R v Crupi (Ruling No 1)
[2020] VSC 654
•7 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0245
| THE QUEEN | Crown |
| v | |
| VINCENZO CRUPI | Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18, 19 May, 14 July 2020 |
DATE OF RULING: | 7 October 2020 |
CASE MAY BE CITED AS: | R v Crupi (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 654 |
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CRIMINAL LAW — Murder — Evidence — Evidence of forensic gait analysis (FGA) — Evidence of close similarities between gait of accused and gait of shooter — Whether FGA evidence relevant — Whether FGA evidence admissible expert evidence — Whether FGA evidence is tendency evidence — Whether probative value of FGA evidence outweighed by risk of unfair prejudice — FGA evidence excluded — R v Aitken [2012] BCCA 134 — Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 — Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206 —Evans v R [2007] HCA 59; 235 CLR 521 — Hashiv R [2014] EWCA Crim 1243 — Higgins (a pseudonym) v R [2016] VSCA 47 — Honeysett v R [2014] HCA 29; 253 CLR 122 — Hughes v R [2017] HCA 20; 263 CLR 338 — IMM v R [2016] HCA 14; 257 CLR 300 — Ivanoff v R [2015] VSCA 116 — Lin v R [2018] VSCA 100 — Otway v R [2011] EWCA Crim 3—Smithv R [2001] HCA 50; 206 CLR 650 — Vyater v R [2020] VSCA 32 — Criminal Procedure Act 2009 (Vic) s 198B — Evidence Act 2008 (Vic) ss 55, 56, 76, 79, 80, 97, 101, 110, 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson QC with Mr J McWilliams | Office of Public Prosecutions |
| For the Accused | Mr D Dann QC with Mr L Richter | Stary Norton Halphen |
HIS HONOUR:
BACKGROUND
This is a ruling about the admissibility of evidence of forensic gait analysis (FGA). Such evidence has been admitted in the UK[1] and Canada[2] but, to my knowledge, this is the first time its admissibility has been the subject of a ruling in Australia.
[1]The leading case in the UK is Otway v R [2011] EWCA Crim 3. In Otway, a murder case, a podiatrist (Blake) was permitted to give FGA evidence. Forensic podiatry and CCTV analysis were key aspects of his practice. He gave evidence of the similarities between the gait of the offender, recorded on CCTV at a petrol station, and Otway’s gait, recorded on CCTV at a police station and a cell block. The gait features referred to did not include step length, step frequency or walking speed, as in the present case. See also Hashi v R [2014] EWCA Crim 1243, another murder case, where a podiatric surgeon (Francis), experienced in FGA comparative analysis, gave evidence based on CCTV footage of the similarities between the gait of the offender and Hashi’s gait. I note that the FGA expert in Hashi v R, looked for dissimilarities as well as similarities in undertaking his comparative analysis. The importance of such an approach is stressed in the recently published textbook by Haydn D Kelly, Forensic Gait Analysis (CRC Press, 2020) eg, 186. For an overview of FGA, see also The Royal Society and The Royal Society of Edinburgh ‘Forensic gait analysis: a primer for courts’ (2017).
[2]The leading case in Canada is R v Aitken [2012] BCCA 134. A UK podiatric surgeon (Haydn D Kelly), who since 2006 had been a researcher in FGA identification and who has given FGA evidence in the UK courts on many occasions, was permitted to give evidence that there was “a very strong likeness” between certain features of the offender’s gait and Aitken’s gait in the relevant CCTV footage. The similar features were the degree of abduction (toe-out gait) and eversion (inward foot rolling). Professor Gary Edmond, of the School of Law at the University of New South Wales, discusses Aitken v R, Otway v R , and Haydn D Kelly in an article highly critical of the lack of scientific rigour of FGA: see Edmond & Cunliffe Cinderella Story: The Social Production of a Forensic Science 106 J Crim. L. & Criminology 219 (2016).
All references to parts and sections below are to the Evidence Act 2008, unless otherwise indicated.
Vincenzo Crupi (D) is charged with the murder of Joseph Acquaro (V). V was fatally shot at close range near his Brunswick East restaurant, the Gelo Bar, shortly before 1:00am on 15 March 2016.
The prosecution (P) allege that D was the shooter. This is disputed and is the central issue in the case.
P’s case that D was the shooter is a circumstantial one. In brief, it includes the following evidence in addition to the impugned evidence:
·Evidence of D’s animus towards V, giving him a motive to murder V;
·CCTV footage of a person similar in appearance and gait to D conducting surveillance of the Gelo Bar on the night of 11–12 March 2016;
·Evidence that D was identified by witness Reardon as the person conducting surveillance on the Gelo Bar that night;
·CCTV footage of a vehicle very similar to D’s vehicle being in the vicinity of the Gelo Bar on the night of 11–12 March 2016;
·CCTV footage of a person similar in appearance and gait to D near the crime scene on the night of 14–15 March 2016, the night of the murder;
·CCTV footage of a vehicle very similar to D’s vehicle being in the vicinity of the Gelo Bar on the night of 14–15 March 2016 and, after the shooting, travelling to a place near D’s home;
·Alleged incriminating conduct by D post offence (disposal of a jacket);
·Evidence of alleged gunshot residue on a cap found in D’s car;[3]
·Alleged lies told by D to investigators.
[3]See R v Crupi (Ruling No 2) [2020] VSC 656.
P’s summary of prosecution opening begins with what it calls an Executive Summary of the evidence briefly outlined above. It is convenient to include that Executive Summary as an annexure to this ruling.[4]
[4]See Annexure 1.
Before turning to the impugned FGA evidence, it is appropriate to say something more about the identification evidence of Mr Reardon.
