Bennett v Police - [2005] SASC 415

Supreme Court of South Australia
(Full Court: Criminal)
BENNETT v POLICE
Judgment of The Full Court
(The Honourable Acting Chief Justice Perry, The Honourable Justice Bleby and The Honourable Justice Anderson)
9 November 2005
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - FINGERPRINTS
Appellant convicted in the Magistrates Court of non-aggravated serious criminal trespass - appeal from a decision of a single Judge of this Court dismissing the appeal against conviction - whether expert witness failed to adequately establish the factual basis for his evidence - whether the fact that the image of the fingerprint taken from the appellant was not tendered caused unfairness - Held: evidence admissible - in assessing the weight to be given to the evidence, the Magistrate was entitled to take into consideration that it was open to defence counsel at trial to call for the production of the fingerprint evidence - appeal dismissed.
Criminal Law Consolidation Act 1935 s169(1), referred to.
R v Parker [1912] VLR 152; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Buisson [1990] 2 NZLR 542, discussed.

BENNETT v POLICE
[2005] SASC 415
Full Court: Perry A/CJ, Bleby & Anderson JJ

PERRY A/CJ: In my view, the appeal should be dismissed. I agree with the reasons of Anderson J.
I add a comment with respect to the dictum of Cussen J in R v Parker,[1] cited by Anderson J.
[1] [1912] VLR 152 at 160.
With respect to Cussen J, I do not agree that evidence of similarities in fingerprints is not expert evidence, or that such similarities are matters which “the jury could determine for themselves”.
Identification of similarities in fingerprints is a highly technical matter requiring considerable expertise and experience. I have regularly instructed juries not to attempt to make such a comparison themselves.
This does not mean that the jury must necessarily accept expert opinion on the matter. For example, they may find the evidence unconvincing; they may have doubts as to the independence or qualifications of the expert; they may not be satisfied that there are sufficient points of similarity; there may be a conflict of expert evidence; they may suspect police tampering with the evidence.
At the end of the day, it is for the jury to determine whether it is satisfied beyond reasonable doubt of the accuracy and reliability of the expert evidence on the matter, including the expert evidence of the comparisons of prints.
The observations of the New Zealand Court of Appeal in R v Buisson,[2] which was a case involving competing expert opinion as to fingerprint evidence, are apposite:
The evidence for the jury to consider was the opinion tendered by each expert. In assessing its reliability they had to decide what they made of his claim to have discovered various points of similarity and his conclusions based upon them. But it was not necessary for the jury to determine the number of points themselves, as a prerequisite to a decision on identity. They were entitled to rely on what they were told about them if they were satisfied with the experts’ reliability. Indeed, as noted above, evidence was given that detection of some of the similarities was beyond the competence of lay people, and depended on training and experience they did not have. (emphasis added)
[2] [1990] 2 NZLR 542 at 548.
BLEBY J I agree that the appeal should be dismissed for the reasons given by Anderson J. I also agree with the additional remarks of Perry A/CJ.
ANDERSON J This is an appeal from a Judge of this Court who in turn had heard an appeal from a Magistrate. Mr Bennett had been convicted in the Magistrates Court on a charge of non-aggravated serious criminal trespass contrary to s 169(1) of the Criminal Law Consolidation Act 1935.
Background
On 12 December 2002 a window at the St Francis Xavier School, Wynn Vale, had been broken, the school entered, and certain items including a computer and a television set had been removed from the school. These items were found nearby. There was a bag located which contained a monitor, a computer and a keyboard. The police fingerprinted the items and found a fingerprint on the front glass face of the computer monitor. The negatives of the fingerprint photograph were sent to and examined by the Fingerprint Bureau. Three photographs of those fingerprint impressions taken from the computer were produced from the negatives and were tendered as evidence at the trial.
Later, the appellant had his fingerprints taken at the Holden Hill Police Station. Expert evidence was given in relation to these fingerprints by Senior Constable Lewis.
Mr Lewis was asked to compare the negative of the photo of the fingerprint taken from the computer with the image of the fingerprint taken from the appellant. He subsequently compared those two images and gave evidence that the two fingerprints were identical. He did not, however, produce the copy or image of the print actually taken from the appellant, and did not give any evidence showing the specific details of what similarities there were in the fingerprints he compared. Although the photographs of the image from the computer were tendered, the witness did not actually use any photograph in his comparison. He used the negatives.
Mr Lewis’ expertise to give expert fingerprint evidence was not challenged in the trial. His evidence was that he found in excess of 20 characteristics of the fingerprint located on the computer monitor which he said matched the fingerprint taken from the appellant, and in particular, from his left ring finger.
Mr Lewis made no notes of his comparison because he said it was a comparison of a single fingerprint impression and it was not necessary to make any notes.
