Honeysett v The Queen

[2014] HCATrans 121

[2014] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S57 of 2014

B e t w e e n -

ANTHONY CHARLES HONEYSETT

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 JUNE 2014, AT 10.16 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the appellant with MR D.P. BARROW.  (instructed by Blair Criminal Lawyers)

MR J.H. PICKERING, SC:   I appear for the respondent with MS J.A. GIRDHAM, SC.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Game.

MR GAME:   Thank you, your Honour.  We have provided the outline.  I do not think it contains any surprises, but shall I just pause for a moment while you look at it?

FRENCH CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases, could I take your Honours directly to appeal volume 2, page 548.  What you see at 548 is a still photograph.  The fact in issue is whether or not the person that you see with the white T-shirt, or whatever it is, over his head at 548 is the same as the person you see on page 674, which is the accused and the appellant in these proceedings.  There was comparison of two sets of CCTV conducted by Professor Henneberg that was the subject of the evidence that brought those two together.  To have an appreciation as to the significance that this ultimately carried in the case, could I take your Honours to volume 1 at page 372.

FRENCH CJ:   Sorry, 372, was it?

MR GAME:   Page 372, your Honour.  I regret there is some repetition in some pages here but, in any event, page 372.  The jury asked at line 42 a question that was addressed by this Court in Shepherd in almost those terms.  Now, the answer to that question was given in a direction ‑ this is quite late in their deliberations ‑ the answer to that question was given at 378 and there one sees how the Crown case is brought together.  In effect, there are five strands.  The second is the CCTV footage and the fifth is what was described as the similarities observed by Professor Henneberg.  So there cannot be any doubt that this evidence of Professor Henneberg is carrying the case forwards in establishing with whatever certainty that the person in the photograph, then the CCTV footage of the armed robbery, is the appellant.

Then just again at 396, the jury indicated that they could not reach an agreement and they were given what has come to be known as a black direction, an exhortation of sorts, and then at 400 they asked another question at the bottom of the page which is clearly directed to the Henneberg evidence, and they receive a direction that they consider all of the evidence together.  That can be seen at 407 – sorry, yes, 407 – and then they come back with a verdict very shortly after.  So the evidence both carried the Crown case forwards and the evidence was clearly of considerable significance in the case.  I will come back to some aspects of that in due course.

I am going to address the Evidence Act provisions in a moment, but if the Court could look at the outline, page 1, we have extracted the various items.  If one looks at this list, some of the things like “adult male”, the jury might be able to work out for themselves or they might be able to draw a conclusion about it.  But the things such as “shoulders not wide”, “lumbar lordosis”, “an elongated braincase”, “short hair”, “darker skin colour” – the more, shall I say, specific you get, the more tendentious the opinion gets.  So that, as it were, there is a relationship between the potential use of the evidence, its probity and the tendentious nature of the observation and it is the combination of them that is carrying the case forwards, just as is the absence of similarities.

FRENCH CJ:   It is right to draw a distinction in the elements of the opinion offered by Professor Henneberg between matters which can be characterised as inference and matters which can be characterised as observation?  For example, “adult male” might be a matter of inference, whereas “skinny Bill” might be a matter of observation.

MR GAME:   Yes, your Honour, that may be a fair way to describe it, although as a philosophical distinction that will ultimately break down because they are all matters of inference, but I accept ‑ ‑ ‑

FRENCH CJ:   Well, everything we see is a matter of inference.

MR GAME:   Yes, but one has to – in effect what is being given is a series of opinions and one has to actually look at them.  They are not all the same and they do not work in quite the same way, so that, shall I say, “elongated brain case”, which is an observation from above which cannot be measured - which is not measured and about which you can make no prediction as to do 30 per cent of the population have this, do 60 per cent have it, and it brings to mind a case that this Court decided in 1993 when the police said “We have evidence that your blood matches that found on the deceased” and it turned out that 40 per cent of the population had – and this is one of the criticisms that Mr Porter made of it, is that there is no statistical evidence as to the significance of these observations and nothing to assist the jury in that exercise. 

So, yes, your Honour, but, for example, short hair – there is no way that you could look at that thing and say that person has got short hair.  But Professor Henneberg has a picture of the accused and he knows he has got short hair when he is making the observation.  So you say “short hair”, there is no way of contradicting it other than to say you cannot say that which is what Sutisno and Porter say.

BELL J:   But I think Professor Henneberg said that, firstly, he made his assessment of the anatomical and other physical features of Offender 1 before he looked at the images of the appellant and, as I understand his evidence, he inferred that Offender 1 had short hair, because the T‑shirt or whatever it was, wrapped about the head, was of a material that adhered to the brain case, and had there been a quantity of hair that would not have – that appearance would not have been as it was.

MR GAME:   First, your Honour, I had not appreciated that he did not look at the photograph of the appellant at the same time, but there was cross‑examination on this and it could be fine hair, it could be no hair, it could be something else that explains it, so – and there is no way of measuring that.  There is no way of measuring the significance of an elongated brain case which, incidentally, according to the report is from looking from above, although you would not necessarily know that from the evidence unless you might have been talking about this. 

So you would have to kind of draw an inference about what was even being talked about – I have got no idea – but if 90 per cent of the population have elongated brain cases as opposed to round ones then it is not of significance, which is one of the points that Mr Porter makes about this.  But, similarly lumbar lordosis - there was a dispute as to even what lumbar lordosis meant.  Sutisno said it was a disease of the back ‑ ‑ ‑

BELL J:   As I understood Professor Henneberg, it was an entirely unremarkable physical feature.

MR GAME:   That is right.  But it is a curved back and he said the applicant had a curved back.  Now, that is an observation and it cannot be measured and it is very hard to see how one can contradict it otherwise than by calling along a witness to say “I cannot see that” and then, shall I say, engaging in a battle of who is a better witness. 

Now, the darker skin colour is darker skin, but not very dark - it is not light but not very dark.  Again, how does one make that observation from tiny bits of light that one sees, bearing in mind also the qualifications that Mr Porter expressed about the subject?  I should say also that I took your Honours to what happened in the summing‑up, but the combination of these things, the prosecutor pushed very hard in her closing address, and I will come to those references - they are on page 3 - shortly.  Now, if I could say a word about the Evidence Act provisions, and ‑ ‑ ‑

FRENCH CJ:   Just before you do, if a lay witness present at the robbery said “I saw someone come in, they were wearing a mask.  It was a person of skinny build or slim build, medium height.  I could see that they had short hair and a darkish skin colour”, and the accused has those characteristics would that be admissible to establish at least that the appearance of the offender was not inconsistent with that of the accused?

MR GAME:   Probably under section 78.

FRENCH CJ:   Well, that is just direct observation of a relevant fact perhaps which establishes lack of inconsistency.

MR GAME:   Yes, but if it was just lack of inconsistency that would be absolutely fine, but it would not be taking the case forward very much.

FRENCH CJ:   I appreciate there is more to this because it is presented by an expert.

MR GAME:   Yes, so ‑ ‑ ‑

BELL J:   That would be evidence of the kind that Justice McHugh discussed the relevance of in Festa, where the weight is relatively slight but nonetheless it has some value, but that is evidence, direct evidence, capable of bearing on identification.

MR GAME:   Yes, that was a piece of weak identification ‑ ‑ ‑

BELL J:   Yes, exactly.

MR GAME:   ‑ ‑ ‑ and the question was about discretionary exclusion, which is a different question, and so what his Honour was considering there was whether or not it was significantly outweighed by the prejudice.

BELL J:   Indeed, and he was looking at direct evidence of the features of a person observed by an eye witness.

MR GAME:   Yes.

KIEFEL J:   This is the question of admissibility.

MR GAME:   This is the question of admissibility, yes.  I might say this is the first time the Court has looked at Part 3.3 of the Evidence Act this year, but there are plenty of cases which you have visited in recent years:  Dasreef, Lithgow Council and before that HG so it is not totally unfamiliar territory.  We see this case as raising quite similar issues to Dasreef in a way.

