R v Ali Alrekabi
[2007] NSWDC 110
•4 June 2007
CITATION: R v Ali Alrekabi [2007] NSWDC 110 HEARING DATE(S): 29 May 2007 - 4 June 2007 (Voir Dire)
JUDGMENT DATE:
4 June 2007JURISDICTION: Criminal JUDGMENT OF: Knox SC DCJ DECISION: a) the evidence is relevant and probative of the identity of the accused;; b) that the evidence proposed to be called from Professor Henneberg is evidence in which proper opinion evidence can be called;; c) that the evidence on the voir dire establishes that Professor Henneberg is a person who has the necessary expertise to give evidence about the points of similarity and difference on the photographs of the accused and those taken from the CCTV camera. In my view, his training in anatomy over the years is such that he could also give evidence as to whether the hair on the person shown in the CCTV stills has been drawn back into the white baseball cap;; d) That that expertise extends to evidence from Professor Henneberg about precise positions, significance and characteristics of the features on the two sets of photographs that Professor Henneberg had outlined in coming to his conclusion. The factual basis for his opinions is clear;; e) That his opinion evidence is based on his specialised knowledge. The fact that his opinion is in qualitative form does not render it inadmissible provided the provisions of section 79 of the Evidence Act are satisfied as are Makita principles outlined above. Although I have some concerns about the asserted justification for the evidence proposed to be led that the similarities are ‘uncommon’ or similar descriptive phrases, I consider that such evidence is capable of being regarded as a statement of opinion of an expert. Here such descriptions are said to be based on Professor Henneberg’s experience and expertise. Whether they are accurate or supportable – for example, on the basis of the research paper of Ms Kearney (exhibit VD 14) with all the stated qualifications in the abstract and conclusions of that paper - remains to be assessed by the jury.; The statistical, experiential or other justification for such statements will also be tested on cross-examination – particularly where evidence is available from Dr Kemp as to the absence of statistical data justifying or supporting such descriptions. That is part of the defence attack on Professor Henneberg’s opinions including the discipline and method of his specific approach and the absence of a statistical justification or validation of the technique of facial mapping generally. It will then be a matter for the jury to make an assessment as to the weight they place on that evidence generally, whether the descriptions given by Professor Henneberg are justified and what use can be made of the evidence in accordance with the directions which are given.; f) I consider that Professor Henneberg’s expertise is such that his evidence of the similarities will be of assistance to the jury to determine the ultimate issue of the identification of the person said to have taken place in the robbery. The circumstantial evidence of the clothing worn by the person shown in the CCTV photographs is separate from the similarity evidence said to arise from the CCTV photos and those taken of the accused on the earlier occasion at the police station.; g) I do not accept that the decision in Mundarra Smith v The Queen [2001] HCA 50 should preclude the evidence as being evidence on which the jury could be assisted in their understanding of what the photographs are said to reveal or depict in terms of the person said to be the accused – see Hall J in R v Jung [2006] NSWCCA 658 at [45].; h) I do not consider that a jury, properly directed, would be overwhelmed or otherwise improperly influenced by the evidence to be given by Professor Henneberg nor do I think that the medical and other anatomical terms used will overwhelm a jury. That is a matter for explanation by the witness and submission by counsel.; i) Any prejudice to the accused arises from the quality of the photographs about which the jury will be given specific warnings. However, I regard the probative value of the evidence to be high and in any event, not outweighed by the danger of unfair prejudice to the accused – section 137 Evidence Act 1995. I do not think that there is a real risk of unfair prejudice to the accused by reason of the admission of the evidence complained of nor that the jury might be unfairly swayed by the ‘scientific’ nature of the evidence to make a decision on an improper basis – R v Lisoff [1999] NSWCCA 364 at [60]. CATCHWORDS: Application to exclude facial mapping and CCTV evidence - Detain for advantage - Armed robbery with dangerous weapon - Armed robbery with offensive weapon (alternative) - CCTV footage - Comparitive examination of CCTV footage and photographs - Facial mapping - Anatomical comparison - Evidence of clothing - Statistical basis for expert conclusion - Scientific basis for expertise LEGISLATION CITED: Crimes Act 1900 (NSW)
