17   MR SMITH:  There is one matter that relates to the question
18       of the damage to Y7 that has been spoken to by the
19       witness and a suggestion to him of what caused it.
20   THE CHAIRMAN:  Yes.
21                    Cross-examined by MR SMITH
22   Q.  I wonder if you can help with this: you explained that
23       you subsequently saw the mark, the production, and it
24       appeared to have some kind of damage that might have
25       been a brush mark; is that correct?
page 122
 1   A.  That's correct.
 2   Q.  When you were shown the production, you were I think
 3       shown an actual doorframe, the piece of wood which had
 4       been sawn free from the rest of the door; is that right?
 5   A.  That's correct.
 6   Q.  And I think at that stage there was an actual label
 7       attached to it and I don't mean a sticky label stuck on
 8       to it but a loose label; do you recall that?
 9   A.  I don't actually recall that.
10   Q.  We're struggling to find the photographs but I think
11       there is a photograph somewhere that shows that there is
12       such a loose label attached to it by string.  I am going
13       to suggest to you something as a possibility.  If you
14       cannot help us please just say so.  But as far as you
15       can recall the damage to mark Y7 would appear to be, as
16       it were, in an arc swinging pattern across the mark
17       itself?
18   A.  From my recollection, no.  It appeared to be a
19       straight --
20   Q.  Just straight across?
21   A.  But jagged at the end.
22   Q.  Perhaps I can ask you this: it may be suggested in due
23       course that the damage to the mark might have been
24       caused by the string, a knot in the string, that
25       coincidentally was about the same level as the damage.
page 123
 1       The damage that you saw, do you think from your
 2       experience it could have been caused by something like a
 3       knot in a piece of string brushing against it?
 4   A.  It's not unfeasible.
 5   Q.  We are just trying to find the photograph.
 6   THE CHAIRMAN:  I do not know if we can help.
 7   MR SMITH:  Call up EA00067, please.  On page 6 I am told, I
 8       think you can see this appears to be the photograph.  I
 9       think you can see what I've described to you, which is
10       the piece of wood with a piece of string round.  Do you
11       see that?
12   A.  I do, yes.
13   Q.  What I am really asking is perhaps if we look at the
14       mark itself, could you identify the area of damage that
15       you describe?
16   A.  On that photograph, no.  The damage I saw to the print
17       was different to that.
18   Q.  Can you just keep that image there for the moment.  I
19       think in your statement to the Inquiry reading from
20       paragraph 31 you indicate in the last sentence of that:
21         "Although the label [and you're clearly talking about
22       the sticky label] the label was in my handwriting it had
23       been placed above the print which is not my practice."
24         Are you able to help us with what you mean by
25       reference to this photograph what you mean by that
page 124
 1       comment?
 2   A.  Certainly.  The label which is under the string is in my
 3       handwriting and refers to Z7.  This one here I presume
 4       to be Y7.
 5   Q.  Right.  Each of these is in your handwriting; is that
 6       right?
 7   A.  That's correct.  Y7 has been wetted and appears to have
 8       been removed and placed back on to the piece of wood.
 9   Q.  So it is in a different position to the position you
10       would ordinarily place it?
11   A.  It appears to be, yes.
12   Q.  I don't suppose you have any idea when or how that could
13       have happened, do you?
14   A.  Any time after it was originally photographed.
15   Q.  I see.
16         Again, I think you can see the type of string that had
17       been used to apply the label.  You made a comment
18       earlier about this but I am wondering if you can
19       comment, seeing that tied around the piece of wood,
20       whether there is a possibility at least that the string
21       may at some stage have caused damage in transit?
22   A.  Yes, that is entirely possible that that could cause
23       damage.
24   Q.  And the mark itself would not be covered with any
25       protective film or anything; it was just as is?
page 125
 1   A.  It's certainly not covered there.
 2   Q.  Obviously, we do not know who tied the label round but
 3       would you agree with me that an important mark as that
 4       clearly was with a bit of string tied round very close
 5       to the mark, it can certainly be said it's not best
 6       practice and needs to be analysed again; that's fair,
 7       isn't it?
 8   A.  I would imagine the string wasn't originally there and
 9       would be well away from the mark.
10   THE CHAIRMAN:  You think it slipped down in some way?
11   A.  That's correct, sir.
12   MR SMITH:  I am sorry there is one other matter I could put
13       to the witness --
14   THE CHAIRMAN:  If something is relevant.
15   MR SMITH:  It is to do with paragraph 25 of your statement
16       and it is the last line on the page that contains
17       paragraph 25.  You indicate under reference to
18       10th January you say you saw Stephen Heath and Bob
19       Lauder in the house.  "Bob Lauder was not wearing the
20       appropriate clothing."
