R v A, A - [2010] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v A, A
[2010] SADC 126
Reasons for Ruling of His Honour Judge Clayton
20 September 2010
CRIMINAL LAW - EVIDENCE - RELEVANCE - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY - GENERALLY
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - QUALIFICATIONS OF WITNESS
Application to exclude identification evidence. CCTV footage showed offender from the rear holding a weapon. Prosecution sought to lead evidence of expert biological anthropologist and anatomist stating the similarities between accused and offender shown in CCTV. Basis for opinion was that both accused and offender on the CCTV recording were tall with a very athletic body build, wide shoulders, right handed, long and thin lower limbs, smoothly rounded skull and thick rims of both ears. Witness concluded offender was “very likely” to be the accused. Whether irrelevant and/or inadmissible opinion evidence. Proposed expert evidence of similarities not dependent upon any expertise. Observations of similarities in this case fundamental and capable of being made by jury themselves. Distinction between expert evidence of facial mapping and body mapping. Proposed opinion is a bare ipse dixit. Opinion that offender "very likely" to be accused is a matter for the jury alone. Evidence excluded.
R v Murdoch (No 4) [2005] NTSC 78; R v Osborne (unreported 22 October 2008); Smith v The Queen (2001) 206 CLR 650; R v Tang [2006] NSWCCA 167; R v Jung [2006] NSWSC 658; HG v The Queen (1999) 197 CLR 414 at 427; R v Gray [2003] EWCA Crim 1001; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146, considered.

R v A, A
[2010] SADC 126

Mr A was charged with having control of a firearm for the purpose of committing an offence, possessing a firearm without a licence, aggravated threatening to cause harm, aggravated causing serious harm with intent to cause serious harm and possessing a firearm without a licence.
The first two counts were alleged to have been committed in Gouger Street, Adelaide on 4 May 2008. Count three is alleged to have been committed at Blair Athol on 31 July 2008 and counts four and five are alleged to have been committed at Blair Athol on 2 August 2008. A nolle prosequi has now been entered on counts 1 and 2.
The evidence in connection with counts one and two included a closed-circuit television recording taken from the Escobar nightclub, which shows the southern footpath of Gouger Street adjacent to Gauchos restaurant, looking east. A male person appears in the images holding a handgun in his right hand. That person was wearing a white t-shirt and had a shaved head. The camera only captured a view of the rear right-side of that person as he moved east along the footpath of Gouger Street, and then to the north between parked cars. The face of that person is not visible.
The Crown proposed to call Professor Maciej Henneberg to give identification evidence. The accused challenged the admissibility of the evidence of Professor Henneberg, which is contained in a statement dated 12 November 2008.
The statement sets out Professor Henneberg’s extensive qualifications. He describes himself as a professional biological anthropologist and anatomist. He is the Wood Jones Chair of anthropological and comparative anatomy and the head of the discipline of anatomical sciences in the school of medical sciences at the University of Adelaide. He has a doctorate in biological anthropology and a post doctoral qualification from a University in Poland and is a fellow of the Australian Institute of Biology Inc. Prior to his current appointment he was professor of anatomy and human biology at a university in South Africa. He has held academic appointments in Texas and Cape Town. He has conducted research on child growth, assessing body shape and taking anthropometric measurements on several thousand children in Europe, South Africa and Australia, and has published peer reviewed papers on child growth and development.
Professor Henneberg has practised forensic identification since 1976 in Poland, Texas, South Africa and Australia. He has published his forensic research in learned journals and chapters in books. His evidence has been accepted by courts in South Australia, Queensland, New South Wales and the Northern Territory, as well as in Texas, South Africa and Poland.
Professor Henneberg compared still images derived from the CCTV recording with images of the accused.
In his statement, Professor Henneberg said that he used a method of anatomical comparison that describes those morphological traits of the offender that can be discerned from security images and compared them with morphological traits of the suspect.
He described the offender shown in the recording in the following way:
The offender is a young adult male of very athletic body build and tall stature. His shoulders are very wide, even in relation to his hips. His lower limbs are long in relation to the total body size, and rather thin, especially in their distal segments. The outline of the skull vault in the posterior view (norma occipitalis) is smoothly rounded. His ears seem to have thick helices (rims) at least in their upper and middle parts, though the quality of the images makes this observation unsure. The offender is right-handed in his actions.
Professor Henneberg described the accused in the following way:
Mr A is a tall young male of very athletic body build. His shoulders are very wide, also in comparison to his hips. When he stands freely his right shoulder is somewhat lower than the left. This indicates right-handedness. His lower limbs are long and rather thin especially in their distal parts. His skull vault in posterior view has smoothly rounded outline. His ears, in the posterior view have thick helices (rims).
He expressed the following opinion:
Taking into account morphological similarities between the suspect and the offender and the lack of any dissimilarity in any characteristic I could observe I am of the opinion that the offender is very likely to be Mr A. This opinion is strengthened by the observation that strongly athletic body build is not common among young South Australian males. Ms Michelle Lloyd has just completed under my supervision observations of body build of 114 SA males for her honours thesis that is now undergoing examination.