Evidence Act 1995CASES CITED: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
R v Jung [2006] NSWCCA 658
R v Tang [2006] NSWCCA 167
R v Kaliyanda unrep. NSWSC 17 October, 2006
R v BLM (unrep DC NSW 14 September 2005)
Murdoch v The Queen [2007] NT CCA 1
R v Mitchell [2005] EWCA Crim 731
Attorney General’s Reference No. 2 of 2002 [2003] 1 Cr.App.R. 21
Clarke [1995] 2 Cr.App.R
R v Gray [2003] EWCA Crim 1001
Gardner [2004] EWCA Crim 1639
R v Festa (2001) 208 CLR 593
Mundarra Smith v The Queen [2001] HCA 50
R v Lisoff [1999] NSWCCA 364PARTIES: R
Ali AlrekabiFILE NUMBER(S): 07/21/0046 COUNSEL: Ms Fiona Gray (Crown)
Mr Matthew Johnston (Defence Counsel)SOLICITORS: Mr Stephen Modder (DPP)
Mr Phillip Gibson (Defence solicitor)
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JUDGMENT
Issue
1 The widespread usage of CCTV and related surveillance cameras has led to an increasing reliance on expert and police evidence for identification purposes. That evidence typically analyses photographic stills taken from such CCTV footage and compares those photographs with photographs of the accused.
2 The technique of facial mapping uses characteristics or measurements of the human face to assist in the identification of a person of interest. In essence two or more photographic images are compared to determine whether they depict the same person.
3 This ruling deals with whether evidence by Professor Maciej Henneberg of identification of an accused by way of facial mapping based on such photographic evidence is admissible, and, if so, how it should be used in this trial.
Application
4 By Notice of Motion dated 22 May, 2007, the accused seeks orders that the facial mapping evidence of Professor Maciej Henneberg be excluded as well as CCTV video tapes said to be taken of the accused while he was reporting on bail.
5 The remaining paragraphs of the accused’s Notice of Motion have been the subject of agreement.
Indictment
6 The accused is charged with three counts on an indictment as follows:
On 20 June 2006 at Lakemba in the State of New South Wales while in the company of other persons detained Musher Saleh without his consent with intent to obtain an advantage, namely cash and jewellery.
Contrary to s86(2)(b) of the Crimes Act, 1900.
On 20 June 2006 at Lakemba in the State of New South Wales did when armed with a dangerous weapon, namely a shortened firearm, robbed Musher Saleh of cash and jewellery the property of Emad Ashour, Kaled Ahoueid and M. Yousef, trading as Lakemba Jewellers.
Contrary to s97(2) of the Crimes Act, 1900.
And, in the alternative:
On 20 June 2006 at Lakemba in the State of New South Wales did when armed with an offensive weapon, namely a shortened firearm, robbed Musher Saleh of cash and jewellery the property of Emad Ashour, Kaled Ahoueid and M. Yousef, trading as Lakemba Jewellers.
Contrary to s97(1) of the Crimes Act, 1900.
Background
7 A brief summary of the relevant facts is as follows.
8 On 20 June 2006 at 2:30pm, three males entered the Lakemba Jewellery Store at Haldon Street, Lakemba. One of the males was armed with a shortened firearm, one was wearing a balaclava. The remaining two were wearing baseball caps.
9 Three men robbed the store leaving with cash and property of approximately $400,000.
10 The victim of the robbery and employee of the store, Musher Saleh, made a statement to the police describing the three men. Mr Saleh, attended the Kingsgrove Police Station on 31 August, 2006 to participate in a computer photo identification selection. There were 20 people depicted of whom the accused was one. Mr Saleh did not nominate any of the people in the array as being involved in the robbery. At one stage during the CCTV footage of the robbery, Mr Saleh is shown as being approximately a metre from the person said to be the accused.
