page   1
 1                                       Friday, 2nd October 2009
 2   (10.05 am)
 3               ROBERT HARVEY MACKENZIE (continued)
 4                 Further examined by MR MOYNIHAN
 5   Q.  Good morning, Mr Mackenzie.
 6   A.  Good morning.
 7   Q.  What I wanted to do was to continue with our
 8       consideration of QI2.  We have a number of images
 9       available to us.
10           Yesterday we had started with your own civil
11       charting and I'm aware that you have --
12   A.  Sorry, can I correct you.  It's not for the civil.  It
13       was just a request of Mr Gilchrist.
14   Q.  It is the one you did at the request of Mr Gilchrist and
15       if we could bring that up again, please, it is CO2005H.
16       If we proceed through again we will find I think it is
17       page 3 that we are looking for.  Page 3 is being brought
18       up on the screen.
19           What I am also going to give you is a photograph
20       that has been created from the negative of QI2 that has
21       been done by Dr Bleay.  (Handed) You will want to just
22       find yourself enough space and, for others in the hall,
23       the Bleay one I am using is the normal, that is to say
24       not blurred, and its code is EA0029.  Perhaps we can
25       bring that up.  It should be number 1.
page   2
 1           I think we are going to have to rotate this
 2       anticlockwise through 90 degrees.  So that is another
 3       image of QI2.
 4           Mr Mackenzie, all I want to do is -- I do not want
 5       to put you at a disadvantage.  What I am ultimately
 6       going to ask you to do is to demonstrate to the
 7       Chairman, first of all, where a particular point can be
 8       seen on the image and then we will ask you to interpret
 9       that point.  You can use whichever of the available
10       images you regard as preferable for you.
11           To your left, there are also images that we have
12       been using for the comparative exercise and the one at
13       the bottom should be the SCRO charting.
14           Is that correct?
15   A.  Yes.
16   Q.  The SCRO charting has a reference for us of FI0167A.  I
17       had a word with you yesterday so you know the areas I am
18       interested in.  In your charting, I am in fact going to
19       primarily ask you about 1 to 4 -- so my blue line
20       yesterday was drawn too far to the right -- then I am
21       going to go round and I am going to ask you about the
22       point that you have as number 14 -- so it is 1 to 4, 13,
23       point 18, 27 and 29.  1 to 4, 13, 18, 27 and 29.
24           You can use whichever of the images is the more
25       dependable for your purposes to study those?
page   3
 1   A.  Can I have a minute?  It's the first time I've seen this
 2       other than on disk.
 3   THE CHAIRMAN:  You take what time you need.
 4   A.  And this one here as well just to ...   (Pause)
 5           My first impression looking at Dr Bleay's version is
 6       that I think there's actually pixillating within that
 7       and it's not as clear as what I have originally worked
 8       from.  Also on the screen here it's obviously on a
 9       different scale.  I don't know how that would work
10       actually enlarging that up because I know that --
11   MR MOYNIHAN:  If you give me just a second I will show you
12       because it ought to be a high resolution image and,
13       therefore, ought to enlarge reasonably well.  I am just
14       wishing you to use, for your purposes, whichever of
15       these images is better.  If you wish to adhere to your
16       original one, then so be it.
17   A.  I wish to adhere to the original one.
18   Q.  Thank you very much.  In that case, if you can have
19       then -- we will take these other images away so you are
20       not too cluttered.  I will take down the image on the
21       right (that is the Dr Bleay image), and just leave us
22       with your own image in a central position.
23           You have before you not just a digital image on the
24       screen, you've your own working original plus you have a
25       photographic original with the points numbered on it.
page   4
 1   A.  The difference being that my copies have only got the
 2       red dots and the blue dots on the photograph so what
 3       you've give me is of great assistance.
 4   Q.  We may have to just pass the original up to the Chairman
 5       at some point so he can actually see it in its best
 6       version.
 7           Mr Mackenzie, it makes no difference to me in which
 8       order we proceed through the points that I have just
 9       listed to you.  I understand that for you the starting
10       point had been points 27 and 29?
11   A.  Correct.
12   Q.  If that is where you wish to start then, please, just
13       start there.
14   A.  I'm quite happy with the order you mentioned 1, 2, 3 and
15       4 or that cluster.  Can I also mention that the first
16       time I had a chance to see this captured on the
17       technology yesterday and when I did go to enlarge
18       section of it it was pixillating.  So until I actually
19       saw that yesterday I wasn't, you know, sure how it would
20       come up.  It may cause us some problems to try and
21       enlarge it on here.  On what I can see on the screen
22       here, I'll try and indicate.
23   Q.  Mr Mackenzie, that is why we have access to the
24       photographic original that you have with the numbers on
25       it so that, in due course, Sir Anthony can look at the
page   5
 1       original.
 2           My reason for beginning, as you will now be aware,
 3       with points 1 to 4 is that they are off to the left-hand
 4       side in an area that Mr Grigg said was an area of
 5       difficulty because of superimposition.
 6           If I go back to the image from yesterday, which is
 7       FI011016 and I will enlarge the image that I am
 8       interested in.  Yesterday you drew for us the different
 9       areas comprised within this one particular image and the
10       reason for concentrating on 1 to 4 is simply to ask you
11       if 1 to 4 are within the blue oval, the dependable area,
12       of QI2 or in fact tending towards it's probably the
13       yellow area of superimposition.  That is my reason for
14       concentrating on 1 to 4.
15           I will again take down the image from yesterday and
16       just give us the main image.  If I begin with one of the
17       general points I have asked other experts, as I have
18       said to other experts I have no difficulty with the
19       proposition that it needs a trained eye to identify a
20       target group and, indeed, ultimately to interpret
21       features within that target group.  It is the
22       intermediate stage I am asking these questions about;
23       namely whether the expert would require to demonstrate
24       to the judge or to the jury that the feature is indeed a
25       mark on the image, so it exists on the image.  Then one
page   6
 1       proceeds from that to the point that the expert is
 2       interpreting what everyone can see.
 3           Do you accept that there is that first stage, that
 4       the expert must demonstrate that it is a feature
 5       existing on the image that is then capable of
 6       interpretation?
 7   A.  I would add to that.  I agree with that but I would also
 8       add to that what I've already said about the assessment
 9       stage where your eye is sending messages to the brain.
10       It's picking up all the information in that and in this
11       particular case I know that my eye was picking up on
12       shapes of the ridges, the ridgeology aspect, as well as
13       looking for the traditional characteristics and I'll
14       explain that in due course.  But it's part of my -- I
15       can actually specifically remember certain parts and
16       shapes of the ridges actually jumping out and that was
17       being recorded in my thought process and I've gone on to
18       actually explain that.
19   Q.  Mr Mackenzie, I do not want to artificially constrain
20       you by concentrating on a certain limited number of
21       features.  What would be more important is to understand
22       what your original assessment was and the general flow
23       of the ridges.
24           Do you wish to explain that?
25   A.  Okay.  Obviously again there was prior knowledge being
page   7
 1       given.  I was told that this had been identified as
 2       Marion Ross and so obviously it was down to looking at
 3       that specific individual, but looking at the overall
 4       pattern and ridge flow within this, and I've noted on
 5       the previous page the most prominent part, pattern-wise,
 6       within these various touches on this area is this
 7       whorl-type pattern.  So as far as level 1 as described
 8       the ridge flow and the patterns following out from the
 9       ridge flow, this is a whorl pattern that I've been
10       looking at and that's my first part of the assessment.
11           Again, then I was looking for a target area and, as
12       you have already said, that 27 and 29 marked on this
13       left-hand image was my starting point because my eye was
14       focused on that area.
15           From there, and one or two other features in that
16       vicinity, which I can articulate as I go through or
17       actually expand upon, unfortunately I can't enlarge this
18       one but I can explain one or two features in that area.
19       The first time I actually saw this actual size was when
20       Mr Gilchrist came to visit me and, I say, that's why he
21       asked if there could be a comparator and I remember
22       using the comparator, getting the start there but,
23       again, I've also said that because of different
24       treatments, et cetera, to actually visualise the prints
25       I wasn't aware what treatment had actually been given to
page   8
 1       that and I wasn't actually aware within the photograph
 2       that I was being shown whether in fact I should be
 3       looking at black ridges or white ridges.  Hence, I asked
 4       Mr Gilchrist, from what I can see I can get a start on
 5       this, but I would need to get the relevant materials.
 6           It wasn't the practice to actually sit with someone
 7       on your shoulder either actually as you went through for
 8       the first time actually doing a comparison.  We wouldn't
 9       do it with another colleague; we wouldn't do it with a
10       police officer standing behind you in the office.
11       That's virtually a no-no.  So it wasn't any difference
12       from Mr Gilchrist coming in asking to have a comparator
13       there.
14           So I was able to say that, yes, given the proper
15       materials, et cetera, then I would be willing to make a
16       comparison of this mark against the deceased's prints
17       who I was asked to make the comparison against.  So that
18       was the initial phase and my initial assessment.
19           I say, still today I did remember I think it was
20       Mr Wertheim actually excluded or you will probably be
21       able to remind me what it was, but I think he said it
22       was unreliable, what was described as a lake.  That was
23       actually my strongest feature so there's a contrast
24       there.
25   Q.  The lake is the feature 27 to 29?
page   9
 1   A.  Yes.
 2   Q.  If we bring up just to the side so that others can see
 3       what we are talking about, please, we will bring up
 4       electronic page 5.
 5           This is Marion Ross's fingerprint.  Do we take our
 6       eye to point 27 and point 29, which you were explaining
 7       is a lake?
 8   A.  Yes.
 9   Q.  To the left and beneath the core?
10   A.  Yes, about, on the anticlockwise, about 7.00.
11   Q.  Just when we have it on the screen it may actually help,
12       since we are discussing it, that is the most prominent
13       feature for you, in your image do we -- if find point 27
14       is it where the pencil tip is just now, point 27
15       (indicated)?
16   A.  Yes, just to the left.
17   Q.  So if I put an arrow in that is point 27.  Point 29 is
18       at the end of where the pencil tip is?
19   A.  Basically where it's marked at the end of these red
20       lines.
21   Q.  It is just simply, as you say, whether the quality of
22       the digital image is good enough.  Again, I will give
23       the approximate location.  I will stay well clear of the
24       earlier other marks we are trying to look at.  That is
25       the approximate location (indicated)?
page  10
 1   A.  Approximate location.
 2   Q.  So, again, we can insert the text 27 and the text,
 3       again, would be 29.
 4   A.  Yes.
 5   Q.  So that is what we can see exists as the lake.  Just
 6       while we are looking at that would you like to explain
 7       how it is that you identify that as being the lake on
 8       Marion Ross's fingerprint?
 9   A.  As I said, it wasn't just Second Level Detail, ridge
10       endings, bifurcations, that my mind was taking in.  It
11       was prominent shapes actually of the edges of the ridge
12       forming this lake.  I've actually illustrated it on
13       page 5 of I think the page that you brought up
14       previously there.
15   Q.  If you give me a second, first of all, we will save this
16       image and we will go to page 5.
17   MISS BAHRAMI:  That is FI0210.01.
18   MR MOYNIHAN:  If you take down the image on the right and we
19       will bring up digital page 6, please.
20           Perhaps we can start there.  You are indicating that
21       on the page numbered 5 in your book, page 6 for us
22       digitally, what you have done is outlined in red the
23       outline of the lake?
24   A.  The actual edges of the ridge, yes.
25   Q.  You have done that, as it transpires, by reference to
page  11
 1       Marion Ross's inked fingerprint in this page?
 2   A.  To make it clearer for the illustration purposes here,
 3       but my eye on the mark and actually on the screen here,
 4       I'm quite satisfied at the level that's on the
 5       screen -- sorry, not this obviously extra large but on
 6       the mark side, the actual unique shapes of the ridges
 7       there are so distinct.
 8           Then allied to that, immediately to the right of
 9       number 29 there's a small incipient ridge present on the
10       mark which is very strong and immediately below that,
11       where I've marked 28, is a ridge ending that's also very
12       strong on the mark.
13   Q.  If you tell me, please, the incipient ridge is where, in
14       relation --
15   A.  Is marked between the arrow for 28 and the arrow for 29.
16   Q.  So the incipient ridge is where my cursor is?
17       (Indicated)
18   A.  I've actually outlined it in red.  Do you see?
19   Q.  So it is where my cursor is just now between the two
20       arrows?
21   A.  Yes.
22   Q.  That is the incipient ridge and then point number 28 you
23       say is a prominent --
24   A.  Where the point of the arrow is and I've actually
25       outlined from the tip of that ridge and I've traced the
page  12
 1       shape that you will see on the left-hand side there, on
 2       the left-hand side of that ridge, so that combination
 3       alone was giving me my starting point.  This is from
 4       looking purely at the mark.  That was very strong to me.
 5   Q.  Then, as you say, you have marked on the drawing some
 6       other points: 19, 20, 21, 22 and 23?
 7   A.  Yes.
 8   Q.  Do these points, as drawn on the left-hand side, form
 9       the basis of the tracings that you have on the acetates?
10   A.  Eventually, but another reason for making this
11       illustration, Sir Anthony, was I knew this was being
12       presented to Mr Gilchrist and if you look within my
13       report, I refer to the areas below 27 or out to the left
14       of 27 and 29 and also, as far as I can remember, the
15       areas below 21, 22 and 23.  So it was to give an
16       indication of where I said there was superimposition and
17       disturbance and I used the words that these areas below
18       that were unsafe because of the superimposition.
19           So it was twofold this and, basically, it's allowed
20       me today to illustrate to you where my starting point
21       was and what my brain was taking in and the shapes of
22       the ridges.  But this illustration on page 5 for
23       Mr Gilchrist was to allow him to know what I was
24       articulating in my statement, that the areas below, to
25       the left and right were subject to superimposition.
page  13
 1   Q.  If we follow that on through -- I don't know if there
 2       is -- is there a page 6 to your original production or
 3       for the tracings do we require to go to ...?
 4   A.  No, page 6 was my list of the characteristics.
 5   Q.  In that case, what we will do is proceed then.  We will
 6       take down the right-hand page, please, and bring up
 7       CO2004H.  We will just proceed through this page by
 8       page.
 9           First of all, we are now about to look -- sorry, go
10       back one page -- we are about to look at a document you
11       prepared later in February 2002, again for the benefit
12       of Mr Gilchrist.
13   A.  Okay.  Could I perhaps suggest the order that we look at
14       in that book?  It's the reasons for appearing in that
15       book, and you are going to show it side-by-side with the
16       image that's on the left, to describe what my thought
17       processes were because this was me assisting
18       Mr Gilchrist so many months later.
19   Q.  Before we work through in an order that's sensible to
20       you let us establish what the document it is.  It is
21       tracings that were done in February 2002 for
22       Mr Gilchrist and I go to the next page, again, simply so
23       that I can understand, I will pass over the original so
24       that you can explain to us how this fits together.
25           These are tracings that you did to demonstrate Third
page  14
 1       Level Detail within the Marion Ross print and QI2?
 2   A.  This was the area I think I explained about Third Level
 3       Detail, it's normally within part of the mark as opposed
 4       to trying -- you couldn't do it on the whole mark.  So
 5       this was an area of strong features suitable for
 6       illustration of Third Level Detail and you're correct in
 7       saying that that there corresponds with what eventually
 8       I did in a one-to-one size on the enlargements, not as a
 9       one to one side on the mark, to further illustrate the
10       work, the Third Level Detail comparison work, to
11       complement what had already been submitted in July 2001.
12   Q.  Unfortunately we do not have any images of the acetates
13       superimposed on the original fingerprints, but I will
14       pass over the book to you with the acetates so that you
15       have the originals.  (Handed)
16         If you could tell me within the book which page it is
17       that is best for your purposes and digitally we then
18       just add 1 to it.
19   A.  Sorry, for my purposes ...?
20   Q.  You were wanting to explain.  You said there would be a
21       different order.
22   A.  Yes.  Because I was -- I will explain it after this.
23       Page 3 in this book, which is the transparency ...
24   Q.  If you give me just a second it will come up.  Yes,
25       page 3.
page  15
 1   A.  This was a transparency which in February 2002 I made
 2       from the copy that I had made, what you're showing here,
 3       I had kept in my possession of page 5.  The reason for
 4       that was to give continuity of the area in general that
 5       I was referring to in my later submission to
 6       Mr Gilchrist, but then the earlier pages goes back to
 7       the actual size tracings from the enlargements that were
 8       submitted in 2001, of which I had identical photographic
 9       copies.  So that's how I was able to then put a
10       transparency over the photographic copies that I had
11       retained which were identical to the ones that are in
12       this book.
13   Q.  Mr Mackenzie, just for the avoidance of doubt because I
14       find some of the tracings just a little difficult to
15       follow because they don't highlight the ridges as such,
16       my pen tip, is that poised at the point that you had
17       numbered 27?
18   A.  No.
19   Q.  Where is 27?
20   A.  This is actually, you're now looking at the outside edge
21       of that ridge structure so if you move up to --
22   Q.  If you just point it to me, please.
23   A.  It's in here where I marked on the photograph.
24   Q.  So point number 27 is where you have marked.  Can you
25       just put an arrow to that, please?
page  16
 1   A.  The arrow is live ...?
 2   Q.  You are okay.  So that is number 27?
 3   A.  Yes.
 4   Q.  Where is 29?
 5   A.  (Indicated)
 6   Q.  28: would that be ... just point me, please, to 28.
 7   A.  (Indicated)
 8   Q.  And the small shape immediately above it, is that what
 9       you call the small incipient?
10   A.  Yes.  Do you want me to mark that as well?
11   Q.  Yes.
12   A.  (Indicated)
13   Q.  So if we put the text in now so we can record this.
14       This is --
15   A.  27.
16   Q.  27.  28 --
17   A.  Sorry, 29.
18   Q.  29, sorry.  27, 29 --
19   A.  This one here is 28.  (Indicated)
20   Q.  28.  It is a bit obvious the one left is the incipient?
21   A.  You could put "INC".
22   Q.  It is okay.  I think it will be reasonably logical.
23           So do I understand it then that page 3 in your book
24       of transparencies is, in fact, an acetate that can be
25       placed over the photographic originals in your book that
page  17
 1       we looked at first (that is CO2005H)?
 2   A.  This is taken from, I say, that particular enlargement
 3       that was made back in 2001.  It's picked from that page
 4       that's marked page 5.  The exercise then was to actually
 5       trace on page 1 of the book from the mark the
 6       appropriate area and from Marion Ross's right forefinger
 7       the appropriate area so I could end up with
 8       side-by-side.  That's what eventually happened.  So
 9       these are the actual size taken from the actual size
10       enlargements.
11   Q.  If we just stop for a second, first of all, and save the
12       images that we have on screen.
13   MISS BAHRAMI:  That is image FI0210.02.
14   THE CHAIRMAN:  So this acetate is designed to be placed over
15       page 5?
16   A.  That particular area on the mark and the equivalent area
17       on the right forefinger of Marion Ross.
18   THE CHAIRMAN:  In the enlargement page 5?
19   A.  Yes, because the Third Level Detail you've got to
20       enlarge at least -- I say, obviously larger than actual
21       size but in this particular mark in my initial
22       assessment, I say, my eye was actually picking up.  It
23       was clear enough on the actual size, it was clear enough
24       to pick up the shapes, particularly in that lake area.
25       They are quite distinct.
page  18
 1   MR MOYNIHAN:  Mr Mackenzie, what I would like to do is just
 2       to have you tell us by reference to each of these two
 3       books you have which acetate lines up with which precise
 4       image.  So if you start, first of all, with the acetates
 5       and just tell us the page.
 6   A.  Page 1 in this book.
 7   Q.  Page 1 in CO2004H -- we will bring up -- lines up with
 8       which particular image in CO2005?
 9   A.  Lines up with the photographic enlargement shown in
10       page 3 of the book dated --
11   Q.  It is okay.  2005H is the code and it is page 3, did you
12       say?
13   A.  Page 2 in this book.
14   Q.  Let us concentrate on page 1 in the tracing lines up
15       with which image in the --
16   A.  The photographic enlargement of QI2.
17   Q.  Which page number?
18   A.  Sorry, page 3 on the original book.
19   Q.  Page 3.  So that is what we have brought up just now on
20       the screen?
21   A.  Yes.
22   Q.  So those two should line up?
23   A.  You put the transparency over the top of that and that's
24       the shape you get.
25   Q.  Then if we perhaps save that as a pairing.
page  19
 1   MISS BAHRAMI:  That's FI0210.03.
 2   MR MOYNIHAN:  Does it follow, Mr Mackenzie, that the other
 3       pairing, acetate number 2 will line up on top of page 4
 4       in the original book of photographs?
 5   A.  That's the right forefinger of Marion Ross; that's
 6       correct.
 7   Q.  We will just see that for ourselves.  Page 2 on the
 8       right (digital page 3) lines up with page 4 on the left?
 9   A.  Page 4 on the left, that's correct.
10   Q.  Again we will keep that pairing.
11           Unfortunately, because the technology was not set up
12       with this in mind we may have to at some point --
13       whether now, sir, or some later convenient stage --
14       actually give you the opportunity to view the acetates
15       on top of the images, whether you do so now or at a
16       later stage.
17   THE CHAIRMAN:  Obviously we cannot place it over it.
18   MR MOYNIHAN:  No, or at least I can't.  Sir, I can either do
19       that now or proceed with the questions.  As you please.
20   THE CHAIRMAN:  Yes, I think if I look at it later.
21   MR MOYNIHAN:  I am obliged.  We will save this pair.
22   MISS BAHRAMI:  That is saved as FI0210.04.
23   MR MOYNIHAN:  Mr Mackenzie, just while we have these images
24       up, I want to step back from the detail of the images
25       just to ask you about Level 3 detail.  You have covered
page  20
 1       this to some extent but I just want to bring it in at
 2       this point.
 3           Level 3 detail that you describe as ridgeology --
 4   A.  I did add to that edgeoscopy in my earlier deliberations
 5       on Y7.
 6   Q.  At the time of the Asbury and McKie cases -- Asbury is
 7       1997 and McKie is May 1999 -- you and your colleagues in
 8       the Scottish Criminal Record Office would not have said
 9       they were practising ridgeology?
10   A.  Not in an illustrative manner but what I have said is --
11       and David Ashbaugh and those taking these courses will
12       tell you -- that we are all ridgeologists, the name
13       being invented.  We have always been taking in that
14       detail.