The prosecutor pointed out that Professor Henneberg had noted five points of similarity, namely, build or physique, width of shoulders, length and slope of lower arm, a smoothly rounded outline of the skull and thickness of the rim of his ears. In addition, Professor Henneberg observed that there was no dissimilarity.
The accused challenged the evidence of Professor Henneberg on the basis that it was irrelevant and/or inadmissible opinion evidence.
On 20 September I ruled that the evidence of Professor Henneberg, which is contained in his signed statement, should be excluded. These are the reasons for my decision.
The prosecutor relied upon decisions including R v Murdoch (No 4) [2005] NTSC 78 and the decision of Judge English in the District Court of New South Wales in R v Osborne (unreported 22 October 2008) where there was an application for exclusion relating to evidence of Professor Henneberg.
In Osborne, Judge English decided that the evidence of Professor Henneberg was admissible and relevant. Her Honour observed that while the images that had been downloaded from closed-circuit television were not sufficient to enable a proper comparison to be made, and even enlarged stills were not of photographic quality, the jury would be assisted in their task of making a comparison by the evidence of Professor Henneberg, whom she accepted was both trained and experienced in making such comparisons.
One basis on which Osborne can be distinguished is that in addition to images of the person's body, Professor Henneberg had images of the face of the person in question. He had evidence which provided a basis for a much more detailed opinion. In the present case the CCTV images are confined to images of the back of the body and head.
The observations made by Professor Henneberg as to both the offender and Mr A are quite basic:
…a tall young male of very athletic body build. His shoulders are very wide, also in comparison to his hips… right shoulder is somewhat lower than the left… right-handedness… lower limbs are long and rather thin especially in their distal parts… skull vault in posterior view has smoothly rounded outline… ears, in the posterior view have thick helices (rims).
The poor quality of the images made Professor Henneberg unsure as to the latter criterion.
Professor Henneberg made no measurement of the height or width of the shoulders. The basis upon which he expresses the opinion that both the offender and the accused were "tall" is not disclosed. That is a comparison which the jury can make for itself without the assistance of expert opinion. My own observation of the accused in the dock is that he is of medium height and is not a person who would be described as "tall", whatever criterion was used.
The observation that both the offender and the accused have a "very athletic body build" is again not a matter on which the jury requires the assistance of an expert. The observation that "strongly athletic body build is not common among young South Australian males" cannot form the basis for identification of the accused. Nor can right-handedness.
Professor Henneberg's observation of the accused that "his lower limbs are long in relation to the total body size, and rather thin, especially in their distal segments" is not justified by reference to statistics. It is a matter about which there could be disagreement, and again it would be a simple matter for the jury to reach its own conclusion without the need for any expert assistance.
I have no doubt that Professor Henneberg possesses expertise in many areas, including facial recognition, and there are many cases in which his evidence would be of assistance to a jury.
However the evidence which is foreshadowed in his statement dated 12 November 2008 is so basic, non specific, and unsupported by any measurements or meaningful data, that it would, in my opinion, be of little assistance to a jury.
The specific observations which are referred to do not support the ultimate opinion "that the offender is very likely to be Mr A." In any event, such an opinion is inadmissible. Cases have established that experts such as Professor Henneberg can draw to the attention of the jury similarities between an accused and the person shown in CCTV images, but the expert cannot go further and provide an actual identification. Here there is no actual identification. Apart from being inadmissible, the opinion that the offender "is very likely to be Mr A" takes the matter nowhere.
Miss Davison relied upon the decision of the High Court in Smith v The Queen (2001) 206 CLR 650 where the Court decided that evidence given by two police officers at a trial that the accused was the person depicted in security photographs had been improperly received. The Court said that because the police officers assertion of identity was founded on material no different from the material available to the jury from its own observation, that the witnesses assertion that they recognize the appellant was not evidence that could rationally affect the assessment by the jury of the probability of the existence of the facts in issue in the proceeding. The Court said:[1]
The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury.
[1] at para 11.
In that case the majority held that the evidence of the police officers was irrelevant and should not have been received. Kirby J held that the police evidence was opinion evidence, and was not admissible as being nothing more than an opinion upon a subject about which the jury were required to form their own opinion.
Kirby J also referred to the difficulties with identification evidence and made the following observation:[2]
…The risks, already large, may be enhanced by the natural desire of a person performing the act of identification to produce an affirmative outcome rather than to admit to incapacity and failure. The risks are still further increased where the person concerned has a relevant professional motivation (even if only subconsciously) to identify a person…
[2] at para 56.
Since the decision in Smith there have been other cases in which courts have permitted expert evidence based on forensic anatomy and facial identification: R v Tang [2006] NSWCCA 167; R v Murdoch (No 4) [2005] NTSC 78; R v Jung [2006] NSWSC 658.
In Murdoch, Martin CJ applied the test for expert evidence, and concluded:[3]
In my view, applying the language of King CJ in R v Bonython (1984) 38 SASR 45, facial mapping “forms part of a body of knowledge or experience which is sufficiently organised or recognised to be acceptable as a reliable body of knowledge or experience”.
