JP v Director of Public Prosecutions (NSW)

[2015] NSWSC 1669

Supreme Court

New South Wales

Medium Neutral Citation:	JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669
Hearing dates:	6 October 2015
Date of orders:	11 November 2015
Decision date:	11 November 2015
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1)   To the extent necessary the plaintiff be granted leave to raise grounds 6 and 8 in his summons filed 5 May 2015.  (2)   The plaintiff's summons be otherwise dismissed.
Catchwords:	CRIMINAL LAW – appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 – plaintiff convicted in Children’s Court of aggravated breaking and entering – prosecution case dependent on finding that plaintiff’s fingerprint found at scene of break and enter – challenge to admissibility of fingerprint expert’s conclusion that plaintiff’s fingerprint found at scene – necessity for expert to set out the reasons for their conclusion – level of detail required – whether ground contending that expert certificate should not have been admitted involved a question of law alone – whether ground involved mixed question of fact and law – whether leave should be granted – expert certificate should have but did not reveal outcome of inspection of the fingerprints but no question of law alone arose – leave granted to raise ground involving mixed question of fact and law – ground failed – deficiencies in certificate rectified by expert’s oral evidence – whether Magistrate’s reasons for admitting certificate inadequate – whether Magistrate’s reasons for convicting plaintiff inadequate – complaint not made out – whether Magistrate wrongly purported to apply different standard to admission of expert evidence in Children’s Court compared to other courts – Magistrate did not apply that approach – whether Magistrate devolved decision making task to expert – complaint not made out – whether leave should be granted to challenge conviction – leave refused.
Legislation Cited:	- Crimes Act 1900 (NSW) – s 105A, s 112(2) - Crimes (Appeal and Review) Act 2001 (NSW) – Part 3, Part 5, s 11, s 18, s 53, s 56 - Children (Criminal Proceedings) Act 1987 (NSW) – s 15A - Evidence Act 1995 (NSW) – s 4, s 76(1), s 79(1), s 135, s 137
Cases Cited:	- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 - ASIC v Rich & Ors [2005] NSWCA 152; 54 ACSR 326 - Bennett v Police [2005] SASC 167 - Bennett v Police [2005] SASC 415 - Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 - Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 - Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 - Evans v Powell [2012] NSWSC 1384 - Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; 205 FLR 217 - HG v The Queen [1999] HCA 2; 197 CLR 414 - Honeysett v The Queen [2014] HCA 29; 253 CLR 122 - Kapral v Bunting [2009] NSWSC 749 - Landsman v R [2014] NSWCCA 328; 88 NSWLR 534 - Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 - Murdoch v The Queen [2007] NTCCA 1; 167 A Crim R 329 - Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; 120 FCR 146 - R v Hien Puoc Tang [2006] NSWCCA 167; 65 NSWLR 681 - R v Lawless [1974] VR 398 - R v O’Callaghan [1976] VR 676 - R v PL [2009] NSWCCA 256; 261 ALR 365 - Shepherd v Nestoriadis [2015] NSWSC 348 - Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 - Williams v R [1986] HCA 88; 161 CLR 278 - Wise v Schneider [2015] NSWSC 725
Category:	Principal judgment
Parties:	JP – Plaintiff Director of Public Prosecutions (NSW) – Defendant
Representation:	Counsel: Ms B. Rigg SC, Ms F. Graham – Plaintiff Ms J.E. Davidson – Defendant   Solicitors: Aboriginal Legal Service – Plaintiff Solicitor for Public Prosecutions – Defendant
File Number(s):	2015/133635
Publication restriction:	See [2]
Decision under appeal	Court or tribunal: Dubbo Children’s Court Date of Decision: 27 January 2015 Before: His Honour Magistrate Mijovich File Number(s): 2014/294434

Judgment

1. On or about 4 October 2014 a break-in occurred at a residential premises in Dubbo. On 8 October 2014 the plaintiff in these proceedings, JP, was charged with aggravated breaking and entering with intent to commit a serious indictable offence contrary to s 112(2) of the Crimes Act 1900. The circumstance of aggravation was knowledge of persons present in the dwelling house while the break and enter was taking place (Crimes Act, s 105A(2A)).

2. At all material times JP was under the age of eighteen years. Sub-section 15A(1) of the Children (Criminal Proceedings) Act 1987 prohibits the publication of his identity.

3. The hearing of the charge took place over three days in the Children’s Court sitting in Dubbo. On 27 January 2015 JP was convicted. On 16 February 2015 the presiding magistrate imposed a six month control order under the Children (Criminal Proceedings) Act 1987. The control order commenced on 8 January 2015 and has now expired.

4. JP appeals his conviction to this Court under Part 5 of the Crimes (Appeal and Review) Act 2001 (the “Review Act”). The defendant to the appeal is the Director of Public Prosecutions (NSW) (the “Director”). The operation of Part 5 is discussed below but, for present purposes, it suffices to note that JP is only entitled to appeal as of right on a ground that involves “a question of law alone” and must seek leave to appeal on a ground that involves any question of mixed law and fact or of fact.

5. A number of grounds of appeal were raised on JP’s behalf. They are addressed below. However at the core of his appeal is a contention that the evidence of a fingerprint expert was inadmissible because there was no or insufficient explanation of the reasoning process that justified his conclusion that a fingerprint taken from the scene of the break-in was identical to JP’s fingerprint. Without a conclusion that the fingerprints were identical, a conviction could not be sustained.

6. For the reasons set out below I consider that the certificate provided by the prosecution’s fingerprint expert did not provide any reasoning sufficient to support the admissibility of the expert’s opinion, but the oral evidence of the expert rectified that discrepancy. Accordingly the challenge to the admissibility of the fingerprint expert’s opinion fails. Also, I reject JP’s challenges to the sufficiency of the reasons given by the presiding magistrate for receiving the expert certificate and the reasons for finding JP guilty. Otherwise I reject the balance of JP’s grounds of appeal.

7. Before I address the grounds of appeal it is necessary to describe the events surrounding the break-in, the course of the hearing, the presiding magistrate’s judgment and the scope of the appeal.

The break-in

8. Very early on the morning of 4 October 2014 the two elderly residents of a unit in a retirement village were awoken by what one of them described as “light ruffling noises”. They awoke to see a young male inspecting the contents of a bed-side drawer. One of them screamed and the intruder ran out the back door. The residents discovered that every room in the unit had been disturbed and a number of items and cash had been stolen. Beyond stating the age of the offender as between 15 to 17 years, the residents could not describe him other than to state that he wore “dark clothing”.

9. The police were called. They attended and took photographs. Later that morning a crime scene officer attended the scene. She was able to develop three prints, two from the exterior surface of the bathroom window, described as “W1” and “W2”, and a third from the side of a blue china jewellery box described as “W3”. A preliminary examination of the prints led to the police forming a suspicion that JP and another male committed the break-in.

