R v Ali Alrekabi - [2007] NSWDC 110

CITATION: R v Ali Alrekabi [2007] NSWDC 110

HEARING DATE(S): 29 May 2007 - 4 June 2007 (Voir Dire)

JUDGMENT DATE:
4 June 2007

JURISDICTION: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ali Alrekabi

Details

AGLC: R v Ali Alrekabi [2007] NSWDC 110
Case: [2007] NSWDC 110
Decision Date: 4 June 2007

CaseChat Overview and Summary

The case of R v Alrekabi involves an application by the accused to exclude facial mapping and CCTV evidence from the trial. The accused is facing charges of armed robbery with a dangerous weapon and an alternative charge of armed robbery with an offensive weapon. The crux of the dispute is whether the proposed expert evidence regarding facial mapping and CCTV footage should be admitted in court.

The primary legal issues before the court were the admissibility of expert evidence on facial mapping and CCTV analysis, the expertise of the proposed witness, and the balance between probative value and potential prejudice to the accused. The court had to determine if the evidence was relevant, if the expert witness had the requisite expertise, and if the probative value of the evidence outweighed any prejudicial effects.

The court held that the evidence in question was both relevant and probative of the accused's identity. It was noted that the proposed expert, Professor Henneberg, possessed the necessary expertise to provide evidence on the points of similarity and difference between the CCTV footage and photographs of the accused. The court emphasised that the probative value of Professor Henneberg's evidence was high and would assist the jury in determining the ultimate issue of identification. The court also found that the risk of unfair prejudice to the accused was not significant enough to exclude the evidence. Therefore, the court ruled that the evidence should be admitted, subject to appropriate warnings and directions to the jury.

The orders of the court were that the evidence proposed to be called from Professor Henneberg was admissible, and that the jury would be properly directed on the weight to be given to the evidence. The court provided detailed directions on the nature of the expert evidence, the expertise of the witness, and the potential impact on the jury. The court also addressed concerns about the lack of statistical data to support some of the expert's conclusions, stating that such matters would be subject to cross-examination and ultimately for the jury to assess.

Orders

Orders of the court

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].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Ali Alrekabi [2007] NSWDC 110
HEARING DATE(S):	29 May 2007 - 4 June 2007 (Voir Dire)
JUDGMENT DATE:	4 June 2007
JURISDICTION:	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…