SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BENNETT v POLICE
Judgment of The Honourable Chief Justice Doyle
4 May 2005
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION
An appeal against conviction - on appeal the issue is the proving of expert evidence - in this case the admissibility of fingerprint evidence crucial to the prosecution case - discussion of factors relating to the weight of expert evidence compared with those affecting admissibility - in particular whether the expert is required to demonstrate, by reference to the fingerprints, or to contemporaneous notes, where the points of similarity lie - appeal dismissed.
Criminal Law Consolidation Act 1935 s 169(1), referred to.
R v Buisson [1990] 2 NZLR 542; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Turner [1975] QB 834; R v Kotzmann [1999] 2 VR 123; R v Parker [1912] VLR 152; R v Abadom [1983] 1 WLR 126; R v O'Callaghan [1976] VR 676; R v Lawless [1974] VR 398, discussed.
Commissioner for Railways (NSW) v Young (1961) 106 CLR 535; Hocking v Ahlquist Brothers Limited [1944] 1 KB 120; The Ikarian Reefer [1993] 2 Lloyd's Rep 68; Trade Practices Commission v Arnotts (1990) 92 ALR 527; Australian Securities and Investment Commission [2005] NSWSC 149 (unreported, 7 March 2005, Supreme Court of NSW - Equity Division, SC 5934/01), considered.
BENNETT v POLICE
[2005] SASC 167Magistrates Appeal: Criminal
DOYLE CJ: Mr Bennett appeals against his conviction by the Magistrates Court on a charge of non-aggravated serious criminal trespass contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA).
Crucial to the conviction was evidence given by Senior Constable Lewis that a fingerprint found on a computer monitor, taken from the premises in question, was identical to a fingerprint taken from Mr Bennett.
Mr Niarchos, counsel for Mr Bennett, submits that the evidence by Mr Lewis that the fingerprints were identical was inadmissible, or lacking in any weight, or that the prosecution should have been stayed because the use by the prosecutor of the evidence meant, in the circumstances, that the trial was not fair.
These submissions are based on the fact that Mr Lewis gave evidence that the two fingerprints were identical without producing a copy or image of the print taken from Mr Bennett, and without demonstrating to the Magistrate the features that he observed in each fingerprint that caused him to conclude that the fingerprints were identical and came from the same person.
The case at trial
It is not disputed that a fingerprint was found on the computer monitor, that Mr Lewis examined an image of that fingerprint, that Mr Lewis was provided with an image of a fingerprint taken from Mr Bennett, and that Mr Lewis compared the two images. It is not disputed that Mr Lewis was qualified to express the opinion that he gave. There is no suggestion that the process of comparison that he…
Continue reading Bennett v Police
Sign in free to access the full text
- AGLC
- Bennett v Police [2005] SASC 167
- Case
- [2005] SASC 167
- Decision Date
CaseChat Overview and Summary
The court found that the expert must either prove the facts on which their opinion is based through admissible means or explicitly state the assumptions on which their opinion is based. The court considered the submissions made by the parties and concluded that the expert opinion must be supported by identifiable facts, not merely a general assertion of similarity. The court held that the expert needed to demonstrate the specific points of similarity he relied on, which was not adequately achieved in this case. The court's reasoning was that the expert's opinion was based on the comparison of fingerprint images, and the court required a clear demonstration of the specific similarities upon which the opinion was founded. The court dismissed the appeal, upholding the conviction.
The court's decision underscores the importance of clear and demonstrable evidence in expert opinions, particularly in cases where such opinions are critical to the outcome. The expert's failure to identify the specific features relied upon rendered the opinion insufficient for admissibility purposes. The court's ruling reinforces the principle that expert evidence must be grounded in verifiable facts, ensuring the reliability and credibility of the evidence presented.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Mr Muscat submits that any complaint of unfairness founders because it was open to counsel for Mr Bennett to call upon Mr Lewis to produce the image of Mr Bennett’s fingerprint, and to carry out in court the process of comparison upon which his opinion was based.Consideration of submissions 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 Haydon JA in Makita at [59] – [86]. The effect of those decisions is summarised by Haydon 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.I refer again to the passage cited above from his reasons at [85]. The facts on which Mr Lewis’ opinion was based are the following:(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. That last “fact” is a mix of fact and of expert opinion. As I understand the evidence, Mr Lewis’ opinion that the fingerprints were identical is based on the above six matters. There is no dispute, as I understand the submissions, that items (1)-(5) were properly proved. They were proved through Mr Lewis or through other witnesses. The image referred to in (2) was tendered as exhibit P3. The two images referred to in items (2) and (4) are relevant objects whose provenance was adequately proved. The fact that Mr Lewis examined them was not disputed. What he saw when he examined them is a matter of fact. The issue is whether acceptable proof of item (6), as a prelude to Mr Lewis giving his opinion, requires the production of the image referred to in item (4), and the identification by Mr Lewis, using P3 and that item, of the features referred to in item (6) upon which he relied in expressing his opinion that the fingerprints were identical and came from the same person. Mr Lewis described compendiously what he observed, namely a number of identical features in each image. He did not identify each feature separately, nor did he describe the appearance of each feature. He said, in effect, that he had found a number of identical features. Having said that, and using his expertise in identifying characteristics as identical and as significant, he used his expertise to express the opinion that the two fingerprints were identical, and came from the same person. Was this sufficient proof of the facts the subject of item (6)?