El Rakhawy v The Queen
[2011] VSCA 299
•12 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0064
| ADHIL GHEBRAT | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN and TATE JJA and SIFRIS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 September 2011 |
| DATE OF JUDGMENT | 12 October 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 299 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Wood, 17 March 2011) |
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CRIMINAL LAW – Appeal against conviction – Armed robbery – Fingerprints found at crime scene said to match accused – Whether judge failed to summarise fingerprint evidence properly – Whether judge properly summarised defence case – Whether conviction unsafe and unsatisfactory – Retrial ordered.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr L C Carter | Robert Stary Lawyers |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Tate JA.
TATE JA:
On 12 August 2008, a man wearing a disguise and armed with a taser type weapon entered Steve’s Liquor Store in Springvale and took a bottle of Hennessy Cognac from the shelf and left the store without payment.
On 2 December 2010, Mr Adhil Ghebrat, the appellant, was found guilty by a jury of common law assault and armed robbery arising from the incident at Steve’s Liquor Store. The appellant was sentenced as follows:
Charge on Indictment Offence Verdict Sentence Cumulation 1. Armed robbery
[s 75A(1) Crimes Act 1958 (Vic)]Guilty 3 years Base 3. Common law assault Guilty 9 months None Total Effective Sentence: 3 years’ imprisonment Non-Parole Period: 2 years Pre-sentence Detention Declared: 678 days
On 8 June 2011, Buchanan JA granted an application for leave to appeal against conviction on the following grounds:
Ground 1 – The learned judge failed to adequately summarise the submission of counsel for the accused in the closing address; in particular, as it related to the evidence of Gordon and the presence of further unidentified fingerprints;
Ground 3 – The learned judge failed to adequately summarise the evidence of the witness Gordon in that he (a) failed to draw the jury’s attention to his evidence in relation to verification and the lack of adherence to best practice and (b) misstated his evidence in relation to the possibility of mistake and the
system of analysis used;
Ground 4 – The learned judge erred in (a) allowing the jury to use hearsay evidence in support of the witness Gordon’s evidence and (b) failing to direct the jury that they could not use the evidence in that way;
Ground 5 – The verdict is unsafe, unsatisfactory and unreasonable in that the jury must have entertained doubt as to the identification of the accused as the offender.
Leave was refused in respect of an allegation of breach of procedural fairness, Ground 2.
The grounds of appeal were inter-related, focusing upon the alleged inadequacy of the trial judge’s summary of the defence case to the jury, especially with respect to the evidence given by Senior Constable Gordon on the verification stage of the process of fingerprint matching. In my opinion, the aggregation of errors identified in Grounds 1, 3 and 4 means that the appeal should be allowed. As the result of the accumulation of the errors in Grounds 1, 3 and 4, a substantial miscarriage of justice has occurred within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009.[1] I do not consider that any of those errors alone, although each is made out, would justify allowing the appeal.
[1]See Sibanda v The Queen [2011] VSCA 285.
Evidence of the events at Steve’s Liquor Store
The events at Steve’s Liquor Store were captured on CCTV.[2] The man entered the store with a stocking, or similar, over his head. He was not wearing gloves. He held the taser in his right hand and was brandishing it. He approached the counter area yelling at the staff to ‘Get back’, which they did. He went behind the counter and attempted to lift a 4.5 kilogram bottle of Johnny Walker with his free left hand. The bottle was heavy and the offender was unable to lift it out of the cradle it was kept in. It was contested whether the offender actually touched the bottle.
[2]The footage was played at trial and tendered as an exhibit.
Leaving the Johnny Walker bottle, the offender picked up a smaller adjacent bottle of Hennessey Cognac, worth $2,800, and ran out of the store’s back entrance into the laneway. A staff member working in a store behind Steve’s Liquor saw the offender running from the back door with a bottle in his hands.
Police were called, and in the course of their investigation located three fingerprints on the top and neck of the Johnny Walker bottle. The prints were labelled ‘A’, ‘A1’ and ‘A2’ respectively. Staff member Hall gave evidence at trial that the premium bottles kept behind the counter were cleaned regularly. Hall and another member of staff, Broadhead, said that customers were not generally allowed access to the area behind the counter unless accompanied by a staff member. Hall said that he did not recall ever allowing anyone behind the counter to look at or touch the Johnny Walker bottle.