10. On or about 18 December 2014 Detective (Technical) Sergeant Worboys from the Forensics Services Group attached to the Dubbo Crime Scene section signed a document entitled “Certificate of Expert Evidence”. He recited his qualifications in the area of fingerprint analysis and his retrieval of photographic images of two fingerprints and one palm print taken from the victims’ home, described as “Graph W1”, “Graph W2”, and “Graph W3”, and fingerprint impressions of JP. The substantive part of his certificate stated:

“6.   I also retrieved from the SAGEMTM fingerprint computer a set of fingerprint impressions in the name of [JP] born […] This set of fingerprint impressions are shown to have been taken on 8th October 2014 …

7.   During the course of my daily duties, I carefully compared all the finger and palm impressions appearing in the photographs bearing Forensic Case Number 2819499 with the finger and palm impressions of [JP] born […] as appearing on the fingerprint form by placing those photographs one at a time side by side with those finger and palm impressions and referring backwards and forwards between them. I compared pattern type and ridge flow, friction ridge characteristics, their relative positions to each other and the number of intervening ridges between those characteristics, that is the finger or palm prints appearing in the photographs bearing Forensic Case Number 2819499 against the finger or palm impressions of [JP] born […] as appearing on the fingerprint form. The comparison process was carried out systematically and sequentially until all available friction ridge detail had been compared between the finger and palm impressions appearing in the photographs bearing Forensic case Number 2819499 and the finger and palm impressions of [JP] born […] as appearing on the fingerprint form.

8.   Based wholly or substantially on my specialised knowledge and belief I am of the following opinion;

●   Graph W1 is identified to another person

●   Graph W2 is identified to another person

●   Graph W3 is identified to the Left Thumb of [JP] …

9. That is to say the impressions appearing in the photographs bearing Forensic case Number 2819499 and labelled W3 are made by one of the same [JP] born ...

10.    I hereby give notice under the Criminal Procedures Act 1986; the proposed exhibits which have been indicated in this certificate may be inspected at Dubbo Crime Scene Section, 45 Erskine Street, Dubbo at a mutually agreeable time.”

The hearing

11. At the commencement of the hearing on 13 January 2015 an issue arose as to the late service of Sergeant Worboys’ certificate. It is not necessary to describe the detail of that debate other than to note that the presiding magistrate was advised by the police prosecutor that without the fingerprint evidence the “prosecution case must necessarily fail”. His Honour then addressed a challenge to the admissibility of the certificate. Citing the Court of Appeal’s judgment in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (“Makita”) it was submitted on behalf of JP that in substance all that was provided was a “bare opinion” and that the certificate did not provide “the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions” (Makita at [59] per Heydon JA).

12. His Honour rejected the application. His Honour’s reasons for doing so emerge from the transcript of argument which reveals that his Honour engaged with the point being made. Thus his Honour stated:

“… hasn’t he in paragraph 7 [said] what he’s actually done comparisons, the pattern type, ridge flow, friction ridge, characteristics, relative positions to each other and a number of intervening ridges, compared all those to the material to the palm impression of the young person says he’s done it all systematically and everything else based on that, he’s used the termination ‘based wholly [not transcribable] … specialised knowledge and belief on the following opinion. Now it’s a bit clumsy but in terms of what he said perhaps statements which are read based on there’s comparisons in paragraph 7 but he’s set out what his actual comparisons are and how he’s come to that conclusion. Perhaps a bit clumsy but it’s there.”

….

“… In this particular matter we have Sergeant Worboys doing the actual investigation and he – I think he sufficiently for the purpose of these proceedings he’s sufficiently set out in paragraph 7 what he has done to come to that determination.

…

I think it, as I said it barely makes it but in my view for these proceedings it’s sufficient …” (emphasis added)

13. The matter then proceeded with the tender of the police brief. The only witness called to give oral evidence was Sergeant Worboys. In his evidence in chief he adopted his expert certificate which, consistent with his Honour’s ruling, was admitted into evidence.

14. Sergeant Worboys was cross-examined over the balance of the hearing time available on 13 January 2015. His cross-examination continued on 15 January 2015, and concluded on 27 January 2015 when he was re-examined. He was the only witness called. Four points should be noted about Sergeant Worboys’ oral evidence.

15. First, when asked what his level of confidence in his opinion set out in [9] of his certificate was Sergeant Worboys stated “100 per cent”.

16. Second, a number of matters pertinent to the methodology of fingerprint analysis were raised with Sergeant Worboys, including that the level of detail in fingerprint terminology is classified as “level 1 detail, level 2 detail and level 3 detail” although Sergeant Worboys stated that he never used level 3 detail, the quality of fingerprint yielded by a known print recorded in a police station compared with latent prints being fingerprint impressions taken from crime scenes, the nature of ridge characteristics, his knowledge of the contents of the New South Wales police force’s Fingerprint Training and Research Unit Learning Guide dated October 2014 and his (lack of) knowledge of the effect of Resolutions of the International Association of Fingerprint Identification.

17. Sergeant Worboys was subject to sustained criticism for assuming that no two human beings could have identical fingerprints when that assumption was not set out in his certificate and where a resolution of the International Association of Fingerprint Identification has stated that it is impossible to prove.

18. Third, a number of the questions expanded upon the approach that Sergeant Worboys adopted in determining whether two fingerprints were identical. Sergeant Worboys stated that he used fingerprint comparison software that enabled him to put two impressions side by side on a computer screen. He agreed that whether there is sufficient correspondence depends on a number of factors which he identified or agreed was the “clarity” of the impressions, the number of similarities between impressions and the degree to which the differences can be accounted for or explained. He stated that he did not take into account the degree of frequency of any particular characteristics of fingerprints in the human population.

19. In relation to the number of similarities between the two fingerprints, Sergeant Worboys was asked:

“Q. Are there any factors that you take into account to determine this question of whether you’ve got enough to make a match?

A. No when I sit down and look at the two impressions side by side it’s when I feel that there is nothing unexplainable that would definitely put the two impressions as a match.

Q. Would you identify a person based on four points of similarity?

A. I can’t speculate on that because I don’t know what those four points are and what the impression is.”

20. Fourth, Sergeant Worboys was also asked questions about what his examination of JP’s fingerprints and the latent print, ie W3, revealed. He accepted that the latent print was incomplete as there was a missing right “delta” and a left delta and some part of the print overlapped with the gold leaf design on the china jewellery box that it was lifted from. He estimated that possibly less than ten per cent of the print was missing. In re-examination, Sergeant Worboys explained that there was “very sufficient” detail in the latent print to make the comparison with the known print. He also stated that if there was insufficient detail in either print, the print would either not be identified, or would fall into the category of “ridge detail consistent” in which there is insufficient detail in an impression to form an opinion of identification.

