2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 June 2013 and, in its place, order that:
(a) the appeal be allowed;
(b)the appellant's conviction be quashed; and
(c) a new trial be had.
On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with D P Barrow for the appellant (instructed by Blair Criminal Lawyers)
J H Pickering SC with J A Girdham SC for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Honeysett v The Queen
Evidence – Admissibility – Opinion evidence – Section 79(1) of Evidence Act1995 (NSW) exception for evidence of opinion based wholly or substantially on specialised knowledge based on training, study or experience – Prosecution adduced evidence of anatomist regarding physical characteristics common to persons depicted in images – Whether opinion based wholly or substantially on specialised knowledge.
Words and phrases – "opinion rule", "specialised knowledge", "training, study or experience", "wholly or substantially".
FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ. The appellant was convicted of the armed robbery of an employee of a suburban hotel following a trial in the District Court of New South Wales (Bozic DCJ and a jury). Closed-circuit television cameras ("CCTV") recorded the robbery. At the trial, over objection, the prosecution adduced evidence from an anatomist, Professor Henneberg, of anatomical characteristics that were common to the appellant and to one of the robbers ("Offender One"). Professor Henneberg's opinion was based on viewing the CCTV images of the robbery and images of the appellant taken while he was in custody.
The appellant appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales (Macfarlan JA, Campbell J and Barr AJ)[1]. He challenged the admission of Professor Henneberg's evidence, contending that it was not within the exception to the "opinion rule"[2] for which s 79(1) of the Evidence Act 1995 (NSW) ("the Evidence Act") provides. The Court of Criminal Appeal rejected his contention, holding that Professor Henneberg's evidence had been rightly admitted because it was evidence of opinion based on specialised knowledge based on Professor Henneberg's training, study and experience[3]. In the alternative, the Court of Criminal Appeal held that Professor Henneberg's evidence had been rightly admitted because repeated viewing of the images had rendered him an "ad hoc expert"[4]. The appeal was dismissed.
[2]The opinion rule is set out in s 76(1) of the Evidence Act 1995 (NSW), which states: "Evidence of an opinion is not admissible…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Honeysett v The Queen [2014] HCA 29
Case
[2014] HCA 29
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Honeysett against his conviction for robbery. The prosecution's case was largely circumstantial, relying heavily on DNA evidence found on items at the scene, which matched the appellant. A key element of the prosecution's case involved the admission of opinion evidence from an anatomist, Professor Henneberg, who provided an opinion on the physical characteristics of one of the robbers depicted in CCTV footage, comparing them to the appellant. The appellant denied involvement and presented evidence regarding cultural practices within his community.
The central legal issue before the High Court was whether the opinion evidence of Professor Henneberg, concerning the physical characteristics of the offender in the CCTV footage, was admissible under section 79(1) of the *Evidence Act 1995* (NSW). This section provides an exception to the opinion rule, allowing evidence of an opinion if the person possesses specialised knowledge based on their training, study, or experience, and the opinion is wholly or substantially based on that knowledge. The court had to determine if Professor Henneberg's opinion met these criteria, specifically whether it was based on "specialised knowledge" and if it was "wholly or substantially" derived from such knowledge, distinguishing it from common knowledge or mere speculation.
The High Court reasoned that Professor Henneberg's opinion was not based on specialised knowledge as required by section 79(1) of the *Evidence Act*. The court noted that specialised knowledge must be more than subjective belief or unsupported speculation, requiring an acquaintance with facts, truths, or principles derived from study or investigation. While Professor Henneberg was an anatomist, his opinion regarding the physical characteristics of the individual in the CCTV footage, particularly given the poor quality of the images and the disguises worn, was found to be based on inferences that were not sufficiently grounded in his training, study, or experience to qualify as specialised knowledge for the purposes of the exception. Consequently, the admission of this evidence was deemed a legal error.
Given that the admission of Professor Henneberg's evidence constituted a legal error and the respondent did not argue that the appeal should be dismissed under the proviso, the High Court allowed the appeal. The orders of the Court of Criminal Appeal of New South Wales were set aside, the appellant's conviction was quashed, and a new trial was ordered.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 5 June 2013 and, in its place, order that:
(a) the appeal be allowed;
(b) the appellant's conviction be quashed; and
(c) a new trial be had.
