Bennett v Police - [2005] SASC 167

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 167
Magistrates 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 followed is not a recognised and appropriate process.
In evidence-in-chief Mr Lewis described in general terms how a comparison of fingerprints is made. He said that he compared images of the two prints. He then said that the two fingerprints were identical, and came from the same person. Counsel for Mr Bennett did not object to the giving of this opinion.
A photograph of the fingerprint found on the computer monitor was tendered through Mr Lewis as exhibit P3.
That is a summary of his evidence-in-chief.
In cross-examination he again described the type of features for which one looks when comparing fingerprints. He said that he did not have with him a “blow-up” that he could use to point to the features on which he based his opinion.
Mr Lewis said that good practice in this area of expertise no longer requires a finding of 12 identical characteristics before a conclusion could be expressed that fingerprints are identical.
He said that during the lunchbreak, which occurred during his cross-examination, he “had another look” (I take this to mean that he had with him an image of the print taken from Mr Lewis, and that he compared this with exhibit P3) and found more than 20 characteristics that were common and identical. Although for some reason the image of the print taken from Mr Lewis was not tendered, it is clear from the transcript that Mr Lewis had that image with him, see for example the transcript at p 30. Mr Lewis agreed that he had made no notes of the comparison that he originally made, recording the features on which he had based his opinion that the two fingerprints were identical. The following passage of evidence illustrates the point made by counsel. In this passage of evidence the “negative” is exhibit P3, and the “ink set” is the untendered image of a fingerprint taken from Mr Lewis. This evidence occurred in the course of cross-examination:
QWe find ourselves in court today and you’re not in a position to tell us, are you, what characteristics you identified as being identical between the two prints.
AAll I’m able to say is that the characteristics I found on the negative, I actually found on the ink set, there were no characteristics on the image on the negative which did not correspond to what was on the ink set.
Mr Lewis agreed that when he made the comparison before trial he found a number of similarities. He referred to them in general terms. There was then the following question and answer:
QYou are not in a position to provide this court with any detail in relation to what those similarities were in relation to this particular fingerprint comparison.
ANot for this particular case, no.
HIS HONOUR
QWhy not.
AI have no notes as to exactly – sorry, my understanding is he’s asking for particular – that the names of each particular individual characteristics, I don’t as I have said – I haven’t made notes of that and it’s not [my] way of doing it. I actually form my opinion as I’m looking at the evidence at the time and I don’t actually note it.
Counsel for Mr Bennett did not ask Mr Lewis while he was in court to go through the process of comparison, pointing out the characteristics of the two fingerprints on which he relied. It is apparent from the evidence that Mr Lewis could have done this if asked. He said that he had done it during the lunchbreak.
At the close of the prosecution case counsel for Mr Bennett applied to the Magistrate to exclude Mr Lewis’ opinion. No point was taken then or now that the opinion had been given without objection by defence counsel.
The submission to the Magistrate was that for the opinion that the fingerprints were identical to be admissible, the Magistrate had to be able to evaluate it. The Magistrate could not do so because the “points of similarity” between the two fingerprints were not demonstrated. The Magistrate could not make his own assessment of the evidence that “points of similarity” were present. Alternatively, it was unfair to Mr Bennett to use the evidence when it was untested and could not be evaluated by the Magistrate.
The Magistrate rejected the submission. He relied on the fact that Mr Lewis had “exposed his method of working”, and on the fact that counsel for Mr Bennett “had the fullest opportunity to cross-examine Mr Lewis”. The application to exclude Mr Lewis’ evidence was unsuccessful, and no evidence was led for the defence. The Magistrate found Mr Bennett guilty.
Submissions on appeal
The first issue is whether it is a condition of the admissibility of Mr Lewis’ expert opinion, that the two fingerprints are identical and originate from the same person, that Mr Lewis should not just explain in general terms the nature of the process of comparison of fingerprints, but should also repeat the process before the court to the extent necessary to enable him to demonstrate or point out to the court the actual points of similarity between the two fingerprints upon which he based his opinion. On this submission, presumably, it was also necessary for Mr Lewis to demonstrate that there were no material differences between the two fingerprints. However, it is not necessary to refer separately to this aspect of the matter.