21. Further Sergeant Worboys accepted that there were similarities and differences between the prints. Thus he was taken to the photographic impressions of JP’s fingerprint and the latent print. He agreed that the impressions were not identical and not the same shape but said that there were “nil unexplainable differences” between the two prints. In relation to similarities he could not state how many explainable differences he observed and stated that he made no record of the number of similarities he observed (“don’t particularly count when I’m doing my evaluation”). In re-examination he stated that “[o]n the comparison of this the two impressions side by side I examined in excess of 35 characteristic points”.

22. After Sergeant Worboys completed his oral evidence, the prosecution closed its case. There was no case for JP. Instead his Counsel addressed and attacked the reliability of Sergeant Worboys’ evidence in circumstances where, unless it was accepted, the prosecution inevitably failed. Various matters were raised some of which included the matters noted above and, in particular, included the submission that there was “no evidence about what similarities were detected [by Sergeant Worboys] nor explanations [proffered for the] differences detected”. It was, inter alia, contended that the Court should not accept the “ipse dixit” (ie dogmatic and unproven statement) of an expert.

His Honour’s judgment

23. His Honour commenced his judgment by noting that he accepted the contention that it was only the fingerprint evidence that was capable of identifying JP “as being the person involved”. His Honour accepted that fingerprint evidence was “not infallible”. After noting various matters that were raised about the reliability of fingerprint evidence generally and Sergeant Worboys’ evidence in particular His Honour stated:

“In this matter I have oral and written evidence from Sergeant Worboys. His evidence was unshaken on his view as to the matching of the thumbprint of [JP]. In my view I disagree with the submissions in this matter, he has given sufficient evidence in these proceedings as to how he reached that determination. As an expert his expertise was not shaken, his opinion was not shaken. He is tasked, as he said, purely to compare W3 to [JP’s] prints. There is clearly in terms of the procedures involved, checks and balances in place. He acknowledged he is aware of case studies where potential impacts and bias of proceedings have occurred. His view as the expert in the field or presented as the expert in this matter is that where the appropriate procedures have taken place, is unlikely to have those errors occur. He also conceded that he had not read a lot of the literature referred to by Ms Graham in the cross-examination. Again he maintained his view that if protocol was followed properly it should not involve bias or incorrect assessment.

The difficulty of course with a lot of material that was cross-examined on is there is no method, no chance to actually test the validity of those arguments.

…

I have no evidence before this Court of the method used in this instance by Sergeant Worboys … [not transcribable] … helping assist in his determination was tainted by the bias or other incorrect assessment by not following the protocols. I have no expert evidence on the defence showing in this particular matter that the thumbprint is not or could not be the accused’s. I say that of course there remains at all times the prosecutions responsibility to prove the matter beyond reasonable doubt. It was suggested that Sergeant Worboys was contradictory or failed to make proper concessions, I actually find to the contrary. He answered appropriately in all circumstances especially where the questions were extremely open-ended and hypothetical. He did not attempt in any way to make his evidence or his position any greater than what it should in terms of the protocols that were involved.

It is put to the Court that the judicial officer could not assess the prints from the photos that are presented. It is not this Court’s role to be the expert, that is why the police call an expert to give their opinion and why, if required the defence call an expert as to why it is not, it is not the Court’s role to look at the various rigors and make a determination and even Sergeant Worboys on his own evidence indicated he needed specialist equipment to be able to identify it.

The evidence by Sergeant Worboys in giving his opinion in determination has not been proved forensically challenged in this matter. There is no Court decisions making such material unacceptable. What has been raised and I accept is that perhaps it is unreliable. The only Court case I have is the Utah court case which has been provided in the final submissions by the defence although I do note that Judge Thorne views and comments on the unreliability or otherwise of fingerprints which as I have already said, I accept in general. In that particular matter it does not appear that the evidence that was provided there forensically or otherwise found the accused not guilty in his comments. At best I have nothing else binding before me that would exclude the evidence of Sergeant Worboys. I can only scrutinise it on the material before me specific to this case. I accept Sergeant Worboys’ evidence in that regard.” (emphasis added)

24. Having accepted Sergeant Worboys’ evidence that the fingerprints were identical, his Honour then reasoned that it was improbable that another person with the same “thumbprint is in the Dubbo area”. In the absence of any evidence for an innocent explanation for how the presence of JP’s fingerprint “came to be on the jewellery case” his Honour concluded that “there is no reasonable doubt in this matter”.

Expert evidence and fingerprints

25. As much of this appeal was directed to the admissibility of Sergeant Worboys’ opinion that the two fingerprints were identical it is appropriate to address some of the principles concerning the admissibility of expert evidence concerning fingerprints.

26. The statement of Sergeant Worboys that the fingerprints were identical was clearly opinion evidence that was excluded by s 76(1) of the Evidence Act 1995 unless it fell within the relevant exception for expert opinions, namely s 79(1). Subsection 79(1) specifies two conditions of admissibility, firstly that 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” (Honeysett v The Queen [2014] HCA 29; 253 CLR 122 at [22]; “Honeysett”). The first condition directs attention to the existence of an area of “specialised knowledge” possessed by the proposed expert witness. At no stage in the Children’s Court or in this Court was it contended that fingerprint analysis was not a relevant area of expertise, or that Sergeant Worboys was not suitability qualified to undertake a fingerprint analysis and express an opinion that two fingerprints were identical.

27. The second condition of admissibility is that the relevant opinion must be "wholly or substantially based on that [specialised] knowledge" (Honeysett at [23]). In Honeysett the High Court observed that (at [24])

“The second condition of admissibility under s 79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert's opinion depends ‘observations and knowledge of everyday affairs and events’ (…). It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based (…).”

28. Whether this condition was met was at the heart of the dispute in Honeysett. An expert in anatomy gave evidence concerning the physical characteristics of an offender as depicted on closed circuit television and the physical characteristics of the accused, and then opined as to the absence of any observable anatomical dissimilarity between the two (Honeysett at [29]). While the High Court accepted that he had specialised knowledge of anatomy, the Court did not accept that the opinions he expressed were substantially based on that specialised knowledge. Instead they were found to only be based on the expert’s “subjective impression of what he saw when he looked at the images” of the offender and the accused (Honeysett at [43]).

29. The essence of the complaint about the decision of the presiding Magistrate to admit Sergeant Worboys’ evidence concerned the absence of any explanation for how the methodology that was applied as explained in [7] of the certificate led to the conclusions in [8] and [9] of that certificate (see [10]). In the last sentence of the extract from Honeysett set out in [27] the High Court referred to the need for an opinion to be “presented” in a manner that allows the Court to be satisfied that the relevant opinion expressed by the expert is substantially based on their specialised knowledge. In so stating the Court relied on the observation of Gleeson CJ in HG v The Queen [1999] HCA 2; 197 CLR 414 at [39], that “[b]y directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, [s 79] requires that the opinion is presented in a form which makes it possible to answer that question”.