If I could trouble the Court with it for one moment.  So when one gets to section 76, one has already got through section 55.  So one has already got through relevance and the exclusionary rules – Part 3.2 and Part 3.4, incidentally, they are of a kind that are described as potentially unreliable for the purposes of 165, but Part 3.3 does not figure in section 165.

I mention that because the very idea of opinion evidence is that it satisfies a level of reliability which is why one is admitting it.  So section 76 is an exclusionary rule framed in terms of to prove the existence of a fact, and that is something the meaning of which was addressed in Lithgow Council for a particular reason, because of the ambulance officer’s note.  Now, in the ALRC, an opinion is described as an inference drawn from observed facts, and that is actually taken from Wigmore and it was adopted as a working definition in Lithgow Council, but as a working definition for this case, that is more than adequate.

KIEFEL J:   Is the basis and origin of the rule that an opinion is that which is to be formed by the tribunal of fact, whether it is a judge or a jury?

MR GAME:   Yes, your Honour.

KIEFEL J:   So no one can take the place of ‑ ‑ ‑

MR GAME:   That is right.  One notes that section 80(8) does away with the ultimate issue rule.  But the evidence in this case, the opinion that one gets to, is admitted only to prove the existence of a fact.  It is not being admitted for any other purpose.  Now, section 77 is like section 60, so if the opinion was admissible for some other reason like the farmer comes in and says, “My fruit has got fruit fly”, and then has a terrible argument with his brother, if you wanted to get the hearsay behind that statement you could get it because the conversation was admissible for another reason, namely, it was the content of the argument.

KIEFEL J:   Or the fact that it took place.

MR GAME:   Yes.  That would then be evidence that the fruit did have fruit fly or whatever it was if you needed to prove that in the case.  Section 78 could apply to people describing what they saw or heard at the scene of the crime.

Now, in 79, 79 predates Daubert, clearly intended not to follow Frye, but seems to be very much in line with the Federal Court Rule 702 which was considered in Daubert, which explains the similarity of the language.  Incidentally, section 135 of the Evidence Act seems to be adopted from rule 4.03 of the Federal Court Rules so they seem to have picked up the Federal Court Rules in this part of the legislation in the language of 79, but with differences.  Rule 4.03 and section 135 are in very similar terms.  What has happened is pre‑Daubert, the US Supreme Court Rules seem to have been brought into the legislation, but with differences, but still one has specialised knowledge, and that is the language of Rule 702.

FRENCH CJ:   The witness qualifies as an expert by knowledge, skill, experience, training or education, I think.

MR GAME:   Yes, that is the difference.  But the language of specialised knowledge, knowledge meaning things known – and that is really where the content of verifiability comes into it, and the idea of specialised introduces the idea of, shall I say, expertise of the particular person based on then training, study or experience, but it could be a combination.  You could have an entomologist that kept bees, and then was able to talk very specifically about what the disease was in their beehive and so forth.  Obviously, you can combine the two.

KIEFEL J:   Is it your case that the professor had no specialised knowledge of the topic on which he spoke, which is similarity or there being no dissimilar features, or is it that whatever specialised knowledge he had, it was not employed in this case?

MR GAME:   We say both, but we also say that there was no identifiable area of specialised knowledge that was sufficiently verifiable to warrant the comparison between a masked body and an actual human body, which was the opinion.  Insofar as there is, it seems to be based on circumstances in which you can actually superimpose them, make a measurement, identify the particular thing; that is what Tang was talking about.

BELL J:   But at this trial, putting to one side the content of Professor Henneberg’s expert certificates tendered on the voir dire, the evidence that he gave was not so much of comparison between Offender 1 and the appellant, but of the characteristics that he could observe from the images of Offender 1, the characteristics that he observed from the image of the appellant and the opinion that he did not discern dissimilarity in any respect.

MR GAME:   Yes, can I just make a comment on the last?  Mr Porter was at pains to say that that was not a legitimate observation to make at all because there is no way you could tell what the dissimilarities were, if there were any.  So it was not a legitimate scientific observation to be made.  Now, that piece of evidence, one sees in the transcript that the prosecutor pushed that very hard, in fact, cross‑examined Sutisno on that very proposition in strong terms, so that also became a feature of the case as something carrying it forwards.

If I could just come back to the question that Justice Kiefel was asking me, one has to really – we would say one has to hone in on the words “of an opinion” because that then takes you to something very specific.  So you need to know what the opinion is.  If the specialised knowledge might be the knowledge of an orthopaedic surgeon, but that will not enable the orthopaedic surgeon to tell you what the nature of the disease was seen under the microscope by the microbiologist, so one has to kind of ‑ the lining up of those two things is critical for the purposes of section 79.

FRENCH CJ:   I have some concern about the need to characterise clearly the point at which opinion, as it were, is being offered by this witness.  There is opinion as to the – let us forget about differences between inference and observation for the moment – opinion as to the characteristics of the offender in the CCTV.

MR GAME:   Yes.

FRENCH CJ:   That is said to be based upon all manner of experience and so forth, but I will assume that if there were some body of received knowledge to support such inferences it would be based upon things like people expressing opinions about people in disguise and then checking the verifiability, or the correctness of those inferences when the disguise was taken off.  So that is one level at which inference one might expect to be based upon some kind of falsifiable hypothesis.

Then there is the question of identifying what are said to be similarities between those inferred characteristics and the characteristics of the accused.  The question is, is that a matter of inference or is that a matter of characterisation which is then offered to the jury and, if so, what is the basis on which it is put?

MR GAME:   In one sense, it is all a matter of inference drawing but - and I may not be answering your Honour the Chief Justice’s question, but, if one wanted to test this “elongated brain case” proposition and if there was some science you would want to get situations where some people with round heads had disguises on them and some with elongated heads, and you would want to work out what the statistical probabilities were in the population as to what this feature was.  Then you would be able to work out what the significance of it was.

FRENCH CJ:   Well, that is a matter of attaching significance to the perceived similarity.

MR GAME:   Yes.  But you would still need to be able to – there was absolutely no article, no test or science that was referred to as supporting this particular, other than the witness’ say‑so and the fact that he had made comparisons on other occasions, but a palmist could say that they had done thousands of exercises in palmistry, it does not change ‑ ‑ ‑

BELL J:   I think what Professor Henneberg identified as the basis of his opinion, as distinct from the opinion of a lay observer of the same image, was because he had specialised knowledge of anatomy and the formation of body characteristics he was better placed than a person without that knowledge to identify those characteristics.

MR GAME:   Yes, but he was only ever an anatomist and so what he is doing is something that is quite different from anatomy and that is the point of identifying what the opinion is and then asking whether – and, in a sense, the specialised knowledge has to reach all the way to the opinion.  It has to get there.  By calling him an ad hoc expert at the very last minute, which is what the Court of Criminal Appeal did, you are losing the discipline.

BELL J:   Well, that is another debate, is it not?

MR GAME:   That is another debate.

KIEFEL J:   As an anatomist, is he able to identify features in a person?  Is that a proper matter of opinion evidence?

MR GAME:   He might be able to, your Honour, but this is ‑ ‑ ‑

KIEFEL J:   Well, if he can do it in relation to the photograph of person A and he can do it in relation to the photograph of person B, is the only problem then the opinion that he draws?

MR GAME:   Partly, but the photograph raises - the use of CCTV images, they have distortion, and Mr Porter spoke about this ‑ ‑ ‑

KIEFEL J:   That goes more to a question of weight, though, does it not?

MR GAME:   No, your Honour.  It goes to the science about the conduct of comparisons and it can be done but it needs to be measurable.  One needs to be able to say this ear is 3 centimetres long and that nose is of a particular description and the bone structure ‑ ‑ ‑

KIEFEL J:   So it is not the description, it is the inference he draws from it that is the critical factor.

MR GAME:   Yes, that is right.  That is right.

KIEFEL J:   He is not able to say if he is similar, that is a matter for the jury and there is no scientific basis for it.