21           Can you help us with what would have been the
22       appropriate clothing?
23   A.  You would normally expect -- well, nowadays we would
24       expect at least a full white suit including boots with a
25       hood and gloves.
page 126
 1   Q.  You say "nowadays".
 2   A.  In those days the senior officers of the Inquiry team
 3       had certain leeway where sometimes that didn't happen.
 4   MR SMITH:  Thank you very much.
 5   THE CHAIRMAN:  Any other applications?
 6   MISS CARMICHAEL:  Sorry, I am in a position of having to beg
 7       indulgence of perhaps having an afternoon break a little
 8       early before dismissing this witness there is a matter
 9       that has arisen that I would like to look at before
10       seeking to re-examine.  I would be most grateful.
11   THE CHAIRMAN:  If we stop now and start again at 2.55 or as
12       near that time ...
13   MISS CARMICHAEL:  I am obliged.
14   (2.45 pm)
15                         (A short break)
16   (2.55 pm)
17   MISS CARMICHAEL:  Thank you, sir.
18                  Re-examined by MISS CARMICHAEL
19   Q.  Mr Hunter, I do have some further questions for you just
20       to try to clarify exactly where you found the mark.
21       Mr Smith showed you a picture EA00067, page 6.  Now, I
22       think we have an image where we can show you that
23       picture alongside a picture of PS0002 and I wonder if we
24       could bring up that image.
25         I think we had prepared one where we had rotated the
page 127
 1       EA00067 image, more or less alongside there.
 2         Looking at the image on the left here, the EA00067
 3       image it looks as if a section of beading has perhaps
 4       been removed from the right-hand side of PS0002, the
 5       image we see on the right?
 6   A.  Yes, that's correct.
 7   Q.  What we are seeking to try and clarify with you,
 8       Mr Hunter --
 9   A.  I think I indicated -- when I meant the whole side of --
10       if you can imagine the corner of wood I indicated the
11       whole side that way when I meant whole side ...
12   Q.  So in fact it may be easiest then for you if we go back
13       to ST0003 page 13 which was the picture from the scene.
14       I think we are looking pretty much straight on at the
15       bathroom doorway there and you indicated the facing on
16       the right hand side was facing us flat more or less on
17       that photograph?
18   A.  That's correct, yes, and I meant the one on the inside.
19   Q.  The door facings will face the outer wall on which the
20       door is located and they will tend to have a piece of
21       wood at right angles going in towards the room into
22       which the door leads.
23         Is what you are indicating now that you found the mark
24       on the piece of wood that is at right angles to the bit
25       of wood that is facing out on to the hall?
page 128
 1   A.  That's correct, yes -- which was my mistake in the way I
 2       described it earlier on.
 3   THE CHAIRMAN:  So it is not the piece of wood facing you, it
 4       is the piece of wood just --
 5   A.  Round the corner.
 6   THE CHAIRMAN:  We cannot permanently mark, I suppose, where
 7       the witness leaves a mark.
 8   MISS CARMICHAEL:  I believe we can, sir, yes.
 9   THE CHAIRMAN:  Maybe just to avoid any further doubt what we
10       should do is get you to put a mark, an arrow on the
11       point.
12   MISS CARMICHAEL:  It may be we could assist here.  (Pause)
13   THE CHAIRMAN:  Are you content that that's ... do you have a
14       hard copy?
15   THE WITNESS:  My apologies.  The arrows are quite difficult
16       to place.
17   THE CHAIRMAN:  That is as near as you can get it.  What you
18       mean is on the inside of the right angle rather than
19       what is facing you from the door.
20   A.  That's correct, yes.
21   THE CHAIRMAN:  Is there any question about that?  It looks
22       pretty clear.
23   MISS CARMICHAEL:  Thank you very much.
24   THE CHAIRMAN:  Thank you very much and thank you for your
25       assistance.
page 129
 1                      (The witness withdrew)
 2   THE CHAIRMAN:  What witness do you want to take next.
 3   MISS CARMICHAEL:  The next witness is Mr Moffat.  We may not
 4       finish Mr Moffat's evidence today but --
 5   THE CHAIRMAN:  The only question is is Mr Moffat available
 6       tomorrow if we do not complete him today.  I think we
 7       should make a start.
 8   MISS CARMICHAEL:  I am told there is no indication that
 9       there is any difficulty.