30. In the much cited passage from the judgment of Heydon JA in Makita his Honour cited Gleeson CJ in HG v The Queen and enunciated a series of preconditions to the admissibility of expert evidence that included (at [85]):

“… that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.” (emphasis added)

31. To similar but not so prescriptive effect in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; 120 FCR 146 at [23], the Full Court of the Federal Court stated that “exposure of the reasoning process” is required so as to demonstrate “that the opinion is based on … specialised knowledge”.

32. The above passage from Makita does not represent a complete statement of the applicable law on this topic. In Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [37] (“Dasreef”) the plurality stated:

“The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita … , that ‘the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded’. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying ‘specialised knowledge’ based on his or her ‘training, study or experience’, being an opinion ‘wholly or substantially based’ on that ‘specialised knowledge’, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.” (emphasis added)

33. The emphasised portion of the above passage represents a relaxation of what might be taken to be the strict requirement of Makita that “all of these matters” be “explicit” including how the methodology of the expert “applie[d] to the facts assumed or observed … produce[s] the opinion propounded” (see [30]). In some cases the second condition of admissibility may be satisfied by simply undertaking a comparison of the opinion expressed and the nature of the expertise in question; i.e. that which Makita appeared to state must always be explicit may in some cases be implicit or at the very least require “little explicit articulation or amplification”. Whether that is so will depend on the area of expertise and the nature of the opinion that is expressed (see Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; 205 FLR 217 at [292]). Thus, as the above passage from Dasreef suggests, the familiarity of courts with expressions of medical opinion by suitably qualified medical practitioners enables Courts to draw the conclusion that the second condition of admissibility is met when they state an opinion on a topic within their area of expertise. Ultimately the test is that posed by the statute, namely whether the Court is satisfied that the relevant opinion is wholly or substantially based on the relevant specialised knowledge

34. The extent of the reasoning that a fingerprint expert must disclose to make their opinion admissible has been the subject of discussion in various cases. In R v Hien Puoc Tang [2006] NSWCCA 167; 65 NSWLR 681 (“Tang”) fingerprint evidence was contrasted with an area of expertise that the Courts were not familiar with, namely body mapping. Tang was similar to Honeysett in that the Court of Criminal Appeal upheld a complaint that evidence from an expert in body mapping to identify the appellant was inadmissible. Unlike Honeysett the expert had not just confined himself to giving evidence of an absence of anatomical dissimilarity, but instead purported to state that the anatomical features of the suspect and the accused were such that it could be concluded that they were the same person. Spigelman CJ (with whom Simpson and Adams JJ agreed) held at [134] that it is a requirement of admissibility that “the opinion be demonstrated to be based on the specialised knowledge. His Honour did not accept that a body mapping expert could give evidence of anatomical similarity (at [140]) but even if they could, his Honour also did not accept that it had been demonstrated how a conclusion about “the identity of the suspect and the offender” could be based on evidence of similarity (at [146]).

35. The plaintiff’s written submissions sought to rely on Tang and another decision, Murdoch v The Queen [2007] NTCCA 1; 167 A Crim R 329, which rejected evidence of facial or body mapping, as support for a proposition that the process of observing similarities in fingerprints was not truly the application of a relevant form of specialised knowledge. However the distinction between such evidence and fingerprint evidence was explained by Spigelman CJ in Tang at [144] as follows:

“Facial mapping and, perhaps, body mapping, about the validity of the latter of which virtually nothing appears on the evidence in this case, has a certain resemblance to fingerprint evidence. By long usage, expert evidence is given in the form of an opinion that the fingerprint of the accused is the same as that from the crime scene. Such an opinion is based on the cumulative effect of a number of points of similarity, each of which is itself an expression of opinion.”

36. In Bennett v Police [2005] SASC 167 (“Bennett”) Doyle CJ dismissed an appeal against a conviction for trespass which was based on expert evidence to the effect that the accused’s fingerprint was found on a computer monitor at the scene. In his evidence in chief the witness had described how a comparison of fingerprints was made, how he compared images of the two prints, and that the two fingerprints were identical and came from the same person (at [6]). In cross-examination he stated that during a lunch break during the hearing he had looked at the images of the fingerprints and identified that “more than 20 characteristics … were common and identical” (at [11]). He did not identify each feature separately and did not describe the appearance of each such feature (at [31]). At the close of the prosecution case an application to exclude the evidence on the basis that the Court could not make any assessment of the points of similarity between the relevant prints was rejected (at [15] to [16]).

37. On appeal, Doyle CJ characterised the three complaints that were made on appeal about the admission of the fingerprint evidence as follows (at [33]):

“First, because the image [of the appellant’s print] was not tendered. Second, because the features observed by Mr Lewis and relied on by him were described compendiously, and not individually, and without pointing them out on [the image of the latent print and the appellant’s print]. Third, because the expert opinion was given in a form that did not enable the Magistrate, as the trier of the facts, to decide for himself whether the facts on which the opinion was based, the presence of the features in the images, were in fact to be found in the two images. The submissions to me were put mainly in relation to the third obstacle.”

38. Doyle CJ rejected each of these contentions. His Honour found that the failure to tender the image of the fingerprints and identify the similarities went only to the weight to be attached to the evidence not the admissibility (at [47] to [49]). In particular his Honour stated (at [49]):

“The fact of the presence of features on which the expert relied is proved by the expert giving evidence that the expert looked at the images and saw the features. It was permissible to say that identical features were found, without itemising them …” (emphasis added)

39. In relation to the third contention, his Honour stated the authorities do not establish that the only way in which a fingerprint expert’s opinion that two prints are identical could be established is by “repeat[ing] and illustrat[ing] for the court the process that he went through when comparing the images of the two fingerprints …” but that instead it was sufficient that (at [52]):

“… the expert informed the court about the facts upon which his expert opinion was based. The facts were the making of the comparison of the two images … and the observation by the expert of features in each image that the expert considered to be identical and of significance for the purpose of expressing an opinion as to the two prints being identical.”

40. His Honour referred to the above passage from Makita and the decisions in R v O’Callaghan [1976] VR 676 and R v Lawless [1974] VR 398 which emphasise that ultimately it is for the jury to determine whether two fingerprints are identical before stating (at [53]):

“However, it is one thing to acknowledge that it was for the Magistrate to decide in the present case whether the two fingerprints were identical. It is another thing to say that the Magistrate could so decide only if the evidence as to the findings on examination of the two images was given in the detail that [Counsel for the applicant] said was required. The Magistrate had before him unchallenged evidence that each fingerprint exhibited features that, taken together, led to the conclusion that they were identical.”

41. On further appeal the Full Court of the Supreme Court of South Australia agreed with Doyle CJ (Bennett v Police [2005] SASC 415 especially at [31] to [33] per Anderson J). Perry ACJ stated (at [4] to [6]):

“Identification of similarities in fingerprints is a highly technical matter requiring considerable expertise and experience. I have regularly instructed juries not to attempt to make such a comparison themselves.