15           Prior to that -- and these courses were actually
16       brought in as part of the process moving towards
17       non-numeric to say this is another tool in your armoury.
18       You've been using it for years.  You've been mentally
19       noting all these features but here, into finer detail by
20       making further size of enlargements, you can go to the
21       extreme.  You can go too far enlarged and you actually
22       lose detail but, on their advice, they were suggesting
23       certain percentage of enlargements in small areas could
24       complement your Second Level Detail and normal
25       illustrations, if required, in your decision-making
page  21
 1       process and in any illustrations.  So it was basically
 2       as a forerunner to changes in non-numeric in the UK.
 3   Q.  I just want to get the sequence correct.  If I tell you
 4       that Ms McKie's trial was in May 1999, would I
 5       understand you to say you first learned of Mr Ashbaugh's
 6       presentation about this after that date, later in 1999?
 7   A.  Yes.  It's my understanding that the courses that
 8       Mr Ashbaugh was asked to deliver at Durham where early
 9       December 1999, which was after the trial.
10   Q.  You were not present at that course yourself?
11   A.  No.  Obviously all these courses have cost implications;
12       so two senior representatives, Maria Milligan, who was a
13       trainer at the time, as far as I can remember at that
14       time -- certainly if she wasn't a trainer at that time
15       she became a trainer -- and Mr Alan Dunbar attended.
16       They then gleaned the course material and the delivery
17       and then they replicated that for all the staff in the
18       Glasgow Bureau.  I don't know whether they actually
19       expanded it to other bureaux, but other bureaux were
20       represented and I presume they would be doing likewise.
21
22   Q.  If I explain to you my topic, I am just trying to get an
23       understanding of training now in relation to this.
24           Miss Milligan and Mr Dunbar attended a presentation
25       by Mr Ashbaugh at Durham?
page  22
 1   A.  It was a course, I understand.  I don't know what the
 2       duration was.  It may have been more than one day, a
 3       couple of days.
 4   Q.  I can ask Mr Dunbar when he gives evidence.
 5           They then brought that course knowledge back to
 6       Glasgow and started to train your own staff, including
 7       yourself, in relation to this new tool?
 8   A.  Yes.
 9   Q.  Beyond that, by the stage that you were doing these
10       tracings for Mr Gilchrist, which were of course in early
11       2002, you yourself said that you had heard Steven Meager
12       of the FBI give a talk in relation to Third Level
13       Detail?
14   A.  Yes.
15   Q.  And you had invited him to do a presentation in Glasgow?
16   A.  The Chief Inspector at the time, Chief Inspector
17       Christopher Griffiths, actually took the opportunity
18       because he had been present when Mr Meager gave a
19       presentation at a conference in England.  I think it was
20       possibly at Liverpool.  But in addition to that, I also
21       mentioned that I visited the FBI --
22   Q.  I was going to ask --
23   A.  -- in August 1999.  So before I'd actually had
24       Mr Ashbaugh's input delivered via Mr Dunbar and
25       Mrs Milligan then I had insight into the work that the
page  23
 1       FBI had been doing in more intimate detail, if you like,
 2       more one-to-one detail with Mr Meager because I'd
 3       already seen his presentation as well.
 4   Q.  So if I have the sequence then correct you had been to
 5       the United States before Mr Ashbaugh's presentation in
 6       Durham?
 7   A.  That's correct.
 8   Q.  If I understand it correctly you had been to the
 9       United States for one week?
10   A.  One week.
11   Q.  What I want to do in relation to Third Level Detail is
12       understand -- I am about to use a scientific term --
13       what the "claim" is in relation to the power or the tool
14       of Third Level Detail.  What would the fingerprint
15       expert say is the claim, what reliability or what power
16       to identify is claimed in relation to Third Level
17       Detail?
18   A.  I think actually having seen and been shown, I say, very
19       graphically material which formed part of either
20       Mr Meager's presentation at conference, courses by
21       Mr Ashbaugh and then my one-to-one being shown by
22       Mr Meager at the FBI work that he had done, that once
23       experts have actually seen these examples of -- I know
24       that Mr Meager had been doing -- he actually had a
25       presentation folder that he had developed and it was to
page  24
 1       do with the Daubert hearings in the States and he had to
 2       put forward a case from the FBI and, within that, there
 3       was Third Level Detail and some examples which he was
 4       able to show me and he also showed in his presentations.
 5           To me, as an expert at that stage of 32 years'
 6       experience, I think it was, well, mind-blowing I think
 7       is probably the way to describe it, in that showing a
 8       small, very small, area -- one of the examples that
 9       stands out that he showed me was a small area of ridges,
10       two or three ridges in parallel, and the size of the
11       area from the object would be something along the lines
12       of about a 5 pence piece.  The object he was actually
13       showing me, one of the I say mind-blowing examples was
14       actually on the button of a hypodermic syringe and where
15       the person who had actually pressed the syringe, that
16       area was captured, and that kind of area.  When you
17       actually enlarged it up and did a side-by-side
18       comparison, taking into account edgeoscopy, pores --
19       this is from memory what he showed me -- the detail in
20       it was stuff that I personally and I would imagine most
21       experts in their career up to that point, certainly in
22       the UK, I had no knowledge of anyone actually going down
23       this road.
24           So that's why I say it was something else in the
25       armoury, in your decision-making process, although
page  25
 1       mentally, Mr Meager will tell you, we're all
 2       ridgeologists, we've all been doing this for years.
 3       That's where the eye was actually recording that detail,
 4       although our training was to look for Second Level
 5       Detail, which was ridge endings and bifurcations.  So
 6       this added a new dimension and options but, again, they
 7       also tell you that you can't do it for every mark in
 8       every circumstance.  But there may be that opportunity,
 9       if you like, within certain marks.
10           And I say the reason for the -- well, obviously
11       these are from Mr Ashbaugh.  It was basically to open
12       the eyes of experts.  It doesn't matter how many years'
13       experience they had to this in the run-up to the
14       non-numeric because on the subject of non-numeric I had
15       been present along with other Scottish representatives
16       over a number of years in the mid-to-late '90s.  We had
17       a series of meetings held to actually progress how they
18       would adopt the change and there was these meetings with
19       practitioners of all sorts of experience within actually
20       fingerprints and I remember specifically thinking ahead
21       knowing that in Scotland, in the SCRO, particularly the
22       SCRO Bureau, we automatically, in line with the Crown's
23       request, basically, for enlargements in solemn cases,
24       always automatically produced one illustration out of
25       each case.
page  26
 1           Of course, what was about to happen was going to
 2       non-numeric and my question was for the assembled
 3       audience, the majority of whom would have been from
 4       England and Wales and Northern Ireland also included,
 5       was actually how are you going to illustrate Third Level
 6       Detail?  Have you actually thought about that?  What
 7       medium would you use, et cetera?
 8           To this day, I'm waiting for an answer.  I'd
 9       actually been at, it must have been at least three of
10       these meetings and I think they knew the question was
11       coming because it was always one of my questions hoping
12       that maybe somebody had thought about it in the interim.
13       I never got an answer and what subsequently arose was, I
14       think it was round about 2001, there was a move in
15       England and Wales to non-numeric.
16           I fully expected Scotland in the same timescale
17       would have moved, but I think a factor in the delay for
18       that would have been the issues around Shirley McKie.  I
19       think that's definitely played a part in it.  It wasn't
20       until late 2006, about September 2006, that Scotland
21       actually moved on.  That's approximately five years
22       after England.
23           What surprised me was, because I had also been
24       raising the questions in the Scottish forum, how are we
25       going to illustrate Third Level Detail if you're not
page  27
 1       talking about a number of characteristics in the
 2       traditional way?  To my surprise, after deliberations
 3       with all the relevant parties, including the Crown, the
 4       decision was made prior to my retirement to actually
 5       stop doing enlargements which -- I know there was mixed
 6       opinions but, me having done that for nearly 40 years, I
 7       thought where's the transparency?  How do you illustrate
 8       in a court scenario?  So it will be a question I presume
 9       you will ask the SPSA representatives when they come
10       because I'm interested to know how they have been
11       presenting their evidence since I retired.
12           I think that gives you the picture.
13   THE CHAIRMAN:  I wonder could I ask you at this stage: is
14       Third Level Detail, do I understand from what you are
15       saying you can use it in itself for an identification or
16       is it complementary to Second Level Detail?
17   A.  Obviously, I haven't personally had a case in that
18       period where I had reason to use it by itself, but an
19       example of Mr Meager's on that -- in fact, I'm nearly
20       certain on that hypodermic syringe there wasn't any
21       Second Level Detail.  Again, I may be corrected further
22       down the line but it was only one or two, three maybe,
23       small ridges in this area but I was actually going to
24       bring out the point and actually Mr Wertheim brought it
25       out that within the IAI Journal a few years ago there
page  28
 1       was an example given, I think it may have been from a
 2       thumb, and it actually showed -- where the mark had been
 3       taken from, again, it was a very small area, and I
 4       understand it was taken from the eyepiece on the scope
 5       of a rifle and there was this portion of a thumbprint
 6       left on it which had no Second Level Detail and when you
 7       actually see it enlarged up, the shapes of the ridges,
 8       the pores, everything was there.
 9           So the answer is, yes, it can be used.  In practice
10       in the world I don't know how many times, if ever, it
11       has been used but that is the one case that actually was
12       being presented to the court and it's something that
13       every expert, if they haven't seen it, needs to see it
14       just in the same manner as we were fortunate enough to
15       have seen material that Mr Meager and Mr Ashbaugh
16       presented.  So it was an eye-opener, I would say, but it
17       was taken in the context of moving to a new method of
18       illustration for court, basically, and standards for
19       court, and non-numeric was the focus of tuning the
20       experts into that.  I wish it had happened many years
21       before because to me, in my level of service, and to
22       others it was a eye-opener.
23   MR MOYNIHAN:  It's the Chairman's question I was actually
24       asking you about and it is why I was wanting to look at
25       the claim.  If we look at traditional fingerprint
page  29
 1       evidence concentrated on First and Second Level
 2       Detail --
 3   A.  Ridge flow, the pattern, type if present and then into
 4       the ridge endings, bifurcations and other descriptions,
 5       lakes, independent ridges, et cetera.
 6   Q.  The claim in relation to traditional fingerprinting of
 7       first and Second Level Detail was if an expert can
 8       discern points in common of sufficient quality, then the
 9       expert can give the opinion that there is a unique
10       identity between a crime scene mark and a fingerprint of
11       an individual, unique not only to one person in the
12       world but unique through human history.  That is the
13       claim.
14   A.  That's correct.
15   Q.  Now, are you saying that in relation to Third Level
16       Detail alone, of which an example is up on the screen,
17       that the claim is that the pattern of Third Level Detail
18       itself may be sufficient for an expert to say that there
19       is a unique match between the fingerprint at the crime
20       and that of a suspect, unique to him throughout the
21       world and unique in human history?
22   A.  Having seen -- I hear what you're saying about this,
23       having seen the examples, yes, I would have to say, yes,
24       the expert could speak to that being unique because with
25       detail that I've seen in examples it's absolutely
page  30
 1       100 per cent.
 2           As far as this is concerned I would --
 3   Q.  Mr Mackenzie, if I can stop you.  This is work that
 4       Mr Ashbaugh did culminating in 1999?
 5   A.  Well, it was -- he'd obviously been doing it over a
 6       period of time and eventually wrote a text book on it,
 7       but the first presentation, in my understanding anyway,
 8       in the UK was at Durham.  I think he possibly did them
 9       at the Metropolitan as well.
10   Q.  Do you know what empirical evidence there is to support
11       the claim that Third Level Detail can discriminate with
12       the power I suggested, which is that it can
13       discriminate, isolate, one individual in the world
14       population and one individual throughout human history?
15       What is the empirical evidence that that can be done
16       with Third Level Detail?
17   A.  I think the examples I have given, I would be interested
18       to know what the result of that specific one on the
19       scope, for example, had been tested in court.  All I
20       knew was at that point it was published I think it had
21       been submitted to the court.
22   Q.  Let us take then this one level further.  There are two
23       examples, one on the scope of the rifle, one on the
24       point of a syringe where an expert has been able to
25       discern that Third Level Detail with that power of
page  31
 1       discrimination.
 2           What then enables another expert, yourself, looking
 3       at some other exhibit entirely different (for example,
 4       the tin on which it is said Marion Ross's fingerprint
 5       was found), what enables you to say that that
 6       combination is unique to the degree -- you may not be
 7       claiming it here but in any instance where Third Level
 8       Detail is used, what empirical evidence enables the
 9       expert to say that that particular observed pattern is
10       unique to the degree that I'm indicating, unique to one
11       person in the world and that one person throughout human
12       history?
13   A.  The level of quality detail, without specifying it as
14       Second Level, Third Level, the quality of the actual
15       detail that the expert is left in absolutely no doubt
16       and would be prepared to speak to that.  I say, these
17       examples I found mind-blowing and I could not deny them
18       but that's down to the levels of expertise, et cetera,
19       built up over a long number of years that experts' eyes
20       are trained and, as I say, their brain over these years
21       has been taking in all this information.
22           So having been exposed to this other tool and I say
23       that's what it is, it's not professed to be able to be
24       used in every mark comparison and would not necessarily
25       need to be but it's there in the armoury if you want to
page  32
 1       have it as additional information to present for
 2       whatever the reason.
 3           Now, the only reason that I included this and the
 4       gap in between, I think I explained it in my statement,
 5       was that I had a small window, as I would describe it,
 6       when the Fiscal -- it turned out to be Mr Gilchrist --
 7       comes to me and asks me to do or would I like to do a
 8       comparison of a particular mark.  Then because obviously
 9       it was of a serious nature, it was a major inquiry going
10       on and it was obviously the Fiscal would be working to
11       time constraints, I actually locked myself into my
12       office.  As soon as I could get materials available to
13       me I actually excluded myself from the work --
14   Q.  Sorry, Mr Mackenzie, if I can interrupt you, I was
15       looking at this more broadly.
16           What I am trying to see is whether you can point me
17       to criteria that will enable me to understand in which
18       circumstance an expert would say a pattern, such as we
19       see on page 2 on the screen on the right-hand side, a
20       pattern is unique to that one individual in human
21       history or merely say that's an interesting and indeed
22       challenging similarity which, as the Chairman said, is
23       complementary to or an additional factor in the other
24       factors I find; in other words, not of itself
25       determinative of the uniqueness of the match.
page  33
 1           Can you give me any criteria to inform that
 2       judgment?
 3   A.  All I can say is that I was looking at that in a
 4       complementary basis having already found and illustrated
 5       nearly twice what has been termed the national standard.
 6       In fact, there are one or two further characteristics in
 7       that that I haven't actually marked but I thought by the
 8       time I had reached 29 along with the supportive
 9       incipient ridges was well more than could ever need to
10       do for an identification.  But because of the
11       seriousness of this and the allegations that had been
12       made in relation to this, having been given the
13       opportunity and, I say, within a certain time-frame to
14       do this, then I dedicated myself to this.  It takes a
15       lot of time actually to -- it's a very intricate
16       pattern.  The ridge structure of Marion Ross's fingers
17       is very intricate and I think I touched on it yesterday,
18       between the actual ridges and the incipient ridges.
19           You don't on some individuals get many incipient
20       ridges at all and others it just depends on that
21       individual's skin structure.  I looked at this as
22       complementary.
23           I had already given my report in 2001 to
24       Mr Gilchrist which I had no feedback on at that point
25       but in my statement I have mentioned I actually had to
page  34
 1       go into hospital for major surgery and while I was off,
 2       my mind took me back to Y7, took me back to my
 3       ridgeology training but also took me back to my initial
 4       assessment in my head.  I could recognise ridge shapes
 5       which were unique and I thought I need to offer this as
 6       something complementary and that, hence, after my
 7       recovery period, I then went back and produced this,
 8       sent this off to Mr Gilchrist and, as I say, the idea
 9       was to actually help him relate one to the other from
10       the previous evidence.  What surprised me was that I was
11       actually expecting to get a call from Mr Gilchrist to
12       see if I could come and actually explain what I was
13       actually doing and that never happened.  That was very
14       surprising considering the amount of work I'd actually
15       put into it.
16           But, again, it would have been unique for
17       Mr Gilchrist to have seen something like this.  He
18       wouldn't have seen probably any examples in a Scottish
19       case that I would have been aware of in the past and I
20       fully expected when I submitted this -- because I did
21       say that in my original statement that I asked about the
22       other fingers, you know, if he would like to advise me
23       if the other fingers were identified because I hadn't
24       seen this mark ever before and I wasn't aware of
25       anything else in the area being identified.  So I posed
page  35
 1       these questions and the surprise to me was that I never
 2       heard any more from Mr Gilchrist.
 3           So the answer to that is I saw this as complementing
 4       a major amount of ridge detail that I had already
 5       identified but, if anything else, it may help if this
 6       was to be put to -- basically, it was Mr Asbury's appeal
 7       I'm presuming that Mr Gilchrist was considering.
 8   Q.  Mr Asbury's appeal?
 9   A.  Yes.
10   Q.  I will try the same question again, Mr Mackenzie.  For
11       clarity I will bring up for clarity instead of Marion's
12       Ross's print on the left if I bring up page 3 of
13       CO2004H, so it will be digital page 4.
14           I must have made a mistake.  If I bring up on the
15       left digital image page 2.  I have now brought up on the
16       screen the two tracings, one from the crime scene mark,
17       the other from Marion Ross.  I appreciate that your
18       evidence is that you rely on the similarity between
19       these two tracings as complementing the other points you
20       observed.
21   A.  Absolutely.  I never --
22   Q.  Mr Mackenzie, it's okay.  The answer is yes?
23   A.  Yes.
24   Q.  There might be some circumstances in which an expert
25       might claim that a similarity in Third Level Detail is
page  36
 1       not complementary but is, in fact, itself indicative of
 2       a unique match?
 3   A.  Absolutely for the examples I've already given.
 4   Q.  What I am trying to understand is what criteria are
 5       applied by the expert in order to determine whether the
 6       striking similarities here observed -- so Third Level
 7       Detail -- are on the one hand themselves indicative of a
 8       unique match and, on the other, merely a factor to be
 9       weighed with other factors in arriving ultimately at the
10       conclusion?  Do you understand the distinction?
11   A.  I think so.  I mean, we're talking about experts with
12       sufficient experience to obviously have had sufficient
13       training in this but also sufficient experience in
14       fingerprint comparisons.  Then using this but using it
15       in the knowledge that they would have to be able to
16       demonstrate it in a court and, I say, the examples I
17       gave obviously these would have been --
18   Q.  Mr Mackenzie, I am sorry.  What criteria would you be
19       taught in training that would enable an expert to form
20       the judgment whether this is merely a factor in an
21       identification or is itself indicative of a unique
22       match?
23   A.  Just as in any comparison it is down to the individual
24       mark within an individual case and they would have to be
25       totally satisfied and be able to illustrate that
page  37
 1       sufficient level of quality, whether it was by itself or
 2       even complementary.  They would have to be able to
 3       illustrate that and be 100 per cent satisfied that that
 4       was correct, otherwise they shouldn't be putting it
 5       forward anyway, just like any identification.
 6   Q.  First of all, it is a subjective judgment by the expert?
 7   A.  It's an objective --
 8   Q.  Subjective.
 9   A.  No, I would say it's objective.  It's based on actual
10       fact from the material that they are able to illustrate.
11       It's not their mindset, if you like.
12   Q.  Let us be precise about this: unless a sufficient sample
13       has been done of people in the population worldwide, how
14       would any expert objectively know that a particular
15       pattern is unique to the level of the claim as opposed
16       to simply being unusual in the population?
17   A.  Experts of any level in fingerprints will know about the
18       uniqueness which doesn't alter other than through
19       injuries, et cetera, throughout life.
20   Q.  This is why I am trying to be very clear about this.
21       What you are saying then is that this is informed by the
22       experts' experience?
23   A.  Yes.
24   Q.  And, so far as training is concerned, by the time that
25       we are looking at this, what you have had is one week
page  38
 1       exposure to the FBI in the States, a second-hand
 2       presentation by officers of a presentation made by
 3       Mr Ashbaugh in Durham --
 4   A.  Very experienced officers were delivering this
 5       presentation.
 6   Q.  And exposure to Steven Meager at a conference and when
 7       he did a presentation in Glasgow.
 8   A.  In addition, yes, that's correct.
 9   Q.  That is the training that is informing the judgment
10       about whether this level of detail is either
11       complementary or itself consistent with a unique
12       identification?
13   A.  The same for any expert that has now been exposed to
14       that training.
15   Q.  That finishes with what I wanted to ask you in relation
16       to the lake and I have left it deliberately short
17       because, in due course, the Chairman will be able to
18       overlay your acetates on to the lake and see for
19       himself.
20           If I, therefore, go back to the other items that I
21       said to you I wanted to look at, so take down 2004H, I
22       will go back to CO2005H.  If we proceed, sorry, through
23       I think to page 3.  It is digital page 4.  If we take
24       down the image on the right and just give ourselves the
25       image on the left as a single.
page  39
 1           I was tempted, Mr Mackenzie, to magnify so that we
 2       can concentrate on the area with points 1 to 4.  I will
 3       try that.  I am conscious that, as you have said, there
 4       may be a risk of pixillation but if we can just try this
 5       and we will see.  If it does pixillate, then we can make
 6       allowances because in due course the Chairman can study
 7       the photographic originals.
 8   A.  That size is reasonable.
 9   Q.  Thank you.
10           What I want to do is to start point 1, 2, 3, 4 and
11       ask you to tell me what you actually, you, yourself are
12       observing that you say that the Chairman should observe
13       because we are agreed that we must observe something
14       before you, as an expert, can proceed to interpret this
15       particular feature.
16           What is it that you observed at point number 1 on
17       the image?
18   A.  Point number 1 I see a bifurcation downwards.
19   Q.  Can you indicate for us, please, where that bifurcation
20       downwards is to be seen?  If you can draw it, if you
21       please.
22   A.  Sorry.
23   Q.  To take it off, if you use the bottom, the X at the
24       bottom.  I will do it for you, Mr Mackenzie.
25   A.  We need to take the enlargement back up again.
page  40
 1   Q.  That is what I am about to do.
 2   A.  Okay.
 3   Q.  Thank you.  So if we insert a text at the bottom so that
 4       we know we are looking at number 1.  If I save that and
 5       just put that to the side.