On the night of 11–12 March 2016, Mr Reardon, who worked at a fish and chip shop near the Gelo Bar, noticed a man in Lygon St who appeared to be keeping watch on the Gelo Bar. Mr Reardon was concerned that the man might have been stalking someone. Just before midnight, Mr Reardon approached the man, who walked off. Around 12:45am, the man returned, wearing a different top, and appeared to resume surveillance of the Gelo Bar. Mr Reardon approached him again and, this time, spoke to him briefly. The man told Mr Reardon he was waiting on a friend and walked off. Both occasions where Mr Reardon approached the man were recorded on CCTV.[5]
[5]For the first occasion, see clips 7, 8, 9 and 10 on the Compilation CCTV disc and, for the second occasion, see clips 31, 32, 33 and 34.
On the 21 March 2016, police showed Mr Reardon a photoboard. He identified a photograph of D as the person he had seen watching the Gelo Bar on the night of 11–12 March 2016.
The impugned FGA evidence
The impugned evidence the subject of this ruling is the FGA evidence of Professor Marcus Pandy, whose academic qualifications and output are impressive. Professor Pandy did his Ph.D in human gait biomechanics and has been the Chair of Mechanical and Biomedical Engineering at the University of Melbourne since 2005.
In 2016, the police supplied him with 95 CCTV clips for analysis. Professor Pandy was, in his own words, asked to ‘identify and document any physical characteristics observed in the video clips.’[6]
[6]Report of Professor Marcus Pandy dated 23 November 2016 (Depositions, 561).
Professor Pandy was not informed that: clips 1–36 were of the person allegedly conducting surveillance of the Gelo Bar on the night of 11–12 March 2016; clips 37–94 were allegedly of the shooter on the night of 14–15 March 2016, both before and after the shooting; and clip 95 was of D (his face redacted), walking along a corridor on 18 March 2016.[7]
[7]This was in fact a police station corridor although there is nothing in the clip that makes that apparent.
For his first report dated 23 November 2016, Professor Pandy measured certain spatio-temporal features of the gait of the subjects in the clips by using a Google Earth measurement tool and only those clips that he considered suitable for the purpose. The gait features that Professor Pandy measured were step length, step frequency and walking speed. According to Professor Pandy:
Step length was calculated by dividing the distance walked by the number of steps taken by the subject in each clip. Walking speed was found by dividing the distance walked by the elapsed time noted on the video recording. Step frequency then was calculated by dividing walking speed by step length, as v = s.f, where v is walking speed in metres/sec; s, step length in metres; and f, step frequency in s-1 or Hz.[8]
[8]Professor Pandy said this in his second report dated 21 January 2018 about his calculations in his first report (Depositions, 602).
Professor Pandy found that the step lengths of the subjects were consistently around the same value. Mean step length was calculated to be 0.64m with a standard deviation (SD) of 0.04m or 4cm. Mean step frequency was calculated to be 1.68hz (SD 0.14hz). Mean walking speed was calculated to be 1.07m/s (SD 0.13m/s).
Other features which Professor Pandy noted about the subjects but did not measure, included the toe-out gait (abduction) of the subjects. Professor Pandy opined that the degree of abduction that he observed in a number of clips was larger in both feet than is normal for healthy young adults.
In his first report, Professor Pandy did not express any opinion as to whether or not the subjects of the clips were the same person.
Professor Pandy compared the spatio-temporal data from the clips with data from spatio-temporal studies done on the gait of young and old (65+) healthy adults, walking at their ‘preferred speed’.[9] Professor Pandy opined that the mean step length and mean walking speed of the subjects were more consistent with the subjects being elderly, as was the degree of toe-out gait. I note that D, whose date of birth is 11 March 1949, was aged 67 at the time V was murdered.
[9]Professor Pandy gave this definition of ‘preferred speed’ when giving evidence on 18 May 2020 (Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 18 May 2020) 64): ‘the definition of a preferred speed is if you took a person and told them to just walk from here to, say, a station down — downtown and walk back, and you would measure — you know the distance and you would measure the time, and you wouldn’t give them any other instruction about how to walk, … then the speed that you would measure would be their preferred speed, that’s how it’s calculated. So, it’s something that you just naturally choose.’ In his second report, Professor Pandy also referred to this as a person’s ‘normal’ speed (Depositions, 626).
The police were more prescriptive in commissioning Professor Pandy’s second report dated 21 January 2018. The police asked Professor Pandy to say whether:
…a person recorded in any of the CCTV footage contained in clips 1 to 36 is the same as a person recorded in any of the CCTV footage contained in clips 37 to 95.[10]
[10]Depositions, 603.
Police also provided precise measurements between various geographical features shown in the clips so that Professor Pandy could more accurately calculate the relevant spatio-temporal gait features of the subjects, rather than relying on the Google Earth measuring tool.[11]
[11]Professor Pandy remarked in his second report that the Google Earth measurement tool measured distances ‘somewhat crudely’ (Depositions, 603).
In re-doing his calculations, Professor Pandy utilized 13 clips from clips 1–36;[12] 26 clips from clips 37–94;[13] and divided clip 95 into parts A and B.
[12]Clips 6, 10, 11, 15, 17, 19, 21, 23, 25, 27, 30, 34, 36.
[13]Clips 38, 40, 41, 42, 43, 54, 55, 56, 57, 58, 60, 61, 64, 65, 66, 67, 76, 78, 79, 82, 83, 85, 86, 88, 90, 91.
Step length for the clips selected from clips 1–36 ranged from 0.55m to 0.73m. The mean step length was 0.60m (SD 0.05m). Step length for clips selected from clips 37 to 95 ranged from 0.52m to 0.71m. The mean step length was 0.61m (SD 0.05m). Professor Pandy commented that the mean step lengths for the subjects of the two groups of clips were ‘remarkably similar’[14] with the difference being only 1cm, less than 2%.[15]
[14]Depositions, 627.
[15]Ibid.