Police interviewed the appellant in relation to the offences on 8 May 2009. His fingerprints were taken and were subsequently compared to one of the prints located on the Johnny Walker bottle.
Senior Constable David Gordon gave evidence that he examined the adhesive lift fingerprint record labelled ‘A’ taken from the front of the Johnny Walker bottle, and the fingerprint impressions taken from the appellant, and concluded that the appellant’s left thumb print matched the print labelled ‘A’.
Senior Constable Gordon was a qualified fingerprint expert with 21 years experience. He gave evidence about the fingerprint analysis process used called ACE-V (Analysis, Comparison, Evaluation and Verification). He stated that that there were two impressions visible on the print labelled ‘Item A’ lifted from the Johnny Walker bottle – one containing the clearer left thumb detail which was sufficient for identification purposes, and the other being smearing which appeared to be below that fingerprint impression and which did not contain sufficient ridge detail for comparison purposes.
Senior Constable Gordon said that during the ‘comparison’ stage of the ACE-V process, the analyst would be required to focus on points of similarity and difference between two prints, that is, the overall impression was important rather than just points of similarity. He also gave evidence that glass could retain a fingerprint for some time and so he was unable to say when the print was left, but that environmental factors affected the length of time a print would remain there. A print could be wiped away upon contact. Wiping over glass with a cloth would remove it in most cases. If a glass surface were dusted it would depend on the amount of force used as to whether the print would be removed or not.
Senior Constable Gordon said that in evaluating fingerprints, best practice is where there is no prior knowledge of the material to be examined; this is called a blind assessment. However, in many cases the examiner will be aware that a particular person has already been identified. He accepted that evaluation is a subjective process and it is exposed to human error. It was put to him in cross-examination that it was possible he had made an error in this case to which he responded:
Well, from my experience that isn’t the case and consequently which is why everything is verified.
By somebody else? --- By somebody else also.
The appellant gave evidence denying that he had committed the armed robbery. His evidence was that at the time of the offence he lived on Lewis Street in Springvale and had been at that address for two years. He had lived in the general area for 20 years, and had been to Steve’s Liquor on numerous occasions. He could not specifically recall having been behind the counter or touching a large Johnny Walker bottle on any of those occasions, but said that he might have done so. He could not recall what he was doing on the date of the offences.
Ground 1 – failure to summarise defence closing address - unidentified fingerprints
The sole piece of evidence connecting the appellant to the offence was the fingerprint recovered from the Johnny Walker bottle. As the judge said in his charge:
[T]he principal piece of evidence that the prosecution rely upon is the evidence of Senior Constable Gordon as to matching the two fingerprints because without that evidence there simply is not a case against the accused man at all.
The appellant submitted in support of the first ground of appeal that the trial judge erred in failing to summarise defence counsel’s submissions about the deficiencies in the fingerprint evidence. In particular, during his closing address, defence counsel drew attention to the smudging of the print, the potential for a difference to arise in that portion, and the failure to adhere to best practice. He also referred at length to the absence of any independent evidence on verification.[3] He also relied upon the two additional unidentified fingerprints that had been found on the Johnny Walker bottle and their significance.
[3]The specific complaint made in relation to the judge’s summary on this issue is made in Grounds 3 and 4.
In his Opening Address, defence counsel said:
He [the prosecutor] says that there were prints taken from the bottle and there were, there were three of them. But only one of them matched my client. That’s the evidence you’ll hear, and you might think that’s significant.
In his Closing Address he said:
I touched before upon the issue of the three fingerprints. There are three lifts taken, plus an additional partial print. …
You might recall that he [Mr Schofield, the police officer who took the prints] said that the prints were possibly left there on three separate occasions or possibly by three separate people.
Now we don’t know anything about these prints. We don’t know anything about the people who left them. Any one of those people could be in the dock, members of the jury, on the prosecution case, if their print was matched. …
Perhaps the other prints belong to the offender. Who knows? You don’t know and you can’t know. … Any presumption has got to be in my client’s favour, not against him.