Mr Niarchos submits that the features of each fingerprint upon which Mr Lewis based his opinion are the factual foundation of the opinion, and if those facts are not proved, there is no basis for the opinion evidence to be given. Implicit in that submission, and assumed by it, is a submission that the features in question were not proved by Mr Lewis saying that he had observed them. It was necessary to point them out individually to the Magistrate, presumably by reference to images of the fingerprints so that he could decide whether or not they were present.
Mr Niarchos argues that the Magistrate had to decide the facts of the case, and then decide whether Mr Lewis’ opinion was to be accepted. If the characteristics were not demonstrated to the Magistrate, it would be allowing Mr Lewis to determine those facts, because the Magistrate would have to rely on Mr Lewis’ statement that relevant characteristics were present. In those circumstances the Magistrate could not properly evaluate the strength of Mr Lewis’ opinion, because the Magistrate had no means of scrutinising or testing of the factual basis of it.
Mr Niarchos relied on the frequently cited observation by Lawton LJ in R v Turner [1975] QB 834 at 840:
… Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination.
But those observations were made in the course of explaining why an opinion, based on facts that were not identified at all, was not admissible. The observations were not directed to the manner and detail in which the facts were to be proved.
The submission is that the relevant facts are the existence and appearance or nature of the features relied on, and that the court can find these facts, or “know them” for the purpose of fact finding, only if they are pointed out to the court so that the court can examine them for itself. This submission gains some support from the observation by Callaway JA in R v Kotzmann [1999] 2 VR 123 at 135, where the judge said a jury should be told that:
… expert evidence is no better than the facts on which it is based, that it is for the jury to be satisfied of the facts in issue at the trial and that ultimately it is their opinion that counts.
For these purposes it is again the presence and appearance of the features relied on that are treated as the fact or facts to be proved.
Mr Niarchos referred also to an observation by 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.
This indicates, he said, that the similarities must actually be pointed out.
Mr Niarchos referred in some detail to the reasons of Haydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. In his reasons Haydon JA carefully reviewed a substantial body of case law dealing with the duties of expert witnesses, with matters that must be established or dealt with if an expert opinion is to be expressed, and with the manner in which expert evidence of opinion must be put before a court. His reasons refer to the main cases on the point, and I acknowledge my indebtedness to his Honour. However, it must be noted that the other two members of the court expressed no view on the exposition of the law by Haydon JA. Mr Niarchos relied on two observations by Haydon JA in particular. At [79], after referring to a list of duties and responsibilities of expert witnesses given in “The Ikarian Reefer” [1993] 2 Lloyd’s Rep 68 at 81 – 82, Haydon JA said:
While some of these matters have an ethical dimension, taken together they point to the need for the trier of fact to be fully informed of the reasoning process deployed in arriving at the expert’s opinions.
He added that:
… the expert must reveal the whole of the manner in which it [the information supplied to the expert] was dealt with in arriving at the formation of the expert’s conclusions.
At [85] Haydon JA summarised the requirements for an expert opinion to be admissible in evidence. The relevant requirement for present purposes was said to be:
… so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert … it must be established that the facts on which the opinion is based form a proper foundation for it… .
On the other hand Mr Muscat, counsel for the respondent, submits that Mr Lewis’ opinion was admissible, and the issue is merely one of weight, bearing in mind the limited nature of the evidence about the basis for that opinion. In particular Mr Muscat submits that the “matching characteristics” that Mr Lewis observed were not the primary facts upon which his opinion was based, and need not be proved as such. The fingerprint impressions, and the images of those impressions, were the primary facts on which the opinion was based and, Mr Muscat’s submits, these were proved. The presence of the matching characteristics were aspects of the expert opinion, and gave rise only to an issue of weight. So, according to Mr Muscat, does the absence of “blow-ups” or explanatory charts illustrating how Mr Lewis arrived at his opinion.
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)?
Although not put this way, the argument that that final opinion was inadmissible seems to rest on an argument that an obstacle to the admission of the evidence of opinion arose in one of three ways. First, because the image referred to in item (4) was not tendered. Second, because the features observed by Mr Lewis and relied on by him were described compendiously, and not individually, and without pointing them out on the images referred to in items (2) and (4). Third, because the expert opinion was given in a form that did not enable the Magistrate, as the trier of the facts, to decide for himself whether the facts on which the opinion was based, the presence of the features in the images, were in fact to be found in the two images. The submissions to me were put mainly in relation to the third obstacle.