MR GAME:   Yes, your Honour, except that he is going deeper than that because he is saying you look at that photograph that I showed you and you can see this person has a particular kind of brain case, or has a particular length of hair and that is an inference which we say is not supported by the science and calling him an anatomist does not get you to that opinion.  That does not get you to that critical point.

FRENCH CJ:   That is the first stage of his reasons. 

MR GAME:   Yes.

FRENCH CJ:   The inference about the characteristics of the person in the CCTV footage and then there are observations about characteristics of the accused.

MR GAME:   Yes.

FRENCH CJ:   So this is similar characterisation.

MR GAME:   Yes, and then the last step which is there are no dissimilarities.

FRENCH CJ:   That is another thing, yes.  

MR GAME:   As a legitimate observation.  So, yes, but I am attacking the very first step with respect to aspects of his opinion.

KEANE J:   It was not suggested, for example, that he had a body of knowledge akin to that of a radiologist whose experience is in interpreting what is depicted on images that mean not a lot to lay people.

MR GAME:   No, it was not suggested, no.  There was one line in his CV that referred to making comparisons and the document that became, shall I say, the thing that the Crown made much of is at page 650.  It became exhibit “N”.  It was relied upon as the, shall I say, material that supported the science.  But if you look at this ‑ ‑ ‑

FRENCH CJ:   This is a list of titles.

MR GAME:   I know.

FRENCH CJ:   Two articles, is it not, and speeches and so forth?

MR GAME:   Yes, quite, your Honour, but if one looks, for example, at page 285 one sees that much is made of it in cross‑examination of Mr Porter, and if one looks at page 191 at the bottom of the page, on verification, this is in evidence‑in‑chief, he is unable to provide any basis for verification, but then this seven and a half pages is the thing that is said to kind of provide the support for the science.  But if you look at that document without going into it in too much detail there are articles in seven or eight different languages.  There is an article that inspired the man who invented the mug shot, Mr Bertillon; there are articles by Albrecht Dürer about the human body.  It has got absolutely nothing to do with the things that this witness is giving evidence about and yet this is kind of thrown up as the thing that supports his evidence in a meaningful way.

BELL J:   If one goes to appeal book 238 at lines 48 and following one has Professor Henneberg acknowledging that in this field the expert relies on “professional background to conduct” the comparisons and he acknowledges that there “are no internationally agreed procedures beyond common knowledge” of anatomical variation in manuals and textbooks, but I think the professor was clear in his evidence that no question of anthropometric assessment or studies of the statistical probability of features or anything of that kind formed any part of the opinion that he expressed.

MR GAME:   Quite.  As I say, I mean, this is pretty obvious in our argument, but if you cannot verify it in some way then it is not going to pass through section 79, even if it is new science it is not going to pass through 79 unless you can establish verification for it.

FRENCH CJ:   Of course, in the written report, which was the subject of voir dire the report was all directed to the ultimate conclusion which was that they were the same person.

MR GAME:   Yes, there is nothing in the report that will provide you – we would say, if I come to what appears on page 2 of our outline, and I am not sure whether your Honours have had an opportunity to look at the actual reports, but if you look on the voir dire, if you were armed with Professor Henneberg’s two reports, the second of which was entirely tendentious and really ‑ ‑ ‑

FRENCH CJ:   Well, that was a response to Dr Sutisno.

MR GAME:   But still those reports merely say that these are observations that he makes and that is it and he says they are similar to observations that an ordinary person would make, which is clearly not the case.  Mr Porter, who is an expert on comparison of CCTV images and understands about photography – I will just take your Honours maybe to that part of his report at 525 to 527.  He says:

very small amount of scientific literature that offers potential methods for distinguishing individuals . . . I have not seen any studies –

Then the point at paragraph 27 is the point I made when talking about statistical significance, and he makes that point.  Then at 28, he points to the fallacy involved in making the observation that there are no points of dissimilarity.  Similarly, Dr Sutisno, if I could take your Honours briefly to 460 to 465.  She makes the point at the top of 461:

no evidence of the proper procedures/protocol carried out –

and then at 462, paragraph 28, again, similar points.  And then at 464, she kind of says what you can do and you cannot do, and if you can actually superimpose things, for example, or measure them, then that is different.  At the point of the conduct of the voir dire, we say things did not get any better in the trial – if anything, they got a little bit worse – but on the voir dire on those reports, there is no way that one could be satisfied that this passed through section 79.

FRENCH CJ:   One has to judge that by reference to the evidence of Professor Henneberg.  The evidence of Dr Sutisno and Mr Porter really do not impact it.

MR GAME:   That is right, so the two reports of him and the report of Sutisno and the one of Porter that I just took your Honours to.  If one goes to the voir dire judgment – again, I can make these points fairly quickly – one sees at page 33, lines 30 and following, one sees that there is an elision between specialised knowledge and experience.  That elision carries with it a fallacy that carries the judge all the way through to his conclusion, because you are failing to identify what the specialised knowledge is and what the opinion relates to and whether he has that.  That elision appears again at line 50.

FRENCH CJ:   Well, the opinion has to demonstrate – and this is Dasreef, really – how the specialised knowledge is applied to support it.

MR GAME:   That is right, yes.  Then if you go to page 34, you have got what I would call Chief Justice Gleeson’s point in HG that was also picked up in Dasreef, which is you have to expose how you actually get from one to the other.  All that is referred to there is page 7 of Professor Henneberg’s second report, which is – I will not take your Honours to it, it is at page 482 – but it is a whole page of a very tendentious attack on Sutisno and quite inadequate for the purpose.

Then one gets to page 36, and one sees that in respect of Sutisno and Porter, that is said to relate only – the reliability of the methods – it is said to relate only to weight, but again, what we say is a critical mistake, which is that what Justice McHugh was talking about – and this emerged in an earlier exchange with your Honour Justice Bell, was something quite different in Festa.

So, then lastly, although it has not figured large, 135 and 137, if one had to get to them, then the things that Porter – Dr Porter – pointed out about the inability to talk about the statistical significance of these things, and the inability to measure them, would lead one to conclude that whatever weight was to be given – sorry, that the prejudice was not really capable of being measured, because it is just a question – this gets to the jury in this form – it is just a question of them saying, well, all right, we will go along with Professor Henneberg.

Now, and as your Honours may have – the way the addresses kind of panned out, if I could take you directly to what the prosecutor says at page 318 to 321, you can see where she pushes very hard on Professor Henneberg’s – you see he is described as highly qualified anatomist, 35 years’ experience.  It finishes at 321:

Professor Henneberg has experience way above hers –

that is Sutisno –

that she doesn’t have and he uses his subjective analysis through 35 years experience.

So who wins ‑ it is kind of he who shouts the loudest wins, in this, if you get down to this kind of exercise.  So we say that the actual question for the Court of Criminal Appeal on ground 1 that would have – properly framed – should have been, did Judge Bozic fall into error in admitting the evidence, and we say that that can be demonstrated in quite a straightforward way.  Now, in terms of section 6 of the Criminal Appeal Act, that would be a wrong decision on a question of law.  Although the Crown says something about miscarriage of justice, I do not take them to be relying on a proviso?

Now, if one comes then to – there is no need for me to take your Honours to the various extracts in the evidence that we have referred to on the top of page 3, and they are just there for the purposes of assistance in terms of what we see as some of the significant parts, but you do see we have extracted the significant concessions made at the end of the cross‑examination of Professor Henneberg, but that is at appeal book 238 and we just saw that passage of evidence.

If one comes then to the judgment of the Court of Criminal Appeal and the relevant passages start at 720 and I will just point out a couple of things.  The reference to Tang at paragraph 40, the evidence and the only evidence that was admitted from Dr Sutisno was the actual viewable person with the actual viewable person.  Then there is a reference to some other cases.  In Morgan, which is discussed at 723 and has actually been framed as a separate ground of appeal, although I should say really the grounds of appeal in this Court is really ground 1 and then the others are really just arguments.  Then the last one is if you denude the whole thing of any substance then you have just got observations and no expert evidence and there is a Smith problem at that point, but really it is ground 1 and the rest are really just ways of articulating the argument.