COMFIT image
11 Later on the day of the robbery, Mr Saleh assisted police in constructing a COMFIT image of the three offenders. That procedure was completed within 24 hours of the robbery.
12 The Crown relies on the fact that the image so produced as a result of pursuing the COMFIT procedure bore what the jury may well consider to be a remarkable similarity to the lips and nose of the accused.
13 It is further submitted by the Crown that that evidence should be able to be led to show that there were in excess of 300 sample photographs of available nose and lip samples and more than 43 face samples. The face image ultimately constructed from the composite parts available is said to contain remarkably similar ‘fits’ of features in the COMFIT procedure when compared to the size of the number of samples available. That ultimate selection and the similarities produced is relied on by the Crown to support the accuracy of the recall of Mr Saleh.
Comparison by police officer
14 On the same day CCTV footage of the incident was taken and stills of various sections were produced.
15 Following circularisation of some of these stills and notification from a police officer who said he knew the accused, Detective Wilson obtained a photo of the side profile of the accused.
16 On 30 August 2006 the accused reported to the Auburn Police Station in accordance with his bail conditions for an unrelated matter. He was arrested by Detective Wilson, the same officer who formed the opinion that he was the person displayed in the photographs referred to earlier and charged with the robbery offence.
Police investigations and evidence obtained
17 The accused participated in an ERISP and denied involvement in the robbery.
18 On 31 October 2006 Police obtained an order for photographs of the face and body of the accused. A number of photographs were taken.
19 The police ascertained that, three weeks before the robbery, the accused had attended the Auburn Police Station. At that stage the accused was wearing a red jumper over a T-shirt and he had dark hair fashioned in a pony tail. Those photographs of the robbery show the person said to be the accused wearing a red t-shirt with a Nike insignia on the collar.
Crown case
20 The Crown case as to the identification of the accused is based on the CCTV photographs of the scene of the robbery. The photographs are relied on to establish the accused’s face and head as well as his clothing.
21 The Crown seeks to lead evidence from Professor Henneberg on various aspects of his examination of the CCTV photographs and his comparative examination of photographs of the accused from which the jury could be satisfied as to identification of the accused based on what are said to be similarities in the two sets of photographs. In that respect, Professor Henneberg’s evidence would give a qualitative assessment of the relative similarities between the images.
22 The Crown further submits that Professor Henneberg’s qualifications training and experience in the area of facial mapping are such that he can give quantitative evidence – for example, as to whether the incidence of the particular features on which he relied to give his opinion are uncommon or uncharacteristic.
Evidence of clothing
23 The Crown also relies on photographs taken of the accused on 31 May 2006 at the police station. The Crown submits that the accused was wearing on that occasion a similar red T-shirt with the same white Nike insignia as was worn by the person said to be the accused in the stills from the CCTV camera at the scene of the robbery.
24 The Crown submits the jury could be satisfied of the overall circumstantial evidence as to identification that the accused was an identical T-shirt during the robbery.
Referral to Professor Henneberg
25 On 23 November 2006 Professor Henneberg was requested by Det. Wilson to examine the footage of the robbery and compare it to forensic photographs of the accused. The letter of instruction (on which the Defence relies in support of its submission that Professor Henneberg was influenced in his identification) was exhibit VD 13. Professor Henneberg’s report dated 4 December 2006 was exhibit VD 1.
Professor Henneberg’s expertise
26 Professor Henneberg‘s curriculum vitae was exhibit VD 2. He is currently the Wood Jones Professor of Anthropological and Comparative Anatomy at the University of Adelaide. He is also Head of the Discipline of Anatomical Sciences and Deputy Head of the School of Medical Sciences. He also holds the position of a Professor of Biological Sciences awarded by the President of Poland in recognition of his peer-reviewed academic achievements and qualifications.
27 He has published over 200 articles, the vast majority of which have been reviewed. Considerable time in argument on the voir dire was taken up on the issue of whether there was a statistical basis for Professor Henneberg’s conclusions.