Step frequency for clips selected from clips 1–36 ranged from 1.42hz to 1.85hz with a mean step frequency of 1.65hz (SD 0.15hz). Step frequency for clips selected from clips 37–95 ranged from 1.40hz to 2.14hz with a mean of 1.80hz (SD 0.19hz). Professor Pandy remarked that the mean step frequencies for the two groups of clips were ‘quite similar’ with a difference of 9%. He said the absolute difference may be considered ‘relatively small’.[16]
[16]Ibid.
Walking speed for clips selected from clips 1–36 ranged from 0.78m/s to 1.09m/s with a mean walking speed of 0.98m/s (SD 0.11m/s). Walking speed for clips selected from clips 37–95 ranged from 0.74m/s to 1.36m/s with a mean walking speed of 1.11m/s (SD 0.17m/s). Professor Pandy remarked that the mean walking speeds for the two groups of clips were ‘quite similar’[17] with a difference of 13%.[18] He said the absolute difference in mean walking speed (0.13m/s) may be considered ‘relatively small’.[19]
[17]Ibid.
[18]Ibid.
[19]Ibid.
As he did in his first report, Professor Pandy noted that in some clips the subjects walked with toe-out gait larger than normal for healthy young adults but, again, he did not measure the degree of abduction.
In relation to whether any of the subjects in clips 1–36 were the same as the subjects in clips 37–95, Professor Pandy said this:[20]
While it cannot be concluded with any certainty that a subject appearing in any of the video clips 1–36 is the same as an individual appearing in any of the clips 38(sic)–95, the data clearly indicate that the subjects appearing in the two groups of video clips have similar[21] spatiotemporal gait patterns…
[20]Depositions, 628.
[21]In his second report, Professor Pandy inadvertently omitted the word ‘similar’ in this passage. In examination in chief, Professor Pandy testified that the word ‘same’ should have been inserted (Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 18 May 2020) 59) but in cross-examination (Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 142) and, ultimately in re-examination (Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 144), he said the word should have been ‘similar’.
As regards the age of the subjects in the clips, Professor Pandy indicated that the mean step lengths and walking speeds of the subjects were ‘closely similar’ to results from a study of 26 older persons (mean age 66) studied by Judge et al in 1996 and dissimilar to results from a study of 16 healthy young adults studied by Besier et al in 2009. He concluded that
…the subjects observed on the video clips walked with a gait pattern more consistent with that exhibited by older adults, who take shorter steps and walk more slowly than healthy young adults.[22]
[22]Depositions, 627.
Professor Pandy gave oral evidence on 18 and 19 May 2020 at a hearing conducted pursuant to s 198B of the Criminal Procedure Act 2009.
He said this was the first time he had ever given FGA evidence.[23]
[23]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 18 May 2020) 62.
Professor Pandy said he had never before been asked to compare video recordings of subjects to establish whether they were similar or dissimilar.[24] He said there are people with such expertise but he does not claim to be an expert in that field.[25] He said he has never done any research regarding the potential pitfalls in making such a comparison.[26] He said he was not familiar with the concept of confirmation bias.[27]
[24]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 139.
[25]Ibid.
[26]Ibid.
[27]Ibid 140.
Professor Pandy said he was not a statistician but that he had sufficient knowledge of statistics to calculate the standard deviations referred to in his report.[28]
[28]Ibid 119.
He agreed there was no way of assessing whether the subjects in any of the clips were walking at their preferred speed.[29] Professor Pandy said that many studies indicate that preferred walking speed for healthy young adults is between 1.3 to 1.5 m/s.[30]
[29]Ibid 133.
[30]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 18 May 2020) 75, 96.
In working out his spatio-temporal calculations for his second report, Professor Pandy said he sometimes had to round up or round down the number of steps taken between points A and B.[31] He did not keep a record of when he did this but he said he did it ‘infrequently … no more than 20% of the time’.[32] Professor Pandy said he sometimes had to make a judgment as to when a subject’s heel struck the ground.[33]
[31]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 116–7.
[32]Ibid 151.
[33]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 18 May 2020) 102, 103–104.
Professor Pandy agreed that distances covered by the subjects were measured from point A to point B but that the subjects did not always walk in a straight line between those two points: Professor Pandy sometimes observed excessive lateral movement in the gait of the subjects.[34]
[34]Ibid 80.
Professor Pandy said he had never previously been asked to compare CCTV clips of subjects.[35] He said he did not know anything about the make or model of the CCTV cameras capturing the images or whether or not they distorted the imagery.[36] He said he had no information about the frame rates of the various CCTV clips.[37] He agreed that the frame rates could affect the accuracy of his judgments as to when the heel of the subjects struck the ground.[38]
[35]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 145.
[36]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 18 May 2020) 94.
[37]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 161.
[38]Ibid 163.
Professor Pandy said he could not shed any light on the statistical significance of his findings compared with the population at large.[39] When he said in his second report that the mean step lengths of the subjects in the two groups of clips were ‘remarkably similar’, he was not comparing mean step length with any population data.[40]
[39]Ibid 165.
[40]Ibid 126.
Professor Pandy said that in his reports he did not say the subjects were old.[41] He said ‘you can’t determine anything about age’.[42]
[41]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 18 May 2020) 82–3.
[42]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 134, 137.
In relation to the toe-out gait of the subjects, Professor Pandy said both feet of the subjects exhibited toe-out gait. He said he did not make measurements of the toe-out gait[43] but it appeared greater than normal for healthy young adults, normal being 5 degrees to 8 degrees.[44] Professor Pandy said he did not know the prevalence of a greater than normal toe-out gait in the community.[45]
[43]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 18 May 2020) 93.
[44]Ibid 84–85.
[45]Ibid 85.
SUBMISSIONS
P’s submissions
P made written[46] and oral submissions[47] in support of the admissibility of Professor Pandy’s evidence.