We haven’t been told that this person or that person’s been excluded. There’s been a match of this person, that it was a little old lady or this person, and they died prior to the incident. It’s simply been left to speculation.
It would appear that the defence counsel thereby sought to make two points: (1) there ought be no speculation that the other unidentified prints also belonged to the appellant, and (2) that the unidentified prints had not been excluded by the Crown as belonging to someone unconnected to the offence.
In his charge, the judge summarised this aspect of the defence case by saying:[4]
Mr Norton [defence counsel] put to you that the evidence which the Crown invited you to accept involved a degree of speculation and reminded you … that you cannot speculate. He put to you that you ignore the three fingerprints, you cannot speculate about that, but you ignore two of the three fingerprints. You cannot speculate about that.
[4]Emphasis added.
Defence counsel took exception to the judge’s summary pointing out that the trial judge had summarised one of his submissions but not the other. He contended to his Honour that he had not said that the two unidentified prints located on the bottle were to be ignored but were rather to be taken account of to demonstrate that the Crown case had not excluded other persons. At the end of the exchange between his Honour and defence counsel, the judge accepted that ‘the failure of the Crown to do it [identify the other prints] goes to the weight of the case they’ve got, but no further than that’. However, his Honour did not go on to redirect the jury on the issue or to correct his earlier statement that it was the defence case that the two unidentified prints should be ignored. The appellant argued that a redirection should have been given.
The respondent submitted that the trial judge’s summary was adequate in light of the fact that the trial was very short and the case raising only a principal single issue, namely, whether the appellant was the offender. Both Senior Constable Gordon and the appellant gave evidence the day before the judge’s charge. Defence counsel’s closing was given on the same day as the judge’s charge and would have been fresh in the jury’s memory when it retired to consider its verdict.
The respondent accepted that, as the Crown case was based on circumstantial evidence, it was necessary for the Crown to exclude the possibility of any reasonable innocent explanation for the appellant’s fingerprints being found on the Johnny Walker bottle. However, the Crown argued that it was not required to exclude the possibility that any of the other fingerprints found on the bottle were those of the offender.
It is true that the Crown, in order to prove its case, was not obliged to exclude the other fingerprints as belonging to persons who were not or could not be the offender. It could exclude any innocent explanation for the appellant’s fingerprints being found on the Johnny Walker bottle without doing so. However, at common law, a trial judge has an obligation to ensure that the prosecution and defence case are both accurately placed before the jury, and this will usually require that the addresses of counsel on both sides, be summarised.[5] In my opinion, the trial judge did not accurately reflect the submissions made by defence counsel, namely, that the failure by the Crown to have excluded the possibility that the other fingerprints belonged to the offender went to the weight of the Crown case. Indeed, the judge appeared to have acknowledged that it was inaccurate for him to have summarised the defence case as one of urging the jury to ignore the other unidentified fingerprints, yet he failed to re-direct the jury as he should have.
[5]R v AJS (2005) 12 VR 563, [54]-[56], R v Crockett (2001) 124 A Crim R 312, [9], R v Dao (2005) 156 A Crim R 459, [24], R v Zilm (2006) 14 VR 11, [58].
Ground 1 is made out.
Ground 3 – failure adequately to summarise evidence of Gordon on process and risk of mistake
In summarising the nature of the process undertaken for fingerprint matching and the risk of human error, the trial judge indicated that the process involved finding a sufficient number of points of similarity from which one could arrive at a conclusion with certainty. He said in his charge:[6]
If the characteristics of the two patterns of fingerprint samples have been found to match at a sufficient number of points, it is possible to say with certainty that the samples came from the same person and if you accept that, that evidence can be used to find that the fingerprints were from that person.
The consequences of that, of course, would be that it is supportive of the prosecution’s contention that the accused man was the man who entered the store.
[6]Emphasis added.
The emphasis on certainty was reinforced when the trial judge said:[7]
In this case, the expertise of Mr Gordon was not challenged, in other words, it was not said that he is not an expert, but the suggestion put to him was that like any human bring, he can make a mistake; it is a subjective judgment that he makes, although he said it did not happen certainly in this case.
[7]Emphasis added.