The failure to tender the image referred to in item (4) was not, standing alone, an obstacle to the admissibility of the opinion that Mr Lewis expressed.
It was proved, or not disputed, that Mr Lewis had in his possession and had examined the images referred to in item (2) and item (4). The provenance of each image was established.
As I have observed, each image was a relevant object in the prosecution’s chain of proof, or an item of circumstantial evidence.
No rule of evidence was identified in argument that requires a witness to produce a relevant object, or an image of the object, before the witness can describe to a court relevant features of the object observed by the witness. Nor, in my opinion, is there any such rule.
The best evidence rule was not referred to in submissions, but whatever might be the scope today of the exclusionary aspect of the best evidence rule, there is no reason to think that it requires the production and tender of the images of the two fingerprints, before evidence could be given about the appearance of the two fingerprints: see the instructive discussion of this topic in Commissioner for Railways (NSW) v Young (1961) 106 CLR 535 at 542 – 546 Dixon CJ, at 552 – 553 Menzies J, and at 556 – 559 Windeyer J; Hocking v Ahlquist Brothers Limited [1944] 1 KB 120 and Heydon, Cross on Evidence (7^th Aust. Ed. Butterworths, 2004) at [1469] – [1480].

In R v Buisson [1990] 2 NZLR 542 an important aspect of the prosecution case was expert evidence that a fingerprint found on a block of cannabis was identical to a fingerprint taken from the accused. The prosecution experts gave that evidence without producing for the jury charts or enlargements showing the “points of similarity” upon which they relied as a basis for their opinion. The reasons indicate that it was not the practice for police to produce fingerprint charts of this kind as a matter of course, because of the cost involved: at 545.45. The Defence called expert evidence contradicting certain aspects of the evidence of the experts called by the Prosecution.
The Court of Appeal rejected a submission that the jury had to determine the number of points of similarity themselves, before they could decide whether they should accept the expert evidence that the fingerprints were identical. In other words, the Court rejected a submission to the effect that the points of similarity had to be demonstrated to the jury in detail, so that the jury could satisfy themselves whether or not the points of similarity were in fact present. The Court dealt with the submission at 548:
But this overlooks the nature of expert testimony in this field. 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.
A further ground relied on what appears to me to be the same point, put a little differently. It invoked the best evidence rule. The complaint was that the existence of the identifiable characteristics was left as a matter of opinion for the witnesses, rather than allowing the jury to determine this as a matter of fact, examining images of the prints and, presumably, assisted by explanatory evidence from the experts. The failure to tender photographs of the fingerprints was relied on. The Court made the point that it was the experts who were to determine the existence “of characteristics or points of similarity”, and not the jurors, because “trained experts are able to see features not apparent to a lay person”: at 550. After referring to a passage from Wigmore to which I will refer below, the Court held that the experts could give evidence of the existence of characteristics or points of similarity, without producing the fingerprints: at 550.
The passage relied upon from Wigmore on Evidence (Chadbourne revision, Little, Brown and Co, 1979) is at Vol 2 §414(c). The author is there dealing with expert evidence as to fingerprints, and says:
(c)Must the original prints be produced and shown in court? Not on the principle of §1232 infra (producing a documentary original), because the expert’s testimony is the evidence, not the prints, for the prints could not be understood of themselves by the jury. But on the principle of §655 infra (witness stating the grounds of his assertion) the expert may be required to produce the prints, and would naturally do so without being required.
The way in which I would prefer to put the matter is that the matter of fact to be proved is the presence of features in each image which, using expertise, the expert regards as significant for the purpose of expressing the ultimate opinion that the fingerprints are identical. That matter of fact can be proved by the expert stating that the expert examined an image of the print and observed the feature or features. The opinion can be given by reference to those facts. 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. Of course, as the New Zealand court said, if required to for the purposes of cross-examination the expert would do so.