BELL J:   So ground 2, which touches on the alternative basis that Professor Henneberg was an ad hoc expert, nonetheless comes in under ground 1 because you say there is no room under the Evidence Act for ad hoc expertise.

MR GAME:   Sorry, yes, unless you establish the criteria, yes.

BELL J:   Yes.

MR GAME:   Now, a point about ‑ the only one that could be freestanding is the last one which is if you denude the thing of all of its substance then you have just got a Smith v The Queen problem, which I think is what was ‑ ‑ ‑

FRENCH CJ:   Do you accept that opinion evidence based on specialised knowledge may be by way of inference?

MR GAME:   Yes.

FRENCH CJ:   It may be by way of characterisation?

MR GAME:   Yes.

FRENCH CJ:   It may be by way of significant observation?

MR GAME:   Yes.

FRENCH CJ:   I have in mind what Justice Selway said, I think, in Gumana’s Case about the law of anthropologists, for example, which is observation and characterisation.  All of those things may be informed by specialised knowledge.

MR GAME:   Quite, but you could call it – there is the whole line of cases such as the Communist Party Case, Bonython and that line of territory where historians have given evidence and, say, for example, I recall a case like this where you had a duress case about duress of a person importing drugs from north of Lebanon and you wanted to prove that the Syrian Army controlled northern Lebanon in the late 1980s.  You could actually call an expert to give evidence of that fact and if the person was a properly qualified historian of the Middle East, they could give that evidence which involves all of those things that your Honour has referred to.  So they are bringing to it a whole range of different things but it is reliable in the sense that you can test it.

BELL J:   Well, that is evidence of what is described sometimes as “known facts” in the Daubert concept of what amounts to knowledge.  One has known facts or accepted truths on good grounds and it is accepted truths on good grounds that takes in scientific evidence because science does not purport to state absolute truths but is concerned with stating facts that can be demonstrated by repeated undergoing of the procedure or something of that kind.

MR GAME:   The whole reason – the whole rationale behind an exception to an exclusionary rule is that however you get there it is capable of being held up to the light and tested.

BELL J:   But the way you get there - Chief Justice Spigelman in Tang said let us not feed the word “reliability” into this statutory text.  You get reliability out of knowledge.

MR GAME:   That is right.  I am not concerned to make reliability fly by itself because everything you need is in the word “knowledge” and specialised knowledge fixes on the idea of expertise about that particular ‑ ‑ ‑

FRENCH CJ:   Well we were dealing with inferences, falsifiable hypotheses.

MR GAME:   Yes, your Honour.  I think that a scientist may say falsifiable hypothesis is not the only way of verification but, yes, that is the best way of – is an attempt to falsify your own conclusions.  So in the Court of Criminal Appeal – and I am just going through those – it is said in our written submissions that we might be three hours, but I am going to come in I think in a third of that – my predecessor’s written submissions, on page 725, Morgan is discussed. 

Now, Morgan, I think, was in the pipeline when this trial was heard but had not been decided.  But the fact that Professor Henneberg’s high level of anatomical similarity was actually given in that case and those words were not said in this case really does not detract from the substance of the problem.  So that it has an effect on probative value and it might have an effect on prejudice, but it does not have an effect on the substantive argument.

Then one gets to page 727, paragraph 60, and we say the critical question has been elided.  One has not actually – and the introduction of the ad hoc expert is kind of getting away from the actual problem in the case.  Then when one comes to 61, a reference to Dastagir, that is a common law case and all it is saying is that the material may be probative.

FRENCH CJ:   Now, in paragraph 60 is the court characterising what Professor Henneberg was doing through his “individual and detailed examination of the footage” in a way that would be equally valid if it were a police officer who had spent a long time looking at the footage?

MR GAME:   It might be, your Honour, yes, but our point is that looking at it lots of times does not ‑ ‑ ‑

FRENCH CJ:   No, I understand that.

MR GAME:   Yes, yes.

FRENCH CJ:   I am just trying to characterise the reasoning being applied here ‑ ‑ ‑

MR GAME:   Yes, your Honour, that is right, yes.

FRENCH CJ:   ‑ ‑ ‑ and whether it is really generally applicable and not just to Professor Henneberg but to anybody who spent a long time ‑ ‑ ‑

MR GAME:   No, no, yes, your Honour, it is generally applicable.  But the thing is this, that if one goes back to – Butera is the case where this idea came from and that case picked it up from another case, the name of which escapes me.  It was actually in Justice Dawson’s judgment in Butera, but that was about a qualified interpreter producing a transcript of a tape, so it has come a long way from that kind of example.  But as I said, giving it a name does not get you any further in terms of the applicability of section ‑ ‑ ‑

GAGELER J:   Can I just ask about Butera?  Was it correctly decided in your submission?

MR GAME:   You might say please answer the question, but the joint judgment did not refer to ad hoc experts at all.  It simply referred to the admissibility of the transcript as an aid.  We would not challenge that conclusion but the underlying proposition that the interpreter was an ad hoc expert, we would, for Evidence Act purposes, challenge, yes, your Honour.  But the actual point that was decided was whether the transcripts could go before the jury.

GAGELER J:   As evidence of what was said – as I recall the facts.

MR GAME:   They went in as an aid, actually. 

GAGELER J:   Yes, I see.

MR GAME:   They were said to be an aid.  They were not said to be evidence.

BELL J:   One difficulty with that is that they were transcripts of conversations in Punjabi and Thai and Malay.

MR GAME:   Yes.

BELL J:   So to say that they went in merely as an aide‑mémoire involves a certain difficulty.  But, Butera is common law and ‑ ‑ ‑

MR GAME:   Yes.  Butera is common law and you would have to ask different questions with respect to the Evidence Act.  Anyway, paragraph 61 – that is common law and then, 63, once you say that:

The view . . . is necessarily subjective and not amenable to elaboration . . . or to measurement and calculation –

you have thrown the whole game away we submit.  There is a passage at paragraph 68 where it said that it was not that there were no points of difference.  But that is what was actually said at page 215 and if I could just take your Honours to one example of how hard this was pushed, and it was pushed very hard, page 264 Sustisno is asked a question:

Professor Henneberg came to the conclusion that there were no dissimilarities between the offender and the accused, did you find any?

Then there is a fight about whether that question could be answered.  Then the prosecutor at 266 – this is in the absence of the jury – says:

That’s the whole purpose of the exercise to find any similarities or dissimilarities.

Then she gets to ask the question at 270.  This absence of dissimilarities was really used to push the case forwards and it did so.  It was not a valid proposition.  So that is again, that is just part of the argument about admissibility in the case. 

Now, as I say, sections 135 and 137 have not figured significantly, but if one did get to the point of admissibility then one still – one has all the problems that Dr Porter spoke about.  So can I just conclude by dealing with the – if we succeed, the appropriate orders?  There were two grounds in the Court of Criminal Appeal, so if I could just go to the notice of appeal.  Ground 1 is really – to 738, ground 1 is really the ground of appeal.  Grounds 2, 3 and 4 are arguments about really ground 1.  Ground 5 is a kind of well, if it is only what you say it is then it is not admissible at all because of Smith.

Then in terms of orders, this evidence was – no argument has been developed about the unsafe ground although this would feed into the unsafe ground, but we say that hypothetically if we succeed we could ask for an order for remittal to consider that ground, but what I am going to say will shorten that, which is that if we succeed we would be content for an order that there be a retrial and it does not seem that any question of the proviso has been raised, but if it were one saw how significant it was in that combination of things and applying Weiss how would one be satisfied beyond reasonable doubt?  Those are our submissions if the Court pleases.

FRENCH CJ:   Yes, thank you, Mr Game.  Yes, Mr Pickering.

MR PICKERING:   Thank you.  Do your Honours have my written outline of my oral arguments?

FRENCH CJ:   Just give us a moment, Mr Pickering.  We will just have a look through it.  Yes, thank you, Mr Pickering.