The appellant submitted that the trial judge was inaccurate in his summary of the evidence of a crucial witness in two respects: (1) it was not the evidence of Mr Gordon that a match of a sufficient number of points made it possible to say with certainty that the samples came from the same person and that form of matching is inconsistent with the process now in place for fingerprint analysis, including the requirement for independent verification, and (2) the evidence of Senior Constable Gordon was not of an expression of certainty in his opinion. While he had denied that error had occurred in this case,[8] this fell short of expressing certainty about the result in the fingerprint match.
[8]See [14] above.
The respondent argued that when Senior Constable Gordon’s evidence was viewed in context, it could be seen that the judge summarised the evidence to the correct effect when he told the jury:
An expert is not required to identify every similarity that he has observed between the two sets of fingerprints. He may explain the process used to compare the fingerprints and state that by using that process, he determined that the two sets of fingerprints matched. The lack of detail in the expert’s evidence is merely a matter that affects the weight of that particular evidence and you will recall the passage I read to you from Mr Gordon’s evidence at p. 98, where he said there’s no predetermined number of characteristics to provide a match. There is no set number. It is a matter of looking at the overall impression, looking at the types of characteristics.
Furthermore, the respondent submitted, the trial judge did make reference to the verification stage of the process.[9] Even if there were differences between the actual evidence given and the judge’s summary, it was argued that these were immaterial and did not lead to a substantial miscarriage of justice.
[9]See further below.
I disagree. There was an inconsistency in the way in which the process of fingerprint matching was described by the trial judge and the evidence given; the jury could well have been unsure whether fingerprint matching involved a matter of simply reaching a sufficient number of points of similarity or not, rather than the overall ACE-V process. More importantly, the judge’s summary would have left the jury with the impression that the process undertaken had been completed to a point that established certainty when this was not supported by the evidence.
Ground 3 is made out.
Ground 4 – Permitting hearsay evidence to be adduced on verification
At trial, defence counsel challenged the evidence of Senior Constable Gordon in a variety of ways. There were two specific matters emphasised: (1) the incomplete nature of the verification process and the incomplete evidence on that process, (2) the lack of any independent evidence of a positive verification of Senior Constable Gordon’s findings.
At the conclusion of cross-examination Senior Constable Gordon conceded that neither the process of fingerprint matching nor the evidence was complete without verification:
You gave evidence before that you try to get rid of the subjective aspects and the possibility of human error by the verification and that’s what the ‘V’ in ACE-V stands for, isn’t it --- That’s correct.
So that involves an independent expert other than you providing that analysis/comparison/evaluation in blind circumstances? --- Not in blind circumstances, no.
Is it simply a matter of checking off the work that you’ve done? --- It’s a matter of I hand sign for the work I’ve done, they are aware that that has occurred because my signature appears on an identification slip, and it is then checked by another expert, but they are aware that a verification has been made – sorry, aware an identification has been made.
Just bear with me a moment. Until that step’s been taken the process is incomplete? --- That’s correct.
And so the evidence in relation to it is incomplete? --- That’s correct.
During the course of re-examination Senior Constable Gordon clarified that the verification process did not involve someone else checking off the work he had done but rather conducting for themselves their own analysis, comparison and evaluation of the fingerprints and either agreeing or disagreeing with the initial result. In response to questions by the trial judge he also gave evidence that in this case there had been three verification processes undertaken. The exchange between the trial judge and the witness was as follows:
[T]wo propositions have been put to you. Which do you say is correct? In other words, I remind you, does the person who checks your work do the exercise all over again that you’ve conducted, or does the person only look at your work and then certify that your work has been conducted in accordance with recognised practice? --- The person conducting the verification of my work does it in accordance with the practice.
Certifies that you’ve done it in accordance with the practice? --- Certifies it and signs off.
Doesn’t do the job over again? --- No, they do, they do their own examination in the way they would do it and they will either agree or disagree. In this case it’s been through three verification processes.
The trial judge succeeded in clarifying the evidence of the verification process with a question:
Now, the person that does an exercise after you, does that person go through that complete process independently, or does that person simply look at documentation that you’ve written down and say, ‘Well, you’ve followed the steps’ and don’t do their own intellectual comparison? --- No, I’m sorry, they do a full comparison of the two fingerprints and come to their own independent conclusion.