 6   MISS BAHRAMI:  That's FI0210.05.
 7   MR MOYNIHAN:  What I want to do is we can proceed now to
 8       number 2 and we will give ourselves another image just
 9       so we can see a clear image that we can mark on the one
10       on the left just now.  If we bring up, again, CO2005H
11       and go to digital page 4 again, please.
12           Again, Mr Mackenzie, what I will do is enlarge
13       roughly the same area so we can have a clear view of it.
14           So there is the clear image so we can all see what
15       you are doing.  Please feel free, if you can mark point
16       number 2 for us.
17   A.  I'm going to mark it but, actually, going to the
18       left-hand impression, from the top of the bifurcation we
19       are going two intervening ridges up, roughly 12.00
20       direction, one intervening ridge, two intervening ridges
21       and on to here (indicated) as the point 2 and I will
22       mark it on here.
23   Q.  If you can mark it on the one on the left so we build up
24       just one picture perhaps in that way.  It is to give you
25       an unobstructed view?
page  41
 1   A.  I'm quite happy to do it the way I've got it.  It's just
 2       getting my hand steady.
 3   Q.  I will do it again for you.
 4   A.  Thank you, again.  Can you take that off now.  It seems
 5       to be setting it before I've lifted my finger off the
 6       button.
 7   Q.  I will take it away.  If you just let me have control.
 8       You can start again.
 9   A.  You will have to bear with me with this.
10   Q.  If you give my control of the mouse ...
11   A.  It's so sensitive, this mouse, that before I lift my
12       finger off, it's not allowing me to do it straight.
13   THE CHAIRMAN:  What is the feature?
14   A.  It's a ridge ending coming up from the edge of the print
15       and stopping.  (Pause)
16           Bear with me and we'll try again.  That's it.
17       (Indicated)
18   MR MOYNIHAN:  So that is point number 2, which we keep
19       losing.  (Pause)
20           Again, Mr Mackenzie, if you leave me just to do
21       this, I will put in the text so that we know we are
22       looking at point number 2.
23           Can we save that pair?
24   MISS BAHRAMI:  That's FI0210.06.
25   MR MOYNIHAN:  Again, what we will do is probably, in fact,
page  42
 1       next bring up two images, please, of CO2005H.004 on both
 2       sides of the screen.
 3           Again, what I am going to do is just do the same
 4       detail and on this occasion ask you now to mark points 3
 5       and 4.  If you give me just a second.  If you now mark
 6       points 3 and 4.
 7   A.  From point 2 going across 1, 2, 3, 4, 5 intervening
 8       ridges to point 3.  Forgive me, it's not straight again.
 9       Okay.
10   Q.  Mr Mackenzie, what is point number 3?  Is it simply a
11       ridge ending?
12   A.  A ridge ending, yes.
13   Q.  So we will insert into that that it is point --
14   A.  A ridge ending upwards.
15   Q.  -- number 3.
16           That then leaves us to do on this screen point
17       number 4.  Firstly, before we mark point number 4 can
18       you tell me what point number 4 is?
19   A.  Point number 4 is a bifurcation downward.
20   Q.  Can you then draw that for me, please.  (Pause)
21           That we will have as point number 4.  Can we just
22       save those, please.
23   MISS BAHRAMI:  That's FI0210.07.
24   MR MOYNIHAN:  We have now done points 1 to 4.
25           What I would like to ask you about, Mr Mackenzie, is
page  43
 1       what you make of a pattern, which I can draw going
 2       through the images we have just now of points 3 and 4
 3       and perhaps if I begin with point number 3, a pattern of
 4       lines, the same on point number 4 -- I had better make
 5       it a different colour -- that has gone slightly awry.
 6           What are we to make of the pattern of lines I have
 7       drawn in green and red and in relation to the image
 8       we've numbered 4 my red line happens to cut through your
 9       bifurcation number 4?
10           We can save those and go back to the original image.
11   A.  I can see the area you're talking about where
12       particularly you've got it marked in green and the --
13       what appears to be, you've drawn like a vertical line in
14       line with my red line that's coming down from number 4.
15       I think you may find that that is actually part of the
16       staircase and the tram that's on the tin.  That's quite
17       a straight edge.
18           As far as the bit you've then -- you're actually
19       following the ridge flow that I'm actually trying to
20       explain.  So as far as that sharp vertical is, I think
21       that would be part of, if you actually look at the
22       colour photograph of the tin, that this is the staircase
23       going up to the top of the tram car on the tin -- one of
24       the steps, possibly.
25   MR MOYNIHAN:  That might be an appropriate point to adjourn
page  44
 1       since we are trying to find that particular image.  If
 2       we save these two images just now and we will come back.
 3       (FI0210.08)
 4   THE CHAIRMAN:  11.55.
 5   (11.35 am)
 6                         (A short break)
 7   (11.57 am)
 8   MR MOYNIHAN:  Mr Mackenzie, what we have done is brought up
 9       one of two possible images of the tin.  The one that we
10       have brought up is EA0069.015.  The only difficulty with
11       this particular one is that it is of a scale that makes
12       it difficult for one to actually see the fingerprint.
13           Are you familiar with where the fingerprint actually
14       is on the tin?
15   A.  I'm trying to relate it to the -- I'm trying to bring it
16       into relation with --
17   Q.  If I stop you there, if we put this image to the left
18       just now or to the side, there is another image as well
19       that we can use, DB0176.004.  I think what assists here
20       in seeing these, these are the two side-by-side, the
21       mark QI2 and the picture.
22           If I understand it correctly, what one should look
23       at -- and just allow me control, Mr Mackenzie -- is
24       centrally in QI2 there is a shape that is light in
25       colour coming down from the core to the bottom left-hand
page  45
 1       corner and what was being pointed out is that that is
 2       part of the fascia perhaps of the coach, that is to be
 3       seen on the image on the left?
 4   A.  That's correct.
 5   Q.  That therefore assists us that the point that I am about
 6       to show by an arrow, the tip of that particular light
 7       area in QI2 corresponds to the end of the fascia.
 8       Immediately to its left there is a straight line running
 9       up to, in fact, a curve which will be part of the rail
10       of the coach.
11           If I draw in a straight line, there is a straight
12       line of the coach running to the rail and, in fact, if I
13       mark across do we see in QI2 at the top that curved rail
14       with some of the straight lines also, and perhaps now we
15       can see the lighter area to the left of the core may
16       actually fit with part of the carriage as well.
17           Is that correct or am I wrong?
18   A.  I think an alternative to it being part of the rail is
19       it's possibly the top step to the upper deck.
20   Q.  Yes.  In particular what assists me is when we are
21       looking to the left-hand side of the core of QI2, there
22       will be an area corresponding to my straight blue line
23       in the image DB0176.004.  Allowance has to be made for
24       that; is that correct?
25   A.  Yes.
page  46
 1   Q.  Perhaps what we should do is save that pair.
 2   A.  If you could go back to the image you put up before
 3       where you drew the line and I referred to it being like
 4       a vertical part of that line, we could compare it
 5       against the location with the paintwork that you
 6       referred to, the pointed part where you have put the
 7       arrow.  That would be a good ...
 8   Q.  If you give me just a second, please.  First of all, we
 9       will save this pair.
10   MISS BAHRAMI:  That's saved as FI0210.09.
11   MR MOYNIHAN:  In that case, Mr Mackenzie, what I was going
12       to do is if I leave up the image that is on the
13       right-hand side and on the left bring back up what I
14       trust will be FI0210.08 -- that is the eighth image
15       today.  The images that you are referring to that I drew
16       are on the left-hand side.
17           Do I understand you to say that the image in the one
18       numbered 3 that I had as the green line coming straight
19       down from point 4, straight down, you would say I have
20       to make allowance for the blue line that is to be seen
21       on the carriage?  Is that the point you were making?
22   A.  I think if we could reference it back to this what I
23       would term as the white paintwork on the lower deck, the
24       roof of the lower deck of the tram car as a reference
25       point because it may well be that the image you were
page  47
 1       drawing is part of that, to use your term, a
 2       crescent-type shape which is part of the structure of
 3       the staircase.  It may well be that but we need to
 4       actually find the reference point.
 5   Q.  In that case, what we can do is we will go back on the
 6       left-hand side and go back to the original image, which
 7       is CO2005H.004.
 8           Does that assist you in relation to the reference
 9       point?  You see, if I understand it correctly, the
10       fascia which ends its top-most part at the arrow, also
11       ends in QI2 at the point where I am now putting in an
12       arrow (indicated).  I have to do something to give a
13       prominent arrow.  It ends roughly where I am going to
14       indicate (indicated).  It ends roughly at the point I
15       have marked?
16   A.  Correct.
17   Q.  So that if we are looking for a straight line in the
18       vicinity of point number 4, it would seem that we have
19       to be looking for something higher up and more to the
20       left --
21   A.  More to the left of your blue line.  It looks now, where
22       you have drawn the line it's probably one of these
23       treads on the staircase which come out like a crescent
24       shape.  They have got a straight edge on them.  So it
25       could either be that one or the next one, depending on
page  48
 1       how this -- obviously, the size of this enlargement is
 2       not the same as the enlargement on this side.
 3   Q.  So what I will do is I will put in, in green -- and I
 4       will do it a straight line.  It is an awful lot easier
 5       to draw.
 6           You are indicating it could be one of those two
 7       green lines?
 8   A.  Yes, because looking at the photograph I can see a
 9       series of those in the background behind the ridge
10       detail.
11   Q.  What we will do is save that and then we can make an
12       allowance in due course for that when we are looking at
13       the images.
14   MISS BAHRAMI:  That is FI0210.10.
15   MR MOYNIHAN:  Mr Mackenzie, what I want to do, having
16       finished with points 1 to 4, is primarily just asking
17       you to locate those for us so that we can ask the
18       Chairman to consider them in due course.
19           What I want to do is to go back to an unmarked copy
20       of CO2005H.004 and could I also have a copy on the
21       right-hand side of CO2005H.005.
22           What I want to actually talk to you about next, as I
23       said to you, is your point number 13.  Is my pen tip
24       just on point number 13?
25   A.  Sorry, have you moved the cursor now?  I can see it on
page  49
 1       the photograph here.  Point 13, I know the one you're
 2       talking about.
 3   Q.  If you look to your left, you will see the SCRO charting
 4       of QI2 and what I will mark for the moment just with an
 5       arrow, opposite my arrow is what appears to be -- this
 6       is what I want to discuss with you -- a bifurcation.  I
 7       understand that to be marked on the SCRO chart as number
 8       2.  It has been described by your colleagues as a
 9       bifurcation; it's the SCRO bifurcation number 2.
10   A.  It has been marked as a bifurcation on the mark.
11   Q.  Number 2?
12   A.  Yes.
13   Q.  In fact, what you do in this area is that you do not
14       mark it as a bifurcation in the point I have indicated
15       as number 2 for SCRO, you mark it as a ridge ending
16       slightly higher up?
17   A.  Yes, a ridge ending upward is how I've described it.
18   Q.  Perhaps for me I can more clearly see that if I look at
19       Marion Ross's fingerprint.  We are familiar now with
20       some witnesses who debated, if the feature is a
21       bifurcation, whether there is significance in one of the
22       descending ridges being thick and the other thin in the
23       point, which I am indicating by the point of the pen
24       just now (indicated).
25           If I understand your evidence, what you say is
page  50
 1       there's not in fact a bifurcation in that location, but
 2       rather the thin ridge carries on upwards, comes into
 3       proximity with the thick ridge but in fact carries on up
 4       alongside it and ends at a point that you have marked
 5       with a red pen mark slightly higher up beyond the point
 6       which would otherwise be thought to be the bifurcation.
 7   A.  Correct.
 8   Q.  So your interpretation would be that there is not a
 9       bifurcation in that location but rather two independent
10       ridges that come into close proximity, do not join as a
11       single ridge but the thinner of the two ends up inside
12       at a ridge ending?
13   A.  That's correct.
14   Q.  With that in mind, again if we go back to your own
15       charting, what we will try to do is to highlight an
16       area.  If you can show the Chairman, please, the
17       particular feature.  Now if I assist, the area that we
18       are talking about -- well, it can be seen, the area
19       clear enough opposite the arrow, in between the arrow
20       and the line which I will assist simply in this way: by
21       making a text that we know the line coming down ...
22   A.  That's okay.  That's a good image.
23   Q.  It's just simply I want to number it.  The line I am
24       interested in is number 3 so that we just know that is
25       what we are talking about.
page  51
 1           What is there in the photograph on the left which on
 2       doing it the right way round, because I of course have
 3       done it the wrong way round, I have started with Marion
 4       Ross and then gone back to QI2 -- what is there on QI2
 5       that is to be observable in the point that you have
 6       marked as number 3?
 7   A.  Have I not marked it as 13?
 8   Q.  Sorry, I apologise, you have as 13.  I don't know if
 9       it's too late to change it to 13.  I think we can
10       follow, Mr Mackenzie.  It is my mistake.  We'll just
11       leave it as it is.
12   A.  I can use the cursor and then I'll put an arrow to where
13       I see it but if I put the arrow in first you won't see
14       what I'm actually seeing as the end of the ridge.
15   THE CHAIRMAN:  No.  If you just put the cursor to it first,
16       it would help.
17   A.  The cursor is following up here (indicated) there
18       appears to be a wee break in the ridge unit and then
19       just below where I've got the red dot is a small piece
20       of ridge detail just there which makes me consider that
21       to just actually go up and stop as a ridge ending as
22       opposed to coming across like this.  (Indicated)
23           You can see there's a small dot there immediately
24       below my number 13.  I can now put an arrow if you wish.
25   MR MOYNIHAN:  It's okay because I think the point of your
page  52
 1       pen has perhaps obscured this minute detail there which
 2       is why, if we can locate it just using this image just
 3       now by the point of the pen, then as I have said in due
 4       course the Chairman can look at the photographic
 5       originals for himself.
 6   THE CHAIRMAN:  Just so that I get it clear, the red dot is
 7       on the end of it; is that right?
 8   A.  There's a black dot.  That's ridge detail appears like a
 9       black dot immediately below the red dot.  I have taken
10       care not to put the red dot over the end of the feature
11       so you actually see just immediately below that is a
12       ridge ending.
13   THE CHAIRMAN:  So it is the black dot below the red dot is
14       the end of the ridge?
15   A.  Yes.
16   MR MOYNIHAN:  Are you indicating where my cursor currently
17       is?
18   A.  Yes.
19   Q.  So it is indeed a very fine feature, if I understand it
20       correctly.  I just don't want to obscure it?
21   THE CHAIRMAN:  I think it would be better not to obscure it.
22       It is pretty well-described as a black dot below the red
23       dot of 13.
24   MR MOYNIHAN:  In that case, what I will do is take that
25       arrow away.  So if we can save that image, please.
page  53
 1   THE CHAIRMAN:  You want to change 3 to --
 2   MR MOYNIHAN:  We can't, sir.  We would need to take time to
 3       redo it.  We will just understand it is 13.
 4   THE CHAIRMAN:  3 means 13.
 5   MR MOYNIHAN:  Yes.
 6   MISS BAHRAMI:  That's FI0210.11.
 7   MR MOYNIHAN:  We may just start with the same image because
 8       the final point I wanted to ask you to look at in
 9       relation to QI2 is a similar theme.  I wanted you to
10       look at your point 18 which I understand will correspond
11       to your colleagues' point 3, I think.  So QI2, SCRO 3.
12           First of all, Mr Mackenzie, if you compare their
13       image and see if point 18 is indeed intended to be the
14       same as point 3.
15   A.  To use your words, that's their interpretation is that's
16       what it's intended to be, the same as my number whatever
17       it was you said.
18   Q.  18.
19   A.  Sorry, my 18, yes.
20   Q.  Your 18 and their 3 are pointing at the same feature.
21       Let us take it simply stage by stage.  They are pointing
22       to the same feature on Marion Ross' print as you have as
23       number 18?
24   A.  Yes.
25   Q.  Again, comparing the images that you have, are they
page  54
 1       pointing to the same location in QI2 for their point 3
 2       as you do for point 18?  In other words, have you both
 3       come to exactly the same point on QI2?
 4   A.  The magnification on the left-hand side is a bit great
 5       for me but, yes, certainly it's the same feature, as to
 6       where I've marked it and where they've marked it ...
 7       (Pause)
 8           I think my marking is slightly lower than the SCRO
 9       one and my reasoning for that is there's actually a
10       white -- what appears like a white dot, if I can
11       describe it as that, either an imperfection or there's
12       something on the print and to actually locate where my
13       point is but I can certainly my mark on here and then
14       you can compare the two.
15   Q.  What we will do, first of all, before we do this
16       comparison, just to be clear, your interpretation on
17       Marion Ross of point 18 is what?
18   A.  It's a bifurcation downward.
19   Q.  A bifurcation down?
20   A.  Yes.
21   Q.  In that case, if we could look at the SCRO charting of
22       QI2, and put this up on the right-hand side of the
23       screen, FI0166A.  What I am going to do is enlarge the
24       QI2 charting.  I am interested in point 3.  Again, what
25       I will do is enlarge the part that's in the core and, if
page  55
 1       I understand it, point 3 of SCRO is where my cursor is
 2       just now.  (Indicated)
 3           Is that correct?  That is the line coming in?
 4   A.  Yes, the line's coming in and stopping ...
 5   Q.  Let us make that point 3.  Your point 18, can you tell
 6       me with the benefit -- because you have the numbered
 7       original -- which of the lines is the line point 18?
 8   A.  I know which line it is here but the size of the
 9       magnification is --
10   Q.  It is okay.
11   A.  That line -- sorry, have I got control of the mouse?
12   Q.  Yes, you take it.
13   A.  That's my point 18 and the reference point I was talking
14       about --
15   Q.  Mr Mackenzie, give me just a second, please.  So that is
16       your point 18.  You were saying, sorry, the reference
17       point ...?
18   A.  To reference point it geographically on the image I
19       spoke about a white circle or a white dot, if you like,
20       and my point is below there; whereas the marking on the
21       SCRO one there is the white dot there (indicated) and
22       it's a little further up.
23   Q.  This level of detail for my purposes is important.  On
24       your image, please, with a circle could you insert the
25       area that you are referring to as the white area.  I
page  56
 1       have highlighted it as a circle already for you.  I have
 2       given you the circle tool.
 3           Where is the white area?
 4   A.  The white area in mine is, because of the magnification,
 5       that's it there and over --
 6   Q.  Mr Mackenzie, if we just highlight it.
 7   A.  It would assist if the magnification was similar on both
 8       sides to make it clearer because it's starting to
 9       pixillate a bit on that side but that is --
10   Q.  Mr Mackenzie, if you just bear with me let us get it
11       very roughly just now in.  It is where my pen tip on the
12       right-hand image is located, where this white area is?
13   A.  Correct.
14   Q.  So in your image the white area is above and, if
15       anything, marginally to the left of the point 18, yes?
16   A.  Yes.
17   Q.  Whereas in the SCRO image the point is beneath, almost
18       in the straight line of the red line beneath?
19   A.  In relation to the clockface, about 7 o'clock from where
20       the point is marked.
21   Q.  If we could save those images, please.
22   MISS BAHRAMI:  That's FI0210.12.
23   MR MOYNIHAN:  My reason for asking about this one,
24       Mr Mackenzie, is back to a theme that started with
25       Mr Kent when he talked about image clarity preceding any
page  57
 1       question of a fingerprint analysis.
 2           You and your colleagues are intending to point to
 3       the same feature on QI2 and bearing in mind that we are
 4       talking about with fingerprints in any event a
 5       relatively small area, you have nonetheless seemed to
 6       have stopped in slightly different locations, which
 7       ultimately comes back to my question: what feature is in
 8       fact observable in QI2 that then proceeds to any
 9       interpretation of a bifurcation?  In other words, what
10       point or feature are you seeing in the photograph that
11       there is this interpretation?
12           What would be better to do is to get away from the
13       red circles, so if I could start now again with
14       CO2005H.004 on one side and FI0166A.001 on the other.
15       All that I will do by way of magnification is bring up,
16       on the SCRO charting, the Marion Ross print.
17           I do not want to determine the scale of
18       magnification because, as you say, of the risk of
19       degenerating the image with the pixillation.  So can you
20       magnify to a scale you are happy with, please -- I
21       brought up the wrong one on the right side.  Can you
22       magnify them to the point that you are comfortable so
23       that you can demonstrate to the Chairman the particular
24       feature in your image that you are relying on?
25   A.  On my image?
page  58
 1   Q.  On your image.  Just magnify to the level you are
 2       comfortable with.  You may need it to be -- sorry, Mr
 3       Mackenzie, if you do it to that scale we will definitely
 4       have a problem with pixillation.
 5   THE CHAIRMAN:  It just does not work.
 6   MR MOYNIHAN:  Perhaps if I try after all.  Is that
 7       over-pixillated or are you comfortable with that?  Let
 8       us do it slightly broader.
 9           Are you comfortable enough with that or is it still
10       too great?
11   A.  I think I'm comfortable enough with that, yes.
12   Q.  Ultimately, as I have said these images are not
13       determinative.  The Chairman can look in due course at
14       the images themselves, but am I correct again that
15       number 18 is the line the tip of my pen is indicating?
16   A.  Yes.
17   Q.  Again, I will just ask that that be put in as number 18
18       so we now what we are talking about.
19           What I will do is take down, remove the image, the
20       SCRO image 166A and we will just concentrate on your own
21       image.
22           Can you point to me, please, the particular feature
23       that you are saying is present on the image which you
24       will then interpret as the bifurcation for your number
25       18.
page  59
 1   A.  Sorry, do you want me to draw the bifurcation?
 2   Q.  First of all, if you simply -- I will take away the text
 3       box.  Perhaps just use the cursor to show us roughly
 4       what you're referring to.
 5   A.  The ridge flow.  This ridge here, (indicated) which is
 6       coming in below presumably that would be 19 ... yes.
 7       This ridge coming up here (indicated) on to here, going
 8       into a single ridge here, coming back down and then the
 9       bifurcation at that point increasing along here
10       (indicated).
11           I am quite happy to try and draw that in.
12   Q.  Please try and draw it in.  (Pause)
13           Are you reasonably happy with that?
14   A.  Well, actually I've put the bifurcation below where the
15       point is but that's the two ridges following into the
16       one.  I actually haven't started that last leg on the
17       point but basically that's the two ridges flowing into
18       one.
19   Q.  So the right-hand ridge, we ought to understand, should
20       come off at a point nearer where the red pen line --
21   A.  I can redo it if you wish.
22   Q.  No, it is okay.  So that is roughly the location.  If we
23       save that image.