MR PICKERING:   Your Honours, the first most important point to make on behalf of the respondent is that we accept that the decision of Morgan was correct.  We accepted that when we appeared in the New South Wales Court of Criminal Appeal in this matter.  We accepted in that acceptance of Morgan that Professor Henneberg was not in a position to be able to give the opinion that he gave in his report that was tendered on the voir dire that there was a very high level – or there was a high level of anatomical similarity.  That was our side’s field of expertise.  That was not admissible under section 79, and it was not led.

More significantly, the comparison between the offender on the CCTV and the appellant was not done with Professor Henneberg in the evidence before the trial at all.  It was a task that ultimately, in ways that the jury were asked to do, consistent with Smith, but it was not a task at all that Professor Henneberg was asked to do before the jury in this matter.  What he was asked to do was not inconsistent with the first part of his report, was that he was first asked just to simply look at the CCTV footage – and, indeed, it was even played before the jury and he commented on it, for him to outline the anatomical characteristics that he could observe on the CCTV footage, and they have been, helpfully, outlined in the appellant’s outline of oral submissions on page 1.

Effectively, full stop, he was then asked to describe anatomical features that he observed from the appellant’s forensic procedure videos and other videos at the police station and give his opinion in relation to those.  He was never asked to do the comparison process, and nor did he do it.  So, therefore, when one actually looks at the question of whether his opinion was admissible, you do have to actually focus on what opinion it was that he gave in the trial. 

He did not give an opinion that was tantamount to identification.  He did not give an opinion about a high level or, indeed, any level of similarity.  He gave a series of opinions within his expert field of anatomy and, in addition, his expert skills in handedness which we have outlined in our written submissions and essentially then the task was for the jury, with the very limited material they had, to see if they could see any features that were essentially inconsistent or not inconsistent with it being the appellant.

KIEFEL J:   Did he express the conclusion that he could not find any discernible differences?

MR PICKERING:   He did express that opinion.

KIEFEL J:   Is that not to say that there is similarity?

MR PICKERING:   Obviously, the Court of Criminal Appeal dealt with this aspect, your Honour, at page 730.  We certainly endorse the comments made by the Court of Criminal Appeal at paragraph 68 of that judgment, where the court has outlined that simply because the expression of “no dissimilarity” would not have been interpreted by the jury to have interpreted that therefore they are effectively one and the same person, or that it was just on the very limited information.  We endorse the comments by the Court of Criminal Appeal on that.  But can I then take a more significant point in relation to that, your Honour?  If I could take your Honours to page 331 of the appeal book, because in fact there was a dissimilarity and it was seized upon by the appellant’s lawyer ‑ ‑ ‑

KIEFEL J:   Sorry, you said 331?

MR PICKERING:   It was 331 of the appeal book.  Your Honours can see at about point 20 that Mr Pontello in closing submissions to the jury makes the point that Mr Honeysett was 192 centimetres tall.  If you then move on to page 332 of the appeal book, about halfway down at line 30, you will see a submission on behalf of Mr Honeysett where he outlined the evidence that Professor Henneberg gave that the:

height of the offender by comparing the offender to all other persons –

was of medium height.  He then correctly read out that part of the transcript where Professor Henneberg had said that medium height was about 1.77 metres with a variation of six centimetres, and then made the very telling point consistent with one of his principal submissions to the jury that, indeed, his client, Mr Honeysett, was completely inconsistent in height to what Professor Henneberg had said; for example, his client was 192 centimetres and Professor Henneberg was suggesting that the offender was 177 centimetres with a six centimetre error rate essentially.

So, in fact, there was a dissimilarity ultimately in the evidence, and it was one seized upon forensically by Mr Pontello and, indeed, this will go into an aspect of our argument in relation to relevancy that in looking at the relevancy of this evidence, one needs to focus on the assistance it can give the jury in the task of not just looking at whether there were any features consistent between the appellant and the offender, but also whether there were any features inconsistent in order to help exclude whether, indeed, was the appellant – features different between the appellant and the offender.  There was a difference here, and it was a very important one seized upon by the appellant.

FRENCH CJ:   Sorry, how do you characterise the Crown’s case with respect to Professor Henneberg’s evidence?  You said they were not relying upon him to establish a high level of similarity.

MR PICKERING:   No.

FRENCH CJ:   Did you go so far as to say that he was not presented as offering any opinion as to similarity?

MR PICKERING:   He did not offer any opinion as to a level of similarity at all.  He outlined features of the offender, and he outlined features of the appellant.  He did not give any level or significance of what any of those features that may have been consistent between the two bodies of evidence were.

FRENCH CJ:   I am just looking at page 357 in the direction to the jury, where the Crown’s case in respect of Professor Henneberg is characterised this way:

The Crown says that Professor Henneberg is a well qualified expert who identified a number of basic anatomical similarities.

Is that a correct characterisation?

MR PICKERING:   The better wording from his Honour would have been that he identified a number of basic anatomical characteristics which ultimately ‑ ‑ ‑

FRENCH CJ:   That is a pretty significant difference, is it not?

MR PICKERING:   Well, it is not really.  As we put in our written submissions, it was a shorthand way of speaking in relation to this matter and in many ways it was a shorthand way of speaking because there is a difference to simply say there may be similarities in relation to the features that were observed and going the next step of saying that indeed that led to a high level of anatomical similarity such though that the offender and the appellant could be the same person.

BELL J:   Taking up the point that Justice Kiefel raised, if one goes to Professor Henneberg’s evidence at appeal book 215 between lines 27 and 40, his evidence was that he looked as part of a process of comparison for “discernible differences”.  He was asked:

Did you find any differences?

and he said “No”.  Now, that is in the context of a comparison between the images and an opinion by an expert of no discernible difference which might be thought to be the other side of the coin expressed in terms of similarity.

MR PICKERING:   I understand that and that is why we have taken the Court to the Court of Criminal Appeal specifically dealing with that very issue and saying that we endorse that comment, that when one looks at the very basic features outlined ‑ and Professor Henneberg did not hide from the fact that there was great limitations to what he could do, that it has to be looked at in that context, that just from the features that you could observe that there were no dissimilarities.  It did not then automatically mean that as a matter of fact there were absolutely no dissimilarities at all outside of things that could not be observed just within these eight features that are identified, being adult male, skinny build, medium height, the references to the head and the skin colour.  So it is a very small amount of features of which there were no dissimilarities in relation to it.

BELL J:   So the purpose of the evidence in the Crown case was that the appellant could not be excluded from that part of the human population who might be depicted in the CCTV footage.

MR PICKERING:   That was absolutely the purpose of ‑ ‑ ‑

BELL J:   That was the purpose of it.

MR PICKERING:   That was the purpose of the CCTV both independently of Professor Henneberg, because it was still a matter for the jury to look for themselves to see whether they could see any inconsistencies or anything that would exclude him, and Professor Henneberg.  The entire Crown case in reality in this matter was, of course, the DNA evidence.  Professor Henneberg’s evidence and, indeed, the CCTV added very little to this circumstantial case.  It was a matter where the case completely relied on the circumstances in effect of the DNA left on the pink hammer, the overwhelming case that the Audi was the getaway vehicle and that ultimately his DNA was then located in an item, being the white T‑shirt, in that stolen car.

KIEFEL J:   Was the evidence ruled admissible on the basis that you explain its purpose?

MR PICKERING:   Well, the Crown never sought to lead that opinion in relation to the very high level of similarities.

KIEFEL J:   No, but on the basis that the accused could not be excluded from that part of the population which might be represented by the person on the CCTV.

MR PICKERING:   I do not think that his Honour addressed it in that specific way.  I think it was, in fairness, it was addressed more at the ‑ ‑ ‑

KIEFEL J:   It was not put to the jury on that basis?