Counsel for the Director of Public Prosecutions sought to take the matter further:
So the process is essentially done twice, is that what you’re saying? --- Yes. Yes.
And in this case were both conclusions the same?
At this stage defence counsel objected that the witness could not give evidence about the results obtained by a separate person who had undertaken an independent process of verification. In front of the jury there was a discussion between the trial judge and defence counsel as to whether the witness had already given the same evidence in cross-examination.
His Honour: The facts that this witness gives are, it’s my understanding, his work was checked by someone else and that person approved of or reached the same view that the witness reached.
Defence counsel: In my submission, your Honour, that’s evidence that he simply can’t give.
Ultimately, the trial judge indicated to prosecuting counsel that there was no merit to be derived in asking his question because it had already been asked and answered in cross-examination. The witness was excused. The appellant complains, correctly, that the evidence of Senior Constable Gordon in cross-examination did not go so far as to state that his work had been independently verified and that the other person had arrived at the same conclusion. Rather, in cross-examination his evidence related to the general process, namely that, to avoid human error everything is verified by somebody else.[10]
[10]See [14] above.
In his closing address, defence counsel said:
There’s no evidence before you about a positive verification of Senior Constable Gordon’s findings. That is, there’s no one who’s come before the court and said, ‘Yes, I was provided with the material; I did my own independent analysis and I came up with the same conclusion as Senior Constable Gordon.’ You’re asked again to speculate.
The portion of the evidence that Senior Constable Gordon is responsible for is the, A, the C and E. The analysis, the comparison and the evaluation. … He’s not responsible for the verification, that’s somebody else. … We’re told that it’s somebody else. We don’t know who, we don’t know what they say.
Maybe the review was done and maybe it came back wrong. Maybe they did the review by a faulty process. We don’t know. We don’t know anything about it. …
The evidence in relation to that, at its highest, came in response to a question from His Honour about the process of verification. You might recall when Mr Gordon gave evidence about the process generally, the A to E and that’s overtaken what used to be the point system. The evidence as I’ve indicated was in effect, the whole process of comparison, evaluation has got to be done again by someone else and they make their independent conclusions.
… He doesn’t say what those verification processes yielded and we don’t know. …
… My client hasn’t had any opportunity to test any evidence in relation to the verification. We don’t even know who the people are said to be, let alone what they are said to say. …
The trial judge’s summary of those submissions was as follows:[11]
Mr Norton [defence counsel], the thrust of his criticism of Mr Gordon was Mr Gordon was preconditioned before he made his analysis by the way it was presented to him and that his subjective independent judgment was influenced by that. You will remember what Mr Gordon said about that. He said it was not, it was put to verification. In substance, Mr Norton put to you that you simply could not be satisfied that the accused man was the offender depicted in the CCTV footage on 12 August 2008. As I repeat these are factual matters entirely lying within your domain and about which you would make your determination.
[11]Emphasis added.
The appellant contends that the judge’s summary was inadequate, pointing, as it did, to one of the propositions relied on by the defence (namely, that the process was not a blind assessment) but not to the lack of any evidence of an independent verification process or of its results, nor to the evidence which had been given by the witness in cross-examination that, without verification, the process of fingerprint matching and the evidence relating to, was incomplete. Furthermore, when the judge pointed to Mr Gordon’s evidence as saying that ‘it was put to verification’ this did not summarise the defence case but rather that of the prosecution.
The appellant contended that Senior Constable Gordon’s evidence, in response to a question by the trial judge, that the fingerprint examination result had ‘been through three verification processes’ should have resulted in the trial judge directing the jury that this statement was inadmissible as hearsay. It was submitted that the trial judge should have directed that the statement could not be used as evidence that the verification processes had actually been undertaken by a person or persons other than Senior Constable Gordon or that the results of that independent process had accorded with the results he had obtained. No hearsay notice had been given. It was argued that the judge had erred by permitting the jury to rely on the statement as evidence that independent verification processes had in fact been undertaken, a hearsay purpose.