[46]See P’s written submissions dated 18 May 2020 and 17 July 2020. The latter submissions were exclusively concerned with whether or not Professor Pandy’s evidence was tendency evidence, a matter raised by the court, not the parties.
[47]19 May 2020 and 14 July 2020.
Cases relied upon by P included R v Aitken,[48] Hashi v R,[49] and Otway v R.[50] In each of those cases, expert evidence of similarities between the gait of the alleged offender and the accused was admitted.
[48][2012] BCCA 134.
[49][2014] EWCA Crim 1243.
[50][2011] EWCA Crim 3.
Pt 3.1
P submitted that the relevant “fact in issue” is the identity of the shooter and that Professor Pandy’s evidence bears upon that issue.
P relied on the following aspects of Professor Pandy’s evidence in support of its case that D was the shooter:
·his measurements and comparison of the spatio-temporal gait features of the subjects of the CCTV footage, namely, their step length, step frequency and walking speed;
·his opinion that the spatio-temporal features of the subjects’ gait are more consistent with the gait of an older person;[51] and
·his opinion that the toe-out gait of the subjects is more consistent with the gait of an older person.[52]
[51]Professor Pandy said this on 18 May 2020: ‘I didn’t say that the subject was older. I said that the only thing that I can conclude from the data that I have is that the subject’s gait pattern resembles more of that, that of an older subject than a younger subject. That’s all I can really conclude from it’ (Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 18 May 2020) 82–83). Professor Pandy also said this on 19 May 2020: ‘You can’t determine anything about age’ (Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 134).
[52]In some clips referred to in Professor Pandy’s reports, he did not observe any abduction. In some clips, he observed abduction of both feet. In other clips, he observed abduction of the right foot (eg, clips 38, 49, 68) or the left foot (eg, clip 55) only. The degree of abduction observed varied from ‘slight’ (eg, clips 38, 49) to ‘noticeable’ (eg, clip 49) to ‘larger than normal’ (eg, clip 27).
P submitted that Professor Pandy’s evidence is relevant because it rationally increases the probabilities that D was the shooter. P highlighted Professor Pandy’s finding that the mean step lengths of the subjects in the two groups of clips were ‘remarkably similar’. He also said the mean step lengths were ‘almost exactly the same’.[53]
[53]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 208.
P submitted that the jury could only make general comparisons of the gait of the subjects whereas Professor Pandy’s measurements in his second report provided a level of detail which will be of assistance to the jury.
P submitted that the jury will also be assisted by Professor Pandy’s expertise regarding studies on the gait of younger and older adults, which informed his opinion that the spatio-temporal gait features of the subjects were more consistent with the gait of older persons.
As regards the toe-out gait of the subjects, P submitted that whilst the jury could observe it themselves, they would not be able to say whether the subjects display a larger than normal degree of abduction. Without Professor Pandy’s assistance, they would not be able to properly appreciate the significance of this feature.
P submitted that it was unlikely that any of the limitations of the CCTV footage mentioned in D’s written submissions[54] — eg, number of frames per second, accuracy of the time stamps — would significantly impact on the accuracy of Professor Pandy’s measurements.
[54]D’s written submissions dated 10 July 2020 say this at [16], relevantly: ‘Problematically, Professor Pandy: a. Failed to take any account of visual distortions or artefacts produced by CCTV cameras, lighting or locations; b. Made no inquiries as to whether any of the timestamps in the CCTV footage were accurate — and not even considering this as a necessary thing to do when making calculations that are dependent on time (such as step frequency); c. Took no account of issues connected with frame rate from CCTV images; d. Calculated the walking velocities (and step lengths) without taking any account of the fact that the persons in the clips do not walk in straight lines — something he himself observed. This procedural defect was not discussed or acknowledged in his witness statements; e. Rounded up or down to get whole numbers of steps. This was done, seemingly, with little in the way of ensuring accuracy, without a rigorous (or even any) coherent system. Further, there was no statistical attempt to ensure the inevitable inaccuracies that would be introduced by such measures could be accounted for or at least estimated. In fact, the very fact that this was done was not disclosed in the reports; f. Has insufficient statistical knowledge to understand or explain the outcomes of his calculations. He used terms such as ‘standard deviation’ without being able to explain them or really having sufficient apparent understanding of what they mean. The professor failed to engage a statistician to assist him in developing a safe and accurate working method.’
P submitted that the absence of a population database of gait spatio-temporal features did not render the evidence irrelevant. It simply went to the weight a jury could give the evidence.[55]
[55]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 189–90.
Pt 3.3
P submitted that Professor Pandy’s evidence was admissible expert opinion evidence under s 79.[56]
[56]Section 79 relevantly provides:
(1)If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
In oral submissions, P submitted that the relevant field of specialised knowledge was gait analysis and Professor Pandy was an expert in that field, even though he had never given FGA evidence before and had never previously analysed gait using CCTV clips. Every expert has to give evidence for the first time and the CCTV clips were just the medium for the application of his expertise on this occasion.
P conceded that Professor Pandy’s calculations of spatio-temporal gait features were not based on Professor Pandy’s expertise in gait analysis but rather on simple mathematical calculations which anyone could do (eg speed = distance divided by time).[57] But P noted that s 80[58] abolishes the common knowledge rule.[59] Further, P submitted that the mathematical calculations made by Professor Pandy were one small part of the exercise he performed.[60] His opinions were ‘substantially’ based on specialised knowledge of gait analysis, ‘substantially’ in s 79 meaning ‘largely’ but not ‘primarily’.[61]
[57]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 203.
[58]Section 80 provides:
Evidence of an opinion is not inadmissible only because it is about—
(a) a fact in issue or an ultimate issue; or
(b) a matter of common knowledge.
[59]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 203.
[60]Ibid 204.
[61]Ibid.
Pt 3.6
P submitted Professor Pandy’s evidence was not tendency evidence.