The Issue Before the Magistrate
The issue before the Magistrate, and then on the appeal to the Judge of this Court, was that the evidence of Mr Lewis was given without him producing the actual copy or image of the print taken from the appellant, and furthermore, that there was no evidence to demonstrate the specific features of the comparison which enabled him to form the conclusion that the fingerprints came from the same person. Therefore it was argued the evidence was inadmissible.
As I have indicated, Mr Lewis gave unchallenged evidence. He said in his evidence-in-chief:
Q.What did you do with this negative.
A.The impression on the negative was compared with the impression on the fingerprint form.
Q.When you say ‘fingerprint form’, can you just explain what that is.
A.A fingerprint form is a form which is taken on which inked fingerprints are placed into marked areas on that form. There are various reasons why a form is used throughout the state.
Q.Where did you receive this fingerprint form from.
A.The fingerprint form was received at the Fingerprint Bureau and it is marked as having been obtained at Holden Hill.
Q.When you ‘obtained at Holden Hill’, can you explain a bit further what that means.
A.The impressions appearing on the fingerprint form are actually taken at Holden Hill Police Station.
Q.Does it have the date that these were taken at the Holden Hill Police Station.
A.Yes, it does. The date on the forms is 20/5/03.
…..
Q.You compared the negative with these impressions that were provided on the form.
A.Yes, I did.
Q.Can you tell us what that entailed and what the results were.
A.In making a comparison between the images on the negatives and in this case the unknown, and the known print on the ink set, it’s a matter of comparing the impressions or the characteristics which appear in the image on the negative against the characteristics on the various fingers on the fingerprint form and by comparing the characteristics as they appear in sequence and by looking at the flow of the ridges, the quality of the impressions, an opinion may be formed.
Q.I take it that that’s what you did, you compared.
A.That’s correct.
Q.What was the results.
A.I formed the opinion that the impression appearing on the negative is identical with the left ring finger appearing on the fingerprint form bearing the name ‘Bennett’.
Q.Your level of certainty, you say you formed the opinion that it’s identical to the left ring finger of Bennett, what level of certainty are you able to tell the court.
A.When I say that something is identical, what I mean is that the impressions were made by one person excluding all others.
Mr Lewis gave an explanation of the process of comparing prints generally, but was unable, as I have indicated, to go into the details of the particular characteristics which coincided in relation to this particular comparison because he had not made any notes.
He also gave evidence about the photographs which were tendered. He said:
The first photograph shows an enlargement of the impression with part of the label which I refer to being seen at the top. The second photograph shows more of the label with the impression, which is not quite as clear as in the first shot, and the third photograph again shows a further away shot showing the label on part of what I take to be the computer monitor and it’s very difficult to actually see the impression in that photograph. It just shows the location.
HIS HONOUR
Q.Is it your evidence that this impression in these three photographs is the one which you say is identical with the print of one person to exclude all others.
A.Yes, it is.
Following some cross-examination before lunch, when Mr Lewis returned to the witness box after the lunch adjournment he said that:
During the lunch break I had another look and there is in excess of 20 characteristics that I have been able to find and there is nothing appearing in one that doesn’t appear in the other.
In other words, it seems that the particular documents which he used to make the comparison were in his possession during the time he gave evidence. He was not asked by the prosecution or the defence to produce those documents, and he was not asked anything further about the comparisons.
The main submission to the Magistrate was that the features of each fingerprint, that is, the features upon which Mr Lewis based his expert opinion, were the factual basis for that opinion, and that therefore, because that factual basis had not been established, there was no foundation for the opinion and the evidence should not be admitted. This same submission was repeated before the Judge in this Court. In addition, it was argued in the alternative that the evidence should not have been admitted because of unfairness to the appellant, that is, the inability of the defence counsel to cross-examine in the absence of the details of the points of similarity.
The Issues on Appeal
Mr Niarchos, who appeared for the appellant, argued again before this Court that the evidence of Mr Lewis should not have been admitted. He repeated his submission before the Magistrate to the effect that it was the actual features, namely, the points of similarity, upon which the expert based his opinion and which were therefore the factual foundation for his opinion, which should have been proved.
In the alternative, Mr Niarchos argued that, absent proof of such matters, even if the evidence was admissible, it was of so little weight that it should have been excluded because it was unfair to the appellant. He suggested that the unfairness arose because it was not possible for the cross-examiner to test the opinion without access to the information upon which the comparisons had been made.
He relied, in his appeal to the single Judge and in his argument before this Court, inter alia, on the comments of Cussen J in R v Parker [1912] VLR 152 at 160 where the Judge said:
I think in such evidence of experts a distinction must be drawn. There may be statements based on their own experience or study, such as that there are certain broadly-marked differences in the character between the finger-prints of different people and that these can be classified, and that it can be illustrated from their expert knowledge what those broad characteristics are. That, I think, they can state from their own experience; but, so far as they attempt to point out similarities, they are not, in one sense, speaking as experts at all, but are merely pointing out to the jury matters which the jury could determine for themselves – they are simply convenient helpers of the Court.