Professor Henneberg : Approach
28 Professor Henneberg said that he preferred to use the term ‘anatomical comparison’ rather than ‘facial mapping’ as the term ‘mapping’ inferred a specific procedure, drawing or plotting a specific list whereas what he was concerned to do was to compare specific anatomical features.
29 Professor Henneberg examined the copy of the CCTV footage taken as well as images and enlargements of various photographs. He observed all the images to produce anatomical descriptions of body size, shape and features of the person of interest and also of the accused.
30 Professor Henneberg gave a general description of the clothing, skin colouration (the person identified was of slightly dark skin tone characteristic of Mediterranean people), medium build and black hair of the person in the photographs. All of these matters were in my view uncontroversial and in any event were matters capable of being observed by or being within the common knowledge of members of a jury.
Identification
31 Particular matters which were identified by Professor Henneberg in relation to the person in the photographs were that:
a) His hair was pulled upwards (and inferentially long enough to be capable of being pulled upwards) into the back of a cap;
b) He was prognathic, i.e., his upper jaw reaches further forward than the line joining the root of the nose and the chin;
c) His upper lip protruded further forward than the lower lip;
d) His nose had very long straight dorsum and did not protrude far forward from the face;
e) The tip of the nose was pointing downwards; Both of these last two features Professor Henneberg thought to be ‘uncommon in his experience’;
f) The facial hair was extending far down onto the neck where it reached back onto the skin overlying a sternocleidomastoid muscled below the ear;
g) The ears have prominent anthelices;
h) There were well rolled upper parts of the helices;
i) The ears had large lobes;
j) There was a large intertragic notch on the right ear;
k) There was a prominent antitragus visible on the right ear;
l) The right ear seemed to have a deep triangular fossa located between the crus of the anthelix;
m) The crus of the helix lies high so that the deep part below it (the cavum choncae) is large.
‘Ultimate issue’ evidence
32 Professor Hanneberg examined the photographs of the accused and compared those photographs to those of the person in the CCTV material.
33 Professor Henneberg said that the accused was the person shown in the CCTV images. The basis of that opinion was that the accused had the characteristic profile of the face and ear details in the same combination as the person shown in the photographs. Professor Henneberg’s opinion that the person of interest as shown in the CCTV images was that of the accused was made with “practical certainty since he has characteristic profiles of the face and ear details in the same combination as the person of interest”.
34 In coming to that conclusion Professor Henneberg utilised his training, knowledge, and experience in considering those factors to come to his opinion. He said it would be highly unlikely for a person having that combination of characteristics ever to be found again. In later evidence he said that there would only be a remote possibility and that it would be highly improbable that there would be an exact match. He added that as far as he was aware from his own research and that of a post-graduate student he supervised was that ‘there were no known cases of ears having the same characteristics from two different people’.
35 After Professor Henneberg had given his evidence, the Crown elected not to rely on his evidence as to the ‘ultimate issue’ of identification but to limit reliance on that evidence to similarity evidence.
Defence objections
36 Following the concession by the Crown that it would not seek to lead Professor Henneberg’s opinion evidence, the Defence maintains its objection to the admission of his evidence on the similarity of photographs of the accused to photographs taken from the CCTV footage on the following grounds:
a) That Professor Henneberg’s evidence should be limited to matters of factual observation only as the scientific basis for his expertise has not been established. It is submitted that the foundational facts for the expression of his opinion are either unstated or unclear – Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. The Defence relies on the evidence of Dr Kemp (see below) in relation to the absence of any established scientific methodology for facial mapping as well as the absence of any scientific validation of the reliability and validity of the results achieved by the technique.
b) If his evidence is so limited, then the jury would be in as strong a position as Professor Henneberg to view both the photographs of the accused, to compare those to the accused and to assess the objective nature of the similarities or otherwise. Defence counsel opposes evidence being given by Professor Henneberg to point out the features said to be similar in the two sets of photographs and that such similarities as there were could be pointed out by the Crown in addressing the jury.