MR PICKERING:   In my submission, by the Crown Prosecutor it was effectively put to the jury in that way, your Honour, because what the address was, when one looks at it in full context, was a powerful address that commenced on page 312 of the appeal book and dealt with extensively the DNA evidence before 318 dealing with Professor Henneberg’s evidence, and even that address was very much intertwined with the observations of the witnesses to the scene who provided basic aspects of their observations that were not inconsistent with Professor Henneberg’s observations and, in that respect, concentrated on features that were observable but were not inconsistent with being – with the offender, with the appellant, I should say, and remembering, of course, the appellant’s case fundamentally was, obviously it was not me there, despite my match on the DNA on the pink hammer, so it was always going to be of some relevance to look if you could see features that were inconsistent but also consistent with being the appellant.

KIEFEL J:   If the evidence had been said to be admissible on the basis that you now explain it to be admissible, that the accused could not be excluded from that part of the population, one would have thought that it would have immediately attracted a submission that it should be excluded on the discretionary ground.

MR PICKERING:   Well, we deal with relevancy then in our report on page 2 and then move on to 135, 137 and it is important to look at what would have occurred or what could have occurred if there was no evidence about any feature of the CCTV here because – and we make the point at ‑ ‑ ‑

KIEFEL J:   Is this the - you were going to suggest that the jury would be unaided, is that the point?

MR PICKERING:   Yes, and that becomes important in this respect, your Honour, because if this trial had have taken place without any evidence being called from any of – Professor Henneberg or Sutisno or Porter there would have been nothing to stop the CCTV being played.  There would have been nothing to stop the advocate at the end of the trial addressing the jury in a submission form saying in my submission to you you would see it is an adult male of skinny build, making observations of the shoulder, the colour of the skin.

KIEFEL J:   Yes, but those suggestions - and that is all that they would be - to the jury would not have carried the weight that an expert opinion would carry.

MR PICKERING:   But, equally, the problems that the appellant identifies in submissions today are saying well, the jury would not have heard of the lack of statistics about a lot of this area and the weaknesses in it, so the jury would have potentially heard a list of eight similarities from an advocate and if they saw those eight characteristics in the video they may have very well given it very significant weight.

KIEFEL J:   The judge would have summed up, as judges always do, by saying that nothing that is uttered from counsel is evidence.

MR PICKERING:   True, but the judge would not have summed up on any evidentiary problems because there would have been no evidence in the trial of the process of reasoning the jury would have gone down.  For example, a judge would not have directed the jury that there are no statistics about how many people have a football‑shaped head.  There would be no direction from the trial judge about 80 per cent of people being right‑handed, or anything of these problems, anything about the photography aspect, dangers of CCTV.  There would have been no directions to the jury about that because there simply would have been no evidence before the court.  So the judge would not have been able to draw the jury’s attention to all the problems of the process.

KIEFEL J:   Then the jury would have been in the same position that they were in this case.

MR PICKERING:   No, the jury ‑ ‑ ‑

KIEFEL J:   On the facts of this case, with the evidence as it was tendered, the only difference being that the professor gave an opinion at the end of it.

MR PICKERING:   The jury were in a very different position in this case because they had all of those criticisms and all of those dangers about the process of reasoning of simply looking at some characteristics, counting how many there are and forming an opinion based on that.  They actually had that material before them and so therefore when they were ultimately doing their task in this particular trial of looking at the CCTV, they were aware of that.  If that had not taken place, there would have been nothing to stop the jury looking at the CCTV and effectively forming their own views about whether there was a level of anatomical similarity.  This is one of the aspects that we referred ‑ ‑ ‑

KIEFEL J:   Are you suggesting that that would be an outrageous approach?

MR PICKERING:   It would be a dangerous approach, would it not, in my submission, because for all the problems of Professor Henneberg giving an opinion that there was a high level of anatomical similarity because there is really no basis for it, what basis would there be for the jury to say there was a high level of anatomical similarity here simply because we found eight basic features?  But they are not going to be assisted in that role because there is going to be no evidence called about it.  It is just going to be a video played and an advocate can simply outline as many features as they can possibly legitimately submit they can see on the video and then say, well, there are eight features; there are 10 features that are similar; there are 15 features that are similar.

In many ways that submission, if you actually knew the evidence behind that, that is, that there are real problems in actually attaching any significance to there being eight, 10, 15 matching characteristics, or real problems in even identifying these features on CCTV, if you knew that, if you knew that on an evidentiary basis, that submission may not carry much weight before a jury, but if you did not know that – and a jury would not know that because there would be no evidence of that.

KIEFEL J:   But that throws up the content of this particular – the evidence in question which is under challenge, does it not, because if the professor had given evidence only of that kind, that there are difficulties, if the prosecution foreseeing that the jury unaided would potentially move into dangerous territory and called someone like Professor Henneberg to say, well, there are problems with this because statistically you do not have – these similarities do not mean anything, or whatever, but without expressing the ultimate opinion about whether, as between these two, there were similarities, that would be evidence I think of a rather different kind than that which is under challenge here.

MR PICKERING:   Well, that is one aspect, but there were some relevant features that could be seen in the CCTV footage that were more than just expressing danger.  There were actually features that could assist in a relevant way.  For example, in this particular matter, the colour of the skin that could be seen in the CCTV was not an irrelevant feature to put forward.

BELL J:   On what specialised knowledge was the expression of that opinion based?

MR PICKERING:   Your Honour, I would probably accept that the colour of the skin was more based on an observation that would be open to a lay observer.  Even in the way that Professor Henneberg gave that evidence, he expressed that more in the observation of a lay observer.

BELL J:   There would have been no obstacle without a witness to the Crown Prosecutor simply in closing address stopping the CCTV footage at the point that revealed Offender 1’s wrist and inviting the jury to draw the conclusion?

MR PICKERING:   There was another feature, though, that would not have been open, in my submission, to an address by counsel and that was the evidence of handedness.  The professor had, of course, done a master’s thesis in handedness.  He was an expert in right‑handedness – in my submission it would not have been open to an advocate to then offer any submission as to the jury making a determination about whether the person was right‑handed or not.

BELL J:   In the footage taken at the Surry Hills police station of the appellant, he was shown to sign his name and to use a swab to take the sample from his mouth, presumably for DNA purposes ‑ ‑ ‑

MR PICKERING:   Yes.

BELL J:   ‑ ‑ ‑ and he used his right hand in those gestures.  What expertise was required to express the opinion – I am sorry.  So that was some evidence of the appellant’s right‑handedness, and in the CCTV footage he was seen, I think, at the cash register or using gestures with his right hand of a kind that suggested right‑handedness.  Is that right?

MR PICKERING:   Yes.

BELL J:   Now, again, those are things that are matters of common experience, are they not?

MR PICKERING:   Well, the professor had done a master’s thesis in handedness, I do not know whether you could then say ‑ ‑ ‑

FRENCH CJ:   Well, people do master’s theses in all kinds of things.

MR PICKERING:   I think it is diminishing - perhaps he has…..in some way simply to say that it was of no part of his expert skills in order to ‑ ‑ ‑

FRENCH CJ:   Can I just ask – understand a fundamental question about your argument ‑ ‑ ‑

MR PICKERING:   Yes.

FRENCH CJ:   If the evidence which Professor Henneberg gave was not related to specialised knowledge for the purposes of section 79, you accept it was thereby inadmissible?

MR PICKERING:   Yes, of course.

FRENCH CJ:   All right, and if it was inadmissible, cadit quaestio, because you are not arguing a proviso case.

MR PICKERING:   Your Honour, we did argue a proviso case in the Court of Criminal Appeal but it did not become relevant ‑ ‑ ‑

FRENCH CJ:   Yes, and we are not dealing with that here.

MR PICKERING:   No.

FRENCH CJ:   So that is why I was wondering about what the reference to other elements of the evidence was, the DNA and so forth, what the purpose of that was?

MR PICKERING:   Your Honour, we are, of course, arguing that his specialised knowledge was in anatomy ‑ ‑ ‑

FRENCH CJ:   Yes, I understood ‑ ‑ ‑

MR PICKERING:   ‑ ‑ ‑and that that is all he was doing in this particular aspect ‑ ‑ ‑

FRENCH CJ:   I am just looking at what if you fail at the point of making the link for the purposes of 79?