This does not mean that the jury must necessarily accept expert opinion on the matter. For example, they may find the evidence unconvincing; they may have doubts as to the independence or qualifications of the expert; they may not be satisfied that there are sufficient points of similarity; there may be a conflict of expert evidence; they may suspect police tampering with the evidence.

At the end of the day, it is for the jury to determine whether it is satisfied beyond reasonable doubt of the accuracy and reliability of the expert evidence.” (emphasis added)

42. Neither the judgment of Doyle CJ in Bennett or of the Full Court appeal from Doyle CJ suggest that a mere assertion that a methodology was applied and the outcome was a conclusion that the fingerprints were identical satisfied the second condition of admissibility in s 79; i.e. a bare assertion that two fingerprints are the same will not suffice. Instead both judgments proceed on the basis that some explanation or statement of what the examination revealed at a level of detail below a conclusion that the fingerprints were identical must be provided for the evidence to be admissible, albeit not much. Thus in Bennett all that was stated about the application of the methodology of comparing fingerprints was that 20 characteristics were observed and found to be identical. The above passage from the judgment of Perry ACJ assumed that a jury is informed about the number of points of similarity between the relevant fingerprints.

43. Although the judgments in Bennett treated a statement of what an examination of the fingerprints revealed as a statement of the facts on which an opinion was based as opposed to part of the explanation for why the application of the relevant methodology led to the relevant opinion, the difference, if any, is presently immaterial. In the end result the judgments in Bennett are an example of the approach stated in the emphasised portion of the passage from Dasreef noted above at [32], namely that with fingerprint evidence it will often be the case that “little explicit articulation or amplification” of how the stated methodology warrants the conclusion that two fingerprints are identical will be required before it can be concluded that the second condition of admissibility under s 79(1) has been satisfied.

Nature of the appeal

44. In view of the manner in which a number of the grounds of appeal are expressed it is necessary to make a few observations about the scheme for appeals provided for by Division 1 of Part 5 of the Review Act. Division 1 of Part 5 deals with appeals to this Court by a person convicted or sentenced by the Local Court otherwise than for an “environmental offence”. As noted, s 52(1) confers on such a person a right of appeal “but only on a ground that involves a question of law alone”.

45. Section 53(1) expands the scope of this appeal. It provides:

“(1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves:

(a) a question of fact, or

(b) a question of mixed law and fact,

but only by leave of the Supreme Court.”

46. Sub-section 54(1) confers on the Court power to grant or dismiss an application for leave to appeal. If leave is granted then the Court may adjourn the appeal or proceed to hear it (s 54(4)). Subsection 55(1) confers on the Court a power to set the conviction aside, set the conviction aside and remit the matter to the Local Court or dismiss the appeal.

47. I addressed the scope of an appeal that is restricted to a question of law alone in the context of s 56 of the Review Act in Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [39] to [46]. That passage should be read together with this judgment. It suffices to state that “… there is 'a question of law alone' if the question of law can be stated and considered separately from the facts with which it may be connected in a given case” (Williams v R [1986] HCA 88; 161 CLR 278 at 287 per Gibbs CJ and 314 per Wilson and Dawson JJ; “Williams”). Further an appeal on a ground that involves a question of law alone does not include a ground that involves a mixed question of fact and law (R v PL [2009] NSWCCA 256 at [25] per Spigelman J (“PL (No 1)”) and thus a mere complaint of error in the application of a legal principle does not raise a question of law alone (PL (No 1) at [26]). Nevertheless a conclusion of mixed fact and law can be challenged in an appeal restricted to questions of law alone if it can be determined that the conclusion “proceed[ed] from a misdirection of law” (Williams at p 287 per Gibbs CJ). To similar effect in PL (No 1) at [27] Spigelman CJ stated that a contention that the presiding judicial officer erred may involve a question of law alone if a stand alone legal proposition can be identified which was a “distinct and separate step in the reasoning process” (Pl (No 1) at [27]).

46. In relation to s 53(1) there appears to have been little judicial consideration to the circumstances in which leave to raise a ground that involves a question of fact or of mixed law and fact may be granted save for the following observations of Howie J in Kapral v Bunting [2009] NSWSC 749 at [48]:

“The parties were not able to refer me to any decision that has considered the grant of leave under the relevant provisions of the Appeal Act in respect of a matter involving a question of mixed fact and law or a question of fact. I have some difficulty in conceiving of a case where leave might be granted on a question of fact. But it should be noted that the particular provision, s 53(1) of the Appeal Act, is actually concerned with appeals against conviction or sentence. It is perhaps possible to imagine that there may in such an appeal be an error of fact of such significance that it might, if not reviewed, result in a positive injustice. It is difficult to see such a situation arising from an appeal against an order of the kind made by the Magistrate in the present case. The Supreme Court should in my opinion be cautious before interfering with a factual decision made by a magistrate who correctly understood and applied the law in an otherwise unimpeachable hearing in the Local Court and where minds might reasonably differ about the finding of fact involved.”

49. To these observations I would add that Part 3 of the Review Act, and ss 11(1) and 18(1) of the Review Act in particular, confer on persons convicted in the Local Court a form of appeal to the District Court as of right that extends to matters of fact (see AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218). The structure of the Review Act is such that that form of appeal is the primary means by which matters of fact said to affect a conviction are to be agitated. Perhaps one circumstance in which a grant of leave under s 53(1) might be considered is where the question of law and fact or just fact sought to be raised relates to a question of law that is raised bona fide in the appeal and there is an understandable desire to avoid a bifocation of proceedings by requiring the convicted person to pursue complaints about issues of mixed fact and law or fact in a separate appeal to the District Court under Part 3. That said a grant of leave with respect to a pure question of fact can be expected to be a comparatively rare event and when exercised conditions may attach to its grant.

Grounds 1 and 6: The admissibility of Sergeant Worboys’ evidence

50. Ground 1 of JP’s appeal contends that Sergeant Worboys’ certificate was not capable of amounting to an admissible expert opinion. Ground 6 contends that the presiding Magistrate erred in admitting the opinion evidence of Sergeant Worboys. It is accepted that ground 6 does not raise a question of law alone but involves a mixed question of law and fact. Accordingly leave to raise that ground is sought.

51. It also follows from the observations in [47] that ground 1 does not involve a question of law alone either. The ground does not identify a question of law independent of the facts and circumstances of JP’s case (Williams). In possible recognition of this, the written submissions in support of ground 1 sought to identify the question of law alone raised by the admission of Sergeant Worboys’ report as follows:

“Whether a statement of expert evidence which includes methodology and conclusion but no description of a) the findings on application of the methodology, b) assumptions of fact, or c) reasoning process from findings and assumptions to the conclusion, is capable of amounting to admissible expert evidence.”

52. To the extent that this question refers to assumptions of fact the only relevant assumption that is said to be missing from Sergeant Worboys’ certificate is his assumption that no two persons have the same fingerprint. This appears to be strongly suspected to be true but incapable of definitive proof. That omission is irrelevant to the admissibility of the report in that the relevant opinion was treated by the presiding magistrate as only being a statement to the effect that the two fingerprints were identical. His Honour reasoned for himself as to whether that fact suggested that it was JP’s fingerprint (see [24]).