c) In response, the Crown submits that that is an inappropriate role for counsel. Moreover, she relies on the evidence of Professor Henneberg who said that, while a lay person would be able to make a general comparison he or she would not be able to know the precise positions, significance and characteristics of the features that Professor Henneberg had outlined in coming to his conclusion.
d) That even if that evidence is admitted as an aide to the jury, Professor Henneberg should not be permitted to give qualitative evidence about any feature - such as that a particular feature, or combination of features, is ‘uncommon’ or ‘rare’. The objection is based on the submission that Professor Henneberg has not demonstrated any statistical basis for his conclusions nor does the evidence establish his expertise in the prevalence of the facial characteristics he has identified nor the likelihood of the correlation of such characteristics. The Defence further submits that the reliance by Professor Renneberg on the publication of a thesis of one of his post-doctoral students (exhibit VD 14) does not provide the statistical justification for his conclusions; moreover that the publication itself states that there is clear need for ‘much more research’ before ‘ear identification can become an accepted practice’ – including how different parts of the ear vary.
e) That in the exercise of my discretion as to whether the evidence should be admitted, I would have regard to the blurred nature of the photographs and the absence of any other identification evidence rendering any such identification as unsafe. The defence relies on the evidence of Dr Kemp to the effect that the validity of facial mapping was effected by matters such as the image resolution and angle of view. Against that background, it is submitted that there is a risk that a jury may be overwhelmed by evidence given by an expert and that that risk could not be overcome by any directions given. Further, that even if Professor Henneberg is capable of ascribing a scientific name to the points of comparison on the face and head of the person sought to be identified, that does not invest his opinion with any greater scientific or expert authority
f) The observation of Professor Henneberg that the hair of the person said to be the accused is tucked into his hat is not an area of his expertise. This evidence is also open to the criticism that Professor Henneberg did not observe this matter but simply repeated his instructions from Detective Wilson leading to the suggestion that there had been contamination of Professor Henneberg’s opinion.
Dr Richard Kemp
37 In support of these submissions the defence called Dr Richard Kemp. Dr Kemp is a Senior Lecturer in Forensic Psychology at the University of New South Wales.
38 Dr Kemp’s PhD was on the subject of “Face perception: Sensitivity to feature displacement in normal, negative, and inverted images”.
Dr. Kemp’s critique
39 Dr Kemp accepted that Professor Henneberg was an expert in anatomical characteristics. However, in his view, Professor Henneberg was pushing an emerging discipline too far without statistical justification for that technique for sufficient scientific analysis to ascertain whether the results received were either reliable or valid.
40 The main thrust of Dr. Kemp’s critique of Professor Henneberg’s evidence was that he did not consider that facial mapping is a reliable identification technique. Persons said to be experts in the area differed in the procedures they recommended and employed. Dr. Kemp said that he had conducted a survey of a number of practitioners of facial mapping and has not been able to ascertain any formal studies which evaluate the validity of the technique or the reliability or the validity of the results. Dr Kemp criticised the attempts made by Professor Henneberg to provide some statistical justification in that his conclusions were limited to the analysis of one survey by one of his research students.
41 Moreover, from his vantage-point of an applied psychologist, Dr Kemp was aware that there were many cases of experts being influenced by the contextual situation of the images and the manner in which images were presented to them, particularly where there was a subjective component to the assessment to be made. This was such a case in his view. Here, the letter of instruction to Professor Henneberg contained the opinion of the referring police officer that there had already been an identification of the suspect on the basis of various photographs. In Dr Kemp’s view, experts tend to believe that they are immune from such influences and pressures. In his view, they were not and for that reason he thought that there may well have been a contamination of Professor Henneberg’s examination and his opinions. .
42 Dr Kemp also considered that his studies and those of PhD students whom he was supervising was that juries were too swayed by expert evidence. The error rate of identification is such that humans are not able to accurately determine whether two images are of the same unfamiliar person.