10   THE CHAIRMAN:  Just before I ask you take the oath you would
11       be free tomorrow if we don't finish today?
12   THE WITNESS:  Yes, I would.
13                     MICHAEL MOFFATT (sworn)
14   THE CHAIRMAN:  Your full name, please.
15   A.  Michael Moffat.
16   THE CHAIRMAN:  Take a seat, please.
17                   Examined by MISS CARMICHAEL
18   Q.  I think you have given the Inquiry a signed statement.
19   A.  Yes, I have.
20   Q.  Does that reflect the position truthfully as far as you
21       can recall?
22   A.  Yes, it does.
23   Q.  Your current employment is with the Scottish Police
24       Services Agency as a senior examiner?
25   A.  That's correct.
page 130
 1   Q.  But before that you were Scenes of Crime Officer with
 2       Strathclyde Police?
 3   A.  Yes.
 4   Q.  That was your position in 1997 at the time of the
 5       Inquiry into the murder of Miss Marion Ross?
 6   A.  Yes.
 7   Q.  Can you tell us a little about what your job was in that
 8       investigation please, Mr Moffat?
 9   A.  I was on call on the night of that particular incident.
10       I had been at an incident earlier in the evening down in
11       the Irvine area and I then received a radio message to
12       go concerned with an incident which had happened in the
13       Kilmarnock area and I believe it was possibly a police
14       officer wanted to get an update on an incident sheet --
15   THE COURT REPORTER:  I'm sorry, I can't hear you.
16   THE CHAIRMAN:  Not too quickly so that we can keep up.
17   A.  -- which referred to an incident which had happened in
18       the Kilmarnock area.  From the incident report, I
19       thought it was sounding as if it may be a serious
20       incident as it indicated that an elderly woman was found
21       dead and had been stabbed with a pair of scissors.
22         I then attended at Kilmarnock police office to get an
23       update on the situation and when I went into Kilmarnock
24       Police Office I went upstairs and there was DCI Heath
25       and I think it was Detective Superintendent Malcolm who
page 131
 1       were there and they asked me to wait outside before we
 2       get further instructions.
 3   Q.  If I can stop you there, ultimately you did get
 4       instructions that led to you going to 43 Irvine Road,
 5       Kilmarnock?
 6   A.  Yes, I did eventually.
 7   Q.  I would like to ask you about something that you say in
 8       paragraph 8 of your statement, if you have that handy.
 9       You mention there that you got suited up in the paper
10       body suit, overshoes and two pairs of gloves before you
11       went into the house.
12   A.  Yes.
13   Q.  Can you tell us a bit about why you wore two pairs of
14       gloves?
15   A.  A number of years ago I had my own print -- a phone call
16       saying my fingerprint had been identified at the scene
17       and my recollection of what I could remember I was
18       wearing a single pair of latex gloves and so ever since
19       that incident I've started wearing a pair of white
20       cotton gloves underneath a pair of normal latex gloves.
21   Q.  I think you took some photographs and a video of the
22       scene which might help us understand a little bit more
23       about the layout of the entrance and the hall.
24   A.  Yes.
25   Q.  I wonder if you could look for me, please, at ST0003 at
page 132
 1       page 3.  Can you tell us what we are looking at in this
 2       picture, please, Mr Moffat?
 3   A.  Yes, this is a view taken from inside the front doorway
 4       to the house looking into the porch area.  It's a wooden
 5       doorway.  You can see there's a tiled floor and you can
 6       see tread plates down on the floor.
 7   Q.  When you mention a tread plate, I think just beyond the
 8       brass mark at the bottom of the doorway we see something
 9       that looks like a raised silvery metal object.  Is that
10       what you refer to as a tread plate?
11   A.  Yes, an upside down baking tin.
12   Q.  What are the tread plates for?
13   A.  It's to prevent anyone leaving footwear marks on the
14       surface as you're entering the crime scene.
15   Q.  Who put that there?
16   A.  I put that there.
17   Q.  Is that the only one you put there?
18   A.  I don't recall.
19   Q.  I wonder if we could move on to the next photograph,
20       please, at page 4.  Is what we are seeing -- there's a
21       dark wood door that we see in the centre of that
22       photograph -- the same dark wood door that we saw in the
23       last photograph?
24   A.  Yes, it is.
25   Q.  So we can take it you are now within the porch and
page 133
 1       looking back round towards the outer door?
 2   A.  Yes, I am.
 3   Q.  And we see the same metal tread plate at the bottom of
 4       that photograph that we saw in the foreground of the
 5       other photograph?