24   MISS BAHRAMI:  That's FI0210.13.
25   MR MOYNIHAN:  That would finish my examination.  Thank you
page  60
 1       for your patience, Mr Mackenzie.
 2   THE CHAIRMAN:  Mr Smith, you will be first on this occasion
 3       what amplification do you --
 4   MR SMITH:  I do have some questions I have.  I may be
 5       somewhat longer with this witness, provided I am allowed
 6       to ask the questions than I was previously.
 7           The matters I would like to raise with this witness
 8       are as follows: the first relates to a few questions
 9       regarding this witness's training, qualifications and
10       experience.
11   THE CHAIRMAN:  Has he not set that all out in his statement?
12   MR SMITH:  That is set out, sir, but I can deal with it
13       fairly quickly.  It touches on the more general matter
14       about the question of expertise, which I think is
15       something that you will be having to deal with in due
16       course.
17   THE CHAIRMAN:  What I do not want to do is go over the
18       material in his statement.
19   MR SMITH:  Of course and I can deal with it very briefly, I
20       may say.
21           The second area that I would like to deal with is
22       simply to invite the witness' comments on the evidence
23       of Sheriff Murphy about the meeting that took place.
24       Again, I can do that briefly.
25   THE CHAIRMAN:  His interpretation of that meeting?
page  61
 1   MR SMITH:  Of course.
 2           The next matter relates to some further questions
 3       and I should say and make it clear that I don't intend
 4       to cover any point that has been covered in detail by
 5       Mr Moynihan in any of what I want to ask but there are
 6       some areas relating to the Tulliallan presentation and
 7       the PowerPoint presentation to this Inquiry I would like
 8       to look at that have not been covered by Mr Moynihan.
 9   THE CHAIRMAN:  If there are new points that you consider
10       relevant, then I'll take time by asking you to detail
11       each of them.
12   MR SMITH:  Very well, sir.  I will try and avoid covering
13       ground that has been covered.
14           The next matter relates to the question of the
15       16-point standard.  Again, some further questions that
16       hopefully will expand a little upon the evidence that
17       has already been led.
18           The fifth matter relates to the actual examination
19       of Y7, what materials were available and some further
20       questions regarding the issue of blind testing or not.
21       There is some other information that may be of
22       assistance.
23           I would like to ask some questions relating to the
24       way one can identify multiple touches and what is
25       actually meant by that, some questions regarding
page  62
 1       ridgeology, again, that have not been covered already
 2       and to discuss generally the approach of other
 3       witnesses.  I don't intend to go into any detail but to
 4       discuss it in general terms.
 5           I have just one or two questions relating to QI2.
 6       It has been covered in detail but I just wanted to check
 7       one or two points that have not been covered.
 8   THE CHAIRMAN:  If there is a short matter then I will not
 9       prevent you from asking it.
10   MR SMITH:  Thank you, sir.
11                    Cross-examined by MR SMITH
12   Q.  Mr Mackenzie, can I ask you first of all, as far as SCRO
13       is concerned, you were obviously there yourself for many
14       years, I think, since the 1960s; is that right?
15   A.  Sorry, Mr Smith, could you just speak up?  I can't hear
16       you.
17   Q.  Yes, of course.  I am not sure if anybody else is having
18       any difficulty but I will try to speak straight into the
19       microphone if that assists.
20           Can you hear me better now?
21   A.  Yes.
22   Q.  I think I am right in saying that you were with the SCRO
23       since the late 1960s?
24   A.  4th September 1967.
25   Q.  As far as expertise and expert status, generally
page  63
 1       speaking, is concerned within SCRO, is that something
 2       that required specific examinations, as it were, within
 3       SCRO to qualify you to give expert testimony in court?
 4   A.  The training, if that's what you're wanting explained,
 5       was done by experienced police officers.
 6           When I joined in September 1967, I think from memory
 7       I was in the second batch ever of -- I think they took
 8       them on in batches of six.  In those days we were termed
 9       as fingerprint clerks, currently equivalent of a Trainee
10       Fingerprint Officer.
11           I think the first intake of civilian practitioners
12       were started about 1960 and I understand from speaking
13       to those that were in the department there was about
14       half a dozen taken on around about 1960 and, again, from
15       memory, I think there was two of them remaining by the
16       time I joined in '67.
17           I joined a group of six and that training, which
18       I've already outlined in my statement, commenced with
19       the comparison of arrestees' fingerprints, ie ten
20       fingers on a fingerprint form, rolled and plain, and the
21       comparison on a daily basis with those being received in
22       the office against the national collection which
23       averaged probably just prior to EFR at about 360,000 but
24       it would obviously --
25   THE CHAIRMAN:  I am sure Mr Smith does not need you to
page  64
 1       repeat what you have said.  I have it here exactly the
 2       passage -- it is not your fault --
 3   A.  I'm just trying to get the thread of --
 4   THE CHAIRMAN:  Of what is being asked.
 5   MR SMITH:  I think, Mr Mackenzie, the question I asked is
 6       whether you sat any examinations in order to qualify you
 7       for expert status.
 8   A.  Yes.  A number of courses during a seven-year period of
 9       training, that seven-year period of training was common
10       through the UK in that era but, I say, the first two
11       years of it was involved with ten-print and that's where
12       you get your basic training and it was pre-computer days
13       so you were actually looked at ridge detail present on
14       the incoming forms, much as we're saying about you look
15       at the incoming detail on a mark --
16   Q.  Mr Mackenzie, I am sorry, I don't mean to be rude.  You
17       answered my question very clearly, which was, yes, you
18       did have to sit examinations.
19           Can I ask you this and I am sure it's capable of a
20       relatively short answer: were these examinations that
21       were set by outside bodies?
22   A.  Outside bodies?  Not at that period in time, no.
23   Q.  You mentioned in your evidence, I think you called it
24       the Daubert -- sometimes called "do-bert" -- hearing in
25       the United States.  I think I am right in saying that
page  65
 1       that is named after the case where the US courts require
 2       a number of things to be established before expert
 3       testimony is accepted in these courts.
 4           Do you understand that to be broadly correct?
 5   A.  I understand that's looking at scientific -- various
 6       scientific areas and fingerprints has come in under
 7       that.
 8   Q.  You mentioned as well, dealing with your own personal
 9       experience, the MacNamee case?
10   A.  Correct.
11   Q.  You mentioned that the SCRO officers were singled out
12       for specific praise in that case.
13           Have I got your evidence correct on that?
14   A.  I didn't use the word "praise" but the words were given
15       to me by the Detective Sergeant who thought it was
16       worthy of me noting.
17   Q.  Did you understand that to be in the judgment itself?
18   A.  Sorry?
19   Q.  Did you understand that praise to be in the judgment
20       itself?
21   A.  That's what was imparted to me.  I was actually -- I can
22       actually remember the day I received it I was actually
23       on a training course.  Obviously, I don't know what date
24       it was the judgment came out but I was actually on a
25       training course at Lancashire Constabulary and there was
page  66
 1       a phone call came on the mobile phone and I had to step
 2       out of the room into a corridor --
 3   Q.  Again I am sorry, Mr Mackenzie, it was a fairly
 4       straightforward question about in the judgment itself.
 5       I think you said that was your understanding.
 6   A.  That information had come at the time of the judgment
 7       and it was relayed to me by the Detective Sergeant that
 8       the expert evidence of the SCRO officers was as I've
 9       described yesterday.
10   THE CHAIRMAN:  I think the question you are being asked is,
11       first of all, did you read the judgment, the written
12       judgment, of the Court of Appeal?
13   A.  I know what the outcome was.
14   THE CHAIRMAN:  I know the outcome but did you read the
15       actual judgment?
16   A.  I don't remember reading it any specific --
17   THE CHAIRMAN:  I think what you are being asked is: is it in
18       the written judgment that you --
19   A.  I haven't read anything.  All I know is that that
20       information was being passed on to me so I presume the
21       Detective Sergeant wouldn't have phoned me to say that
22       unless it had been mentioned in the final ...
23   MR SMITH:  Thank you.  You are aware, are you not, that a
24       large number of experts gave evidence in the MacNamee
25       case, aren't you?
page  67
 1   A.  That's correct.
 2   Q.  I take it you are aware -- and no doubt we can read the
 3       judgment again if we need to -- but the conviction was
 4       held to be unsafe largely because of the level of
 5       disagreement amongst all of the experts.  You are aware
 6       of that, aren't you?
 7   A.  That's correct.
 8   Q.  I think just to be clear about it you said, I think
 9       yesterday, that no expert had indicated in that case
10       that it was not a match, positively was not a match.
11           Do you remember saying that?
12   A.  That was my understanding, yes.
13   Q.  I am going to suggest to you that, in fact, Mr Swann
14       gave evidence in that case and he said positively it was
15       not a match.
16           Were you aware of that?
17   A.  I wasn't aware of that and I did listen to Mr Swann
18       giving evidence and I don't recall him saying that in
19       the courtroom.
20   Q.  No doubt Mr Swann will be able to assist us in due
21       course, but are you saying that he didn't say that in
22       the course of evidence before the court?
23   A.  My recollection is he did not say it wasn't -- my
24       recollection was he was speaking to it being
25       insufficient in detail to come to a conclusion.
page  68
 1   Q.  I would like to move on with the question of the meeting
 2       with, now Sheriff, Sean Murphy.  I think you were here,
 3       were you, when he gave his evidence to this Inquiry?
 4   A.  I was.
 5   Q.  I think, in fact, that was 25th June.  Do you recall
 6       that his evidence was slightly different to the, if I
 7       put it this way, your impression of what it was?  Do you
 8       accept that his position was slightly different?
 9   A.  I did, yes.
10   Q.  Are you able to reconcile that?  Are you sure that your
11       recollection is correct?
12   A.  I'm certain my recollection was correct and I'm sure
13       there was a minute of that meeting.  It wasn't taken by
14       myself but I'm sure there was a minute of that meeting
15       and something that sticks in my mind, you might remind
16       me what he said, but I think it was along the lines of
17       in addition -- in fact, you will need to remind me of
18       what he said because there was something come out in his
19       evidence, I thought, "I don't recall that", and I say
20       the minutes of the meeting, taken by whoever was taking
21       them, the minutes didn't reflect what Sheriff Murphy had
22       said from memory.
23   Q.  I think that was covered.  I don't know whether it is
24       necessary to bring it up unless the Chairman wishes to
25       do so.  I can give the reference to the minute and the
page  69
 1       reference to his evidence.  I am just simply asking you
 2       if you are prepared to accept that his recollection
 3       might be right and yours might be wrong.
 4           Are you saying you are definitely right and any
 5       difference is an error on his part?
 6   A.  Whatever the comment he made was jumped out at me when I
 7       was listening to his evidence and I thought, "I do not
 8       recall that being ..."  So as to being a difference,
 9       yes, there was a difference but as to my recollection
10       being different or being wrong, you know, I know what I
11       heard and I was surprised.  I can't remember what the
12       wording was but it was different from my recollection of
13       the meeting.
14   Q.  Again, I just want to be clear about this: you can see
15       no possibility that you are wrong about any difference
16       between you.  It must be him who is wrong.  Is that your
17       position?
18   A.  What I am saying is I was listening intently and with
19       all of the evidence I've given, from my memory, I don't
20       recall the version that Sheriff Murphy was giving to the
21       Inquiry.
22   Q.  I am sorry to press you on this, but can you, please,
23       just direct your mind to this question: are you saying
24       that you are definitely right and if there is any
25       difference between the two versions he is the one who is
page  70
 1       wrong?
 2   A.  I'm saying that I noted a marked difference.  I can't
 3       remember what the point was that was made but there were
 4       also other witnesses to this Inquiry who were at that
 5       meeting but my recollection and the point, whatever he
 6       made to the Inquiry, I didn't recognise it as having
 7       been said at the time of the meeting.
 8   Q.  Mr Mackenzie, I think I have asked this question about
 9       two or three times.  I will ask you again.  Are you
10       saying that if there is a difference between the two,
11       you are definitely right?  I am not asking what you
12       noted from his evidence and whether it was consistent
13       with the minutes.  I am saying you are saying you are
14       definitely right and, if anyone is wrong, it is him who
15       is wrong?
16   A.  I am not saying somebody is right and somebody is wrong.
17       I'm saying my recollection of the meeting -- something
18       that Sheriff Murphy said didn't accord with my memory of
19       the meeting.  I know you have asked me it three times,
20       that's maybe four now.  That is my recollection of that
21       meeting.
22   Q.  Very well.  I would like to move on now if I can to the
23       question of Tulliallan.  As you probably know or you may
24       not know but I have been invited to represent
25       Mr Zeelenberg.
page  71
 1           Were you aware of that?
 2   A.  No, I was not.
 3   Q.  There is one particular matter at Tulliallan I would
 4       like to be clear about.
 5   A.  Yes.
 6   Q.  You had a conversation with Mr Zeelenberg at some stage
 7       and I think it has been represented by yourself that he
 8       made a threat to you.  Is that right?
 9   A.  That's correct.  It's in my statement word-for-word.
10   Q.  If you take it from me -- have you seen Mr Zeelenberg's
11       statement?
12   A.  No, I haven't seen Mr Zeelenberg's statement.
13   Q.  I will put to you something for your comment.
14       Mr Zeelenberg acknowledges that there was a meeting that
15       took place between you and him, largely informal, I
16       think, outside, on the steps outside.
17           Do you remember where the meeting took place?
18   A.  Yes, I do exactly but it wasn't a meeting, it was a
19       conversation on the steps outside the Culzean Building
20       which is the new building at the college at Tulliallan
21       and it was during a smoke break because Alan Dunbar and
22       Mr Rudrud were smokers at the time.  It was a short
23       interlude in between the official meeting.
24   Q.  I stand corrected.  I am happy to accept there wasn't a
25       meeting as such but you were in his company.
page  72
 1           I am going to suggest to you that what he indicated
 2       to you was a warning, a warning that if SCRO didn't face
 3       up to reality and realise they had made a mistake, find
 4       out why it happened and move on, then there would be
 5       consequences for you and for SCRO.
 6           Does that sound familiar or is that different?
 7   A.  That's not the wording I remember.  I need to add and
 8       come in at this point, sir, that when you are
 9       threatened -- and I'm not in the habit of being
10       threatened -- but on that occasion there were specific
11       threats made against myself and Mr Dunbar and that's why
12       I have a vivid memory of the words that were used.  It's
13       impressed in my brain since August 2000.
14   Q.  Just so we know what the threat was, what did he
15       threaten to do to you?
16   A.  Well, if you actually look at my statement you will see
17       the exact words within it.
18   Q.  Can you just tell me what it is he threatened to do to
19       you?
20   A.  Please, I would like to pull up my statement and it's my
21       total recollection of what was said and that's recorded
22       there.
23   Q.  Mr Mackenzie, I am asking you as you sit here now with
24       this very important event that happened, you tell us you
25       know the exact words he said.  Without reference to the
page  73
 1       notes, without reference to your statement, can you tell
 2       us what he threatened to do to you?
 3   A.  He said:
 4           "Think of your families.  Think of the next [I think
 5       it was] ten years.  Do you know what's about to happen
 6       to you?"
 7           Of course the answer was, "What are you saying?"
 8       And he said: "I know", this is when his tone changed and
 9       he said:
10           "You have two weeks to change your mind", and again
11       I'm still -- I would still like to have an answer.  I
12       would be interested to ask Mr Zeelenberg when he comes
13       what did he mean by, "You have two weeks"? because all
14       this and these exact words were reported to my Chief
15       Superintendent and thinking though maybe if the Chief
16       Superintendent or somebody in SCRO knows what is meant
17       by this, but I never, ever had any feedback.  So I'll be
18       interested to have Mr Zeelenberg asked what exactly he
19       meant by that.
20   THE CHAIRMAN:  But it is paragraph 222 of your statement.
21   A.  Thank you.  I'll remember that.
22   MR SMITH:  Thank you, sir.
23           I am going to suggest to you, and as I understand it
24       Mr Zeelenberg probably won't take any issue with what
25       you said as to what he said, but what he was doing was
page  74
 1       giving you a warning --
 2   A.  Sorry --
 3   Q.  Can I, please, finish the question -- a warning that
 4       there would be consequences if there wasn't an
 5       acceptance that SCRO were wrong and he didn't make any
 6       threat whatsoever to you, did he?
 7   A.  Complete lie.
 8   Q.  Tell me what the threat was.  What did he threaten to do
 9       to you?
10   A.  When someone starts telling you you've got to change
11       your opinion, you need to think about the implications
12       for your family, think about the next ten years, giving
13       you a deadline, quite specifically, you have two weeks
14       to change your mind and, in confirmation of this, if you
15       would actually look at the statement given by
16       Mr Zeelenberg to the Court of Session, it's clearly in
17       his statement to that that the purpose of the Tulliallan
18       meeting was to ... I've got it in my statement as well.
19       Was to ... sorry, I need to refer to my statement.
20       Basically to the effect that it was to persuade -- that
21       was the words -- to persuade us to change our mind.
22           Now, I approached and presumably Mr Dunbar
23       approached that meeting on the understanding that we
24       were going along as two professionals into what would be
25       the first debate or an organised debate and that's the
page  75
 1       way it was sold to us.  But come the Court of Session
 2       hearing, then my suspicions arose of Tulliallan and how
 3       that meeting had to be stopped were confirmed by
 4       Mr Zeelenberg in his statement to the Court of Session
 5       saying that the purpose of that meeting was to persuade
 6       us to change our mind.
 7           Now if I had had any inclination or if somebody had
 8       tried to say, "I want you to go to Tulliallan because
 9       somebody's going to try and persuade you to change your
10       mind", then I would have been raising with those that
11       were conducting the inquiry and facilitating the meeting
12       but also with my Chief Superintendent.  In fact,
13       possibly even higher within the police, because it would
14       be totally unacceptable to be invited along to a meeting
15       and that was the agenda.
16           But it's clearly in Mr Zeelenberg's mind that was
17       the agenda which confirms to me that it wasn't planned
18       for the purposes that we thought we were going along to
19       actually give our opinion on how we saw the
20       identification of Shirley McKie's mark.
21   THE CHAIRMAN:  There are really two different points.  One
22       was the purpose of the meeting but the other is what was
23       said to you.  I am not sure we can take that much
24       further because you interpreted it as a threat to you.
25   A.  Absolutely.
page  76
 1   THE CHAIRMAN:  To your career.
 2   A.  As I say, somebody else, anybody else that's been
 3       threatened would probably tell you the same that it's
 4       ingrained in my mind and I was able to actually --
 5   THE CHAIRMAN:  I am not sure really that -- I accept that
 6       that's the way you interpreted it and I am not sure we
 7       can take the issue further than that.  That is your
 8       understanding of it.
 9   A.  It was so serious, Sir Anthony, that I had to walk away.
10       I couldn't respond to it.  It's in my statement that I
11       had to actually -- to rehearse for two seconds, I
12       informed -- there were two UNISON solicitors present at
13       that meeting so we appraised them of what had been said
14       at the time and then I spoke to the facilitator without
15       mentioning what had been said but basically to the
16       effect that I didn't think there was going to be any
17       more purpose in going from that meeting that day and
18       shortly thereafter it was terminated.
19   MR SMITH:  Can I ask you to look at CO0059, please.  Can we
20       have pages 11 and 12 in the production and 12 and 13 in
21       the digital available.
22           You will have to forgive me, Mr Mackenzie, if I am
23       being a bit slow about this but I think you had
24       indicated that, for my benefit, you were going to try to
25       explain at one stage as to why the tabs, if we take, for
page  77
 1       example, 38 up to 45, appear in the left-hand side but
 2       not in the right-hand side.
 3           Can I tell you me, please -- my difficulty, as I
 4       understand it, the purpose of this is to show
 5       similarities, similar points on the left-hand image Y7
 6       as compared with the inked image on the right-hand side.
 7           Is that generally the purpose of this demonstration?
 8   A.  Sorry, can you turn that back again and just clarify?
 9       You said -- you're referring to points 38 to 45?
10   Q.  I'm talking about, generally, the image.  The purpose of
11       the image is to show that there are certain points of Y7
12       which match up with certain points on the inked mark on
13       the right-hand side of the screen.
14           Am I broadly right about that?
15   A.  Yes.
16   Q.  I think a simple way of doing it would be to mark all
17       the relevant points on one side that match up with all
18       the relevant points on the other side.
19           Do you agree that would be, at first sight, a
20       sensible way of approaching it?
21   A.  That's a simplistic summary of what you're saying, but
22       what I've illustrated in here was the process I went
23       through and I've explained that at some length and
24       what's illustrated here is a total picture on the mark
25       of ridge detail which I have subsequently, between the
page  78
 1       inked form and other material being received, come to
 2       the conclusion that this is the mark of Shirley McKie
 3       and no-one else.
 4   Q.  Can I ask you why, just in a sentence if you can, why is
 5       it that the points, for example, 38 to 45 are not marked
 6       on the inked image.  Is there some reason why you didn't
 7       just simply transpose them so we could see it in one
 8       picture?
 9   A.  Because a number of these points don't appear on the
10       right-hand image and that has been explained in some
11       detail, that it was only when the Internet material came
12       available it exposed other ridge detail to the right
13       of -- the image shown on the right-hand page.
14   Q.  Can I take it then that you only identified the
15       points 38 to 45 after you saw the Internet material
16       becoming available?
17   A.  That's correct.
18   Q.  Why then didn't you go back and revisit the inked mark
19       on the right-hand side and then just put stickers on and
20       draw lines in after you had obtained the Internet
21       material?
22   A.  For the purposes -- I didn't now eventually where this
23       material was going to be used.  All I was gathering and
24       collating a portfolio of material available to me and
25       this is the way that I chose to indicate the various
page  79
 1       areas and detail that I had accounted for in the overall
 2       comparison of all the materials.
 3   Q.  Just one last question before no doubt we'll be
 4       stopping: can I take it then that numbers 38 to 45 on
 5       the left-hand image do not appear on the right-hand
 6       image.  Am I right?
 7   A.  I mentioned yesterday there were -- three of these
 8       characteristics were common to other characteristics
 9       that are marked on the right.
10   Q.  Why did you mark them separately on the left-hand image.
11       Why did you give them new numbers?
12   A.  Sorry, again?
13   Q.  Why did you give them new numbers, the ones that are
14       common?