Mr Niarchos used these comments of Cussen J to support his argument that in this instance the actual similarities had to be identified.
He also relied on the comments of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705. Those comments were set out in the reasons of the Judge appealed from at [26]:
I accept the premise upon which Mr Niarchos’ submission rests. That is, that facts upon the basis of which Mr Lewis gave his expert opinion that the two fingerprints matched and were from the same person, must be proved. It is hardly necessary to cite authority for that proposition. It is convenient to refer to the numerous decisions to that effect cited by Heydon JA in Makita at [59] – [86]. The effect of those decisions is summarised by Heydon JA at [64] as follows:
The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based or state explicitly the assumptions as to fact on which the opinion is based.
The learned Judge then went on to summarise the facts upon which Mr Lewis’ opinion was based, and he set out those facts as follows at [27]:
(1)     the presence of a fingerprint on the computer monitor;
(2)     the image of that print;
(3)     the taking of a fingerprint from Mr Bennett;
(4)     the image of that print;
(5)     that Mr Lewis compared the images referred to in (2) and (4);
(6)that comparing those images Mr Lewis found a number of features in each image that were considered by Mr Lewis to be identical and to be, for the purpose of fingerprint comparison, of significance in expressing an opinion as to the identity of the fingerprints.
As his Honour points out, the first five matters were not in dispute. His Honour referred at [39] to a decision in the New Zealand Court of Appeal of R v Buisson [1990] 2 NZLR 542 which involved fingerprints found on a block of cannabis. In that case, experts gave evidence without detailing the points of similarity which were relied on for their expert opinions. After dealing with the comparison between the present case and that decision, the learned Judge said at [42]:
There is no rule of evidence that requires the object in question, the image of the print, to be produced to the court before the expert can say what the expert observed upon examining it.
After a review of the cases the learned Judge said further at [52]:
The decisions relied upon by Mr Niarchos, the effect of which I have summarised earlier in these reasons, do not go to the extent of holding that the expert opinion given by Mr Lewis was admissible only if the basis for it was established at the level of detail insisted upon by Mr Niarchos in his submissions. My view is that those decisions are authority for the fundamental proposition that the facts upon which an expert’s opinion is based must be identified by the expert and proved by admissible evidence, but they do not establish that when that principle is applied to a case like the present, the only way of establishing the facts relied upon by Mr Lewis is for him to repeat and illustrate for the court the process that he went through when comparing the images of the two fingerprints.
His Honour finally concluded that the fact that the image of the fingerprint taken from Mr Bennett was not tendered did not affect the admissibility of the evidence. His Honour held that the fact that the image was not tendered was only relevant in assessing the weight of the evidence.
I agree that those cases relied on by Mr Niarchos can not be extended to require the level of detail he suggests should be provided by an expert. There was sufficient evidence here to admit the expert opinion.
I agree with the conclusion reached by his Honour that the evidence was admissible. As Ms Davison for the respondent pointed out, the expert had not been challenged as to his expertise, his expertise had clearly been established, the methodology that he used generally in the comparison of fingerprints was explained to the Court, the defence called no evidence to the contrary, and the expert gave evidence that he found the comparison showed that the fingerprints were identical.
It is important to note that defence counsel at the trial did not require the expert to produce the image when it was obvious that the image was in the possession of the expert. As I have indicated, he actually said that he checked it during the lunch break to confirm the 20 matching characteristics to which he referred. He was not asked anything further and was not asked to produce any further documents to allow further cross-examination.
In relation to the question of weight and possible unfairness, it was submitted by the respondent that defence counsel had made a forensic choice not to ask for production of the image which would have enabled him to embark upon a cross-examination related to the comparison. The Judge appealed from found that the Magistrate was entitled to take that fact into account, and I agree with that conclusion. His Honour said at [53]:
It is true that the manner in which the case was conducted meant that the Magistrate was not in a position to compare the two images for himself, in the course of deciding what weight he would give to that evidence of Mr Lewis. But, assuming that Mr Lewis opinion is admissible, that is a result of a forensic choice by counsel for Mr Bennett not to require the expert to produce the other image and then to point out the features of similarity relied upon by Mr Lewis for the purpose of expressing his opinion.
I agree with those comments.
The way in which the trial was conducted was a consequence of the choices made by defence counsel. It seems that the decision was made to assist with a “no case submission” on the basis of a lack of evidence. Such a submission was made and rejected by the Magistrate. In the circumstances, I do not consider that there was any unfairness to Mr Bennett. I agree with his Honour that the forensic choice of defence counsel to not cross-examine further or to not request production of the relevant materials meant that this was not a case of requiring counsel to cross-examine “in the dark”.
I agree that the learned Judge was correct in dismissing the appeal against conviction and I would dismiss this appeal.