[3] at para 109.
While courts have been prepared to accept evidence of facial mapping, the position with respect to body mapping is not necessarily the same. In Murdoch, Martin CJ said that he was satisfied that the technique has "a sufficient scientific basis to render results arrived at by that means part of a field of knowledge which is a proper subject of expert evidence".[4] However in Tang, Spigelman CJ, after referring to the reasons of Martin CJ and the evidence of Dr Sutisno upon which the conclusion of Martin CJ was based, said:[5]
There does appear to be a body of expertise based on facial identification. The detailed knowledge of anatomy which Dr Sutisno unquestionably had, together with her training, research and experience in the course of facial reconstruction supports her evidence of facial characteristics.
Nothing was presented to the Court which indicates, in any way, that Dr Sutisno’s extension from facial to body mapping, with respect to matters of posture, has anything like that level of background and support. Specialist knowledge of posture can of course exist… But the foundation for admissibility must be lain. It was not lain in the present case. The so-called "unique identifier" of posture was an essential element of Dr Sutisno's evidence of identity in the present case.
[4] at para 110.
[5] at paras 135-136.
Spigelman CJ commented:[6]
In the absence of any kind of objective standard or data base which is capable of leading to a quantification of probabilities, such as is given in the context of DNA evidence, evidence of similarity may have a cumulative effect, by reason of the number of points of similarity. Directions to the jury of the probability of the various matters coinciding can be helpfully put in terms of the ordinary experience of jurors…
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.
[6] at paras 143-144.
In HG v The Queen (1999) 197 CLR 414 at 427, Gleeson CJ observed with respect to the New South Wales Evidence Act "… the witness had to identify the expertise he could bring to bear… and his opinions had to be related to his expertise." The position at common law in South Australia is the same.
Spigelman J referred to a warning about the use of expert evidence given by the Court of Appeal, Criminal Division in England in R v Gray [2003] EWCA Crim 1001 in the following terms:[7]
… Mr Harrow, like some other facial imaging and mapping experts, said that comparison of the facial characteristics provided "strong support for the identification of the robber as the appellant". No evidence was led of the number of occasions on which any of the six facial characteristics identified by him as "the more unusual and thus individual" were present in the general population, nor as to the frequency of the occurrence in the general population, of combinations of these or any other facial characteristics. Mr Harrow did not suggest that there was any national database of facial characteristics or any accepted mathematical formula, as in the case of fingerprint comparison, from which conclusions as to the probability of occurrence of particular facial characteristics or combinations of facial characteristics could safely be drawn. This court is not aware of the existence of any such database or agreed formula. In their absence any estimate of probabilities and any expression of the degree of support provided by particular facial characteristics or combinations of facial characteristics must be only the subjective opinion of the facial imaging or mapping witness. There is no means of determining objectively whether or not such an opinion is justified. Consequently, unless and until a national database or agreed formula or some other such objective measure is established, this court doubts whether such opinions should ever be expressed by facial imaging or mapping witnesses. The evidence of such witnesses, including opinion evidence, is of course both admissible and frequently value to demonstrate to a jury with, if necessary, enhancement techniques afforded by specialist equipment, particular facial characteristics or combinations of such characteristics so as to permit the jury to reach its own conclusion… but on the state of the evidence in this case, and if this court's understanding of the current position is correct in other cases too, such evidence should stop there.
[7] at para 16.
The opinions which Professor Henneberg expresses in his statement are not dependent upon his undoubted expertise. The observations which he has made are very fundamental observations which the jury is capable of making themselves. There was no application of statistics, a database or any specialist knowledge. The observations in question were not dependent upon the application of expertise. There is also the distinction between facial mapping and body mapping.
Ultimately the decision must be for the jury alone. In this case the evidence of Professor Henneberg is unlikely to assist the jury in arriving at its decision. Also, as I have mentioned there is also reason to doubt some of Professor Henneberg’s conclusions, for example the observation that the accused is "tall". That may not matter because all that is necessary is a comparison between the accused and the person shown in the closed-circuit television recording. The observation about the lack of athleticism in young South Australian males may or may not be correct, but it would be dangerous to identify a person suspected of committing an offence merely on the basis of perceived athleticism, or indeed on the basis of any of those factors identified by Professor Henneberg in this case. At most they are matters of similarity which are clearly within the capacity of the jury to determine for itself.

As Gleeson CJ said in HG v The Queen, the witness must identify the expertise that it brings to bear and his opinions must be related to the expertise.
In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA referred to the requirements for expert opinion evidence to be admissible including the requirement that:[8]
… the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the experts 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.
[8] at p 744.
It must be demonstrated that "…the opinion is based on… specialised knowledge": Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 at 150. In this case that requirement has not been satisfied. The opinion is what is sometimes referred to in the cases as a bare ipse dixit.
For these reasons I ordered that the proposed evidence of Professor Henneberg which is set out in his statement be excluded.