 6   A.  Yes, it is.
 7   Q.  Can we look at the next photograph, please.  Now where
 8       have we moved to in this photograph, Mr Moffat, if you
 9       can recall?
10   A.  We've now moved into the inner hallway of the house now
11       looking back out towards the porch area.  You can see
12       now a second tread plate just before the second doorway
13       into the house itself.
14   Q.  Just to the left of this shot, we see what looks like
15       perhaps a white uPVC glass-type door?
16   A.  Yes.
17   Q.  So can we take it that beyond the outside door to the
18       house there's this second white door and you've just
19       passed through the doorway that it normally covers?
20   A.  That's a possibility.  It's hard to tell from this
21       photograph.
22   Q.  It may be that --
23   A.  Because I'm not sure if that's a letter box that's in
24       the window area there as opposed to a doorway.
25   Q.  There appears to be at the very bottom left hand corner
page 134
 1       of the image a letter box?
 2   A.  Yes.
 3   Q.  Shall we look at the next photograph, please.
 4         Now what do we see here?
 5   A.  Now we see this is obviously the doorway which I've
 6       referred to there.
 7   Q.  And if we can walk through perhaps to the next
 8       photograph, do we again see the door that we have seen
 9       on the last two shots now opened and to the right-hand
10       side of the picture we are looking at here?
11   A.  Yes, we do.
12   Q.  We see also another doorway with a white wood and
13       glass-type moulded door?
14   A.  Yes, we do.
15   Q.  And where does that door lead us to in the property, if
16       you can remember?
17   A.  It leads into the main hallway.
18   Q.  Can we move on to the next photograph, please.  What do
19       we see here?
20   A.  The door which we've seen in the previous photograph has
21       now been opened and we're looking from part of the porch
22       area down into the main hallway of the flat.
23   Q.  You say a flat, maybe it was perhaps a bungalow-type
24       property?
25   A.  It is a bungalow, yes.
page 135
 1   Q.  Look at the next photograph, please, page 9.
 2   A.  This is taken from within the hallway and we're now
 3       looking back towards the front doorway.
 4   Q.  So the doorway that we have seen in the previous shot is
 5       the closed door that we now see in the centre of the
 6       shot?
 7   A.  Yes, it is.
 8   Q.  The next photograph, 10.
 9   A.  I'm now standing at that door in an open position now
10       and I'm looking directly down the hallway of the flat.
11   Q.  So the wooden and glass doorway is open and you're
12       looking down the hallway.
13         Please may we look at the next photograph also.
14         Where have we moved to now?
15   A.  I've now moved further along the hallway, towards the
16       end of the hallway.
17   Q.  Could we just go back to the previous photograph.  We
18       see a table to the right of that shot and a table
19       slightly left of centre in the shot with a blue and
20       white vase on it.
21   A.  Yes, we do.
22   Q.  Moving on to the next shot, I think I am right in saying
23       we see the same blue and white vase from a different
24       angle?
25   A.  Yes, we do.
page 136
 1   Q.  So at this point you have effectively turned slightly
 2       and you're looking to the left of where you were looking
 3       before?
 4   A.  Yes, that's correct.
 5   Q.  If we could have photograph K but I think we have a
 6       modified photograph K, again thinking about the blue and
 7       white vase that we again see in the shot, you're now
 8       looking, I think, in precisely the opposite direction
 9       from that in which you were looking in the last shot?
10   A.  That's correct, facing towards the open bathroom doorway
11       there.
12   Q.  Thank you very much.  I think we can perhaps leave the
13       photographs for now.
14         But the picture we have from that is perhaps this is a
15       house where you go down the hall, there is one room off
16       to the left from the end of the hall and the bathroom is
17       off to your right on a spur from the end of the hall?
18   A.  That would be correct.
19   Q.  To give everybody present the benefit of slightly more
20       context in respect of the scene as you took it, there is
21       a video recording that I would propose to show Mr Moffat
22       at this stage, sir.  I should say that this is a
23       recording that has been edited.
24   THE CHAIRMAN:  By the Inquiry.
25   MISS CARMICHAEL:  By the Inquiry and I should make clear why
page 137
 1       that was done.  There are, in the unedited version of
 2       this recording, some very close-up and potentially quite
 3       distressing pictures of Miss Ross.  The edit that we are
 4       showing shows in as limited a way as possible her body
 5       and shots confined to the lower part of her body.  The
 6       Inquiry is anxious to show respect to Miss Ross and not
 7       to show unnecessarily images which are distressing to
 8       her relatives.
 9   THE CHAIRMAN:  The body -- put it this way -- is not an
10       issue as far as we are concerned.