15   A.  Because I've explained again at some length yesterday
16       that that area was a separate touch from the other area
17       indicated 23 to 28 or to 30.  This area here
18       (indicated).  This is a separate touch, 35 to 45.  I
19       think we've gone through that in some detail yesterday
20       and I've explained the movement, et cetera, and I say
21       from my initial assessment was that there was major
22       movement and disruption in that area.  It was only by
23       using all the materials I was able then to come to the
24       conclusion that this was the explanation and it
25       confirmed my initial thoughts on the movement.
page  80
 1   MR SMITH:  Sir, I see the time.
 2   THE CHAIRMAN:  So they are really the same points again but
 3       because of the transposition of the finger, you say.
 4   A.  Correct.
 5   THE CHAIRMAN:  We will sit again at 1.55.  I should say that
 6       I expect to sit to 4.00 today.
 7   (1.05 pm)
 8                      (Luncheon Adjournment)
 9   (1.57 pm)
10               ROBERT HARVEY MACKENZIE (continued)
11   MR SMITH:  I think, sir, the indication from Mr Moynihan is
12       we should just carry on before he sits down.
13   THE CHAIRMAN:  If we just wait for one minute.
14   MR MOYNIHAN:  Sorry, sir.
15              Cross-examined by MR SMITH (continued)
16   Q.  Can you hear me all right, Mr Mackenzie?
17   A.  Yes, thanks.
18   Q.  I would like to, if I can, go on to ask you some
19       questions in a general sense about Tulliallan and those
20       who were there.
21           Can I ask you this, first of all: are you prepared
22       to accept that Mr Zeelenberg and Mr Rudrud, the
23       Norwegian gentlemen who were both there, could really be
24       viewed as truly independent?  Are you prepared to accept
25       that?
page  81
 1   A.  Truly independent?
 2   Q.  Yes.
 3   A.  In what manner?
 4   Q.  They had no axe to grind.  They didn't have any
 5       animosity towards SCRO, there was no reason for them
 6       coming to their conclusion of a non-match of Y7 other
 7       than their professional and experienced view there was
 8       no match.
 9           Are you prepared to accept that?
10   A.  Prior to Tulliallan, it would work both ways.  I had no
11       feelings against either of these gentlemen because I
12       actually worked for two years with them in a European
13       Standards Committee held at the Interpol on several
14       occasions.  So I was acquainted with the gentlemen and I
15       didn't have any problem with either of them.
16   Q.  The presentation to Tulliallan, if I can ask you -- I
17       will come back to a wee bit of detail about that in due
18       course, but I take it we can proceed on the assumption
19       that your position is that this, as you have explained
20       in some detail already, if this fingerprint is from
21       Shirley McKie it must be multiple touches and more than,
22       what, three or at least three I think is your position,
23       three touches; is that right?
24   A.  There was a touch below the fault line and at least two
25       touches on the top.
page  82
 1   Q.  Can I ask you, Mr Mackenzie, when was it you first were
 2       of the opinion that the explanation for any differences
 3       was the multiple touch theory, if I can put it that way
 4       for the sake of brevity?
 5   A.  When was it my opinion?  Right from my initial
 6       assessment, I could tell from assessing this mark.  I
 7       say, I used the pun yesterday it stands out like a sore
 8       thumb.  The deposition of this mark was quite clearly in
 9       more than one piece and my analysis continued on that
10       basis, taking cognisance of particularly the disturbance
11       in the top and my target area and my conclusions are
12       those on 17th February '97 using the lower part as I've
13       described it or the lower segment below the fault line.
14   Q.  Can I understand this, please, and forgive me if I am
15       slow with this: when you first looked at the print, did
16       you consider that there were more than two touches?
17   A.  More than two touches, yes, because the disturbance in
18       the top half and the formation of the ridges indicated
19       to me that there were more than two touches.
20   Q.  But you had not worked out how many at that stage; is
21       that fair?
22   A.  No.
23   Q.  When was it you came to the conclusion that there would
24       have to be at least three touches?
25   A.  Once I had received material back from court and then
page  83
 1       augmented by the material from the Internet.
 2   Q.  So by the time you were at Tulliallan obviously you were
 3       aware that your opinion at least was that there were at
 4       least three touches to replicate the mark.
 5           I am correct about that, aren't I?
 6   A.  Yes.
 7   Q.  I take it that that is something you would be anxious to
 8       explain to those present at Tulliallan as to how you had
 9       reached your conclusion, ie that there were at least
10       three touches of that digit to that impression; is that
11       right?
12   A.  That's correct.
13   Q.  Did you tell those present at Tulliallan that your
14       opinion was based upon at least three separate touches
15       of the digit which left the mark?
16   A.  Yes.
17   Q.  Are you quite clear about that, Mr Mackenzie?
18   A.  Quite clear.
19   Q.  In the course of your presentation you said that, did
20       you?
21   A.  By the same token as I've illustrated it to the Inquiry
22       I explained these were different areas that had been
23       left due to at least three touches.
24   Q.  So the answer to the question is, yes, in your
25       presentation you told to the delegates who were present
page  84
 1       that the way this was deposited was at least three
 2       separate touches of the digit?
 3   A.  Correct and I illustrated it with material that I
 4       illustrated to the Inquiry.
 5   Q.  I think we have the minutes of the Tulliallan conference
 6       available.  Have you seen them recently?
 7   A.  No.
 8   Q.  Have you ever seen them?
 9   A.  Yes, because I was asked to comment on them, I think,
10       for my statement.
11   Q.  Can you recall anywhere within the minutes of Tulliallan
12       where it is said that you explained that there at least
13       three touches of the digit that left the mark Y7?
14   A.  I can't recall the minutes because the minutes were
15       actually back and forward because the stenographer at
16       the time, obviously, not being aware of technical terms,
17       et cetera, a bit like the statement taking for this
18       Inquiry, was back at forward until eventually it was
19       agreed that that was more or less what the
20       proceedings -- a record of the proceedings.
21   Q.  You had the opportunity and took the opportunity of
22       commenting on the terms of the minutes, did you not?
23   A.  I did, yes.
24   Q.  Accordingly, if the minutes were incomplete or
25       inaccurate you would have the opportunity to correct
page  85
 1       that, wouldn't you?
 2   A.  That's correct.
 3   Q.  And I am going to suggest to you that if there is
 4       nothing in the minutes -- and I stand to be corrected by
 5       Mr Holmes -- if there is nothing in the minutes which
 6       says that you indicated there was a multiple touch, at
 7       least three touches, then that's something that you
 8       would have wanted clarified and corrected, wouldn't you?
 9   A.  I was quite clear in the presentation I gave.  I
10       explained it was at least three touches.  So, as far as
11       the minutes were concerned, I didn't have any issue as
12       to -- I know what I'd actually given at that meeting so
13       it's not a question that arose in my mind that should be
14       specifically saying whatever.  All I know is that I
15       explained there was at least three touches of this mark
16       at Tulliallan.
17   Q.  And that was fundamental to your thesis, wasn't it?  It
18       is absolutely critical that there are at least three
19       touches in order that your explanation of the match
20       fits, doesn't it?
21   A.  You are correct in saying it was absolutely critical
22       because I remember something in the minutes and I
23       questioned it and whether they have been changed or
24       not ... but apparently there was a suggestion that Alan
25       Dunbar had said that if this mark is in one piece, then
page  86
 1       it's not Shirley McKie's.  In fact, I did correct it and
 2       I explained it was actually myself that said it because
 3       I think it was Mr Bramley that brought it up.  I think
 4       it might even have been have been after the lunch break
 5       and I clarified that it wasn't, in fact, Alan Dunbar, it
 6       was myself that had actually said it and it was
 7       basically to make the point that this is not in one
 8       piece and confirming that if it was in one piece then it
 9       wasn't Shirley McKie's.
10   Q.  You are quite right, of course, it was made clear by you
11       on a number of occasions that if this was one mark
12       deposited on one occasion it could not be Shirley
13       McKie's.  I accept that.
14           Do you understand there is a difference between
15       saying that, a significant degree of difference in
16       emphasis between saying that and saying this was made by
17       at least three separate touches?  Do you understand
18       these two things are different in quality?  Do you
19       understand that?
20   A.  Yes, but, again, that remark was quoted by Dr Bramley as
21       a remark that had been made in casual conversation at
22       lunchtime and I was quite happy to clarify that when he
23       raised the subject, but it seemed to be recorded
24       somewhere along the line it was Alan Dunbar.  I'm just
25       clarifying that.
page  87
 1   Q.  What happened is recorded in the minutes -- and thank
 2       you for reminding me of this -- is that it was suggested
 3       during the lunch break that you had agreed I think with
 4       Mr Zeelenberg -- is that right -- that if it was one
 5       digit, one touch, then it wasn't Shirley McKie's.  That
 6       was in the course of a break?
 7   A.  No, I don't recall saying I would agree with
 8       Mr Zeelenberg.  All I was saying was if this mark --
 9       from my memory of what I said was if this mark is one
10       piece, it's not Shirley McKie's.  I didn't say I would
11       agree with Mr Zeelenberg, although obviously that's his
12       take on it.
13   Q.  Had you delivered your presentation by the point of that
14       break?
15   A.  I think I had, yes.
16   Q.  Why would it be something that would be discussed during
17       the break if it was so crystal clear from your
18       presentation?
19   A.  I say, at this stage this meeting, as far as I was
20       concerned, was among professionals and up to lunchtime
21       it wasn't as though we were barred from having a
22       conversation with each other and, basically, I was just
23       making the point as a reverse of what my opinion was and
24       that was all it was but it got taken and ended up in the
25       minutes.
page  88
 1   Q.  Can I ask you to look, please, now at your presentation
 2       for the purposes of this Inquiry.  It is TC0024.  It is
 3       a PowerPoint image presentation.  You will have to
 4       forgive me with the slide names a little on this but can
 5       I ask you to go on to slide 9, first of all.  We may
 6       have to flick forward a little to get to the points I
 7       want to ask about.
 8   THE CHAIRMAN:  Are you able to say what page it is in the
 9       book?
10   MR SMITH:  That is probably a better idea, sir.
11   MR MOYNIHAN:  Sir, I'm sorry, this is not in the book.
12   MR SMITH:  So it is not such a good idea after all.
13   MR MOYNIHAN:  I think the difficulty is that it is a
14       PowerPoint in which additional characteristics are
15       added, as you will see, in colour and therefore we
16       simply have to find the correct page in the presentation
17       to correspond to the feature that my learned friend is
18       interested in.
19   MR SMITH:  I wonder if perhaps we should start possibly from
20       slide 3.  Could we go back to 3, please.  That is as
21       good as any.
22           Mr Mackenzie, there is clearly an outer limit, if I
23       put it this way, on the ridges that have been deposited
24       with respect to Y7.  There's a point at which the ridges
25       stop having been applied to the wood.
page  89
 1           We are agreed about that, I take it?
 2   A.  Obviously, there's edges right round the mark.
 3   Q.  Can I ask you, if possible, if you still have possession
 4       of the mouse, if you can draw along the bottom on the
 5       left-hand image where you say is the limited extent of
 6       the ridges that have been applied to that mark.  A
 7       squiggly line, a straight line, however you want to do
 8       it.
 9   A.  The mouse has frozen.
10   MR MOYNIHAN:  There must be something wrong with
11       Mr Mackenzie's mouse.   (Pause)
12   THE CHAIRMAN:  I am sorry to move you.  Is it working now?
13   MR SMITH:  Is that your completed line, Mr Mackenzie, is it?
14       You have completed the line?  I didn't want to interrupt
15       you.  Do you want to adjust it or extend it or whatever.
16       Just the bottom margin.
17   A.  It is the bottom segment.
18   Q.  Sorry, you will need to move towards the microphone a
19       little bit.
20   A.  I said the bottom of the mark.
21   Q.  Can I ask you why it is that you place it there?  Are
22       you telling us you can see ridges if you go straight
23       down from the red lines in the left-hand image and you
24       follow that ridge down it then stops and then there's a
25       white space and a little dot and then we hit the green
page  90
 1       line.  Do you see that?
 2   A.  A white space ... you're talking about here?
 3       (Indicated)
 4   Q.  Yes, indeed.  Thank you.  There's a little dot just a
 5       little below where your pointer is?
 6   A.  A little dot ...
 7   Q.  Are you telling us -- just if you leave the pointer
 8       there -- above that, between that and the end of the
 9       ridge, is there anything in there?
10   A.  In here?
11   Q.  Yes.
12   A.  Not in this part of the recording, no.
13   Q.  If you were to move, continue to move to the left then
14       you get to a very thick black line.  Are you saying
15       that's a ridge or is that part of the wood or what is
16       it?
17   A.  This here, yes.  (Indicated)
18   Q.  What is that in your opinion?
19   A.  There's just a ridge coming up, ending in this area.
20       (Indicated)
21   Q.  Mr Mackenzie, did you ever see the actual piece of wood
22       in question?
23   A.  I saw it at Tulliallan for about two or three minutes
24       and the group were shown this virtually in the last few
25       minutes at Tulliallan.  It was produced.  It hadn't been
page  91
 1       available before, hadn't been available during any
 2       presentations but was shown momentarily at the end,
 3       where those present were asked to view the mark as to
 4       the orientation, et cetera.
 5   Q.  Just perhaps it is an appropriate place to deal with
 6       this question: when you first examined Y7, from what I
 7       understand of your evidence you were less than satisfied
 8       as to the quality of the material that was available to
 9       you.
10           Is that right?
11   A.  In respect of the ten-print form, the first elimination
12       form, the rolled impression was smudged and that was the
13       first examination.  The plain impression on that form
14       was suitable for comparison.
15           The same applied to the second form taken on 18th
16       February '97.  The rolled impression was smudged but the
17       plain impression, the one I've used in the presentation,
18       is the best one I've seen to date.
19   Q.  The answer to the question I think is, yes, you were
20       less than satisfied with the quality of the available
21       material.  Is that right?
22   A.  With the control prints, not the mark.  I was totally
23       satisfied with the quality of the photograph taken by
24       Strathclyde Police.
25   Q.  Very well.  So I take it that before expressing an
page  92
 1       opinion you could have said easily to Strathclyde
 2       Police, "I am not expressing a view on this until I get
 3       proper inked images available".
 4           You could have done that, couldn't you?
 5   A.  I was satisfied for the comparison purposes at that
 6       juncture on that day that the form that was in the
 7       department and obviously had been used for an earlier
 8       comparison suited my purposes in that the plain
 9       impression allowed me to come to a conclusion on that
10       day of -- sorry, 10 or 11 characteristics on that first
11       form.
12   Q.  Mr Mackenzie, I am sorry but I am simply not following
13       this.  Did you at that time think that the top half of
14       the print -- the top half -- belonged to Shirley McKie:
15       yes or no?
16   THE CHAIRMAN:  Or to the same person?
17   MR SMITH:  Yes, I am sorry.
18   A.  It's not a yes or no answer, my Lord, as I've already
19       explained that I was satisfied that the top half of the
20       print would have been made by the same individual, given
21       the information and the control print being available.
22       I already come out and said that, as opposed to other
23       people being asked, do you think it was a different
24       person who made the other part.  I was satisfied at that
25       point and having satisfied myself on the bottom, then I
page  93
 1       was certain that given sufficient information to analyse
 2       the top of it, then that would be the same person.
 3   Q.  So if I have understood this correctly, bearing in mind
 4       that the control print you were looking at belonged to
 5       Shirley McKie, you saw differences in the top part but
 6       you thought that they could be explained in some way; is
 7       that right?
 8   A.  There were characteristics available in the top half
 9       but, based on the material that I had available at that
10       moment in time, I wasn't able to make a comparison of
11       the upper half, but the lower half allowed me to do a
12       capable analysis of the mark and a comparison using the
13       plain impression and come to a conclusion on the area
14       below the fault line.
15   Q.  Mr Mackenzie, dealing with the upper part of the mark,
16       were there differences between the upper part of the
17       mark and the control print from Shirley McKie?
18   A.  Sorry, can you repeat the question?
19   Q.  Yes.  Dealing with the upper part of the mark, were
20       there differences in the upper part of the mark to the
21       control impression from Shirley McKie?
22   A.  There weren't differences because I recognised that that
23       area was a different touch.  So there weren't
24       characteristics in that area that were readily available
25       for comparison at that stage.  For example, it's been
page  94
 1       highlit that I did record from memory that the Rosetta
 2       characteristic was there on the mark and it wasn't
 3       available on the control print.  I've then been shown in
 4       the comparative exercise the plain impression again from
 5       the first form and right on the edge of that the Rosetta
 6       characteristic was there.  But, again, I explained that
 7       you would not take that in isolation and when I did come
 8       to identify that particular characteristic, it was with
 9       sequence with another group of characteristics on
10       material which showed more.
11           So the answer is, yes, there was in that
12       characteristic in particular but my assessment, which
13       has turned out to be correct as far as I'm concerned, at
14       end of the day, was that that was a separate touch,
15       completely different orientation from the rest of it and
16       the explanation would be there on another form,
17       et cetera, but at that moment in time what I was being
18       asked to do was make a comparison and give my opinion.
19       My opinion from the lower half of the mark was there was
20       sufficient detail there for me to say 100 per cent that
21       that was Shirley McKie's print.
22   Q.  But what you did, Mr Mackenzie, was you came to that
23       conclusion regarding the lower part of the mark, you
24       were aware that the upper part of the mark which you
25       thought probably came from the same donor did not match
page  95
 1       Shirley McKie's fingerprint.  That is right, is it not?
 2   A.  No, it didn't -- you're trying to put words in my mouth
 3       now, Mr Smith.  I have said there was major distortion
 4       in that area.  That was my initial assessment.  I
 5       understood that it was a separate piece from the bottom
 6       and there were at least -- it was at least two parts at
 7       that initial assessment and the movement and the
 8       distortion was recorded in my initial assessment that I
 9       took in.
10   Q.  So you completely dismissed it.  You took no cognisance
11       at all of the top portion; is that right?
12   A.  It's not a matter of dismissing it.  It was a matter of
13       what detail was available there allowing me to make a
14       comparison, having recognised the fault line, as I've
15       described at some length, allowed me in that lower half
16       to compare the ridge detail available in the mark in
17       that area and the ridge detail available on the plain
18       impression in that area and I came to the conclusion
19       100 per cent that that was Shirley McKie's mark.
20   Q.  Do you ever consider it part of your work or did you
21       consider it as part of your work to try and identify if
22       there were any differences between an unknown mark and
23       one that is said to belong to the person who left the
24       unknown mark?
25   A.  You always take into consideration all the ridge
page  96
 1       information that's there and, again, any other
 2       differences shown on the surface, et cetera, et cetera.
 3   Q.  Can we just home in on the one that seems to be known as
 4       the Rosetta characteristic.
 5           Are you saying that you did see that characteristic
 6       in Y7?
 7   A.  At that moment in time I didn't relate the Rosetta
 8       characteristic to the image on the first form on
 9       17th February which, only when I saw the exercise again
10       recently, I was able to say that is where the Rosetta
11       characteristic is.  But that was in the knowledge of
12       having done my other analysis after September 1999 when
13       the Internet material became available.
14   Q.  Mr Mackenzie, I don't think it's quite as complicated as
15       that.  I am just trying to find out this: when you
16       examined the print way back in February of 1997, I think
17       it was, did you see there was something in Y7 that could
18       not be spotted across in Shirley McKie's' inked print?
19   A.  I say, I took into cognisance -- as I've said umpteen
20       times now -- that the movement -- my conclusion was it
21       was at least more than one piece and from the
22       orientation and the deposition of the parts within the
23       mark Y7, then I was satisfied that there was major
24       disruption, particularly in the top half and it's not a
25       matter of ignoring or whatever.
page  97
 1           There were what appears to be ridge detail and it's
 2       obviously proven because I've gone on to, in the longer
 3       term, identify other areas there but it was not a point
 4       that was going to stop comparison being done and an
 5       opinion given and that's what was done on that day and,
 6       again, on the next day with another form.
 7   Q.  Mr Mackenzie, I think the answer that you gave comes to
 8       this: yes, you saw the difference but you thought it
 9       could be explained by movement of some kind or
10       distortion.  Is that fair?
11   A.  Correct.
12   Q.  The explanation of how it moved, et cetera, was
13       something you were not able to explain until you saw
14       different images of Shirley McKie's inked print?
15   A.  That's correct.
16   Q.  So in a position, as you were, you were being asked for
17       an identification, you spot the difference, there's a
18       simple solution, isn't there?  You say to the police,
19       "I'm sorry, I need a better inked print from Shirley
20       McKie".  It's simple, isn't it?
21   A.  No.  You're repeating the question again.  I've said it
22       wasn't a matter of any requirement at that point to --
23       it wasn't such bad quality that I could not carry out a
24       comparison, otherwise I could not have given an opinion
25       on that day or the following day from two plain
page  98
 1       impressions.
 2   Q.  Mr Mackenzie, apart from this case involving Y7 and
 3       Shirley McKie, have you ever been in a position where
 4       you have spotted a difference in a fingerprint and you
 5       have thought to yourself, "I think at some stage I will
 6       be able to explain exactly how this happened"?  Have you
 7       ever done that before?
 8   A.  Yes, very often and what we would then do would be,
 9       basically, before I would come to my conclusion I could
10       have photographic enlargements made if I think --
11       because basically, day in and day out, all chance
12       impressions are distorted in some way or another and
13       there can be, in the comparison stage, issues in looking
14       at, you know, something that needs to be explained and,
15       if necessary -- and it was always the case when I joined
16       the Department then you would go -- in the older times
17       you would go to the Strathclyde Identification Bureau
18       who -- they were the facility that did the photographic
19       work and you would ask them to have enlargements done.
20       So the answer is yes.
21   Q.  Just taking that forward, we get to a position, don't
22       we, where, as at the time of Shirley McKie's trial, you
23       knew about this so-called Rosetta characteristic but did
24       not have the explanation for precisely how it ended up
25       as a difference.  That's right, isn't it?
page  99
 1   A.  Not only the Rosetta characteristic, there were other
 2       characteristics in that upper half which at that time
 3       remained, for me they weren't explained at the time of
 4       the initial comparison.  So what I've actually shown you
 5       over the last few days is there was a considerable
 6       number of ridge characteristics in that area but in
 7       different segments.  So it wasn't just the Rosetta
 8       characteristic but, yes, I do remember seeing the
 9       Rosetta characteristic and that was not resolved, as far
10       as I was concerned, until I after I got the Internet
11       material.
