| 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
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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