In discussion, P relied on Elomar v R[62] and Higgins v R,[63] both terrorism cases where the court found that the impugned evidence was not evidence of a tendency to have a state of mind but evidence of a continuous state of mind.
[62]Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206, [253], [344], [347], [348], [359], [360], [363], [367], [368].
[63]Higgins (a pseudonym) v R [2016] VSCA 47, [20].
P submitted that the impugned evidence was not evidence of D’s tendency to walk in a particular way but simply evidence that he did walk in a particular way. P said this:
[T]his isn’t to do with a propensity to walk in a particular way; it is the way in which he walks... It’s not his propensity to act in a particular way on particular occasion, he did act [in that way] on that occasion.[64]
[64]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 176.
P likened the evidence of the gait of the subjects to evidence that an offender and an accused had similar identifying features (eg, both had blue eyes or tipped hair or a certain build or a cleft palate or an eye patch or a hunched back[65]). P submitted that the way a person walked was an ‘inherent physical attribute’[66] or physical trait,[67] not evidence of conduct.[68] No syllogistic tendency reasoning was involved.
[65]‘Having a cleft palate or, you know, evidence of someone to whom they spoke on multiple occasions speaking with a cleft palate. Not being able to identify who they were but they remember that they have a cleft palate or they remember that they had an eye patch or they remember that they used their left hand or that they were six foot eight or that they were five foot one or that they had a hunched back or whatever. It’s a fixed characteristic or trait that is observable by a witness.’ (Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 14 July 2020) 228).
[66]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 185.
[67]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 14 July 2020) 219.
[68]Ibid 219: ‘MR GIBSON: … this evidence was more in the nature of a physical characteristic or trait rather than a ‑ ‑ ‑HIS HONOUR: Yes. MR GIBSON: ‑ ‑ ‑ conduct …’.
P submitted that the rationale of tendency evidence in criminal proceedings is to exclude evidence of misconduct other than that the subject of the charge. One should have regard to that rationale in determining whether FGA evidence is tendency evidence: gait is not misconduct.
If Professor Pandy’s evidence was tendency evidence, P conceded that it only had modest probative value, not significant probative value.
Pt 3.11
P at first submitted that the probative value of Professor Pandy’s evidence was ‘fairly high’[69] but then appeared to resile from that position.
[69]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 210.
P submitted that the only danger of unfair prejudice that fell for consideration was whether the jury might overvalue the evidence but P said it would not be submitting to the jury that Professor Pandy’s evidence had any more than modest probative value. Further, cross-examination would highlight the limitations of the evidence, as would appropriate jury directions. P submitted that these considerations meant there was no danger of the jury overvaluing the evidence.
D’s submissions
D made written[70] and oral submissions.
[70]See D’s written submissions dated 13 July 2020.
D did not concede that he is the subject of clips 1–94. Nor did he concede that clips 37–94 show the shooter.[71] D concedes only that he is the subject of clip 95.
[71]See D’s written submissions dated 13 July 2020, [5].
D submitted that the evidence is inadmissible under Parts 3.1, 3.3, 3.6 and 3.11.
Pt 3.1
D submitted that Professor Pandy’s evidence failed the test of relevance for several reasons.
First, the jury can observe and compare the gait of the subjects themselves. Professor Pandy’s evidence really adds nothing.[72]
[72]Smithv R [2001] HCA 50; 206 CLR 650.
Second, Professor Pandy’s evidence is merely consistent with D being the subject of the clips and something more than mere consistency is required for relevance.[73]
[73]Paulino v R [2017] VSCA 38.
Third, Professor Pandy’s methodology was so deficient that his conclusions could not rationally affect the probabilities that D was the shooter. He did not take into account difficulties or limitations associated with making accurate measurements based on CCTV footage. There is no evidence that those difficulties or limitations are inconsequential. P asserts they are inconsequential but that is nothing more than mere assertion.
Fourth, the significance of Professor Pandy’s calculations could not be meaningfully evaluated by a jury in the absence of information about the frequency of these gait parameters in the general population. D said this:
So relevance fundamentally is about … rationally affecting the probability of the fact in issue. That requires in this case some comment to be made about how probable it is that someone other than the accused would display the same features. Now when it’s in terms of this looks like an old person, this person walks slowly, that’s something that the jury can certainly do for themselves and that is the point ultimately that the prosecution will seek to make. The numerical values devoid of any statistical comparison with anything else don’t assist in that task.[74]
[74]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 14 July 2020) 252.
Pt 3.3
D submitted that on the evidence adduced, one could not be satisfied that FGA is a field of specialised knowledge.[75]
[75]D’s written submissions dated 13 July 2020, [18], [19].
In the alternative, D submitted that the relevant area of FGA here is, as P stated in its written submissions, forensic gait comparison analysis, not merely gait analysis. On his own admission, Professor Pandy is not an expert in that area because this is the first time he has ever undertaken the task.
Further, Professor Pandy’s task was to compare the gait of subjects recorded not on video recordings made in ideal laboratory conditions but on CCTV, another task he has never previously undertaken.
Whilst it may be conceded that there has to be a first time for an expert to give evidence, D submitted that Professor Pandy is not an expert because he has not performed the relevant task in the past.[76]
[76]Transcript of Proceedings, R v Crupi (Supreme Court of Victoria, S ECR 2019 0245, Beale J, 19 May 2020) 198.
Pt 3.6
D submitted that Professor Pandy’s evidence is evidence of conduct (gait) which P relies on for tendency reasoning and as such the evidence is caught by the exclusionary rule in s 97.[77]
[77]Section 97 relevantly provides:
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
D submitted that P inaccurately claims that Professor Pandy’s evidence of gait is simply evidence of how the subjects walk, not evidence of their tendency to walk in a certain way. But the way a person walks is not fixed, like the colour of their eyes.