43 The defence submits that the approach of facial mapping is different from that of fingerprint evidence where there is an empirical statistic of evidence that there are no two fingerprints the same. Similarly, with DNA evidence there is established evidence to enable an expert to say that there is a likelihood of a result occurring in a particular community – for example, after analysing ten different points of comparison. Here the defence submits that there is no such statistical justification for the technique nor its application.
Law : Australia
44 Facial mapping evidence has been admitted in courts in Australia and in particular, in New South Wales, the Northern Territory, and Queensland albeit with reservations in particular cases based on the qualifications and experience of, and methodology adopted by, the particular expert relied on to adduce the evidence. A summary of where that evidence has been received is set out by Justice Hall in R v Jung [2006] NSWCCA 658 at [29].
Tang
45 R v Tang NSWCCA 167, the New South Wales Court of Criminal Appeal considered evidence given by Dr Sutisno identifying the appellant in that case as a person in a videotape on the basis of facial characteristics. That evidence was that two bodies of photographs depict the same person and that on a six point scale, these similarities lending to support to the conclusion that the offender and the appellant were one and the same person.
46 The six point scale was noted as having no scientific basis. It was no more than a series of convenient labels, arranged in an ascending hierarchy to support a conclusion. The categorisation of an identifier as unique had no scientific basis and was no more than an emphatic statement of opinion.
47 The Court referred to the distinction between evidence of resemblance and evidence of identification – at [83]. It was also noted that evidence of similarity may be admissible as part of a circumstantial case. There was no suggestion that the evidence was not admissible.
48 The Court held - at [120] - that evidence on particular similarities between the two categories of photographs of the accused and another person was admissible. The identification of points of similarity by the expert was based on her skill and training particularly with respect to facial anatomy. It was also based on her experience with conducting such comparisons on a number of other occasions.
49 Spigelman CJ noted – at [144] - that facial mapping evidence 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 in itself an expression of opinion”.
50 Although the appeal was allowed, the Court referred to the fact that the evidence of the expert of similarity at least with respect to the facial features was capable of adding strength to the Crown's circumstantial case.
51 I was also provided with a decision of Hislop J in R v Kaliyanda unrep. NSWSC 17 October, 2006 where evidence from Dr Sutisno was admitted based on her specialised knowledge of facial mapping. Her expertise was accepted pursuant to section 79 of the Evidence Act.
52 His Honour referred to the evidence of Dr Sutisno in terms of her expertise in facial mapping and ruled that her evidence was relevant and admissible.
53 Hall J in R v Jung [2006] NSWCCA 658 also determined that the evidence of Dr Sutisno was admissible. In relation to the descriptive evidence given, Hall J said at [64]:
“some professional or expert evaluations may be largely based upon impression as a matter of judgment based on specialist or professional experience in relation to observable facts”…
54 In R v BLM (unrep DC NSW 14 September 2005) Blanch CJ/DC referred to the failure of the expert in that case (again, Dr Sutisno) to identify the area of expertise sufficient to enable an assessment to be made and whether it was a proper field of expert evidence or not. His Honour also referred to the fact that it was difficult to know whether or how Dr Sutisno applied that new area of what she called her expertise to her conclusions. It followed therefore that given there had not been a disclosure of the methods adopted by the expert which could be reviewed by a tribunal of fact, that the identification proposed was ‘not free from criticism.’
Murdoch
55 The NT Court of Criminal Appeal has also considered the issue of facial mapping evidence in the decision of Murdoch v The Queen [2007] NT CCA 1 – also involving evidence from Dr Sutisno. I was informed that a special leave application to the High Court on this matter will be heard in June, 2007. However, it is not known whether that appeal will canvas the question of the admissibility of facial mapping evidence or the basis on which that evidence may be adduced.
56 That was an appeal from a ruling of Martin CJ admitting the evidence of Dr Sutisno. A similar technique was employed by Dr Sutisno in that case, namely facial mapping, which was used by her to give evidence of points of similarity regarding the facial features of persons shown in photographs.