It is common for a witness to describe the appearance of something of significance for the purpose of a case, observed by the expert, without producing the thing described or an image or representation of the thing. A simple example is evidence given by a medical expert as to the presence of bruising, wounds or other bodily marks on the victim of an alleged assault, when the presence and appearance of the bruising, wounds or marks on the victim is a relevant matter in proof of the alleged offence.
The failure or inability of the witness to describe in detail what the witness observed, or to produce an image or representation of what the witness observed, may affect the weight of the evidence, but does not affect its admissibility. The witness is giving evidence of the witness’s own visual observations of a relevant object. No element of hearsay is involved. The basis for the observation lies in the relevance of the object examined, assuming its origin is proved.
In R v Abadom [1983] 1 WLR 126 a scientific expert analysed fragments of glass from a pair of shoes belonging to the accused and from glass broken in the course of a robbery, and expressed the opinion that each piece of glass had the same refractive index. The Court held on appeal that the expert was entitled to refer to statistics, collected by others, as to the frequency with which glass with the relevant refractive index had been made. That was the main issue on appeal. The Court emphasised that the evidence as to the refractive index of the glass taken from the shoe of the accused, and from the broken window, had to be established by evidence given by the expert of his own knowledge, or by another witness speaking of the witness’s own knowledge. At 131 the court said:
First, where an expert relies on the existence or non existence of some fact which is basic to the question on which he is asked to express his opinion, that fact must be proved by admissible evidence …
The Court said it followed that the expert had to himself prove the refractive index of the glass. There is no suggestion in the report that the expert had to produce samples of the glass in question in court, or in any sense recreate for the court the tests that he had carried out. He could, I consider, state that he examined the glass using a recognised technique and determined the refractive index.
The passages referred to above from the reasons in Commissioner for Railways (NSW) v Young support what I have said.
I conclude that the failure to tender the image the subject of item (4), and the failure to point out the features relied on that image, did not require the Magistrate to exclude the evidence given by Mr Lewis that he had compared the image and observed significant features of similarity between them. The fact that this was not done went only to the weight of his evidence. The Magistrate was entitled to take into account the fact that defence counsel did not ask Mr Lewis to produce the second image, and did not choose to cross-examine him on any details of the comparison that he made.
The second possible obstacle to which I referred is the failure to list or describe individually the features relied on, and possibly to illustrate them by pointing them out on the images. This was linked to a complaint that Mr Lewis had no notes of the comparison that he originally made, and so could not with certainty point out the particular features on which he had relied. If he had gone through the same process in the witness box, it was possible, I suppose, that he might rely on features of similarity that he had not previously observed.
I consider that this objection also goes to weight only. The fact of the presence of features on which the expert relied is proved by the expert giving evidence that the expert looked at the images and saw the features. It was permissible to say that identical features were found, without itemising them. Proof of that fact does not require the detailed description, demonstration or reproduction of what the witness saw. The decisions in Abadom and Hocking support that view. To use an example that I used earlier, if an expert medical witness says that the witness saw a bruise on the face of the victim of an alleged assault, the expert can surely say also that the bruise appeared to be of recent origin, leaving it to the cross examiner to test the expert as to the basis upon which the expert expressed that opinion. The opinion that the bruise is of recent origin can be given without describing fully the features of the bruise that support that conclusion. It would be good practice to have the witness do so, but not essential for the admission of the evidence. The fact that the basis was not explained could go to the weight of the opinion, as could the inability or the failure of the expert to explain adequately the basis for the opinion, were that basis to be probed.
It was for the Magistrate to decide whether he accepted the evidence of Mr Lewis that the features relied on were present and were significant. He had admissible evidence before him to that effect. That evidence was not challenged on its merits.
That leaves the third possible obstacle to the acceptance of the evidence.
In the present case, the expert informed the court about the facts upon which his expert opinion was based. The facts were the making of the comparison of the two images the subject of items (2) and (4), and the observation by the expert of features in each image that the expert considered to be identical and of significance for the purpose of expressing an opinion as to the two prints being identical. 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.