MR PICKERING:   As I said, your Honour, we did argue the proviso and we are arguing here that you do not even get over the first limb of a miscarriage of justice for the reasons we have outlined both in our written submissions and also at paragraph 15 ‑ ‑ ‑

FRENCH CJ:   But that is a proviso‑like argument you are running.

MR PICKERING:   It is a proviso‑like argument, your Honour, I accept that.

BELL J:   Well, are you invoking the proviso?

MR PICKERING:   We are, your Honour.  We invoked it in the CCA and we would have continued the proviso argument if it was necessary.  So, yes, we are.

GAGELER J:   You just cannot assert it at this stage of argument.

MR PICKERING:   Well, your Honour ‑ ‑ ‑

FRENCH CJ:   You have not put a notice of contention on.

MR PICKERING:   I accept that, your Honour.  I withdraw that submission.

GAGELER J:   Could I just take you back to section 79 for a moment, I just want to understand the way in which you put the argument.  The only specialised knowledge to which you point is anatomy.

MR PICKERING:   Yes.

GAGELER J:   Then you say that the evidence was wholly based on that specialised knowledge because, properly analysed, it involved nothing more than the listing of nine anatomical features.

MR PICKERING:   Yes.

GAGELER J:   Yet, you say, with perhaps the exception of right‑handedness, the same features could have been listed by counsel for the Crown in closing address.

MR PICKERING:   I accept that that submission was open. 

GAGELER J:   So evidence can be based on specialised knowledge, in your submission, even if exactly the same evidence could be given by someone without that specialised knowledge.

MR PICKERING:   Well, I do not say that they were in the same position as the professor.  I say that it was potentially possible for them to see it.  The professor played a role in assisting because of his skills in the area ‑ ‑ ‑

GAGELER J:   In what area?

MR PICKERING:   In anatomy and in anatomy, in this particular matter, where he had obviously watched the footage.

GAGELER J:   That is the point, is it not?  It is the watching of the footage that is said to give him the edge - that makes his evidence somehow different.

MR PICKERING:   Not just the watching of this particular footage.  It is with his skills in anatomy and watching footage and observing these features over a long period of time through numerous closed circuit television so he had used his skills in anatomy in this particular area for a long period of time.  So he had an ability to observe these features and potentially, therefore, features that the jury would not have seen had he not given that evidence of them. 

I accept that counsel, of course, potentially even armed with Professor Henneberg’s report, without even calling him could seek to point out those features to the jury.  They may not have actually seen them even when counsel made submissions.  So when you deal with it in an evidentiary way, it allowed a highlighting of those features that were going to be relied upon.

So, whilst I have to accept that even Professor Henneberg when he was giving his evidence, essentially was saying to the jury, once I point them out, you can see them, you can see them for yourself, it did not make the evidence irrelevant.  It was still within section 79 – but I appreciate before you get to section 79 you have to overcome section 55 which is why we have addressed relevance so heavily in our oral submissions, but that is when we get back to why, we say, that in this particular case it was relevant because it was assisting the jury in its task in, firstly, highlighting the area so the jury could examine them themselves but it also had the benefit of showing the difficulties and possibilities of examining this material.

Indeed, when I make the submission and accept that what your Honour says that the jury could have seen these features, in the context of this trial it should be remembered, of course, that Professor Sutisno said that she could not see that it was an adult male.  She said it was a female, potentially.  She initially said that she could not see any darker skin in the CCTV footage and then ultimately accepted that she could see it.  The witness, Porter, initially was not prepared to accept that it was an adult male, was not prepared to accept that there was a pink hammer in the CCTV, even wanted to dispute whether there was, indeed, a gun or something that looked like a gun on the CCTV. 

So when one looks at it now, you look back and say these were features easily observed by a jury and could have been easily addressed on but actually in the context of this trial, two of the main witnesses called on behalf of the appellant said that they could not even see the features at all and still, under cross‑examination, would not move away from not seeing those features, but with other features, for example, dark skin and the pink hammer, were prepared to move their position. 

That, in some way, helps show the relevance of calling this evidence in front of a jury because if there is not this process of calling evidence and actually evaluating the CCTV the jury themselves may never have noticed that there was a pink hammer, that there was potentially dark skin on the CCTV.  Therefore, there would not have been the ability for the Crown to have that material before the jury. 

So, in the context of this trial it was not quite as straightforward to simply say those features were so easily observable that any jury would have observed it, that they did not need any evidence to assist them in that process and the evidence, therefore, was utterly irrelevant in that process.

So that is why we have focused on the fact that it can assist in the process of what the jury was doing here.  We accept that the question of relevance does arise, and we have also accepted the evidence was potentially characterised as weak, but it did not mean that it was completely irrelevant, it actually did fundamentally assist the jury in the task they had before it, in particular because of the way it could help feature on aspects that indeed other people could not see, and in some ways, if you do not call evidence about it the Crown has to simply assume that the jury will see what they regard as the important features on the CCTV.

BELL J:   An alternative basis upon which it was suggested that the evidence was admissible was because Professor Henneberg was an ad hoc expert in the way that expression has been used in decisions going back to Butera, does the Crown accept the way the matter is put in that respect by the appellant, namely, there is no room under the Evidence Act for the admission of opinion evidence of an ad hoc expert unless it comes in under 79 as specialised knowledge?

MR PICKERING:   Yes.  So, we accept, of course, Justice Simpson in Leung made a reference to that – 79 is wide enough to encompass ad hoc expertise evidence and focused on the experience part of that to justify why ad hoc evidence has survived the Evidence Act and can be encompassed in 79.  Can I say, your Honour, in this particular case before the Court – is not a good example of ad hoc evidence at all and, indeed, we make the point that really this is not a good case to look at ad hoc expertise because Professor Henneberg has essentially only looked at the matter for one and a half hours on a standard laptop.  From that point of view it is not really a good example to look at whether he features into an ad hoc expert and, indeed, the whole basis of how the Crown sought to run its case here was not on ad hoc expertise, it was to rely on his expert skills as an anatomist to outline anatomical characteristics.

I do notice when your Honour Chief Justice French said that could this ad hoc expertise attach to even a police officer or a lay person, and it certainly could, but even in Smith when it was decided that the police officer’s evidence in that case was irrelevant, one of the exceptions that the majority mentioned was the New Zealand case of Tapine, which was an ad hoc expert case of a police officer spending hundreds of hours looking at videos, and even Justice Kirby in minority mentioned that in his view it was opinion evidence, however, someone could be a temporary expert, for example, a mother who had known their child for 30 years might be an ad hoc or temporary expert in the appearance of their own son.

BELL J:   Would not that come in under the exception for lay opinions?

MR PICKERING:   Well, your Honour, in Justice Simpson’s judgment in Leung, she said that that does not qualify under lay opinion because you are not actually an observer of the event at the time, you are subsequently coming in and looking at an event at a later period of time, so they are not like your eye witnesses to the scene who might, for example, be offering a lay opinion of something that they have seen, for example, a witness to a car accident may offer a lay opinion of the speed of the car, but they could not then later analyse CCTV and give an opinion of the speed of the car.

BELL J:   Yes.

FRENCH CJ:   You do not rely upon that characterisation to support the decision of the Court of Criminal Appeal.

MR PICKERING:   No, that was an alternative comment that the Court of Criminal Appeal made in saying that it was admissible on that alternative basis.  Our primary argument was always that if he was an expert within his field of anatomy under section 79 ‑ ‑ ‑

FRENCH CJ:   You mean your primary argument, your only argument.

MR PICKERING:   It is our only argument, your Honour, it is just a whole way of putting it.  So we say it is a bad vehicle to even look at ad hoc expertise because he did not actually even pretend in any way that in this particular matter that his repetitive watching of the footage had put himself in a better position with the jury.  However, there must be cases where, indeed, that would be a very significant factor.  There may be cases where the CCTV footage actually does go for hundreds of hours.

BELL J:   You submit we should not give consideration to that ‑ ‑ ‑

MR PICKERING:   No.