The respondent submitted that Senior Constable Gordon’s evidence that his opinion had been independently verified by three other experts was led for a non-hearsay purpose as forming part of the foundation of the witness’s opinion. It was argued that the evidence given by Senior Constable Gordon was confined to an expression of his own opinion, having personally engaged in the analysis, comparison and evaluation. His knowledge that the verification process had been undertaken by an independent person served only to reinforce his own opinion and enabled him to express that opinion with greater confidence. It was argued that once admitted for that purpose, the statement became admissible for all purposes, pursuant to s 60(1) of the Evidence Act 2008.
The problem facing the respondent was that the prosecutor made no submission at trial as to the limited purpose for which the evidence was relied upon. More importantly, the jury was not told what, if any, permissible use they could make of the evidence of Senior Constable Gordon that the fingerprint matching had been through three verification processes. How could it now be concluded that the jury understood that the evidence had a non-hearsay purpose when there was no direction from the trial judge as to the limited purpose for which the evidence was relied upon? In the circumstances of the case, the jury may well have considered, wrongly, that the evidence of Senior Constable Gordon about the independent processes taken by other experts was to be accepted as proof of the fact that those independent verification processes had occurred and thus that the process and the evidence was complete. In my opinion, it was incumbent upon the trial judge, particularly in light of the objection taken by the defence, to explain the limited purpose for which the evidence of Senior Constable Gordon was relied upon. He was in error in failing to give that explanation.
The situation was aggravated by the judge’s description of Senior Constable Gordon’s evidence, in front of the jury, as amounting to the claim that his work was checked by someone else and the result of that checking was that the other person approved of or reached the same view as he had done.[12] This was tantamount to an endorsement of the use of the evidence for a hearsay purpose without there having been any hearsay notice given or any ruling that, in the circumstances of the case, it fell under an exception, including the exception under s 60 of the Evidence Act.
[12]See [39] above.
The situation was further aggravated by the judge’s mis-description of the opinion of Senior Constable Gordon as being one of certainty. The evidence that the fingerprint matching had been through three verification processes, when considered by the jury in light of the judge’s charge that the process of fingerprint matching could achieve certainty, would almost inevitably have led to a finding of guilt. That finding was vitiated by the errors I have described with the result that there has been a substantial miscarriage of justice.
In my opinion, Ground 4 is made out.
As I indicated above, the aggregation of the errors identified under Grounds 1, 3 and 4 is sufficient to allow the appeal.
Ground 5 – Unsafe and unsatisfactory conviction
The appellant contended that no reasonable jury could have been satisfied that the appellant committed the offence because the fingerprint evidence was flawed and incomplete. In other words, the appellant argued that it was not open to the jury to be satisfied of guilt beyond reasonable doubt; that ‘it must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[13]
[13]Libke v The Queen (2007) 230 CLR 559, 596-7 [113]. See also R v Klamo (2008) 18 VR 644, 653 [39]; M v The Queen (1994) 181 CLR 487.
The respondent submitted that it was reasonably open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt, given that, on the evidence it was open to the jury to find that:
· the offender was not wearing gloves at the time of the offence and had touched the Johnny Walker whisky bottle with his left hand;
· the fingerprint found on the Johnny Walker whisky bottle matched the appellant’s left thumb print;
· the whisky bottle was kept behind the counter of the shop where only staff had access to it;
· the appellant had not touched the bottle on any innocent visit to the store.
It was submitted that on the circumstances established by the evidence, the jury could exclude all reasonable hypotheses consistent with the appellant’s innocence and find that the fingerprint had been left on the Johnny Walker bottle during the commission of the offence by the appellant.
In my opinion, it cannot be concluded that the conviction was unsafe and unsatisfactory.
It is true that the evidence of Senior Constable Gordon was that, until the verification step is taken, the process of matching fingerprints is incomplete and the evidence is incomplete. No non-hearsay evidence was adduced that the verification step had been taken or that its result was confirmatory of the conclusion reached by Senior Constable Gordon. The jury were thus left with the unverified opinion of an expert witness who testified that his own evidence was incomplete without
verification. Nevertheless, although the unsatisfactory state of the evidence meant that a properly directed jury might have entertained a doubt as to the appellant’s guilt, I do not consider that it must have done so. There was sufficient evidence to support a conviction.
I reject Ground 5.
The conviction of the appellant ought be set aside and a new trial ordered.
SIFRIS AJA:
I also agree with Tate JA.
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