I recognise that there is some support for the submission advanced by Mr Niarchos in some of the passages to which I have referred. In Makita Heydon JA at [79] referred to “the need for the trier of fact to be fully informed of the reasoning process” used by the expert. Decisions such as the decision of the Full Court of the Supreme Court of Victoria in R v O’Callaghan [1976] VR 676, and earlier decisions of that Court referred to in that decision, emphasise to varying degrees the entitlement of a jury to examine fingerprints for themselves. In R v Lawless [1974] VR 398 at 423, referred to in O’Callaghan, the Court said:
It is a matter for expertise not possessed by the ordinary run of mankind to identify characteristics of fingerprints and their patterns in each of two prints and make a comparison and form a conclusion as to whether they are identical or not and the jury could not be invited or allowed to act as experts: see R v Tilley, [1961] 1 W.L.R. 1309; [1961] 3 All E.R. 406; R v Harden, [1963] 1 Q.B. 8; [1962] 1 All E.R. 286; R v Weise, [1969] V.R. 953, at p 972. That is not to say of course that the jury could be prevented from examining the exhibits for the purpose of determining whether they were satisfied to the necessary degree by the evidence of the witness. The determination was for them, but the provision of evidence was for the experts.
In O’Callaghan the Court emphasised the last sentence of that passage, saying (at 679) that:
… it is for the jury to decide whether one set of fingerprints is the same as another.
The Court said that there was no conflict between the passage cited from Lawless and the passage cited earlier in my reasons from Parker. The Court went on to say at 679:
We think that upon careful examination his Honour’s charge involves no misdirection on this question. It was correct to say that the prints were the subject of expert evidence and it was correct to say that the identification of the characteristics of fingerprints and their patterns is a matter for expertise. It may be misleading to say that it is for the expert to form a conclusion whether two prints are identical but his Honour made it clear that the determination of the question of fact was for the jury and that they had to consider whether they were satisfied with the expert evidence.
However, it is one thing to acknowledge that it was for the Magistrate to decide in the present case whether the two fingerprints were identical. It is another thing to say that the Magistrate could so decide only if the evidence as to the findings on examination of the two images was given in the detail that Mr Niarchos said was required. The Magistrate had before him unchallenged evidence that each fingerprint exhibited features that, taken together, led to the conclusion that they were identical. 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.
The Magistrate was “fully informed of the reasoning process” used by Mr Lewis, to use the words of Haydon JA. The fact that he was not in a position to make his own comparison only demonstrates that there was a further level of detail that could be examined, had the course of the evidence made that necessary. The essential facts were proved in a permissible fashion. The premises upon which the expert opinion was given were expressly stated: cf Trade Practices Commission v Arnotts (1990) 92 ALR 527 at 533. The method followed by Mr Lewis was explained.
As I see it, this aspect of the case turns on the question of whether an expert such as Mr Lewis must lay out in detail, one might say in full detail, the facts on which the expert’s opinion is based, or whether it suffices for the expert to prove those facts (to the extent they are based on the expert’s own observations) by asserting that they are present, as Mr Lewis did, leaving it to opposing counsel to make whatever can be made of the failure to give full detail, and to cross-examine on that detail if opposing counsel wishes to do so. I do not regard it as unfair, in a case like this, to leave it to counsel to cross-examine Mr Lewis about the features on which he relied. That is not expecting counsel to cross-examine “in the dark”: cf Makita at [62]; Australian Securities and Investment Commission v Rich [2005] NSWSC 149 (unreported, 7 March 2005, Supreme Court of NSW – Equity Division, SC 5934/01) at [243] and at [304], Austin J.
My conclusion that the admissibility of the opinion does not require that the facts be laid out in detail is influenced in part by the availability of pre-trial procedures that generally ensure, these days, that if expert evidence is to be given, the opposing party will be informed of that, and will be provided with information as to the opinion and its basis.
For all those reasons I reject the submission that the evidence was inadmissible.
I also reject the submission that, in the circumstances, there was any relevant unfairness to Mr Bennett. It was open to counsel for Mr Bennett to call on Mr Lewis to produce the image the subject of item (4) and to point out the features of similarity on which he had relied. I do not regard it as unfair that counsel for Mr Bennett should be in this position, as distinct from having the opportunity first of all to require counsel for the prosecution to lay out the full details of the process of comparing the images, before deciding whether to cross-examine or not.
For those reasons I dismiss the appeal against conviction.