BELL J:    ‑ ‑ ‑ and in light of your concession ‑ the ad hoc expertise of Professor Henneberg forms no part of your case.

MR PICKERING:   Yes, and we have accepted that at paragraph 13 of our oral submissions, your Honour.

KEANE J:   You do not suggest that Professor Henneberg was qualified as having specialised knowledge in the field of the interpretation of images.

MR PICKERING:   Yes, your Honour, and indeed the whole basis as I said right from the start was when we argued this in the Court of Criminal Appeal we sought to distinguish Morgan because that evidence had not been led, we had not tried to lead that evidence and, therefore, we had not done it in that way and we are not moving from that position at all.  If that evidence was given it was not within section 79.  Can I deal with the 135, 137 argument because I know that your Honour Justice Kiefel said that this evidence inevitably would be excluded?

KIEFEL J:   Only on the basis of what you said the purpose of the evidence was.

MR PICKERING:   Can I say that it is always important to look at this evidence from both ways in a respect.  Any person who is charged with an offence and is captured on a closed‑circuit television may also wish to call their own expert evidence at times to help highlight other features of the person caught on CCTV that are in their submission of the expert markedly different from the offender, and it would be hard to say that that evidence would not be relevant.  So that firstly deals with a relevance question, that it really goes both ways, that this evidence that experts can give to assist can both assist perhaps in showing features that may be non‑inconsistent with the accused but it may also assist an accused in showing that features are significantly different, that an accused may not want to simply rely on a jury seeing for themselves or their counsel simply making submissions about ‑ ‑ ‑

KIEFEL J:   The fact that it might aid an accused does not assist on questions of admissibility.  They are black and white questions, are they not?

MR PICKERING:   It does in relation to 55.  Now, I appreciate under 137 that that is a test for the prosecution to overcome, but you then have to look at what the evidence was in this particular matter.  Again, if Professor Henneberg had offered the ultimate opinion, firstly it was inadmissible under 79 but it would have really raised many of the issues of the white coat effect that Justice Hidden mentioned in Morgan where he had moved on to this ultimate opinion. 

But in this particular case, they were fairly basic descriptions in which Professor Henneberg himself was saying to the jury you can essentially in a way analyse yourself whether my opinion is valid and when the Crown Prosecutor addressed it took the features to the jury and each time said “you watch the video, members of the jury, can you see it yourself”.  Next feature, “you watch the video, can you see it yourself”.

So this was not really a classic of a white coat effect or a danger under 137 that the jury would give it greater weight.  They had a unique ability in this particular case to completely analyse the professor’s evidence themselves, which in many other cases of expert evidence they would have no ability to do whatsoever, and well and truly assess whether they thought it was reliable, whether it had any weight at all.

So the prejudicial effect was minimal, but it also – the prejudicial effect should be looked in the submission I made out earlier, that there is some significant advantage to having the weaknesses and dangers of doing this process in an evidentiary form because if it is not done in that form it can simply be just done in addresses from counsel in circumstances where again then there would be no directions based on evidence in the trial that would assist the jury in analysing the process that they had to do.

BELL J:   But, Mr Pickering, if it is accepted that at its highest the evidence of Professor Henneberg was that the appellant is not a person from the human population who can be excluded as possibly Offender 1, what is the danger of the process of reasoning that you suggest the jury might have engaged in?  The CCTV footage depicted a human being covered from head to toe moving about, nothing singular about that human being, nothing, it would appear, singular about the human being in the dock.

MR PICKERING:   Can I take your Honour to decision of Atkins?  I just wanted to take your Honour to paragraph 23 of that judgment, and about halfway down paragraph 23, because in many ways it encapsulates exactly the argument that I am seeking to make on behalf of the respondent.  It begins where – the part I wish to take you to is about halfway through paragraph 23 where it says:

A jury is entitled to be informed of his assessment.  The alternative, of simply leaving the jury to make up its own mind about the similarities and dissimilarities, with no assistance at all about their significance, would be to give the jury raw material with no means of evaluating it.  It would be as likely to result in over‑valuation of the evidence as under‑valuation.  It would be more, not less, likely to result in an unsafe conclusion than providing the jury with the expert’s opinion, properly debated through cross‑examination and, if not shared by another expert, countered by contrary evidence.

BELL J:   But in Atkins there was evidence of what is sometimes described, I think, as facial mapping, was there not?

MR PICKERING:   Yes.

BELL J:   So this was a case where a person with purported expertise in comparing a face in a CCTV image with a face in a still photograph and expressing an opinion about similarity, was it not?

MR PICKERING:   Yes.

BELL J:   The issue was the absence of a database.

MR PICKERING:   Yes.

BELL J:   That is rather different from the issue that I was taking up with you, Mr Pickering.  You were developing a submission that in some way this evidence was beneficial to avoid the jury going off on some wild goose chase.  I was just trying to pin down quite what that danger was, in this case.

MR PICKERING:   I feel the danger in this case is back to the point I made about if there was no evidence called at all and an advocate just simply outlined as many features as they could identify and there is no assistance given to the jury about the lack of significance of there being eight, nine or 10 anatomical similarities – there must be a danger that the jury, unassisted, might therefore regard themselves that that was a high level of anatomical similarity and act on that basis.

BELL J:   Well, now, in this case, Dr Sutisno said, having regard to the fact that the figure – Offender 1 in the CCTV footage - is dressed from head to toe, face and head covered with a mask, of kinds, I cannot express any opinion about gender or other characteristics of the person.

MR PICKERING:   Yes.

BELL J:   As I understand it the Crown now accepts that that was an appropriate degree of reserve.

MR PICKERING:   I do not think the Crown accepts that.  If the Crown accepts that you should not give the ultimate opinion, the Crown does not suggest that Professor Henneberg was not entitled to give the eight characteristics that were outlined in the appellant’s outline of oral argument today.  The Crown has not said that Professor Henneberg should not have given that evidence at all.

BELL J:   Thank you, your Honours.

FRENCH CJ:   Thank you, Mr Pickering.  Yes, Mr Game.

MR GAME:   I will come back to the question of admissibility in a moment because it would have been very different if the Crown had simply said the evidence could not be excluded, which is a matter that your Honour Justice Kiefel raised a short time ago.  But if that was what the evidence was you would not get to it as the fifth strand of the Crown case at all.  But, if one just looks at the Crown Prosecutor’s address, at page 313, line 25:

You can use your own observations in the footage in conjunction with the evidence of Professor Henneberg who did an anatomical comparison . . . and he found nine similarities and no dissimilarities.

So it is a very pointed proposition and, again, the point that your Honours Justice Kiefel and Justice Bell raised, as soon as you say no dissimilarities you are building up the similarities as similarities which is why the evidence was led in that way at page 215 by the Crown.  Then if I could – then of a 10‑page address, five of them, starting at 318, are about Professor Henneberg.  At page 320, one sees down at line 40, the witness has said:

adult male, think build, height between a certain range, average height, skin colour –

That must be “thin build”, thin build.  That is four features, all entirely consistent –

The other similarities that he has described are things that you cannot probably yourselves observe or find visible –

So the Crown case is being carried forwards by those things that I originally described this morning as, shall I say, that are thought to be highly probative but tendentious things such as elongated brain case, to give your Honours an example.  That is that.  On the question of admissibility, if one goes back to the judgment at page 37 and this is borne out by the submissions that were made by the Crown – to page 37, line 10, it is actually the fourth line:

it is of potentially significant probative value –

It has clearly been led not just as evidence that cannot be excluded, in fact, it is getting in because it is proving these things.  It is a natural human tendency, but one talks the thing up to get it in and then one talks it down to hold it.  I have done that myself on occasions, but it is a very natural tendency.  That is what is actually happening here.

Now, we submit, it is quite correct to say that if you bully the probative value of the evidence down, then sections 135 and 137 have a very different significance in the context of the case.  Those are our submissions.

FRENCH CJ:   Thank you, Mr Game.  The Court will reserve its decision.  The Court adjourns until 10.00 o’clock tomorrow morning.

AT 11.59 AM THE MATTER WAS ADJOURNED