53. Otherwise the difficulty for JP with the above formulation of the question of law alone is that it follows from the emphasised portion of the extract from Dasreef in [32] above that the answer to this question is “maybe”. In some circumstances, such as those involving a specialist medical practitioner, giving a diagnostic opinion on a straightforward medical matter, “little explicit articulation or amplification” is required to fulfil the second condition of admissibility. With some opinions at least matters of fact and degree or evaluation are involved. Unless there was only one answer to a question that involves such matters then no question of law alone is raised (Landsman v R [2014] NSWCCA 328; 88 NSWLR 534 at [43] to [44] per Beazley P).

54. I have set out the brief ex tempore reasons of his Honour for admitting the certificate in [12] above. I respectfully disagree with his Honour’s conclusion that Sergeant Worboys “set out what his actual comparisons are” and “it’s there” in the sense explained. While in [7] of the certificate Sergeant Worboys set out the methodology that was applied in examining the fingerprints, nowhere in the certificate was there any statement of what that examination revealed. Instead there was simply a statement of the ultimate opinion formed as a result of that opinion (in [8] and [9]). This can be contrasted with Bennett in which there was ultimately a statement by the expert of what their examination revealed, albeit a brief one. In this case the opinion in [8] and [9] was insufficiently supported by any reasons (or factual findings on the approach stated in Bennett) for it be admitted into evidence.

55. However His Honour’s reasons for admitting the certificate do not reveal that his Honour acted on any incorrect principle relevant to the admissibility of expert evidence. Instead his Honour appears to have recognised the need for some description of what the process of comparison revealed but instead misapplied that principle in concluding that it was present. It follows that ground 1 does not involve a question of law alone (PL (No 1) supra).

56. Nevertheless there remains ground 6. In relation to that ground, JP seeks leave to raise a ground involving a mixed question of law and fact. The circumstance that Sergeant Worboys’ ultimate conclusion that the latent print and JP’s print were identical was critical to JP’s conviction and the absence of any statement in the certificate that explained any aspect of the outcome of his application of that methodology or how that led to his ultimate conclusion together with the close connection between this point and ground 1 warrants a grant of leave. For the reasons already stated in my view the admission of the certificate was erroneous. However it is a condition of leave that the admissibility of Sergeant Worboys’ ultimate opinion be assessed by considering the entirety of his oral evidence and not just the certificate which was tendered in chief. Had the certificate been rejected on the basis that it did not disclose how the methodology that was applied led to Sergeant Worboys’ ultimate conclusion then it would have been open to the prosecution to lead oral evidence that remedied the deficiency. There is no reason why the prosecution should be disadvantaged on appeal by denying it the capacity to rely on Sergeant Worboys’ oral evidence.

57. I have described Sergeant Worboys’ oral evidence at [14] to [21]. Relevantly he supplemented his report by stating that he examined 35 characteristic points using software that placed the latent print and JP’s fingerprint side by side, and that he did not record the number of similarities but nevertheless concluded that each such point was either similar or the difference was explainable. In one part of the written submissions filed in support of the appeal complaint is made that the eliciting in re-examination of evidence that 35 characteristics points were examined was unfair. This complaint was not tethered to any ground of appeal and in any event has no substance. The entitlement to ask the question arose from the cross-examination especially that part summarised in [18] to [21] and the question was not objected to. If any relevant unfairness in the eliciting of the answer in re-examination had been identified before the presiding Magistrate then it would have been open to his Honour to allow further cross-examination to address it. No unfairness was complained of much less identified.

58. Is the description of what Sergeant Worboys’ examination of the fingerprints revealed that was given in his oral evidence sufficient to render his opinion that the prints were identical admissible? In my view it follows from the discussion in [25] to [43] that it was just sufficient. The judgments in Bennett and the observations of Spigelman CJ in Tang at [144] indicate that “little explicit articulation or amplification” of the outcome of the application of the methodology is required to satisfy the second condition of admissibility of an opinion about the correspondence between two fingerprints (Dasreef at [37]).

59. The lengthy written submissions in support of this ground identify two principal matters as negating a conclusion that Sergeant Worboys’ evidence was admissible even having regard to his oral evidence. The first is summarised in the written submissions as follows:

“The Plaintiff however submits that in the circumstances of this case where:

the relevant print was incomplete, and there was no suggestion that the witness could predict what was 'missing',

he ultimately accepted it was not possible to rely on the absolute uniqueness of human fingerprints,

he did not engage in analysis of level 3 detail,

the distinction between what is actually different and what was able to be observed by him as different was said to be beyond his expertise, and

he claimed that he did not take into account in any way the rarity or frequency of the similarities observed,

the demonstration of connection between specialised knowledge and evidence of identification was not made out.”

60. The first to third and fifth of these points have already been explained. The fourth point is a reference to a passage in the cross-examination of Sergeant Worboys where his Honour upheld an objection to a question that asked him to distinguish between what is different “in fact and what is able to be seen as different”. Whether his Honour was correct to uphold that objection or not is immaterial, although I have sympathy for the proposition that Sergeant Worboys’ views on metaphysics were irrelevant. It suffices to state that none of the above points have any bearing on the admissibility of Sergeant Worboys' opinion. At most they only bear upon its weight. As already stated the assumption that no two fingerprints could be identical was ultimately immaterial. Otherwise, as I will explain, the materiality of these alleged limitations and omissions to his ultimate opinion was not accepted by Sergeant Worboys or proven by any other witness or evidentiary material. An opinion which is supported by an asserted path of reasoning that meets the statutory test is not rendered inadmissible by demonstrating that the actual reasoning of the expert involved further steps and assumptions (ASIC v Rich & Ors [2005] NSWCA 152; 54 ACSR 326), and nor is it rendered inadmissible by merely pointing to some other steps that the expert could have taken but did not.

61. Second, the plaintiff’s written submissions on this ground contend that Sergeant Worboys’ evidence did not specify or provide the necessary scientific criteria for its accuracy to be tested. In one part of the submissions it is suggested that this could have been done by tendering “comparison charts” as occurs in the District Court or Supreme Court. Failing that the submissions contend:

“Even without a chart, a basic description of what was found on examination was imperative. It is completely unclear why the report did not say, for example, that the witness found a certain nominated number of points of similarity, general description of what they were and why they were significant, and nominate the number of apparent differences with articulation of why they were explicable.”