11   MISS CARMICHAEL:  Indeed not.  So the shots have been kept
12       to a minimum while trying to show the scene as clearly
13       as possible for those involved in the Inquiry.  I wonder
14       if we could show that now, please.  It is edit 2 on the
15       DVD that is available.  (Pause)
16           If there is a technical difficulty with showing this
17       at this stage it may be I can move on to a different
18       chapter of Mr Moffat's evidence.  (Pause)
19   THE CHAIRMAN:  Maybe we can continue and then as soon as the
20       edit is --
21   MISS CARMICHAEL:  There is an entirely different chapter of
22       Mr Moffat's evidence I can quite easily deal with at
23       this stage.
24           I am sorry, Mr Moffat, to take you out of order when
25       you were expecting to watch a recording at this stage
page 138
 1       but there is perhaps another entirely separate matter I
 2       can ask you about just now.
 3           I would like to take you to part of your statement
 4       that deals with the involvement of an officer called
 5       Gary Gray.
 6   A.  Yes.
 7   Q.  That is at paragraph 20 onwards from page 5 of your
 8       statement.
 9         I gather the difficulty has now been resolved so it
10       may be as well now that we have got it working to revert
11       to the first plan, Mr Moffat.  I do apologise for
12       potentially confusing you there.
13                          (Video played)
14   Q.  What we see here is perhaps walking through some of the
15       photographs that we have seen earlier, the first dark
16       wood doorway?
17   A.  Yes, it is.
18   Q.  As you are taking the video here, we see both of the
19       further doors, one of the large glass panels and the
20       wooden door open to the right-hand side of the shot?
21   A.  Yes.
22   Q.  Now when we look into the hall here, I think you see in
23       the centre of the shot the vase that we've noticed on
24       some of the photographs earlier?
25   A.  Yes, we do.
page 139
 1   Q.  As you come towards the bottom of the stairs here you
 2       turn your camera to the right and face into the
 3       bathroom?
 4   A.  Yes, we do.
 5   Q.  You are now turning back and looking back out towards
 6       the doorway leading from the hall to the exterior?
 7   A.  Yes.  (Pause)
 8         The emphasis on these views being put on the position
 9       on the locks of the doors was at the command office they
10       said the house had been searched at the time they were
11       hoping to find a set of keys.
12   Q.  So you are explaining that you had a particular
13       instruction that meant that you were interested in
14       looking at the locks of the doors?
15   A.  Yes.  (Pause)
16   Q.  What we have here is a view of the entrance to the
17       bathroom?
18   A.  Yes, it does with the deceased lying with her feet out
19       towards the hallway.  (Pause)
20   Q.  Am I correct, what you are looking at here is a cupboard
21       door here in the wall close to the entrance to the
22       bathroom?
23   A.  Yes, it is.  (Pause)
24   Q.  Now we're entering another room at this stage at 9.47 on
25       the video clock.
page 140
 1         Where are we going now, Mr Moffat?
 2   A.  If I recall, it's a bedroom on the ground level.  From
 3       memory, there should be the kitchen area directly off to
 4       the right.  (Pause)
 5   Q.  Now we are back in the hall looking outwards towards the
 6       front doors.  (Pause)
 7         We're now moving to look into a room that runs off to
 8       the left-hand side of the hall as you are looking into
 9       the hall?
10   A.  That's right, it's a front sitting room area.
11   Q.  And we have that at 11.09 and 10 on the video clock.
12   A.  There's a close-up view here to show a key sitting on
13       the unit which is within that room.   (Pause)
14   Q.  We're now leaving the living room and looking at about
15       13.35 on the clock and moving back into the hall?
16   A.  Directly opposite the sitting room is a front bedroom
17       there.
18   Q.  That's what you're starting to look into here with the
19       camera?
20   A.  Yes.  (Pause)
21   Q.  We're again in the hallway more or less facing into the
22       bathroom and focusing on the bannister of the stairway.
23       (Pause)
24   A.  This is now the entrance to the kitchen area.
25   Q.  So do we take it the kitchen is right next to the
page 141
 1       bathroom --
 2   A.  It's adjacent to the bathroom, yes.
 3   Q.  -- as you're facing down that part of the hall?
 4   A.  Yes.  (Pause)
 5   Q.  You're opening here a door that runs off from the
 6       kitchen; is that correct?
 7   A.  That's correct .
 8   Q.  Where does that lead on to?
 9   A.  It leads to the back extension of the house.  (Pause)
10   Q.  Moving into that room off the kitchen at about 18
11       minutes on the clock?