D submitted that Professor Pandy’s evidence in relation to clips 1–36 and 95 is in reality evidence of D’s tendency to walk in a certain way. P also relies on Professor Pandy’s evidence as demonstrating that the shooter walked in a way that was closely similar to the gait tendency exhibited by D. The jury will infer from D’s tendency that on the occasion in question (clips 37–94), D walked in conformity with that tendency. In this way, tendency reasoning is engaged, even though Professor Pandy does not go so far as to say that the subjects of the clips are one and the same person.
D submitted it is tendency evidence which lacks significant probative value and so is inadmissible (s 97).
Pt 3.11
D submitted that the probative value of Professor Pandy’s evidence is low. It is merely evidence of similarities of gait. It is not even evidence that the subjects were older persons, just that their gait is more consistent with being older. Further, Professor Pandy does not provide any information about the prevalence or otherwise of the gait observed in the general population.
D submitted that there is a real risk that the jury will overvalue Professor Pandy’s evidence and use it as evidence of identification not of similarity, notwithstanding directions. Consequently, the evidence should be excluded under s 137.[78]
[78]Section 137 provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
ANALYSIS
Pt 3.1
The ultimate fact in issue is the identity of the shooter.
Applying the test of relevance (s 55),[79] could the jury rationally find that Professor Pandy’s evidence increased the probabilities that D was the shooter?
[79]Section 55 relevantly provides:
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
In answering that question it is important to keep in mind three things. First, the test of relevance is to be applied on the assumption that the jury will accept his evidence, unless no reasonable jury could accept it: credibility and reliability issues are normally jury issues, not admissibility issues.[80] Second, the impugned evidence need only increase the probabilities slightly to pass the test of relevance.[81] Third, the evidence is not to be considered in isolation but in the context of all the evidence relied on by P.[82]
[80]IMM v R [2016] HCA 14; 257 CLR 300, [39].
[81]Ibid [40].
[82]Evans v R [2007] HCA 59; 235 CLR 521, [177].
It is conceded that D is the subject of clip 95. It is also open to a jury to find that the subject in clips 1–36 is D. This is so primarily because of Mr Reardon’s identification evidence that the male he saw watching the Gelo Bar on the night of 11 and 12 March 2016 was D. Consequently, a jury could find there were a significant number of clips showing D which informed Professor Pandy’s FGA.
It is also open to the jury to rationally find that the subject of clips 37–94 is the shooter.[83] Though this point was not conceded by D, it was only faintly contested.
[83]Professor Pandy was not asked to break up the clips into three groups, as I have just done. Curiously, he was asked to consider them as two groups, that is, clips 1–36 and clips 37–95. But this breakdown is not likely to have significantly affected his results.
Whilst Professor Pandy does not say that the two groups of clips show the same person, he does not merely say that the subjects have similar gaits. Based on his calculations of the mean step length, step frequency and walking speed, he says there is close similarity in the gait patterns of the subjects. In particular, he says the mean step lengths for the two groups, is ‘remarkably similar’ or ‘almost exactly the same’.[84] Because those observations were based on measurements, his comparative analysis goes deeper than what a jury could discern from simply viewing the clips, which answers the objection that Professor Pandy’s evidence adds nothing to what a jury could determine for themselves.
[84] Depositions, 628.
Assuming the correctness of his calculations, it would be open to a jury to find that Professor Pandy’s evidence as to the close similarities of the spatio-temporal gait features of the subjects in the two groups of clips, when considered in combination with the other evidence relied on by P, increases the probabilities that D was the shooter.
As mentioned above, the general rule when assessing relevance is that one assumes that the impugned evidence will be accepted by the jury, unless no reasonable jury could accept it. Hence, one assumes the accuracy of Professor Pandy’s calculations, unless no reasonable jury could accept them.
What factors may have affected the reliability of Professor Pandy’s calculations? He acknowledged that he sometimes rounded-off the number of steps taken between point A and point B in a given clip but he did not keep a record of when he did so. When asked about the number of times he did this, he first said ‘infrequently’, then he said ‘no more than 20% of the time’ which strikes one as a significant number of occasions. If those occasions were spread across both groups they may have evened themselves out, so to speak, but Professor Pandy did not say positively that was the case. On the evidence, one cannot exclude the possibility that the rounding-offs were concentrated in one group. Professor Pandy said he sometimes had to make a subjective judgment as to the number of steps taken by the subject between points A and B. He acknowledged that the CCTV frame rates, about which he said he knew nothing, may have affected the accuracy of those subjective judgments. Professor Pandy used the time stamps on the CCTV clip to make his calculations but he did not check the accuracy of the various time stamps for the various CCTV cameras. Professor Pandy also acknowledged that the subjects did not always walk in a straight line between points A and B: at times, Professor Pandy noted excessive lateral movement by the subjects.
It may well be, as P submitted, that none of these matters significantly affected the accuracy of Professor Pandy’s calculations[85] but, on the present state of the evidence, there is no way of knowing whether that is the case. If the jury is to act rationally, there must be a proper basis for the jury to conclude that the accuracy of his calculations were not significantly affected by these matters. The evidence fails to provide a proper basis for such a conclusion.
[85]As regards CCTV frame rates, I note that in Hashi v R [2014] EWCA Crim 1243, the court said this at [70]: ‘In Justice and Science, issue 54 (2014) at pages 159–163, Professor Ivan Birch and others considered the effect of frame rate upon the ability of experienced gait analysts to identify characteristics of gait from CCTV footage. The study reached the (not unexpected) conclusion at page 162 that, “The subtleties of motion occurring during gait may become more easily identifiable as the frame rate increases, whereas gross positional or structural characteristics may be more easily detectable at all frame rates”’. Step length, step frequency and walking speed, which were the gait features Professor Pandy concentrated on, might be considered ‘gross positional or structural characteristics’ and therefore CCTV frame rates may not have significantly affected the analysis but P did not adduce evidence that this was the case.