62. It follows from the above discussion, especially the judgments in Bennett, that none of these matters were required to be provided to render Sergeant Worboys’ opinion admissible. Only a relatively brief statement of what the examination revealed was necessary. It may be that in a particular case the inability or refusal of the prosecution to respond to a timely request to provide material of this kind might warrant a discretionary exclusion of such evidence under s 135 of the Evidence Act. However no such application was made in this case. In that regard reference was made to that provision and s 137 during oral submissions on this appeal. However, in the absence of those provisions being invoked at first instance it is difficult to see how any question of law alone is raised by his Honour’s refusal to consider their application. Further, leave to raise a question of mixed law and fact concerning s 135 and s 137 of the Evidence Act should not be granted since those provisions were not sought to be invoked at first instance.

63. I grant leave to raise ground 6 as pleaded but dismiss the ground. I refuse leave to raise a ground involving a question of mixed error of fact and law concerning the application of ss 135 and 137 of the Evidence Act.

Ground 2: Reasons for admission of Sergeant Worboys’ Certificate

64. Ground 2 of the appeal contends that his Honour failed to provide adequate reasons for the admission of the report of Sergeant Worboys.

65. The submissions in support of this ground contend that a “failure to provide reasons involves error in a question of law alone”. A failure to provide adequate reasons can constitute an error of law (Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [131]). A complaint that a judicial officer did not provide adequate reasons could involve a question of law alone if a question is posed in terms that are unrelated to the circumstances of the particular case, but pose a question as to the content of that obligation of the officer to address a particular matter. A complaint of this kind was upheld in Shepherd v Nestoriadis [2015] NSWSC 348. However, as discussed below in [72], if the complaint concerns a matter of fact then on an appeal restricted to a question of law the obligation to provide reasons is of very limited content (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281-282; “Soulemezis”).

66. It is not necessary to consider this further because if I considered this complaint had sufficient substance but did not involve a question of law alone, then I would grant leave under s 53(1)(b) of the Review Act. However I do not consider that it has any substance. The reasons that his Honour gave for admitting the report are set out in [12]. The extempore delivery of brief reasons for the admission of experts’ reports is completely unremarkable and usually only the briefest of reasons, if any, are required (Evans v Powell [2012] NSWSC 1384 at [16]) . The brief complaint in the written submissions was that the reasons do not “adequately explain the reason to admit the [report] in light of the objection taken” (at [61]). The objection taken was the absence of any reasoning in the certificate between the statement of methodology and the conclusion. His Honour addressed that objection and rejected it. I respectfully consider that his Honour was wrong to do so, but that conclusion is irrelevant to a complaint about the adequacy of reasons.

67. I reject ground 2 of the appeal. To the extent that leave is sought to raise it, I refuse leave.

Ground 3: Different standard for the admission of evidence in the Children’s Court?

68. Ground 3 of the appeal contends that his Honour erred in applying a “less demanding standard for admissibility of expert opinion … in the Children’s Court as compared to the District Court or Supreme Court”. Reformulated, this ground does raise a question of law alone, namely whether there is such a less demanding standard? The answer to that question is “no” (see Evidence Act 1995, s 4(1)).

69. However the question does not arise in these proceedings. The premise of this ground is that in deciding to admit Sergeant Worboys’ report and stating that the report “barely makes it but in my view for these proceedings it’s sufficient” (see [12]) his Honour was positing the existence of some different and perhaps lower standard for the admission of expert evidence in the Children’s Court compared to other courts. I do not accept that premise. His Honour’s reference to the report “barely mak[ing] it” was simply a reference to the question of admissibility not being easy to resolve. Otherwise I am not satisfied that the reference to “these proceedings” is to be taken to be a reference to “this class of proceedings”, namely proceedings in the Children’s Court as opposed to a reference to the particular charge being heard and determined by his Honour.

70. I reject ground 3.

Ground 4: Adequacy of reasons for finding JP guilty

71. Ground 4 of the appeal contends that his Honour failed to provide adequate reasons for being satisfied beyond reasonable doubt that the latent fingerprint was deposited by the plaintiff.

72. The discussion in [65] applies equally at this point but further elaboration as to the effect of Soulemezis in this context is required. In Wise v Schneider [2015] NSWSC 725 at [46] to [47] I stated:

“[46]   … Where the subject matter of the appeal is restricted to a question of law alone, the power of the appellate court to intervene to set aside the decision of the lower court based on a finding of fact for which supposedly inadequate reasons have been provided is governed by the principles enunciated by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281–282 (see Valuer-General v Perilya Broken Hill Ltd [2013] NSWCA 265 at [92]). In particular, in Soulemezis at 281 McHugh JA stated:

‘In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turns simply on the plaintiff’s credibility. But if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff’s case, such a simple finding would not be enough.’ (emphasis added)

[47]   Thus in Soulemezis in rejecting a challenge to a finding of fact that was said to be perverse, McHugh JA stated at p 282:

‘It is not to the point that his Honour’s finding was erroneous or as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour’s judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law.’” (emphasis added)

73. As with ground 2, if I considered this complaint had sufficient substance but did not involve a question of law alone, then I would grant leave to raise it under s 53(1)(b) of the Review Act. However I do not consider that it has substance.

74. The relevant parts of his Honour’s judgment finding JP guilty are set out above. They are to be considered in light of the fact that the only real factual issue in dispute was whether it was JP’s fingerprint that was found at the scene. The resolution of that factual dispute adverse to JP led almost inexorably to the finding of guilt (see [24]). JP’s complaints on appeal do not concern this latter aspect of his Honour’s reasoning but instead the finding of fact that the prints were identical. Hence the above principles from Soulemezis are engaged by this complaint.

75. In the first part of his Honour’s reasons for convicting JP set out in [23] his Honour recorded his view that Sergeant Worboys’ evidence was “not shaken”, that he had given “sufficient evidence” to explain how he reached his opinion and summarised Sergeant Worboys’ response to the various points that were raised. In the third paragraph his Honour considered and rejected the attacks made on Sergeant Worboys’ demeanour in answering questions. His Honour’s reasons more than satisfied Soulemezis. His Honour clearly stated “the ground for … his finding of fact”.

76. Nevertheless, out of deference to the matters argued, I will address the principal complaints about his Honour’s reasons. The submissions before the presiding Magistrate and in this Court were replete with references to the various points that were made during the course of the cross-examination of Sergeant Worboys. Some of those are summarised above at [18] to [19], but they also include the absence of any evidence that Sergeant Worboys’ evidence had been verified by another expert, Sergeant Worboys’ disclaimer of any bias, his rejection of the possibility that he was wrong, his failure to read the learning guide referred to at [16] and his lack of knowledge of an inquiry into fingerprint analysis undertaken by Lord Campbell in the United Kingdom.

77. However these do not address the observation of the presiding Magistrate that not only was there an absence of any competing expert evidence but there was “no chance to test the validity of [the] arguments” that were made about Sergeant Worboys’ evidence. The point being made by his Honour is that there was nothing to indicate that these alleged failings were of any significance. In the end result his Honour was presented with the uncontradicted evidence of an expert whose demeanour and credibility his Honour accepted. The expert addressed and in some respects accepted the criticisms that were made during cross-examination but did not accept that such of those as were accepted affected the reliability of his opinion. As noted by his Honour there was no other evidence to demonstrate that either.