12   Q.  Again, just summarising a little bit of the past few
13       answers, there have been other occasions in your career
14       when there have been differences between the control
15       print and an inked print where you have been unable to
16       explain in detail how that happened but you considered
17       your identification was nonetheless appropriate.  Is
18       that right?
19   A.  It's not not being able to explain it in your initial
20       comparison, et cetera, and obviously differences can be
21       explained but it will take in a further format rather
22       than just the actual size --
23   THE CHAIRMAN:  I think you said enlargements.  You would get
24       enlargements, I think you said.
25   A.  That is another tool, the comparator would give you an
page 100
 1       option but, again, you can get distortion round the
 2       edges on your comparator.  So -- but before the days we
 3       even had comparators we had a Photographic Department
 4       facility at Strathclyde or City of Glasgow Police and
 5       they would provide us, on a daily basis, I would say,
 6       because it's a large bureau, they would be constantly
 7       getting requests from staff if there were particular
 8       marks where they actually wanted to work in more detail
 9       with it rather than the actual size.  So nothing
10       untoward.  So that would help you explain the
11       differences and it's not necessary that that would end
12       up going to court.  It was just to help your comparison
13       process and it was not unusual, actually, for different
14       experts in the case to actually be looking at sets of
15       enlargements and then discussing their findings.
16   MR SMITH:  Did you ask for enlargements in this matter?
17   A.  When?
18   Q.  The point in time when you identified there was a
19       difference between Y7 and Shirley McKie's print, did you
20       ask for enlargements so you could resolve that
21       difficulty?
22   A.  The window for this comparison was between 4.00 and 6.00
23       on a Monday night and again, to get back to your earlier
24       questions, there was no need for me to ask for
25       enlargements because I had sufficient detail present to
page 101
 1       come to a conclusion on my comparison.
 2   Q.  You see, I suppose it might be thought, Mr Mackenzie,
 3       that you had a number of unresolved issues regarding
 4       apparent differences between Y7 and Shirley McKie's
 5       print and what you have had to do is come up with this
 6       explanation of little clusters moving about by multiple
 7       tap to justify the differences.
 8           Is that not what has happened here, you are working
 9       back to front on this?
10   A.  Absolutely not.
11   Q.  Can you tell me what it is about Y7, if I was to show
12       you Y7 fresh without QI2 and say to you what is it on Y7
13       that indicates a multiple touch of the order you have
14       described?
15   A.  We're going right back to the beginning of my
16       presentation now, Sir Anthony.  My first -- I said about
17       holding the thing at arm's length, went through the
18       generics, the red flags, the fault line, the dark area
19       that's been called a black blob by some, the heavier
20       deposition of ridges, et cetera and, as I've described,
21       jumping of the ridges in that area.  I was conscious of
22       that and I took all that into cognisance and showing
23       from the start again today --
24   THE CHAIRMAN:  I do not want you to --
25   A.  It would be the same today as it was in '97.
page 102
 1   THE CHAIRMAN:  Those are all the factors that led you to
 2       believe it was a multiple touch.
 3   A.  Correct.
 4   MR SMITH:  Thank you, sir.  I do not wish to go over in
 5       detail what was said before but would you agree with me
 6       that a classic feature of multiply touch is cross-over
 7       ridges as was demonstrated, I think, by Mr Moynihan.
 8   A.  There's no classic for anything.  Every mark is
 9       individual.  It was a chance impression and there's no
10       classics this or that.
11           You will get, as Mr Moynihan has given the extremes
12       of a crisscross effect but equally you get impressions
13       like this and it's the overall shape and the deposition,
14       the different contrast, et cetera, that from day 1 --
15       and I know of other individuals that haven't actually
16       looked at this in any detail but obviously observed and
17       I've heard of other individuals saying that actually, as
18       I used the term, it stood out like a sore thumb.
19   Q.  Another example of an indicator of a multiple touch is
20       where the edges do not -- if you were to draw a line
21       round the edge, there is a step or a break between the
22       two different touches.  That's fair, isn't it?
23   A.  In the area of the fault line there is evidence of
24       certainly not continuous ridges.
25   Q.  As far as the right-hand side of Y7 image we still have
page 103
 1       one in front of us, if you follow the line down -- I
 2       think someone gave this demonstration the other day --
 3       if you follow it down it comes down and if it was a
 4       clockface down towards about 5.00 and then it cuts
 5       across maybe to 4.00 and loops round.
 6           Do you see where I am referring to?
 7   A.  Okay.
 8   Q.  When you looked at the wood at Tulliallan did you see if
 9       there was a groove there accounting for that, an actual
10       depression towards the upper half of the right-hand side
11       of the print?
12   A.  A groove?
13   Q.  Yes.
14   A.  In the wood?
15   Q.  Yes.
16   A.  All that we were shown, as I said, it was a glance and
17       there was a whole group round the piece of wood and it
18       was basically looking to see roughly the position was on
19       the wood.  There was no opportunity to actually look in
20       any -- well, there was no time given and at no time had
21       I seen it before Tulliallan and at no time since
22       Tulliallan have I seen it.
23   Q.  I came off track a little bit but you were dealing with
24       your presentation.  I wonder if we could have that image
25       saved, please, first of all.
page 104
 1   MISS BAHRAMI:  FI0210.14.
 2   MR SMITH:  Thank you.
 3           Can I have the next slide put up.  I do not now how
 4       easy that is.  Can you just go on to the next one.
 5       Could you tell me which slide number we are on now?
 6   MISS BAHRAMI:  TC0024.004.
 7   MR SMITH:  Thank you.
 8           Can you just flick on maybe three or four slides and
 9       I will ask you to stop when we get to the point I would
10       like.  Can you stop there, please.  Can you go back one
11       more slide.
12           I think, as we will see, what is about to be drawn
13       is what you have identified as a bifurcation towards the
14       bottom of the mark Y7.  Can we go on to the next slide,
15       please.
16           What appears to be drawn here is a bifurcation with,
17       as it were, a straight line and up and a curved join.
18       So there's a curve coming out towards the right of a
19       straight line.  Is that a fair way of describing it?
20       You see, what I am trying to describe?
21   THE CHAIRMAN:  Like an elongated Y?
22   MR SMITH:  Thank you.
23           Can you confirm to me, Mr Mackenzie, that your
24       position here before this Inquiry -- if we just have
25       these flicked on and off, as it were, back one slide and
page 105
 1       forward -- your position is that you can see that shape
 2       under that mark.  Just flick it two or three times with
 3       a few seconds between them.  Your position is,
 4       Mr Mackenzie, that that is an upward opening
 5       bifurcation; is that right?
 6   A.  That's correct.
 7   Q.  Can we go on to the next slide, please, and the next one
 8       and the next one and again, please.
 9           This feature is what, Mr Mackenzie, a ridge ending,
10       is it?
11   A.  A ridge ending upwards.
12   Q.  Is there any possibility that might be a piece of grain
13       on the wood?
14   A.  Grain on the wood?  Well, I wasn't aware.  I thought
15       this wood was actually painted.
16   Q.  I think even painted wood sometimes has grains on it, Mr
17       Mackenzie, especially if you are applying powder and it
18       might just show up the odd grain.  Are you saying
19       there's no possibility that's a piece of grain?
20   A.  I'm not saying there's no possibility.  I haven't seen
21       the wood or examined whether there's grain in the wood
22       or not.  What is marked here is consistent with what's
23       present on the mark and what's present on the control
24       print.
25   Q.  You see, the line that that is touching extends below
page 106
 1       the bottom of the green line you drew on the other
 2       image.  That's right, isn't it?
 3   A.  There is something continuous going down.
 4   Q.  So we work from the bottom up.  It could equally be
 5       whatever is below the bottom of the green line below the
 6       green line, work our way up, it could be part of that as
 7       much as it could be part of anything, couldn't it?
 8   A.  Sorry, could you clarify?
 9   Q.  I will repeat the question.  The green line that you
10       drew, I don't necessarily want to flick back and see
11       exactly where it is, but it contains certain detail
12       below the green line.  For example, the very thick line
13       which is underneath the short ridge endings you are
14       describing.  Do you see if I follow that down, the ridge
15       ending, go down and you get to a very thick black line.
16       Do you see that?
17   A.  Okay.
18   Q.  Are you able to tell us what that thick black line is?
19   A.  Again, I say I haven't -- the suggestion obviously
20       you're making is that it is something in the wood.  I
21       haven't seen the wood but I'm trying to imagine, I say,
22       I was made aware from something I read that it was a
23       painted doorframe and I'm trying to equate that with
24       what you're saying.  It may even be -- I say, without
25       seeing the wood, it might even be that the paint, if it
page 107
 1       is a painted surface, the paint may have formed grooves
 2       and if that was the case it may be a bit like a
 3       fingerprint, like furrows in a field, and there would be
 4       high points and low points and when the finger touches
 5       the surface, then equally there's a possibility the
 6       finger touching one of these raised upper parts of a
 7       furrow is another explanation.
 8   Q.  I don't want to lose that image.  I wanted to show you
 9       something fairly briefly.  EA0067 on page 6, please.
10       Can we have the picture on it expanded and rotated, I
11       think, 90 degrees anticlockwise.  I think we can see on
12       that picture which, let us presume it is a picture of
13       Y7, we can see wood grain all over the place on the
14       wood, can't we?
15   A.  We can see lines, whether it's good grain or not, again
16       without actually examining the doorframe ... there are
17       parallel lines.
18   Q.  Mr Mackenzie, can you tell us what it could possibly be
19       on a piece of wood if it's not the wood grain that's
20       showing?  Have you any idea?
21   A.  I think I've given another scenario.  It may be
22       grooves -- it may be, depending how it's been painted
23       with a brush, you could have an effect with a brush mark
24       running the length of the doorframe and it could be
25       layers of paint that are ribbed.
page 108
 1   THE CHAIRMAN:  Marks other than fingerprints?
 2   A.  Yes.
 3   MR SMITH:  That really is what I am getting at.
 4           Do you see this piece of string at the bottom where
 5       it stretches across the piece of wood?  Do you see that?
 6   A.  Yes.
 7   Q.  What we can see is, if you go towards the left-hand
 8       side, where Y7 is above it, we're certainly becoming
 9       something of an expert in counting ridges but I can see
10       1, 2, 3, 4, maybe 5 lines that come from below the
11       string, they are somewhat convergent.  They spread out
12       then they come up and go towards Y7; do you see that?
13   A.  Yes.
14   Q.  Do you agree with me that there is at least a chance, if
15       not a likelihood, that some of the markings on the
16       left-hand image on the screen just now, particularly Y7,
17       could be these lines that start from way below the
18       string and come up?  Do you agree that is at least
19       possible?
20   A.  It is possible but I can also say that having the
21       advantage of the large enlargements which are missing as
22       far as the points that I've marked were done in
23       conjunction with these extra large enlargements which --
24       so it wasn't actually just on the size it's in my book
25       so, taking all that into consideration, what you are now
page 109
 1       querying was done with all the various materials I had
 2       available.
 3   Q.  Did you have this available to you, this picture on the
 4       right?
 5   A.  I've never seen this before.
 6   Q.  If you had seen this before, Mr Mackenzie, do you think
 7       you might have concluded that there was just a
 8       possibility that it might be some feature on the wood
 9       that extends up towards the bottom of Y7 that actually
10       is what is shown as that thick black line?  Do you think
11       you might have concluded that if you had seen this
12       photograph?
13   A.  Obviously, I would have taken that into consideration
14       but obviously I've never seen that before.
15   Q.  Are you prepared to reconsider now?
16   A.  I'd actually like to see the wood.  Is that possible?
17   Q.  No doubt we can discuss that in due course with
18       Mr Moynihan as to whether it is possible.
19           Just while we have the right-hand image, do you see
20       to the immediate right of Y7 you can see the very almost
21       straight shape of the top part on the right of Y7.  Do
22       you see that?
23           I don't know if it helps but I have -- the image
24       that I'm looking at has actually very, very faintly a
25       green line across the top of Y7 and a darker-coloured
page 110
 1       line cutting through Y7.  I don't know if that is
 2       something that is just on my computer screen.
 3   A.  We're talking the left-hand mark Y7?
 4   Q.  I am sorry, I will start again.  If you look at the
 5       right-hand photograph --
 6   A.  Okay, the woodwork, yes.
 7   Q.  -- on the right-hand edge of the top portion of Y7 there
 8       is a margin to the actual fingerprint that we've looked
 9       at already in many pictures of Y7.
10           I want you to look at that edge of it and
11       immediately at the edge we can see, as I say, it's
12       almost straight, it looks almost straight, but would you
13       agree with me there is what appears to be, again
14       whatever that kind of feature is on the wood, it extends
15       above Y7 and you can actually follow the line right down
16       below the string?  You can run your eye down.  Do you
17       see what I am looking at?
18   A.  Yes.
19   Q.  Again, would you agree with the suggestion that whether
20       the top portion of Y7 was separately or simultaneously
21       deposited it looks as though that feature on the wood
22       has had something to do with the sharpness of the edge.
23       Do you agree with that?
24   MR HOLMES:  Sir, if the witness is being asked to comment on
25       what is in this photograph, I wonder if he might be
page 111
 1       shown the original photograph?
 2   THE CHAIRMAN:  Yes, if he wants and if we can find it.
 3   MR MOYNIHAN:  Sir, we don't have the original.  This is from
 4       a report by Dr Bleay.  We don't have the original
 5       photograph.
 6   THE CHAIRMAN:  Unfortunately, we don't have the original.
 7   MR MOYNIHAN:  I can assure everyone we have the doorframe.
 8       The only question is exactly where it is at this point
 9       in time but we do have it and have ready access to it.
10   MR SMITH:  Sir, I wonder to speed matters up, I understand
11       that the witness wants to come back at some stage anyway
12       about QI2, that's my understanding, if I am permitted to
13       come back to this point at that stage when we have the
14       door frame available.
15           Perhaps we can just leave that aside and I will come
16       back to it at some stage in the future, hopefully, but
17       if we can go back to the left-hand image, again, I am
18       going to suggest to you that the thick black line that
19       goes down from that little red line you drew to
20       represent the ridge ending, it could equally be a part
21       of the structure of the wood, whether its brush marks,
22       whether it's wood grain or a combination of both, it
23       could equally be an artefact of the wood.
24           Is that a fair assumption?
25   A.  Certainly I'd need to consider it when I saw the wood,
page 112
 1       yes.
 2   Q.  So if the thick black line is part of the fingerprint,
 3       Mr Mackenzie, are you saying that all of that thickness
 4       could be a ridge, are you?
 5   A.  I'm saying all of that area could be -- sorry, what was
 6       the question again?
 7   Q.  The thick black line at the bottom of Y7, if we follow
 8       down where you have drawn that little ridge ending,
 9       follow it down to the bottom and you see where it gets
10       thick.  Do you see that?
11   A.  The bottom of where the photograph's cut?
12   Q.  Yes.
13   A.  Again, that's something I need to --
14   THE CHAIRMAN:  See the original.
15   MR SMITH:  Of course but at this stage are you saying that
16       if it is not a piece of the wood, it's not an artefact
17       in the wood, you're saying --
18   A.  No, I'm not saying that.  I'm saying I would need to
19       consider that if I saw the wood.
20   Q.  Can you let me just finish the question, please.  If it
21       is not an artefact in the wood, are you saying that
22       could be the full thickness of a ridge.  Is that your
23       position?
24   A.  Right down to the bottom of the photograph, no.
25   Q.  And the bit next to the red line --
page 113
 1   THE CHAIRMAN:  Would it not be better if he was able to see
 2       it and give his answer?  It would be quicker, I think.
 3   MR SMITH:  Very well.
 4   MR MOYNIHAN:  The other point that has, in fact, occurred to
 5       us again is that the doorframe at the top of the steps
 6       by the door are some photographs we haven't actually
 7       checked whether they are original photographs we have up
 8       there or copies but we can have a look at those at the
 9       mid-afternoon break.
10   MR SMITH:  I may say, sir, if the wood is available at some
11       stage if it can be tracked down I realise it won't be
12       today.
13   THE CHAIRMAN:  I'm not sure where it is.  Is it here?
14   MR MOYNIHAN:  Sir, we're not sure where it is.  It could be
15       with Dr Bleay but also, more to the point, we are always
16       very careful how it is handled for obvious reasons but I
17       have no doubt we can make the wood available.
18   THE CHAIRMAN:  We will discover where it is but are you
19       suggesting it is worth the witness being invited to look
20       at this?
21   MR MOYNIHAN:  I think, sir, since we are nearly at the --
22       you may not be wanting a mid-afternoon break today.  I
23       don't know.  If we were at the mid-afternoon break then
24       we could have a look at the wood then ourselves.
25   THE CHAIRMAN:  Maybe if we took it now for ten minutes,
page 114
 1       would that speed matters up?
 2   MR MOYNIHAN:  Of course, sir.
 3   (2.50 pm)
 4                         (A short break)
 5   (3.00 pm)
 6   MR SMITH:  Mr Mackenzie, I think you have been given the
 7       opportunity of looking at the photographs, some
 8       photographs, of the doorframe but for my own part I
 9       discussed with Mr Moynihan the possibility of actually
10       getting the doorframe, the piece of wood, which I think
11       would be fairer to everyone if that was obtained, so I
12       don't, at this stage, intend to ask you any further
13       questions about it.
14           What I would like to do, if I can, is continue with
15       the presentation that is on your screen just now.  Can I
16       ask if we can go forward four or five slides again, and
17       I will ask you to stop.  Can I ask you to stop there,
18       please, and go back two is probably the best place to
19       be.
20           When we ask for the next one to be flicked forward
21       and back, according to your evidence, as I understand
22       it, it appears to be a bifurcation.  Again, can you just
23       confirm to me that there is a bifurcation that you see
24       in that position.  Again, that is your evidence, is it?
25   A.  That's my evidence because the explanation for that is
page 115
 1       the swivelling, the severe swivelling of the bottom half
 2       of the mark, and it has caused the right-hand leg of
 3       that bifurcation to open up and, equally, the one you
 4       were taking off to the right of that and further up, the
 5       same thing has applied during that motion of the finger.
 6   Q.  So what you are doing is you are explaining a difference
 7       or an unexpected shape of the bifurcation by presuming
 8       that there's swivelling that took place.  Is that right?
 9   A.  It's my opinion, just the same way as I explained at the
10       beginning of my presentation, how ridges can alter
11       through the deposition and they can change from being a
12       bifurcation to a ridge ending.  The swivel anticlockwise
13       from the axis round about the core out to the right and
14       up has caused these two bifurcations to open up and
15       that's the explanation that's shown in my comparative
16       exercise as well.
17   Q.  Is there any evidence of smudging in that area, dragging
18       of ridges?
19   A.  Dragging?
20   Q.  Yes.
21   A.  No, the finger has swivelled and the ridges during the
22       swivel have, I say, opened up, particularly these two.
23   Q.  Let us go back one slide again, please.  Before that is
24       put back on, are you saying or would you accept that
25       there is nothing that shows the bridge, is it, as it
page 116
 1       were, between the two legs that you say join up to the
 2       bifurcation, coming from the bottom?  Are you agreeing
 3       that there is nothing between those two legs shown?
 4   A.  Sorry, did you use the word "bridge"?
 5   Q.  Yes, I am trying to think of --
 6   A.  Sorry, you're thinking about what Mr Moynihan drew in in
 7       one of the other witness' images?
 8   Q.  I'm afraid I think a lot of things have been drawn in.
 9       What I am interested in is -- let me put it this way:
10       there is a white area that appears to be shown between
11       two black lines at precisely the point that you drew in
12       the bifurcation.  Can we flick forwards once and then
13       back again, please -- and back once, please.
14           It's difficult because I don't have control of my
15       mouse here but do you see if we put the next slide on,
16       you see at the point of the junction between the two,
17       the upside down Y, the junction?
18   A.  Yes.
19   Q.  If you keep your eye on that place, just at the junction
20       and take away that slide and go back one, do you see
21       that there's a white area.  The two downward parts of
22       the Y, the upside down Y, there's a white space between
23       where the junction would be?  Do you agree with that or
24       do you see something joining these two bits together?
25   A.  Can I use a mouse, just to clarify?  This area here?
page 117
 1   Q.  Yes.
 2   A.  That's what you would normally find, white spaces
 3       between ridges, and where the form of the ridge has been
 4       placed on this occasion that's what you would normally
 5       get if it was showing like a ridge ending but because
 6       this bifurcation has swivelled and the finger has
 7       swivelled in this bifurcation and this bifurcation, the
 8       finger has moved anticlockwise the outer -- the
 9       right-hand ridge here and right-hand ridge here
10       (indicated) have separated from the left-hand part of
11       the bifurcation.
12   Q.  Mr Mackenzie, I will come back to the question.  There's
13       a white area between the two black legs, if I put it
14       that way.
15   A.  Sorry, there's white areas between all the black ridges.
16   Q.  Mr Mackenzie, it's you that draws on it as being a
17       bifurcation.  You draw that in.  I am suggesting to you
18       there is a break between the two.  Am I right, there is
19       a break?
20   A.  A break?
21   THE CHAIRMAN:  If you could just put the pointer on just
22       where the centre of the Y is, the inverted Y is, just
23       where the two arms break out.
24   MR SMITH:  It's maybe easier if I use a mouse.  I'm not sure
25       if the one over there is still working, is it, if I may
page 118
 1       be permitted.  Could I have the next slide on, please.
 2       Take it away.
 3           You see precisely where the end of that pencil, not
 4       the arrow, the pencil, is pointing.  Do you see that,
 5       Mr Mackenzie?
 6   A.  Yes.
 7   Q.  It is a white area, isn't it?
 8   A.  Sorry, above it?
 9   Q.  No.  Well, to the left of it.  I will tell you what I
10       will do I will point to either side.  We see this black
11       line coming up and stopping in this position, yes?
12   A.  Yes.
13   Q.  And on this side --
14   A.  Yes.
15   Q.  -- we see the black line coming down and we're trying to
16       almost trace the edge of it.  Do you see that?
17   A.  Yes.
18   Q.  And between the two points there's a white area, isn't
19       there?
20   A.  Yes.
21   Q.  What you have drawn is you have drawn in a red line that
22       bears to show that there is a join between these two
23       black lines, haven't you?