Another significant issue with Professor Pandy’s evidence is the difficulty in concluding rationally that he was “comparing apples with apples”. He conceded in cross-examination that there was no way of knowing whether the subjects in clips 1–95 were walking at their preferred speed. And yet he based his opinion that the subjects had gait patterns more consistent with older persons primarily on a comparison of the data with results obtained in gait studies of young and old adults whom it was known were walking at their preferred speed.
In my view, these issues with Professor Pandy’s evidence mean that it fails the test of relevance (s 55) and renders his evidence inadmissible (s 56).[86]
[86]Section 56 relevantly provides:
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
Pt 3.3
Professor Pandy expressed a number of purportedly expert opinions in his reports and in his oral evidence.
Because Professor Pandy’s spatio-temporal calculations involved some subjective judgments, I regard those calculations as expressions of opinion, rather than statements of fact.
Other opinions expressed by him were that:
·The spatio-temporal gait parameters of the subjects in the two groups of clips were closely similar;
·The mean step lengths of the subjects in the two groups of clips were remarkably similar;
·The mean step frequencies of the subjects in the two groups of clips were quite similar;
·The mean walking speeds of the subjects in the two groups of clips were quite similar;
·The gait of the subjects in the two groups of clip was more consistent with the gait of older persons, as was the degree of toe-out gait of the subjects.
Dasreef Pty Ltd v Hawchar[87] is a High Court decision which highlights the importance of identifying the relevant area of specialised knowledge.
[87][2011] HCA 21; 243 CLR 588.
In its written submissions, P submitted that the relevant field of specialised knowledge was forensic gait comparison analysis. In oral submissions, P submitted that the relevant field was simply “gait analysis”. P downplayed the significance of the use of CCTV footage to perform that analysis, submitting that the video clips were merely the medium by which Professor Pandy went about his analysis.
In my view, the relevant area of specialised knowledge should be determined by reference to the specific task that Professor Pandy was asked to undertake by the police in producing his second report. This was forensic gait comparison analysis of subjects recorded on CCTV footage. There were two aspects of the task in which Professor Pandy acknowledged he was a novice. First, the comparison aspect — whether any of the subjects were the same. Second, the CCTV aspect — Professor Pandy indicated he was familiar with gait analysis from recordings made under ideal laboratory conditions but had never undertaken gait analysis using CCTV recordings.
The comparison aspect might not appear troubling given that Professor Pandy’s evidence is evidence of similarities only, not evidence of identification. But Professor Pandy’s failure to discuss dissimilarities of gait strikes me as a significant omission and calls into question his expertise to undertake comparative gait analysis.[88]
[88]See footnote 1 above.
The second aspect is also concerning. If the relevant field of specialised knowledge is forensic gait comparison analysis of subjects recorded on CCTV footage, it is difficult to see how Professor Pandy can be considered an expert in that field when this is the first time he has performed the task. On his own admissions, Professor Pandy had limited knowledge of the shortcomings of CCTV footage and could not say the extent to which these shortcomings impacted on his perceptions and calculations.
For all his undoubted learning and experience, I am not satisfied that Professor Pandy is an expert in the relevant area of FGA. Thus, even if his evidence passes the test of relevance, it engages the exclusionary opinion rule (s 76)[89] and is not “saved” by the exception for opinions based on specialised knowledge (s 79).
[89]Section 76 provides:
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
Pt 3.6
Tendency reasoning involves two steps. The first step moves from the particular to the general (induction[90]): typically, conduct on multiple occasions is used to infer a tendency to engage in such conduct. The second step moves from the general to the particular (deduction[91]); it is inferred that the person acted in conformity with their tendency on the occasion in question.
[90]See Gageler J in Hughes v R [2017] HCA 20; 263 CLR 338, [71].
[91][2014] NSWCCA 303; (2014) 316 ALR 206, [359]–[360].
P disavows any reliance on tendency reasoning but, as was observed in Elomar v R,[92] that is not the end of the matter. Without doubting the sincerity of P’s disavowal, it is necessary to consider whether tendency reasoning actually underlies the use that P would have the jury make of Professor Pandy’s evidence.
[92]Ibid [347].
P submits that the impugned evidence is simply evidence of how D walks compared with how the shooter walks. P submits that it is not inviting the jury to infer that D has a tendency to walk in a certain way or to infer that he acted in conformity with that tendency on the night of the murder. P says it will simply be inviting the jury to consider the close similarities in how D and the shooter walk in support of the contention that they are one and the same person.
But we know that the spatio-temporal features of a person’s gait are not fixed physical characteristics like the colour of a person’s eyes, or even reasonably constant features like a person’s religious convictions (cf Elomar v R[93] and Higgins v R[94]). Gait can change markedly even in the course of a single day depending on the exigencies of the moment. Consequently, it strikes me as inaccurate to say that the evidence here is just evidence of how D (and/or the shooter) walks.
[93]Ibid.
[94][2016] VSCA 47.
It is more accurate, in my view, to say that this is evidence of how D walked on a limited number of occasions which is really to say that it is evidence of a tendency on his part to walk in that way. He may not walk that way all the time but he does sometimes. And because he has walked that way on some occasions, he can be expected to walk that way on other occasions. Why? Because he has a tendency to walk that way.
It seems to me that the prosecution are really inviting the jury to reason as follows. First, clips 1–36 and 95 show D walking. Second, Professor Pandy’s analysis of D’s gait in those clips shows that D has a tendency to walk a certain way. Third, because D has such a tendency, he can be expected to walk that way on other occasions. Fourth, clips 37–94 show the shooter walking. Fifth, the way he walks is closely similar to the gait tendency exhibited by D. Taken together, the evidence of D’s gait tendency, and its close similarity to the shooter’s gait, support P’s case that D was the shooter.
