R v Crupi (Ruling No 1) - [2020] VSC 654

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

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 Crupi (Ruling No 1)

Details

AGLC: Content removed
Case: [2020] VSC 654
Decision Date: 7 October 2020

CaseChat Overview and Summary

The case of R v Crupi (Ruling No 1) involved a criminal matter where the accused was facing charges of murder. The dispute centred on the admissibility of forensic gait analysis (FGA) evidence presented by the prosecution, which aimed to establish similarities between the accused's gait and that of the shooter. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the FGA evidence was relevant and admissible, whether it constituted expert evidence, whether it was tendency evidence, and whether its probative value was outweighed by the risk of unfair prejudice. The court had to balance these considerations under the Evidence Act 2008 (Vic). The admissibility of FGA evidence had been a contentious issue in prior cases such as R v Aitken, Dasreef Pty Ltd v Hawchar, and Honeysett v R, among others.

In ruling on the admissibility of the FGA evidence, the court considered the principles established in previous cases such as R v Aitken and Honeysett v R. It found that while the evidence had the potential to be probative, the risk of unfair prejudice substantially outweighed its probative value. The court concluded that the FGA evidence was not admissible under s 79 of the Evidence Act. The court's decision was influenced by the lack of consensus on the reliability of FGA evidence and the potential for it to mislead the jury. As a result, the FGA evidence was excluded from the trial.

The court did not make any final orders in this ruling as it pertained to the admissibility of evidence rather than the guilt or innocence of the accused. The ruling was intended to guide the proceedings in the trial, ensuring that only admissible evidence was considered by the jury.

Orders