24   A.  That's correct because I've explained that that ridge
25       has separated from the left-hand ridge, as has the next
page 119
 1       feature, because the finger has swivelled anticlockwise
 2       and the outer ridge of the bifurcation has split away on
 3       placement and gives the appearance of a ridge ending,
 4       hence the explanation at the beginning of my
 5       presentation of examples of and I gave two examples of
 6       what actually Shirley McKie where they looked as ridge
 7       endings and on other occasions they looked as
 8       bifurcations.  This is the explanation I'm giving for
 9       these bifurcations have opened up.
10   Q.  How do you know it's a bifurcation if there's no
11       swivelling?  If there is no swivelling, it's not a
12       bifurcation, is it?
13   A.  There is swivelling.  From the core right over to the
14       far corner there is obviously swivelling because from
15       the core area right out to the right-hand corner where I
16       actually indicated with the ridge edges it's all in
17       sequence and agreement.  So there's major swivelling
18       across the bottom of this mark.
19   Q.  If there's no swivelling it's not a bifurcation, is it?
20   A.  But it's not, if there was swivelling in this mark being
21       deposited.
22   THE CHAIRMAN:  But I think it is pretty straightforward.
23   A.  That's the explanation.
24   THE CHAIRMAN:  It is explained by -- and if that is not the
25       correct explanation then it can't be --
page 120
 1   A.  That's my explanation for the difference.
 2   THE CHAIRMAN:  But if it is not correct then it can't be a
 3       bifurcation.
 4   A.  Correct, but that my own personal explanation.
 5   THE CHAIRMAN:  I appreciate that.
 6   MR SMITH:  I wonder if we can maybe flick on a few slides.
 7       I don't mean to spend the same time.  Can we pause there
 8       for a moment.  I think maybe one more, if we could,
 9       please, and another one.  That's fine, thank you.
10           I think what we can see -- and I will try and
11       identify it -- on the left-hand side we have 1, 2, 3, 4
12       what you have represented to be bifurcations.  That's
13       right, isn't it.
14   A.  Yes.
15   Q.  On this side, the corresponding going from left to right
16       are 1, 2, 3, 4 bifurcations.  Do you see that?
17   A.  Yes.
18   Q.  If I take, as it were, the left-most bifurcation which I
19       think -- well, is it the one I am pointing at?  Is that
20       the left-most?
21   A.  How do you mean by the left-most?
22   Q.  I'm trying to orientate it to the right-hand side.  Let
23       us just take the one I am pointing at just now.  Do you
24       see that bifurcation?
25   A.  Yes.
page 121
 1   Q.  Again, what I will maybe try and do, I'm going to be
 2       even worse than anyone else with this -- is try and put
 3       maybe an arrow next to it to mark the one I am pointing
 4       at.
 5           That bifurcation as compared to -- and I've done a
 6       red arrow -- I'm trying to get different colours on
 7       these ...
 8   MR MOYNIHAN:  Right click.
 9   MR SMITH:  Thank you -- as compared to the bifurcation that
10       I'm now going to try and mark with a green arrow, would
11       you agree that the red arrow bifurcation on the
12       left-hand side of the page, if you were to take -- I am
13       trying to think how to describe this -- the single leg
14       of it rather than the double leg, do you follow what I
15       mean?  The bit coming at the top?  I will point-point to
16       it, that bit (indicated).
17           If you look at the angle of that compared to the top
18       part of the green arrowed one, they are not far off
19       right angles to each other.  Correct?
20   A.  I'm not following you.
21   Q.  I will try and put it this way: do you see where my
22       pointer is?
23   A.  Yes.
24   Q.  That bit of that sort of a letter H compared with the
25       same bit of the green arrowed one, which is sort of a
page 122
 1       letter H, if I was to lift this bit and stick it on to
 2       that bit it's going to be somewhere approaching
 3       90 degrees, isn't it?
 4   A.  Sorry, approaching 90 degrees?  I'm not following what
 5       you're actually suggesting.
 6   Q.  Mr Mackenzie, I am sure it is my fault.  If I was to
 7       lift this, if I could physically lift it, and carry it
 8       up and touch it against this one, the green arrowed one,
 9       they would be joining at approximately 90 degrees.
10   A.  I think I know what you're trying to say.  You're trying
11       to say if you were to lift that in the position it is
12       and bring it up like that well that again confirms what
13       I am suggesting is that in the area of the core, that's
14       roughly the axis area, and then the movement, the
15       swivelling, causes these bifurcations and all the
16       features to actually move in the direction, going in an
17       anticlockwise direction of the finger, hence then that's
18       the difference in the orientation as what's on the mark
19       compared with what's on the left thumbprint.
20   Q.  Let me try this.  What I will do is try and draw a
21       straight line following the line of this, a straight
22       line in blue.  Now what I will try and do is draw -- in
23       fact, I will just stick with the blue if I can.  I'm
24       doing the same exercise, following the line of it and
25       the angle between these two lines appears to be broadly
page 123
 1       90 degrees.  Do you see that?
 2   A.  That's what I've said.  I've understood what you are
 3       saying but the core, taking some infinite point near the
 4       core is where the axis of this movement which starts and
 5       then the ridges fan out, if you like, towards say 2.00
 6       in direction because we've proven that the sequence of
 7       these ridges right through to the right-hand side is all
 8       in sequence and agreement.
 9           So I would not expect, because this is a chance
10       impression -- unless it was actually laid down flat the
11       same as the control print, then I would never expect a
12       chance impression to be actually be able to lay it over.
13       What you're actually suggesting is that that angle of
14       these should look the same angle as that and it's not,
15       because the bottom half has swivelled.
16   Q.  You are agreeing with me then, are you, that the
17       orientation of each of these bifurcations on the
18       left-hand side is totally different?  The orientation is
19       different to the orientation of the bifurcations on the
20       right-hand side; we are agreed about that, aren't we?
21   A.  I've just said that.  I would never expect on any --
22       unless it was copper plate, laid down exactly as you
23       would in a control print, you would never expect
24       anything to be in exactly the same position.
25   Q.  So your explanation for this apparent difference is, as
page 124
 1       you said before, there must have been rotation of the
 2       print?
 3   A.  Well, there has been rotation of the print.
 4   Q.  What you are doing, Mr Mackenzie, are you not, is you
 5       are looking at Shirley McKie's inked print and you are
 6       trying to explain why there are all these differences
 7       and you say there must have been rotation, severe
 8       rotation I think you said, or extreme; is that right?
 9   A.  Yes.  I'm not trying to explain it.  I am explaining and
10       throughout my presentation I've explained the position
11       as I see these characteristics taking account of a
12       swivelling of this digit on deposition and that I say
13       from the core area right out to the right-hand corner,
14       which includes this area that was highlit in the red
15       circle in the presentation, it's all in sequence and
16       agreement, so I'm not trying to, I'm giving the
17       explanation of how that has occurred.
18   Q.  When you came to your conclusion in February 1997 that
19       the lower portion of Y7 did in fact match up to Shirley
20       McKie's your position would be, yes, but there was
21       severe rotation of that lower part on Y7; is that right?
22   A.  I took account of the distortion and the swivelling
23       because that's what I saw at the time, that the
24       bifurcations had opened up.  That has been there since
25       day 1 in my thought process and the explanation for it.
page 125
 1   Q.  The other explanation, of course, is that it's not
 2       Shirley McKie's.  That's the other explanation, isn't
 3       it?
 4   A.  It might be the position of others but it's not my
 5       explanation on examining this, many hour's work, even
 6       since 1997, it's conclusively Shirley McKie's mark.
 7   Q.  So I take it that when you were first examining this you
 8       would discuss with people who were also examining it
 9       that, yes, it is a match, although there is extreme
10       rotation in the bottom portion.  Is that something that
11       was discussed?
12   A.  I didn't discuss anything when I first looked at this.
13       I looked at this as Robert Mackenzie being asked to look
14       at this: looked at the mark; did my assessment; did my
15       comparison; gave my result to Chief Inspector O'Neill.
16       I did not discuss this.  I did not discuss it at any
17       time with any other SCRO officers.  They had obviously
18       done their own comparisons, come to their own
19       conclusions and will be able to speak to what they saw.
20       I can only speak for what Robert Mackenzie did and I did
21       not discuss this at that time or any time after.
22   Q.  Let me just deal with another point before I proceed
23       with the presentation here.  You explained yesterday and
24       you accepted yesterday to Mr Moynihan that you, I think,
25       got up to 13 points is the most you got to prior to
page 126
 1       Shirley McKie's trial.  I am right in that, am I not?
 2   A.  That was with the access to the material I had at that
 3       stage, yes.
 4   Q.  The fact remains that 13 is the most you got to.  I
 5       think you acknowledge that?
 6   A.  I had sufficient at that stage to satisfy myself.
 7   Q.  We will come back to that in a moment.  At that time,
 8       you knew, didn't you, that the courts required 16 points
 9       for an identification to be presented to the court as
10       being beyond reasonable doubt from an accused person,
11       didn't you?
12   A.  The norm for producing enlargements, et cetera, and
13       evidence was along the lines of 16 characteristics but,
14       as I explained yesterday, there are options always there
15       for the expert on an individual mark to give his opinion
16       and the 16-point standard is, as I pointed out
17       yesterday, was not a legal requirement.  It came out of
18       an agreement back in 1953 among experts at that time and
19       the Home Office.  It was not laid down in law that you
20       must have 16.  So although the working practice is
21       around 11 -- sorry, around 16, then there were occasions
22       where experts would give their opinion and I have also
23       given my opinion on that.  And at that time-frame if you
24       were talking about it the MacNamee case was highlit and
25       there was never any suggestion I should be looking for
page 127
 1       16.  You do your comparison, come to your conclusions
 2       and basically give your opinion.
 3   Q.  Mr Mackenzie, let us deal with the position in Scotland
 4       that the Scottish Criminal Record Office was using.  You
 5       knew, didn't you, that to take a case to court someone
 6       had to be able to say there were 16 points in sequence
 7       and agreement; that's right, isn't it?
 8   A.  The norm would be to take 16 points to court, but it
 9       wasn't always the norm down to individual marks and
10       individual cases.  If there was a requirement
11       to -- sorry, not if there was a requirement.  If there
12       was found to be less than 16 and the importance of that
13       mark was such, because you also can have dire and
14       crucial circumstances that the expert of long-standing
15       can give his opinion, that was how it was put, I think
16       that was in 1983.
17   Q.  Are you saying, Mr Mackenzie, that the 16-point standard
18       was something you felt you were entitled to, as it were,
19       put to one side?  If something was being prepared for
20       court, you can just come to a conclusion and then say to
21       the Procurator Fiscal, "I am satisfied on the quality of
22       this mark"; are you saying that's right?
23   A.  I would be totally happy on any mark of that standard,
24       if it reached a standard that I was able to conclusively
25       conclude that that was individual I would take that
page 128
 1       forward to the Fiscal.  I'm on record as saying -- and
 2       it may even be in my statement -- that the removal of
 3       the standard unshackled the experts and experts should
 4       always have an open mind about marks and that goes right
 5       back to the basic assessment of marks.  You should never
 6       rule out anything in marks because -- and, again,
 7       different individuals see different characteristics and
 8       it's been borne out by this case.
 9   Q.  Mr Mackenzie, in Scotland in 1999 the 16-point standard
10       was the invariable standard expected by the Crown when
11       they were asking for reports by SCRO, wasn't it?
12   A.  I would need to expand again on the answer to that.
13       Within cases it was quite acceptable to have marks put
14       to the court that had less than 16.  You may have one
15       mark with 16 and you could have multiple number of marks
16       with less than 16 and they were put to the court as well
17       and that was acceptable.
18   Q.  So you are telling us that you have been involved in
19       cases, have you, where fingerprints were being presented
20       in a prosecution case by the Crown with less than
21       16 points?
22   A.  It was acceptable to have -- if there was more than one
23       finger in a case, it was acceptable to present other
24       fingers with less than 16 but with sufficient to
25       individualise.
page 129
 1   Q.  You mean if a gentleman who is accused of carrying out a
 2       serious crime has left three or four fingerprints, are
 3       you, you have got two or three that has 16 plus and
 4       you've got one that is only 8, they accepted the 8?
 5   A.  It's quite acceptable to put forward marks with less
 6       than 16.
 7   Q.  That is not really what I am trying to drive at.  You
 8       said, and if I have understood you correctly, let me put
 9       it this way: have you ever given evidence to a
10       Procurator Fiscal with less than 16 points prior to 1999
11       when we're talking about --
12   THE CHAIRMAN:  On one fingerprint?
13   MR SMITH:  On one fingerprint that was critical to the
14       prosecution -- forget about if the alleged robber has
15       left numerous other pieces of evidence lying about,
16       clearly other digits -- one fingerprint, less than 16,
17       then you have gone forward and given evidence or
18       provided evidence to the Procurator Fiscal on that; have
19       you ever done that, Mr Mackenzie?
20   A.  I can't recall a specific case but I know that it was
21       acceptable and also that detective officers were also
22       informed of identifications with less than 16 and then
23       that was expanded at a later date to be given to the
24       procurator fiscals.
25   THE CHAIRMAN:  When you say acceptable, acceptable to whom?
page 130
 1       You say it is acceptable and I am just trying discover
 2       to whom is it acceptable?  The court or to the fiscal or
 3       to the fingerprint experts?
 4   A.  The experts were -- if they were satisfied and the
 5       evidence was of that importance to a case, then the
 6       experts would take that forward to the Procurator
 7       Fiscal.
 8   THE CHAIRMAN:  And to the court?
 9   A.  Obviously, if the Fiscal wants to take that to the
10       court.
11   MR SMITH:  And it would be disclosed, would it, that there
12       were less than 16 points that were found; is that right?
13   A.  Yes.
14   Q.  Again I come back to questions you were asked yesterday
15       by Mr Moynihan.
16           You could not find 16 but you knew that a
17       prosecution was going to take place with Shirley McKie.
18       Is that something that you had any discomfort about
19       whatsoever?
20   A.  Not at all.  I think I made that quite clear after
21       various questions on that line yesterday that did not --
22       to answer your question, I was not at any time
23       uncomfortable because I'd satisfied myself on my initial
24       comparison and, thereafter, the second comparison, that
25       this mark was made by Shirley McKie.  So I had no
page 131
 1       discomfort, as you put it, at all.
 2   Q.  Were you the person within the Bureau at that time with
 3       amongst the longest experience in fingerprint analysis?
 4   A.  I was, yes.
 5   Q.  When you were aware your colleagues had said they had
 6       discovered 16 points, were you remotely interested in
 7       finding out where the missing points were that you
 8       couldn't find?  Did you go and ask them?
 9   A.  I wasn't aware of what my colleagues had seen and the
10       number of characteristics in this case.
11   Q.  Mr Mackenzie, you knew that Shirley McKie was being
12       prosecuted.  You knew that, didn't you?
13   A.  Yes.
14   Q.  Did you think they were going ahead with less than
15       16 points, Mr Mackenzie?
16   A.  I had no discussion and I didn't think anything -- there
17       was no discussion.  The officers dealing with the case,
18       as I said, were dealing with the case and preparing for
19       the Procurator Fiscal.  They did not come to me on the
20       basis of whatever number of characteristics they have
21       seen.  There was no suggestion that what they were
22       putting forward, there was a problem with the number of
23       characteristics.  There was no discussion at all with me
24       and the officers going to court as to how many
25       characteristics they were showing.
page 132
 1   Q.  Please, Mr Mackenzie, if it was going ahead either it
 2       was going ahead with less than 16 or it was going ahead
 3       with 16 or more -- correct -- isn't it?
 4   A.  Obviously, after having seen what had gone to court it
 5       was obviously that they had marked 16 characteristics.
 6       I don't know, they may well have seen more than 16
 7       characteristics when they individually and independently
 8       compared this mark but for court purposes they had
 9       obviously been satisfied with the material they had at
10       the time and they were able to illustrate at least 16
11       characteristics.
12   Q.  That is not really what I was asking, Mr Mackenzie.  If
13       it had been going ahead with less than 16, that would
14       have been unusual, at least in your experience.  It
15       would be departing from this artificial standard that
16       you had so much problem with.  That's right, isn't it?
17   A.  I am sorry, it's not -- if it was -- I wasn't made aware
18       of any suggestion that it would go ahead with less than
19       16 and, again, it never entered my mind that there was
20       any problem with this mark.
21   Q.  Mr Mackenzie, we have kind of been round the houses on
22       this but what I am now thinking you are acknowledging is
23       that you knew the officers within the department for
24       whom you had managerial responsibility were going to
25       court with 16 points, at least, in respect of Shirley
page 133
 1       McKie's mark.  That is right, isn't it?  You knew that.
 2   A.  Don't try to put words in my mouth.  Don't say that's
 3       right.  I did not know -- I had no discussions
 4       whatsoever with the officers preparing this case.  What
 5       they were or were not doing in the way of how many
 6       characteristics.  There was no issues flagged up
 7       because, I say, I knew that at some point that some of
 8       the officers had obviously spoken with the Fiscal but
 9       there was nothing reported to me or the head of the
10       department as to problems with producing evidence for
11       this case.  So --
12   THE CHAIRMAN:  As I understand it, you regarded, you were
13       engaged in a completely separate exercise?
14   A.  That's correct and give my opinion on that and that has
15       not changed.
16   THE CHAIRMAN:  Yes, and what they were doing you did not
17       regard as coming in your sphere?
18   A.  They wouldn't normally come to myself or the head of the
19       Bureau unless an issue had been raised and the Fiscal
20       was wanting something done.  So basically that was --
21       there was never any discussion with me about it.
22   MR SMITH:  I don't have my notes in front of me but you
23       might be able to help me with this, Mr Mackenzie: a
24       meeting took place about that time with Mr Ferry.  He
25       called a meeting, didn't he?
page 134
 1   A.  I'm sorry, called --
 2   Q.  Mr Ferry called a meeting to discuss the question of the
 3       analysis of Y7, what we have been discussing.
 4   A.  Are you saying that I had a conversation with Mr Ferry
 5       on the morning of 18th February?  Is that what you're
 6       talking about a meeting?
 7   Q.  Yes.
 8   A.  Yes.
 9   Q.  You recall him indicating in a somewhat agitated fashion
10       that people better be sure about their position on Y7.
11       Do you remember that?
12   A.  Yes.
13   Q.  Did it never occur to you, at that stage, for you to
14       say, "Well, listen I could only get 13 points but I'm
15       sure about it, but I could only get 13"?  Did it ever
16       occur to you that that is something that might have been
17       open and responsible?
18   A.  My opinion that was requested on this was imparted to
19       the Chief Superintendent that my opinion was that this
20       mark was made by Shirley McKie.  There was never any
21       discussion about how many points did you see, how many
22       characteristics?  It was: is this Shirley McKie's print?
23        The answer was yes.  That's what the questions were
24       about.  It wasn't a meeting but he was being updated on
25       events that had happened, obviously with a request for
page 135
 1       it to be re-compared the night before and, to my
 2       knowledge, as I said yesterday, I'm not aware of him
 3       being in the office late that afternoon but he had been
 4       updated, obviously first thing in the morning,
 5       presumably by Chief Inspector O'Neill, and then I was
 6       called in.  It was along the lines of, "Are you sure
 7       this is Shirley McKie's print?" and my answer was,
 8       "Absolutely sure it's Shirley McKie's print".
 9   Q.  I gather from that answer you didn't think it would be a
10       fuller response to say to him, "But I have to tell you,
11       Mr Ferry, I couldn't get 16 points.  I'm sure about it
12       but I couldn't get 16 points".  That didn't occur to
13       you, did it?
14   A.  I can't remember that detail of the conversation but he
15       got reassurance from me based on my comparison of the
16       first form the night before that I was totally satisfied
17       that -- I mean, I'm presuming from the tone of Mr Ferry
18       somebody must have been pressurising him in the
19       background and I think I said in my statement I don't
20       know what else I was expected to say because my
21       conclusion was that this was Shirley McKie's print.
22   THE CHAIRMAN:  I think we have explored this point fairly
23       fully.
24   MR SMITH:  Can I ask you, please, if we can flick through
25       the slides, I am interested in the question of
page 136
 1       ridgeoscopy.  I will come on to that hopefully in a few
 2       moments.  If we flick through probably a half a
 3       dozen slides anyway.
 4   MR MOYNIHAN:  Mr Smith, if we just save the one with your
 5       crisscrosses.
 6   MR SMITH:  Of course.  I should of course say ridgeology.
 7   MISS BAHRAMI:  That's FI0210.15.
 8   MR SMITH:  Thank you.
 9           If we can flick forward maybe five or six slides.
10       Just keep going and I will tell you when.  On another
11       one, please, and, again, and again.  Just stop there,
12       please.
13           Just some general questions, if I can, about
14       ridgeology.
15           Is it always known as poroscopy?  Have you heard
16       that term?
17   A.  That's various term.  Poroscopy is to do with the
18       location of the pores.  If they are evident, they are
19       not always evident on every mark or every control print
20       but they can be used in part of this process.
21   Q.  Generally speaking, when the pores are visible on a
22       image it's a better quality image than when pores are
23       not visible.  That's right, isn't it?
24   A.  I think there's an example of that in the control prints
25       of Ms McKie's print, the police form and also in the
page 137
 1       Internet form.
 2   Q.  So if we see pores it tends to be a better quality
 3       image; that's right, isn't it?
 4   A.  It's like anything, you get what you get and in a really
 5       good image then you can, depending on the deposit of the
 6       sweat, et cetera, and how it's been developed then the
 7       better quality image that's been left by the person
 8       depositing the mark or if their hands had been clean and
 9       they are well taken control prints, then if the pores
10       are prominent then they would show on a good quality.
11       But it depends from image to image, be it chance
12       impressions and controlled, and also down to the
13       individuals themselves.
14   Q.  I'm sorry, I will ask the question again: if the pores
15       are visible on an image, that is, generally speaking, a
16       better quality image than one where pores are not
17       visible.  That's right, isn't it?
18   A.  If the pores are -- I've seen examples in Mr Ashbaugh's
19       course where it's on pores on this occasion and I think
20       it's from a telephone cable and actually a digit has
21       gripped a telephone cable and it's a series of parallel
22       ridges and, again, not much in the way of Second Level
23       Detail from what I can remember but it's actually the
24       pores.  So it's another supportive mechanism for
25       identification.
page 138
 1   THE CHAIRMAN:  I don't think that is really the question.
 2       As I understand, the question is the more detail you
 3       have the better.
 4   A.  On any level of detail, yes.
 5   MR SMITH:  The question I am asking is this: if you have an
 6       image on which the pores are easily visible, that is,
 7       generally speaking, a better quality image than one
 8       where the pores are not visible.  That is all I am
 9       asking, Mr Mackenzie.