P submitted that the rationale for the tendency rule militates against a conclusion that Professor Pandy’s evidence is tendency evidence. P submitted that the rationale for the exclusionary tendency rule is the danger of unfair prejudice to an accused from the jury learning of other misconduct by that accused.[95] P submitted that the determination of whether evidence is tendency evidence should be informed by that rationale and, since FGA evidence is not evidence of misconduct other than that charged, it does not engage Part 3.6.
[95]In criminal proceedings, tendency evidence is usually (but not exclusively) evidence which discloses other misconduct by an accused. In Ivanoff v R [2015] VSCA 116, where Weinberg JA analysed the nature of tendency evidence in some detail, the discussion centred around evidence of other misconduct, which, as his Honour pointed out, may or may not be used for tendency reasoning ([14]–[21]). See also Lin v R [2018] VSCA 100.
There are at least seven problems with this submission.
First, the wording of s 97 does not support P’s submission that tendency evidence is limited to evidence of other misconduct. Section 97 speaks of evidence of (inter alia) conduct, not misconduct. It speaks of evidence of a tendency, not of a good or bad tendency. The focus of s 97 is whether tendency reasoning is engaged, not the type of conduct that founds that kind of reasoning.
Second, it is s 101,[96] not s 97 which is concerned with the danger of prejudicial effect.
[96]Section 101 relevantly provides:
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Third, the fact that s 97 applies in civil proceedings makes it impossible to maintain that tendency evidence is limited to evidence of other misconduct. For example, tendency evidence might be adduced in a case where the issue is whether the defendant agreed to a particular term of an oral contract: evidence that in other similar contractual transactions, the defendant had agreed to such a term, would be evidence of a tendency but not of misconduct.
Fourth, various expositions of tendency evidence by the High Court and intermediate courts of appeal do not support P’s submission. For example, in IMM v R,[97] Gageler J described tendency evidence this way:
The nature of tendency evidence adduced by the prosecution in a criminal trial is that it is evidence of another occasion or occasions on which the accused acted in a particular way. The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. Tendency evidence is thus evidence the relevance of which lies in its capacity indirectly to affect the assessment of the probability of the existence of the fact in issue of the accused’s action or state of mind at the time or in the circumstances of the alleged offence.[98]
[97] [2016] HCA 14; 257 CLR 300.
[98]Ibid [104].
Gageler J was even more to the point in his description of tendency evidence in Hughes v R:[99]
… Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue.
[99][2017] HCA 20; 263 CLR 338, [70].
Fifth, the rationale of the tendency rule is not confined to the danger of unfair prejudice from the disclosure of other misconduct by an accused. As can be seen from the relevant ALRC reports, one of the rationales for the tendency rule is the potential unreliability of tendency evidence. Psychological studies relied on by the ALRC indicated that conduct by an accused on other occasions may be of little use as a predictive tool unless the circumstances are similar to the occasion in question.[100] This rationale for the tendency rule is pertinent whether or not the other conduct is misconduct.
[100]For example, the ALRC, in its interim report on Evidence Law (ALRC 26), said this, drawing on various psychological studies: ‘If an individual has behaved in a particular way in a particular situation, that individual is likely to behave in a similar way in a similar situation … But the important point to note in this context is that the concept of character in the … sense of general disposition has little value as a predictive tool of human behaviour’ (ALRC 26, [797]). In Hughes v R [2017] HCA 20; 263 CLR 338 at [21], the plurality referred to the psychological research that informed the ALRC approach and said this: ‘The research was concerned with the value of evidence of general behavioural traits such as honesty. A person’s general disposition was found to be of little value as a predictive tool, whereas a person’s behaviour in similar situations might justify prediction.’
Sixth, if tendency evidence was limited to evidence of misconduct it would not have been necessary in s 110[101] to provide that the tendency rule does not apply to evidence of the good character of an accused generally or particularly.
[101]Section 110 relevantly provides:
(1)The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.
Seventh, even in criminal proceedings, the tendency evidence may not be about the accused. An accused may rely on tendency evidence about the complainant and such evidence may be of conduct that could not be described as misconduct.
Accordingly, I find that Professor Pandy’s evidence is tendency evidence which engages the exclusionary rule in s 97.
In my view, P rightly conceded that Professor Pandy’s evidence does not have significant probative value and so it is inadmissible tendency evidence.
Pt 3.11
I will assume the following for the purpose of applying s 137 — that Professor Pandy’s evidence is relevant, that it is admissible expert evidence and that it is not tendency evidence.
The burden is on D to show that the probative value of Professor Pandy’s evidence is outweighed by the danger of unfair prejudice to D.
When discussing Part 3.6, P conceded that Professor Pandy’s evidence does not have significant probative value. In my view, that concession was properly made. The probative value of the evidence is modest. It is modest because, taken at its highest, it is evidence of similarity, not identity. Further, there is no evidence as to how common or uncommon in the general population are the mean step length, step frequency and walking speed of the subjects in the clips. Further, Professor Pandy does not assert that the subjects of the relevant clips are elderly, just that the spatio-temporal gait features are more consistent with the gait of older persons.
There are, in my view, two ways in which Professor Pandy’s evidence may be misused. First, the jury might attach more weight to it than deserves. Professor Pandy’s use of the phrase “remarkably similar” creates the greatest risk: it tends to suggest identification, not just close similarity. But it seems to me that danger can be dealt with by directions about the limitations of the evidence.
The other way in which Professor Pandy’s evidence may be misused is for tendency reasoning, which P disavows. I have already set out the train of reasoning above and will not repeat it here. In my view, the risk of that reasoning is very real because it is such an obvious line of reasoning. I do not consider that risk is likely to be cured by directions.
Accordingly, I also exclude Professor Pandy’s evidence under s 137.
ANNEXURE
Crown Executive Summary
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