57 The Court of Criminal Appeal also held – at [300] - that the evidence given by Dr Sutisno was capable of assisting the jury in terms of similarities between the person there depicted in the truck stop footage and the appellant. It was evidence that related to, and was admissible as, demonstrating similarities. But the evidence was not admissible as to positive identity.
58 The need for caution in considering evidence of this nature and examining the basis for the evidence sought to be admitted are clear from the judgment. While the facial mapping evidence was held to be admissible, the ‘body mapping’ evidence was held not to be a technique that had sufficient scientific basis to render results arrived at by that means a proper subject of expert evidence – at [297].
Law – UK
59 I was also supplied with various decisions of the Court of Appeal Criminal Division in England (R v Mitchell [2005] EWCA Crim 731 and Attorney General’s Reference No. 2 of 2002 [2003] 1 Cr.App.R. 21 as well as Clarke [1995] 2 Cr.App.R and R v Gray [2003] EWCA Crim 1001.
60 The net effect of those decisions seems to be that the English Courts have held that, subject to the judicial discretion to exclude, evidence was admissible to show that an accused committed the offence on the basis of photographic images where the photographic images were sufficiently clear and the jury could compare it with the accused.
61 Where a witness who does not know the defendant spends substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based on a comparison between those images and a reasonable contemporary photograph of the defendant, provided that the images and the photograph are available to the jury - Attorney General’s Reference (No 2 of 2002) [2003] 1 CR.APP.R 321 per Rose LJ
62 Secondly, where the witness was suitably qualified in facial mapping to give opinion evidence of identification based on a comparison of images from the scene and a reasonably contemporary photograph provided the images and the photograph are available for the jury. The approach adopted is that the expert is ‘assisting in the interpretation of those images’ – Gardner [2004] EWCA Crim 1639 at [47].
63 Again, consistently with Australian practice, it seems to me that the admissibility is subject to appropriate directions being given and the witness establishing the basis of his recognition and in particular the knowledge base on which that recognition is made.
Consideration
64 The test for my consideration is whether the evidence could rationally effect the assessment by the jury of the question of the identification of the person who carried out the robbery.. If so, is the evidence relied on expert evidence within the meaning of section 79 of the Evidence Act. Here the fact in issue is clearly the identity of the accused. Evidence of similarity may possess evidentiary value. Circumstantial identification evidence is admissible evidence – R v Festa (2001) 208 CLR 593 at 611 per McHugh J.
65 The authorities of Murdoch and Tang indicate that the Australian Courts have been prepared to accept evidence as to facial mapping at least as to a qualified person being able to give evidence of points of similarity regarding the facial features of the persons shown in the images.
Professor Henneberg – expertise
66 The law in relation to the receipt of expert opinion evidence was set out by Heydon JA in Makita v Sproules (2001) 52 NSWLR 705 as follows:
“If evidence tendered as expert opinion evidence is to be admissible, it must be agreed court demonstrated that there is a field of ‘specialised knowledge’, there must be an identifier aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be " wholly or substantially based on the witnesses expert knowledge"; so far as the opinion is based on facts and "observed" by the expert, they must be identified and admissibility proved by the expert, and so far as the opinion is based on" assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based formerly proper foundation for it; and the opinion of an expert requires demonstration toward examination of the scientific or other intellectual basis of the conclusions reached: 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 stupid use 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."
67 The test I need to consider therefore is whether the expert here has provided the necessary scientific criteria for testing his conclusions, the factual basis for his opinions as to similarities and whether the expert was able to form his own independent judgment by applying the criteria furnished to the facts as proved.