12   A.  Yes.  You can see the brown door in the centre and that
13       door would lead out into the garden area.
14   Q.  So the door that we're seeing in shot here, a brown
15       wooden door with a brass handle, is a door to the
16       exterior?
17   A.  Yes, it is.  (Pause)
18   Q.  Now you're still in the room that I think you described
19       as an extension looking at a glass door?
20   A.  Yes.
21   Q.  Where would that have taken us?
22   A.  I can't remember.  There is a room that side and then
23       there was also that bedroom we've seen with the Hoover.
24       So I can't recall at this stage exactly which room we're
25       looking into.
page 142
 1   Q.  But in any event at nearly 20 minutes in the clock we're
 2       still in the extension room that we came to via the
 3       kitchen?
 4   A.  Yes.  (Pause)
 5   Q.  Now we're facing into, I think, another bedroom; is that
 6       correct?
 7   A.  That was -- I think that was the Hoover we'd seen
 8       earlier on so the kitchen would be directly to the
 9       right.
10   Q.  So you can locate that by reference to the Hoover we
11       have seen in earlier shots and where that is in relation
12       to the bathroom and kitchen?
13   A.  Yes, and that appears to be the glass door we see in the
14       centre of the image now would probably be the door which
15       we saw from the other side of the extension.
16   Q.  So the extension had doors both back into the kitchen
17       and back into the bedroom that we're looking at now at
18       about 21 minutes on the clock?
19   A.  Yes, it does.  (Pause)
20   Q.  We're coming out of the doorway.  Again we see the
21       Hoover at about 23 minutes on the clock.  Now we're
22       entering another room just after 23 minutes on the
23       clock.
24         Where are we going now?
25   A.  This is directly opposite the bathroom.  It's a rear
page 143
 1       sitting area.
 2   Q.  So this is another sitting room or living room?
 3   A.  Yes.
 4   Q.  I wonder if we could just possibly stop now at coming up
 5       for 24 minutes.
 6                          (Video paused)
 7   Q.  We are pausing there, Mr Moffat, because I think when
 8       you gave your statement you were shown some photographs?
 9   A.  That's correct.
10   Q.  And there were some matters on there that you thought
11       were unclear because you were being asked to say where
12       you had found a particular item that you came later to
13       photograph.
14   A.  Yes.
15   Q.  Looking at the shot that we have on screen at the moment
16       at 23.58 on the clock, is this a shot that assists you
17       with that?
18   A.  Yes, it does indeed.
19   Q.  Can you tell us what the item is and where we should
20       find it in the picture?
21   A.  It's a small set of stools at the top right-hand corner
22       of the screen just now and on it there's a parcel, a
23       small package.
24   Q.  Are these perhaps stacking tables of the sort people
25       sometimes use beside the sofa?
page 144
 1   A.  Yes, it would be.
 2   Q.  Sorry, I interrupted you.  You were indicating a
 3       package, I think?
 4   A.  Yes, the package is sitting on the very first stacking
 5       table that we see.
 6   Q.  I think you had indicated in your statement that you may
 7       have come to move that item in order to photograph it at
 8       a later stage?
 9   A.  Yes, that was a possibility, yes.
10   Q.  The way that we see the item in this shot, had you moved
11       the item at all yourself by the time that you took the
12       video?
13   A.  No.  The video would be taken first, then the item would
14       be photographed in its original position and if I felt
15       necessary to show it in more detail and I would prefer
16       to move it at that stage I would have done it then.
17   Q.  Thank you for clarifying that, Mr Moffat, because I
18       appreciate the photograph you saw for your statement is
19       perhaps rather dark and difficult to see.
20         I wonder if we could start the recording again.
21                         (Video resumed)
22   Q.  Now we're looking through double wooden and glass doors
23       from the living room into another room at this stage.
24         Where are we now, Mr Moffat?
25   A.  This is a further back bedroom which I think we saw
page 145
 1       leads off that rear sitting room.
 2   Q.  And we see what seems to be perhaps an entrance to an en
 3       suite lavatory at about 25.30?
 4   A.  Yes, we do.
 5   Q.  We're seeing at about 26 minutes the en suite lavatory
 6       with a shower to the left of shot?
 7   A.  Yes, it is.
 8   Q.  And I think that is the end of the recording, Mr Moffat.
 9                           (Video ends)
10   Q.  Thank you for guiding us through that.  One item of
11       information that has come to the attention of the
12       Inquiry is a suggestion that there may have been a shape
13       in dust somewhere that came at some stage to be of
14       interest to people investigating the murder of
15       Miss Ross.
16         Is there anything that you've seen watching this
17       recording that you made at the time that would help you
18       help us with what that might have been?