10   A.  If it's pores in particular that you are looking for
11       but, obviously, you would be looking at it in
12       conjunction with the other detail.
13   Q.  What you have done in this image that is before us and
14       it has got a number 40, the last one, I am not sure if
15       that is the slide number, but what you have done is you
16       have represented the shapes of the ridges by drawing red
17       lines around them.
18   A.  Yes.
19   Q.  If you are doing an exercise in ridgeology like this, do
20       you agree with me that what you should be using is the
21       best quality image that you can get?
22   A.  The best quality image that I could get at that time and
23       also to enable me, as I've explained, to actually do
24       like with like was using the Internet images for the
25       purposes of the scale of it.  To actually take the image
page 139
 1       of this area from the photograph of Y7 was problematic
 2       in that to try and see how that could be scaled to the
 3       printout coming from the Internet.
 4   Q.  I am sorry, Mr Mackenzie, to interrupt but can I just
 5       ask the question.  It is not a very difficult question
 6       to apply your mind to, with respect.
 7           If you were doing an exercise in ridgeology like
 8       this do you agree with me that what you should be using
 9       is the best quality image that you can get?
10   A.  You use what images are available and if it's the best
11       quality, yes, so that the quality that I had available
12       to me -- and, as I've explained to actually, it's
13       important to have the scale the same so you are talking
14       like with like -- available to me was the Internet
15       images.
16   Q.  You are telling me what you say was available.  I am
17       asking you a pretty simple question.  Should you not use
18       the best quality image that is available to you?  The
19       answer must be yes?
20   A.  Which image are you talking about?  Are you talking
21       about the mark?  Are you talking --
22   THE CHAIRMAN:  No, I think this is just in general.  Forget
23       about this case.  Do you use --
24   A.  In general, you wouldn't pick an inferior one if you had
25       a better one, so you would use the best quality.
page 140
 1   MR SMITH:  Thank you.  That is, with respect, Mr Mackenzie,
 2       a question that I asked three or four times and the
 3       answer is, yes, it's obvious, you use the best available
 4       material you have.  Now we're right about that.  We
 5       agree about that much, don't we?
 6   A.  Yes.
 7   Q.  Can you just look -- we can flick on to the next image,
 8       in fact, and again, and again, please.  Can we just stop
 9       with that one.
10           What I would like to do is, if we can have available
11       an image of -- I'm looking for an image of the inked
12       print of Shirley McKie.  We have looked at it earlier
13       on.  It is possibly in the presentation as well.  Just
14       side-by-side.  Can we have the right-hand one of the
15       right-hand image expanded, please?
16           I think you would agree with me, Mr Mackenzie, that
17       we can see, represented by white dots repeatedly
18       throughout that image, there are pores visible.  These
19       white dots are pores, aren't they?
20   A.  On the inked control --
21   Q.  Yes.
22   A.  There are, yes, that's correct.
23   Q.  In fact, I am reminded that in your own presentation on
24       page 12 there is a copy of an image and perhaps we
25       should just bring that up, if I can be reminded perhaps
page 141
 1       by Miss Galbraith as to the number of that image.
 2   MR MOYNIHAN:  CO0059.
 3   MR SMITH:  Thank you.
 4           This is from your own presentation.  It is in the
 5       same presentation folder that we have available to us.
 6       You agree with me, don't you, that we can see good
 7       quality ridge detail on the inked print with numerous
 8       white dots representing pores?  Correct?
 9   A.  I have already acknowledged that in your earlier
10       questions I said that in the inked prints, that one in
11       particular, the pores are present, yes.
12   Q.  The shapes, the outlines of the ridge units, I think
13       it's been referred to, or something, it was the pore
14       units as Mr Ashbaugh in his book refers to them as, you
15       can see the shape of the edges of the ridges pretty
16       clearly on the right-hand image in this presentation,
17       can't you?
18   A.  In certain areas you can see the shapes of the ridges.
19       It's not until we actually enlarge them that you
20       actually appreciate the Third Level Detail.  The reason
21       obviously that image wasn't used was because this area
22       is out to the right of that image and that's been
23       explained again in the presentation and that only became
24       available on the Internet prints.  But the area that I'd
25       highlit in my initial assessment right at the beginning
page 142
 1       was that area and I'd highlit, you will remember there
 2       was a little break to the right of what I described as a
 3       sock being present on the original photograph of Y7, the
 4       undamaged version.  You will remember that.
 5   Q.  Yes, I do.  I am going to come back to that.
 6   A.  That was why I made a point of pointing to that at the
 7       beginning of the presentation but the solution and the
 8       assessment of that area and the subsequent
 9       identification of that area and the proof of it being in
10       sequence and agreement to the rest was found with the
11       material that became available on the Internet.  And I
12       say I've also explained that the reasons for using the
13       Internet version of the mark and of the form was for the
14       continuity for the scaling.
15   Q.  Do you agree with me that the more times something is
16       removed from the original, the worse the quality of the
17       image becomes?  So if I photocopy something, three 3,
18       four, five times repeatedly the quality of the image
19       degrades?
20   A.  That's true.
21   Q.  What generation copying is the Internet image?
22   THE CHAIRMAN:  We have had this in some detail.  I have a
23       very clear recollection of the evidence of the witness
24       being asked about it.  This is the sort of thing I do
25       not want to spend time on.
page 143
 1   MR SMITH:  Very well, sir.
 2           Can I ask you this question: do you agree that the
 3       quality of the left-hand image is inferior to the
 4       right-hand image?  That much at least.
 5   A.  The quality, no.  They are both from the Internet.  They
 6       are both of the quality that was available to me.  What
 7       you're looking at is a chance impression on this side
 8       and that's as a result of a mark being developed and
 9       obviously if it's taken by ink on the right-hand side,
10       the contrast of that is always going to be different
11       from what you're likely to get with whatever medium has
12       developed the mark on this occasion.  That's what the
13       difference is if you're seeing it.
14           If you're suggesting the left-hand image is
15       inferior, what you are looking at there is the chance
16       impression developed by as well obviously no black
17       powder; whereas this presumably was taken by ink by
18       Mr Wertheim on this side.  So the quality is what is
19       there.  It's not one is degraded more than the other, if
20       that's what you're suggesting.
21   Q.  Can we have the left-hand image expanded, please, and if
22       you can close the right-hand picture and take it oft
23       screen.
24           I would like to ask you -- and I will try and draw
25       something if I get a colour that is going to show up in.
page 144
 1       In blue.  Do you see the area that I'm pointing to just
 2       now?
 3   A.  Yes.
 4   Q.  There is a white area in amongst the red border that you
 5       have drawn; do you see that?
 6   A.  Yes.
 7   Q.  Would you not agree with me that to draw that
 8       accurately, say with the red line -- I'll try to draw
 9       this in blue -- would have involved that exercise
10       (indicated).  Do you not agree with that?
11   A.  No.  Actually from the ridges with the actual grey tones
12       allow you to continue the way I have marked it.
13   Q.  So you're talking about the original photographs, or
14       what is it you are talking about, that allowed you to
15       see that white area being bridged?
16   A.  There are traces of the ridge, yes.
17   Q.  Can you help me with this.  Is there not a grey tone
18       between the two points that I'm marking -- a different
19       colour, I will put an oval in.  Just to the left of that
20       green oval, is there not a grey there?
21   A.  Sorry?
22   Q.  Is there not grey visible between the two points that --
23   A.  No.
24   Q.  No?
25   A.  This is the part of the mark that I pointed out at the
page 145
 1       beginning of the presentation which is present on the
 2       original photograph of the mark Y7.  This break is there
 3       in the original photograph, the undamaged version.
 4   Q.  You see, Mr Mackenzie, is it not the case that what you
 5       are doing is you are doing the classic mistake of
 6       working from one and going back to the other to draw the
 7       same shapes.  Is that not what has happened here?
 8   A.  Absolutely not.  I had highlit this area before I had
 9       ever seen this other area coming.  Once the Internet
10       material came, then that became available to me.  I'd
11       always and, I say, I've highlit from my initial
12       assessment of this mark back in '97.  This area had
13       jumped out at me and that was actually why the magenta
14       circle in that area had been put on that because I say
15       it's first impressions.  From day 1 these features have
16       always been in my initial assessment of detail that was
17       available for comparison purposes within the mark.
18   Q.  Would you agree with the suggestion the training you had
19       on ridgeology -- Mr (inaudible) suggested second-hand --
20       but would you agree it was rather limited?
21   A.  No, it wasn't limited.  It was actually a
22       well-structured course that was delivered by Mr Dunbar
23       and Mrs Milligan, equally augmented by listening to
24       presentations by Mr Meager and also, I say, on
25       one-to-one discussions with Mr Meager and him showing me
page 146
 1       in more detail work he had done for the Daubert hearing.
 2       So "limited" I would say not and probably there wouldn't
 3       be a lot of people in the world that have actually seen
 4       some of the stuff I mentioned that Mr Meager had shown
 5       me and I was able to articulate with very small amounts
 6       of ridge detail.
 7           So my training is probably on a par with anybody
 8       else, other than Mr Ashbaugh's obviously what he has put
 9       together in his course himself.  But I wouldn't imagine
10       there would be many more people with any higher level of
11       training than what I have and my colleagues have had.
12   Q.  The question of ridgeology on this print, did you do it
13       in any other areas of Y7 as compared to the inked mark?
14   A.  No.  I think, as I explained already, within a mark you
15       may not get any areas that you could actually use
16       because possibly there wasn't pores, possibly there
17       weren't actually unique shapes.  But in this mark Y7
18       that was the only area.
19           I did look intentionally at other areas of this mark
20       obviously in the analysis I've subsequently done but
21       this area was the area which, I say, had been there from
22       my initial assessment and it was proven at the end of
23       the day that once I actually got the area from a control
24       print to actually identify this, that this was the area
25       that I could use.  There was no other area and, I say, I
page 147
 1       did extensively look at that mark to see if there was
 2       any other, on the knowledge that it's only normally
 3       within a few ridge strands that you can actually use
 4       that and enlarge it up.  I think I gave the analogy of
 5       you wouldn't enlarge a whole palm, for example, in
 6       trying to do -- the photographs would be bigger than the
 7       white board.  So it's usually in a small area of a print
 8       but not possible in every mark and every comparison
 9       that's available.
10           It's there, if it's available it could be used as a
11       supportive element and that's how I approached this.  So
12       this was a supportive element for the identification
13       over and above my original deliberations and my original
14       conclusions, nothing more than that.
15   Q.  Can I pick up a point that the Chairman raised with you
16       just to understand.  Does Second Level Detail, as it
17       were, trump -- take precedence over -- ridgeology?  If
18       you find a lot of these differences at Second Level but
19       you find an area like this that appears to be the same,
20       the Second Level takes priority, doesn't it?
21   A.  If there was sufficient Second Level Detail, you would
22       also be using that but if you wanted to augment that,
23       which I did on this occasion, then you would use it.
24       But I also gave examples of and I said every expert in
25       the world needed to see these because we've gone on long
page 148
 1       and weary in this Inquiry about how many characteristics
 2       you need to -- and the term used "individualised" came
 3       out of Mr Ashbaugh's course as well, that now having
 4       knowledge myself and other experts having knowledge,
 5       every expert in the world should know that there's no
 6       lower limit because you can, through the various mediums
 7       like ... I'm not rehearsing this again.  The one on the
 8       scope where it had actually plain ridges and it was
 9       shapes of ridges and there was pores and no-one could
10       argue it wasn't that person.
11   Q.  Mr Ashbaugh is obviously someone that you have
12       considerable professional respect for, I take it?
13   A.  Absolutely.  I've got respect for a lot of
14       practitioners.  Anyone that's gone into the detail of
15       this and actually has been able to open the eyes of
16       other practitioners round the world who, like myself and
17       other experts over the years, had obviously been taking
18       in this information mentally, had obviously never even
19       considered articulating it or putting it into a
20       presentation for court.  So I can say this came as a
21       result of the moves towards the non-numeric standard.
22   Q.  Mr Ashbaugh, of course, has written the book on -- it's
23       not called "ridgeology" of course, is it is a book
24       that's significantly proposing the science of
25       ridgeology.  That's right, isn't it?
page 149
 1   A.  My understanding is he invented the word "ridgeology".
 2   Q.  I take it that his book is one that's familiar to you?
 3   A.  Yes.
 4   Q.  You have read it, I take it?
 5   A.  I've read parts of it in conjunction with the course I
 6       did.
 7   Q.  Did you just read the part relating to ridgeology?
 8   A.  Did I just read the part ...
 9   Q.  What bits of the book did you read?
10   A.  A lot of the stuff that's in the book is common to stuff
11       that was delivered in the course.
12   Q.  What parts of the book did you read?
13   A.  I can't remember specifically.
14   Q.  I would like to ask you now we seem to be in a position
15       where Mr Ashbaugh is respected in his views as an
16       expert, I think you were asked some questions before
17       about the empirical basis for ridgeology being accepted.
18       I take it you understand what was being put to you about
19       the empirical basis.  Do you understand what that
20       question was about?
21   A.  I think the suggestion was what evidence experienced
22       through the world has this been tested.  I think that's
23       the suggestion, is it?
24   Q.  I think that was the suggestion that was being put.
25   THE CHAIRMAN:  That was the question.
page 150
 1   MR SMITH:  Can I ask you: are you aware of whether
 2       ridgeology as a science has ever been accepted in any
 3       court in Scotland?
 4   A.  I'm not aware.  All I know is that training had been
 5       given, and I am curious to hear the SPSA representatives
 6       if they have -- but up to the time that I retired, it
 7       was obviously a fairly new medium to consider and, I
 8       say, I personally have considered it in the two marks in
 9       this case as supportive of my identification.  I say it
10       would be a question of the SPSA --
11   THE CHAIRMAN:  I was going to ask you up to the time you
12       retired -- because you can't speak of after that -- can
13       you remember it being used --
14   A.  I wasn't aware of the department using it.
15   THE CHAIRMAN:  -- in court?  Can you remember it being used
16       in court?
17   A.  No.
18   MR SMITH:  I would like probably just as a last point to
19       look at a document CO1752, please.  And on to the next
20       page.  This is a report and there has been some
21       reference to some parts of it.  Can you just go to the
22       first page ... they are in the wrong order.  The next
23       page.  I think what we can see is that this is an e-mail
24       which was sent to the Mackay Robertson Inquiry by
25       Mr Ashbaugh.  Have you seen this document before,
page 151
 1       Mr Mackenzie?
 2   A.  Just snippets of it shown on the screen.
 3   Q.  It may be unfair at this time to ask you to read through
 4       it but I have no doubt that you can consider it before
 5       you come back to give evidence.
 6   THE CHAIRMAN:  Maybe a copy of it could be provided to him.
 7   MR SMITH:  We will certainly attend to that, sir.
 8           Can you go on to the next page, please.  I think you
 9       are able to see in due course that Mr Ashbaugh is
10       referring to the fact that he has been involved in the
11       science of fingerprinting for many, many years and he
12       explains the change in philosophy that was taking place
13       and also discusses various different methodologies.  I
14       don't expect you to read it, but it is there on show for
15       you.
16           Can you go on to the next page, please.  He refers
17       in particular, if you look on this page in the third
18       full paragraph just below halfway down the page:
19           "In 1988 after publishing my research and a few
20       papers [he says he was] assigned by the Royal Canadian
21       Mounted Police HQ as co-ordinator of the Ridgeology
22       Project to carry out research."
23           He describes Messrs Evett and Williams from the Home
24       Office and some engagement he had with them.  Just on to
25       the next page, please.  It is not a very good
page 152
 1       reproduction -- and you will have a chance, as I say, to
 2       read it -- he explains in the third full paragraph in
 3       that page, that he met up with Mr Wertheim and
 4       Mr Grieve, Mr David Grieve, who I think you know gave
 5       evidence in Shirley McKie's trial, another American
 6       gentleman.  He explains how Mr Wertheim had been
 7       provided or provided them with copies of documents.  You
 8       will see at the end of that paragraph:
 9           "He did not express an opinion or describe the
10       significance of the examination but I assumed this print
11       was the one he had met with defence counsel to discuss
12       in Glasgow.  The photograph of the fingerprint chart was
13       of very poor quality.  It had 16 lines drawn into the
14       mark but I basically ignored it.  I carried out a brief
15       analysis of the crime scene mark.  Under normal
16       circumstances, a mark of this nature would require an
17       hour or more to analyse the various ridge paths as the
18       mark was at least a double tap, if not a triple tap.  In
19       England I believe it is referred to as a touch.  My
20       analysis would be likely include a tracing of each
21       ridge, an enlargement high quality photographic print to
22       ensure each ridge can be followed and sequence
23       maintained.  Also there was an obvious line through the
24       ridge structures which brought into question the
25       validity of some of the very prominent ridge formations
page 153
 1       and points in the mark.  This line was a transition area
 2       between two touches and some of the ridge endings and
 3       bifurcations may be artefacts and not real points.  Just
 4       to be clear about the line, the ridge structure in later
 5       copies of this print there is an obvious drag smudge
 6       across the ridges in this area caused by some form of
 7       abrasion.  Whilst this smudge is basically in the same
 8       area I have described a different phenomenon.  I can
 9       only hope that the location of the smudge is a
10       coincidence as it nearly obliterated some of the key
11       details of the mark."
12           He goes on:
13           "After completing a brief analysis, I started to
14       compare the mark to the print.  I recall I could not
15       find agreement of ridge details, points between the mark
16       and the inked print, the lines in the chart indicating
17       that certain areas of the mark had points in agreement
18       with similar areas in the inked print.  I looked at
19       these areas and did not feel that the points were in
20       agreement and in fact I felt there was disagreement.
21       However, the examination had been carried out on my lap
22       in a lounge using a small magnifying device after I had
23       consumed one, or possibly two, pints of beer.  After an
24       examination of approximately two minutes, I was of the
25       opinion that the crime scene mark and the inked print
page 154
 1       were not made by the same person.  However I did not
 2       express this opinion to Mr Wertheim nor would I express
 3       an opinion after an examination under such
 4       circumstances.
 5           "I gave comment that I was having difficulty seeing
 6       agreement and I agreed to compare the print under
 7       appropriate conditions.  Mr Wertheim suggested I keep
 8       the folder.  Also mentioned he was meeting a lawyer."
 9           Then he says in the next paragraph that there were a
10       number of issues that arose and he explains why he did
11       not want to become involved.  At the bottom of the page,
12       he describes the night of March 27th.  He weighed
13       various aspects of how the false identification
14       situation was being addressed:
15           "... My responsibilities as a forensic scientist, a
16       member of two forensic organisations ..." et cetera,
17       et cetera --
18   THE CHAIRMAN:  Before we go further I think we have to make
19       it clear that it is not intended that Mr Ashbaugh is a
20       witness at the Inquiry and, however eminent he may be,
21       that is worth whatever appears on the paper.  But I do
22       not think we need take it further.
23   MR SMITH:  I hear what you say, sir, but I should say that
24       there has been some mention already, I think, by
25       Mr Holmes who suggested that under these circumstances
page 155
 1       an examination of exclusion is something that would be
 2       unacceptable and I think it has to be made clear, as I
 3       understand Mr Ashbaugh after consideration came to the
 4       conclusion this clearly was not a match and I think in
 5       fairness to Mr Ashbaugh --
 6   THE CHAIRMAN:  I think it is a matter of weight.
 7   MR SMITH:  It may well be, sir.
 8   THE CHAIRMAN:  As I say, he may be very eminent but he will
 9       not have been cross-examined.  I bear in mind that he is
10       viewed as very eminent and accepted by this witness as
11       somebody who is very eminent.
12   A.  Could I ask was there a suggestion I should be reading
13       this?
14   THE CHAIRMAN:  I think you will have an opportunity to read
15       it before you are asked to answer.  I think we have to
16       stop now.  Mr Mackenzie has been helping the Inquiry now
17       for a number of days and the question of him dealing
18       with the piece of wood, when is the best time for him to
19       return?  I think I will leave it to you and the
20       representative of Turcan Connell and Mr Holmes to
21       discuss.
22   MR MOYNIHAN:  We can certainly discuss that but, before we
23       do, it might actually help because one of the first
24       questions would be whether Mr Mackenzie could
25       conveniently conclude his evidence within an acceptable
page 156
 1       period on Tuesday morning.
 2   THE CHAIRMAN:  It is a question of he will not have seen the
 3       piece of wood.  This is the doorframe and he wants to
 4       see it before he completes his evidence.
 5   MR MOYNIHAN:  What I am also concerned about is that is
 6       obviously one loose end just now.
 7   THE CHAIRMAN:  That is what I am saying.  I leave it to you
 8       to decide whether you conclude his evidence on all
 9       points except that so that he can deal with it --
10   THE WITNESS:  Could I conclude my evidence sooner rather
11       than later but not only in the last week or so, I've
12       been on hold for a year.  I am obliged that I've managed
13       to give this evidence in the last three days but sooner
14       rather than later, if it could be concluded on Tuesday
15       because I've got other things going on.
16   THE CHAIRMAN:  You know, it is just the doorframe if it has
17       got to be got to you.  You would prefer to conclude your
18       evidence on everything except the doorframe aspect?
19   THE WITNESS:  Or if it can be made available some time on
20       Tuesday.
21   THE CHAIRMAN:  I am not sure that it is in this
22       jurisdiction.
23   MR MOYNIHAN:  First of all, we can make enquiries about that
24       what but I would like to do is, just for convenience, is
25       to discuss with my learned friends how long
page 157
 1       cross-examination may take because, of course, we have
 2       Mr Swann coming up on Tuesday.  If we can discuss that,
 3       then I have no doubt we can make enquiries about the
 4       doorframe to have it available if possible.
 5   THE CHAIRMAN:  As long as we study the convenience of
 6       Mr Mackenzie to get it concluded for him as soon as
 7       possible.  Tuesday if possible.
 8   THE WITNESS:  Has it been clarified that I'm continuing my
 9       evidence first thing Tuesday or that that's not
10       happening?
11   THE CHAIRMAN:  Yes, we want you.  At the moment I think if
12       you speak to Mr Moynihan -- well, speak to Mr Holmes and
13       we will see if we can get it arranged for you to finish
14       on Tuesday.  Tuesday morning at 10.00.
15   (4.08 pm)
16       (Adjourned until 10.00 am on Tuesday, 6th October)
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