68 Here I am satisfied that :
a) the evidence is relevant and probative of the identity of the accused;
b) that the evidence proposed to be called from Professor Henneberg is evidence in which proper opinion evidence can be called;
c) that the evidence on the voir dire establishes that Professor Henneberg is a person who has the necessary expertise to give evidence about the points of similarity and difference on the photographs of the accused and those taken from the CCTV camera. In my view, his training in anatomy over the years is such that he could also give evidence as to whether the hair on the person shown in the CCTV stills has been drawn back into the white baseball cap;
d) That that expertise extends to evidence from Professor Henneberg about precise positions, significance and characteristics of the features on the two sets of photographs that Professor Henneberg had outlined in coming to his conclusion. The factual basis for his opinions is clear;
e) That his opinion evidence is based on his specialised knowledge. The fact that his opinion is in qualitative form does not render it inadmissible provided the provisions of section 79 of the Evidence Act are satisfied as are Makita principles outlined above. Although I have some concerns about the asserted justification for the evidence proposed to be led that the similarities are ‘uncommon’ or similar descriptive phrases, I consider that such evidence is capable of being regarded as a statement of opinion of an expert. Here such descriptions are said to be based on Professor Henneberg’s experience and expertise. Whether they are accurate or supportable – for example, on the basis of the research paper of Ms Kearney (exhibit VD 14) with all the stated qualifications in the abstract and conclusions of that paper - remains to be assessed by the jury.
The statistical, experiential or other justification for such statements will also be tested on cross-examination – particularly where evidence is available from Dr Kemp as to the absence of statistical data justifying or supporting such descriptions. That is part of the defence attack on Professor Henneberg’s opinions including the discipline and method of his specific approach and the absence of a statistical justification or validation of the technique of facial mapping generally. It will then be a matter for the jury to make an assessment as to the weight they place on that evidence generally, whether the descriptions given by Professor Henneberg are justified and what use can be made of the evidence in accordance with the directions which are given.
f) I consider that Professor Henneberg’s expertise is such that his evidence of the similarities will be of assistance to the jury to determine the ultimate issue of the identification of the person said to have taken place in the robbery. The circumstantial evidence of the clothing worn by the person shown in the CCTV photographs is separate from the similarity evidence said to arise from the CCTV photos and those taken of the accused on the earlier occasion at the police station.
g) I do not accept that the decision in Mundarra Smith v The Queen [2001] HCA 50 should preclude the evidence as being evidence on which the jury could be assisted in their understanding of what the photographs are said to reveal or depict in terms of the person said to be the accused – see Hall J in R v Jung [2006] NSWCCA 658 at [45].
h) I do not consider that a jury, properly directed, would be overwhelmed or otherwise improperly influenced by the evidence to be given by Professor Henneberg nor do I think that the medical and other anatomical terms used will overwhelm a jury. That is a matter for explanation by the witness and submission by counsel.
i) Any prejudice to the accused arises from the quality of the photographs about which the jury will be given specific warnings. However, I regard the probative value of the evidence to be high and in any event, not outweighed by the danger of unfair prejudice to the accused – section 137 Evidence Act 1995. I do not think that there is a real risk of unfair prejudice to the accused by reason of the admission of the evidence complained of nor that the jury might be unfairly swayed by the ‘scientific’ nature of the evidence to make a decision on an improper basis – R v Lisoff [1999] NSWCCA 364 at [60].
Directions
69 There will need to be considerable care devoted to the directions to be given to the jury and I will hear counsel on the form of those directions which I have foreshadowed in submissions including:
a) The quality of the CCTV image and of the photos taken from the CCTV images and the limitations on the reliability of those photographs in terms of lack of clarity where fine details are said to be important;
b) The factors relevant to that reliability including the camera angles used, whether there had been any shadowing of areas of identification and, if so, in what areas;
c) The use to be made of expert evidence and the position of the jury where it is not satisfied as to the basis for opinions expressed;
d) The basis for Professor Henneberg’s evidence as to similarities, the incidence of those similarities, if any, and the critique by Dr Kemp of what is said to be the absence of any basis for asserting those similarities;
e) The use to be made of the facial mapping evidence that related to, and demonstrated similarities but not being admissible as to positive identity;
f) The need to acquaint the jury in ordinary language of those aspects of Professor Henneberg’s discipline, methods and expertise to make an evaluation of the opinions he expresses;
g) The use of the COMFIT evidence and whether it should be limited in any way.
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