19   A.  I can't recall what that was.  I think if it had been
20       obvious at the time it would have been pointed out to me
21       to video and photograph it.  I may have photographed it
22       at a later stage; I don't recall.
23   Q.  But certainly there is no footage in that video
24       recording which we should take it you are focussing in
25       on at that point?
page 146
 1   A.  It doesn't look like I was aware of it at that point,
 2       no.
 3   Q.  I think that was a video that you took on that very
 4       first evening of 8th January?
 5   A.  Yes, it was.
 6   Q.  Staying for the moment on the events of 8th January, you
 7       told the Inquiry about an incident that you recollect
 8       involving someone called Gary Gray that evening?
 9   A.  That's correct.
10   Q.  Can you tell us who Gary Gray is?
11   A.  I believe he's a member of the CID team that was
12       involved in the case.
13   Q.  What was his role at the scene?
14   A.  Gary Gray was part of the initial locus at the scene
15       when I was there basically just to oversee everything
16       that was to be done.
17   Q.  I think in paragraph 20 of your statement you come to
18       tell us about a time in the evening when you and Gary
19       Gray were waiting for undertakers who were to take
20       Miss Ross' body to the mortuary.
21   A.  That's correct.
22   Q.  Can you tell us in your own words for the Inquiry today
23       just exactly what happened involving Gary Gray.
24   A.  There was a request at the scene which I did but it was
25       important that the undertakers weren't given access
page 147
 1       directly within the scene so intelligence how the
 2       deceased was lying would become public knowledge; so it
 3       was decided that myself and Gary would try and lift the
 4       deceased out into the hallway and place the deceased
 5       within a body bag.
 6         While I was standing at the head of the deceased -- so
 7       I'd entered the bathroom first and went to the end of
 8       the bath, I was going to be lifting the deceased from
 9       the head downwards.
10   Q.  And I think those present have seen that Miss Ross' body
11       had her feet towards the doorway of the bathroom and her
12       head towards the inner part of the bathroom?
13   A.  Yes, that's correct.  When I looked up Mr Gray was
14       standing leaning on the doorframe with his left hand.
15   Q.  With Mr Gray facing into the bathroom or out of the
16       bathroom?
17   A.  He was facing out of the bathroom.  I think he was in
18       conversation with another officer that was there.
19   Q.  So should we take it that you are behind Mr Gray and you
20       have his back view as both of you face out into the
21       hall?
22   A.  That's correct.
23   Q.  So where do you say Mr Gray's hand was?
24   A.  About shoulder level on the door surround.
25   Q.  And that's the left-hand door surround as you face into
page 148
 1       the hall?
 2   A.  Yes, it is.
 3   Q.  So can we take it that that is the right-hand door
 4       surround as we look from the hall into the bathroom?
 5   A.  Yes, it is.
 6   Q.  Which part of the door surround was he touching?
 7   A.  Well, I'm obviously at the very edge so it's -- you can
 8       only see it from that distance but it looked as if it
 9       was the surrounding frame area.
10   Q.  We've heard some evidence about door frames and I wonder
11       if it may actually be useful to look at perhaps a
12       photograph in the first instance, number 13 of ST0003.
13       I think we have a slightly enlarged version of that if
14       we could focus in again on the doorframe.
15         I think we heard from one of your colleagues,
16       Mr Hunter, that obviously we have the doorframe, the
17       flat facing as we see it facing the photographer in the
18       shot here.  But we also have, as it were, the inner
19       frame that comes at right angles from that in towards
20       the bathroom?
21   A.  Yes, that's correct.
22   Q.  On which of those pieces of wood are you saying
23       Mr Gray's hand was?
24   A.  In the inner side -- not on the facing itself as you are
25       looking towards it, on the inside.
page 149
 1   Q.  Did that cause you any concern at that time?
 2   A.  Yes, it did because I was concerned in case if there was
 3       to be any possible prints there there was a possibility
 4       that he could be leaning on something, touching
 5       something with his clothing, his gloves and eliminating
 6       it in that way.
 7   Q.  Did you say anything to him?
 8   A.  Yes.  I gave him a quite shout -- just to say, "Gary,
 9       watch where you're leaning because at some point this is
10       going to be subject to fingerprint examination".  No
11       problem at all like that.  This happens all the time.