Background
Background to the litigation
For the reasons to be given, the fifth ground is not reached. Professor Henneberg's opinion was not based on specialised knowledge. It follows that the decision to admit the evidence was a wrong decision on a question of law[7]. The respondent did not submit that, in the event legal error was established, the appeal should be dismissed under the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW). The appeal must be allowed, the orders of the Court of Criminal Appeal of New South Wales set aside and a new trial ordered[8]. [7]Criminal Appeal Act 1912 (NSW), s 6. [8]The power to order a new trial is provided in s 8(1) of the Criminal Appeal Act 1912 (NSW). On the hearing of the appeal the appellant accepted that, in the event his appeal was allowed, the appropriate consequential order was to order a new trial.The factual background The robbery took place inside the hotel on 17 September 2008 after the close of trading. Three employees were present at the time. Each of the three robbers was disguised and each had some form of weapon. Offender One was holding a pink-handled hammer; wore dark clothing covering the trunk and limbs; and wore a covering of white material, shrouding the head and face, leaving only a narrow slit exposing the eyes. Offender One's hands were gloved. A gap between sleeves and gloves revealed a small area of skin. The descriptions of Offender One given by the witnesses were necessarily vague. Estimates of Offender One's height varied from five foot two inches to "about six [foot] or so". One witness described Offender One as "thinnish" and "kind of brown around the eyes … he's not like a white looking guy". Another witness said that Offender One had "dark skin, dark eyebrows" and that he "looked Indian or …". Two witnesses described the head covering worn by Offender One as consistent with being a white t-shirt. The pink-handled hammer was left at the scene of the robbery. The three robbers fled in a vehicle, which one witness identified as an Audi RS4. On 25 November 2008, the police recovered a stolen Audi RS4. The evidence pointed strongly to this vehicle as the robbers' getaway vehicle. A sports bag was found inside the vehicle. It contained a white t-shirt, which might have been the head covering worn by Offender One. Analysis of a sample taken from the pink-handled hammer contained DNA which had the same DNA profile as that of the appellant. Analysis of a sample taken from the inside neck of the t‑shirt also contained DNA which had the same DNA profile as that of the appellant. The prosecution case was circumstantial and largely depended upon the DNA evidence. The appellant gave evidence denying involvement in the robbery. The appellant is Aboriginal. He said that he had been staying in an area known as "the Block" in Redfern at the time of the robbery. He led evidence of the practice of sharing clothing among members of the Aboriginal community at the Block. The voir dire The objection to the admission of Professor Henneberg's evidence was determined at a voir dire hearing which was conducted before the jury was empanelled. No oral evidence was adduced at the hearing. The evidence at the hearing included: two expert certificates[9] signed by Professor Henneberg; an expert certificate signed by Dr Sutisno, an anatomist; and one signed by Glenn Porter, a forensic photographer. The latter two certificates were tendered in the appellant's case and contained criticisms of Professor Henneberg's opinion and methodology. The second of Professor Henneberg's certificates responded to some of those criticisms. [9]Evidence Act, s 177.
Evidence
Evidence Before The Court
Much of Dr Sutisno's and Mr Porter's evidence was directed to Professor Henneberg's capacity to express an opinion of the high degree of anatomical similarity between Offender One and the appellant. As will appear, the prosecution did not seek to adduce Professor Henneberg's opinion in this respect. Dr Sutisno and Mr Porter were critical of Professor Henneberg's failure to explain how artefacts produced by lens distortion had been taken into account in the identification of the physical characteristics of Offender One. In light of the quality of the images and the head to foot clothing worn by Offender One, Dr Sutisno disputed the capacity to make an assessment of that individual's height, gender, maturity, build and hair length. She considered that Professor Henneberg's conclusion respecting the last-mentioned characteristic was "purely guess work and extremely subjective". Mr Porter, who at the date of his certificate had submitted a PhD thesis for examination on the subject of the reliability of CCTV images, was not aware of any studies of Professor Henneberg's method. Opinion evidence under the Evidence Act Before turning to the reasons given by Bozic DCJ for holding that Professor Henneberg's evidence was admissible, there should be reference to the provisions of Pt 3.3 of the Evidence Act, which governs opinion evidence, and to decisions of the New South Wales Court of Criminal Appeal concerning the admissibility of opinion evidence of anatomical comparison, sometimes described as "body mapping". Section 76(1) of the Evidence Act states a rule of exclusion: "Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed." An opinion is an inference drawn from observed and communicable data[10]. Professor Henneberg's identification of Offender One's physical characteristics consisted of inferences from his observations of the CCTV images. It was evidence of opinion. The evidence was adduced to prove the existence of a fact about the existence of which the opinion was expressed. The evidence was inadmissible unless it came within one of the exceptions to the opinion rule in Pt 3.3 of the Evidence Act. [10]Lithgow City Council v Jackson (2011) 244 CLR 352 at 359 [10] per French CJ, Heydon and Bell JJ; [2011] HCA 36; Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1978), vol 7, §1917; Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 76 [156]. The exception on which the prosecution relied is contained in s 79(1) of the Evidence Act:"If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." Section 79(1) states two conditions of admissibility: first, the witness must have "specialised knowledge based on the person's training, study or experience" and, secondly, the opinion must be "wholly or substantially based on that knowledge". The first condition directs attention to the existence of an area of "specialised knowledge". "Specialised knowledge" is to be distinguished from matters of "common knowledge"[11]. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines "knowledge" as "acquaintance with facts, truths, or principles, as from study or investigation"[12] (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J's formulation[13] in Daubert v Merrell Dow Pharmaceuticals Inc: "the word 'knowledge' connotes more than subjective belief or unsupported speculation. … [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds"[14]. [11]Evidence Act, s 80(b). [12]Macquarie Dictionary, rev 3rd ed (2001) at 1054.[13]The formulation stated was with respect to r 702 of the Federal Rules of Evidence. At that time, the rule provided: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."[14]509 US 579 at 590 (1993), cited in R v Tang (2006) 65 NSWLR 681 at 712 [138] per Spigelman CJ.
Decision
Reasons for decision
FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