78. The difficulty with the written submissions in support of this ground is exemplified by the following contentions:

“79 … Sergeant Worboys' extraordinary hubris on the last day of the hearing regarding his own ability, and the ACE-V method-speaking of it as though it was equivalent to a computer checking a barcode – was irrational, directly at odds with the obviously correct concessions made earlier in the proceedings about the subjective nature of fingerprint comparison and evaluation (where everybody sees something different), and was not capable of doing anything other than undermining his credibility as an expert witness.

80. [Sergeant Worboys’] demonstrated lack of knowledge of important contemporary issues in his field was not capable of doing anything other than undermining the weight of his evidence.”

79. These contentions make assertions of fact that were not accepted in the proceedings below. His Honour’s findings concerning Sergeant Worboys’ demeanour are completely inconsistent with him having displayed “extraordinary hubris”. The only evidence of the application of the “ACE-V” method was given by Sergeant Worboys and that was not “irrational”. Otherwise Sergeant Worboys did not accept that he lacked knowledge of “important contemporary issues”. That is the author’s assertion. For his Honour to accept that contention he would need to have some evidence that the “issues” being referred to and which Sergeant Worboys did not have knowledge of were both contemporary and important. Overall, these assertions only serve to highlight the point made by his Honour, namely that there was no evidentiary material from which he could conclude that the various criticisms made of Sergeant Worboys were of any real significance to the reliability of his ultimate opinion.

80. Ultimately the written submissions in support of this ground contended as follows:

“81.    Ultimately, the only reasons of his Honour’s which are supported by the evidence are that Sergeant Worboys was not shown to have been, in fact, biased; and that no expert evidence was called to show his opinion was wrong. These are plainly inadequate reasons for acceptance beyond reasonable doubt that the plaintiff deposited W3 at the crime scene.

82.    His Honour was not able to give adequate reasons in this matter because adequate material to assess the expert opinion had not been placed before him.”

81. These submissions do not engage with Soulemezis. A complaint of inadequate reasons is not a vehicle for a complaint concerning the merits of the decision (Wise v Schneider at [42]). Otherwise this contention misstates his Honour’s reasoning process, which I have addressed above. The path of his Honour’s reasons towards a guilty verdict was clear. Whether or not they disclose an adequate basis for a finding of guilty beyond reasonable doubt is a different issue to whether or not they meet the requisite standard.

82. I reject ground 4 of the appeal. To the extent that leave may be necessary to raise it and is sought, it is refused.

Grounds 5 and 8: Failure to properly exercise decision making responsibility

83. Ground 5 contends that in convicting JP “his Honour failed to exercise his decision making responsibility”. This is said to raise a question of law alone. Ground 8 contended that his Honour “divested too much of his Honour’s decision making responsibility to Sergeant Worboys”. Leave to raise ground 8 is sought pursuant to s 53(1) of the Review Act.

84. Each of these grounds is directed towards the following part of his Honour’s reasons for convicting JP:

“It is put to the Court that the judicial officer could not assess the prints from the photos that are presented. It is not this Court’s role to be the expert, that is why the police call an expert to give their opinion and why, if required the defence call an expert as to why it is not, it is not the Court’s role to look at the various rigors and make a determination and even Sergeant Worboys on his own evidence indicated he needed specialist equipment to be able to identify it.”

85. The written submissions in support of these grounds contend that the “central legal question at the core of both grounds is whether it was the responsibility of the expert, or the tribunal of fact (assisted by the expert), to decide whether W3 was deposited by the Plaintiff”.

86. There is no doubt that ground 5 is capable of involving a question of law alone about the respective roles of the tribunal of fact and an expert. However the premise of both grounds 5 and 8 is that a proper reading of his Honour’s reasons reveals that his Honour simply devolved the task of determining whether the latent print was deposited by JP to Sergeant Worboys without determining whether Sergeant Worboys’ evidence should be accepted. However his Honour did not reason that way. As was submitted by Counsel for the Director, Ms Davidson, in the above passage his Honour simply “reasoned that it was not necessary for him to be put in the same position as Sergeant Worboys so that he could perform for himself the comparison exercise in order to determine whether he was satisfied with the expert evidence”. This approach was consistent with authority. In R v Lawless [1974] VR 398 at 423 the Full Court of the Supreme Court of Victoria stated:

“It is a matter for expertise not possessed by the ordinary run of mankind to identify characteristics of fingerprints and their patterns in each of two prints and make a comparison and form a conclusion as to whether they are identical or not and the jury could not be invited or allowed to act as experts: see R v Tilley, [1961] 1 WLR 1309; [1961] 3 All ER406; Rv Harden [1963] 1 QB 8; [1962] 1 All ER 286; R v Weise [1969] VR 953, at p. 972. That is not to say of course that the jury could be prevented from examining the exhibits for the purpose of determining whether they were satisfied to the necessary degree by the evidence of the witness. The determination was for them, but the provision of evidence was for the experts.”

87. This passage was endorsed in R v O’Callaghan [1976] VR 676 at 678 to 679 and is consistent with the observations of Perry ACJ in Bennett set out above (at [41]).

88. I reject ground 5. I grant leave to raise ground 8 but dismiss the ground.

Ground 9: Not open to be satisfied beyond reasonable doubt

89. Ground 9 contends that it was not open to his Honour to be satisfied beyond reasonable doubt that the latent fingerprint W3 was deposited by the plaintiff. The written submissions lodged in support of JP’s appeal recognise that this does not involve a question of law alone, but instead leave is sought to raise it as a mixed question of law and fact (or fact alone). The submissions contend that in light of the various complaints that are otherwise made in relation to Sergeant Worboys’ evidence that a “proper application of the requirement of proof beyond reasonable doubt pointed only to one conclusion in this case” and that a “finding of guilt was unreasonable and unsupported by the evidence”.

90. I do not accept this complaint. In my view the approach taken by the presiding Magistrate to Sergeant Worboys’ evidence was reasonably open to his Honour. While a number of criticisms were made of Sergeant Worboys' evidence it was open to his Honour to conclude that there was no material to indicate that, to the extent the criticisms were sustained, they materially affected the weight to be attached to Sergeant Worboys’ opinion that the fingerprints were identical. Otherwise his Honour had the distinct advantage of being able to observe Sergeant Worboys give evidence and respond to criticism. Once the conclusion was reached that the latent print was identical to JP's fingerprint, then a finding of guilt beyond reasonable doubt was clearly open.

91. I refuse leave to raise ground 9.

Conclusion

92. Ground 7 was not pressed. Neither party sought costs.

93. Accordingly the Court orders that:

1. To the extent necessary the plaintiff be granted leave to raise grounds 6 and 8 in his summons filed 5 May 2015.

2. The plaintiff's summons be otherwise dismissed.

                                                                     -o0o-

Decision last updated: 11 November 2015