12   Q.  So what did Mr Gray do when you said to watch out?
13   A.  I can't remember exactly, what I mean, there wasn't
14       discussion or anything.  It was just a matter of moving
15       away, taking his hand away from the area.  This is
16       something you see quite commonly at a lot of crime
17       scenes, even if you turn up, officers leaning, standing.
18       It's quite a common thing to happen.
19   Q.  When you saw Mr Gray's hand on a piece of wood that you
20       described, was his hand gloved?
21   A.  Yes, it was.
22   Q.  At that stage did you have any concern about the
23       condition of the glove?
24   A.  No, I didn't.
25   Q.  So what did you and Mr Gray do then after you've given
page 150
 1       him the warning, as it were, about touching the surface?
 2   A.  After that at some stage we had been lifting the body
 3       out and at some point I noticed that the glove was
 4       burst.
 5   Q.  Can you remember when you noticed that the glove was
 6       burst?
 7   A.  No, I can't recall if it was burst prior to him touching
 8       the surface or this has happened afterwards.
 9   Q.  No, sorry, it is my question that is at fault.  I am
10       asking when it was you first noticed that the glove was
11       burst.
12   A.  No, I don't have an exact time for that, no.
13   Q.  Can you remember what you and Mr Gray were doing when
14       you noticed that the glove was burst?
15   A.  I think it was possibly while we were moving the body
16       from the hallway.
17   Q.  What did you do when you noticed that the glove was
18       burst?
19   A.  I highlighted to Mr Gray that due to the fact that I'd
20       seen him lean on the surface there maybe a possibility
21       of him depositing a fingerprint on that surface with the
22       glove being burst.
23   Q.  Can you remember which part of the glove was damaged?
24   A.  It appeared to be a thumb.
25   Q.  What was Mr Gray's response?
page 151
 1   A.  That we needed to get the gloves changed.
 2   Q.  Did he change his glove?
 3   A.  I can't recall what he done.  I would assume that he did
 4       do.
 5   Q.  I think you have said that undertakers were attending
 6       but they didn't come into the building according to your
 7       recollection.
 8   A.  That's correct.
 9   Q.  I wonder if we could look, please, at SG0537.
10         The document will come up on the screen for Mr Moffat.
11         If we look down at the very bottom of this first page
12       that we are looking at, there is a mention for a Gerard
13       Robertson at 23.40 if we could just focus in on that,
14       please.  That seems to be Gerard Robertson of Portland
15       Funeral Services?
16   A.  Yes.
17   Q.  So we can perhaps take it that that is one of the
18       undertakers involved?
19   A.  Must be, yes.
20   Q.  I wonder if we could move on to the top of the next
21       sheet, please.  Then what seems to be 0005 hours we've
22       got both Gerard Robertson and John McRoberts who both
23       seem to be listed as Portland Funeral Services taking
24       the body to the city mortuary and a DC Gray going along
25       with them?
page 152
 1   A.  Yes.
 2   Q.  If the timings on this are correct, that would seem to
 3       indicate a period of about 25 minutes when Mr Robertson
 4       at least was in attendance.
 5         Is it your recollection that he was not in the house
 6       at all?
 7   A.  I can't recall but what I think may have happened if he
 8       did come in at all it may have been once the body was
 9       bagged up and put in.  But I don't have a clear
10       recollection so I can only speculate --
11   Q.  Is there any possibility all, Mr Moffat, that you are
12       mistaken and that it was the undertakers rather than
13       yourself and Mr Gray who removed Miss Ross' body from
14       the bathroom?
15   A.  No, from what I can remember it was myself.
16   Q.  Is it possible that one undertaker and one officer,
17       either yourself or perhaps Mr Gray, moved the body
18       rather than yourself and Mr Gray?
19   A.  Well, I don't have a recollection of that.
20   Q.  You have told us that you mentioned to Mr Gray on the
21       evening there was a difficulty with his glove.
22   A.  Yes.
23   Q.  Did you mention this matter to anybody else?
24   A.  Yes.  At some point I phoned Kilmarnock Police Office
25       regarding that matter.
page 153
 1   MISS CARMICHAEL:  I am being reminded, sir, that it is 4.00
 2       and since we will not --
 3   THE CHAIRMAN:  You can finish this area if you need a few
 4       minutes.
 5   MISS CARMICHAEL:  I suspect I may have some way to go with
 6       this area, sir.  I am not sure I would finish swiftly.
 7   THE CHAIRMAN:  If it is a few minutes you can complete it
 8       but if not ...
 9           If you would be good enough to come back tomorrow
10       morning at 10.15, Mr Moffat.
11   (4.00 pm)
12           (Adjourned until 10.15 am the following morning)
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