R v Dastagir - [2013] SASCFC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DASTAGIR
[2013] SASCFC 109
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
21 October 2013
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS
Photographs of suspect tendered in evidence - jury invited by judge to compare photographs with observations of the accused made during trial and to draw its own conclusion as to identity - whether permissible - whether quality of photographs allowed for such a conclusion.
Held: jury entitled to make such a comparison; quality of photographs did not preclude conclusion that accused was the person depicted.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION
Evidence of a professor of anatomy admitted describing and categorising anatomical features of the suspect depicted in the photographs and comparing those features with photographs of accused taken on arrest - whether the comparison a proper topic for expert evidence - whether witness qualified to give such evidence - whether photographs suitable for the purpose - whether methodology appropriate.
Held: evidence admissible; witness properly qualified; criticisms of methodology relevant to weight of opinion.

EVIDENCE - ADMISSIBILITY AND RELEVANCY
Whether finding at appellant's home of distinctive clothing similar to but different from that worn by suspect depicted in photographs admissible.
Held: evidence properly admitted.

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appellant argued that verdict unsafe and unsatisfactory by reference to the circumstantial case against the appellant and also to a particular direction said to be misleading.
Held: verdict not unsafe or unsatisfactory.
Appeal against conviction dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant sentenced to imprisonment for 10 years and 4 months.
Held: permission to appeal against sentence refused.
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, distinguished.
R v Dastagir [2013] SASC 26; R v Curran (2008) 100 SASR 71; R v Gassy (No 3) (2005) 93 SASR 454; Markarian v The Queen (2005) 228 CLR 357; R v Turner [1975] QB 834; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Dodson [1984] 1 WLR 971; Attorney-General's Reference (No 2 of 2002) [2003] 1 Cr App R 321, discussed.
R v McNamara (2009) 105 SASR 38; R v Bonython (1984) 38 SASR 45; Smith v The Queen (2001) 206 CLR 650; Murphy v The Queen (1989) 167 CLR 94; R v Tang (2011) 65 NSWLR 681; Honeysett v R [2013] NSWCCA 135, considered.

R v DASTAGIR
[2013] SASCFC 109
Court of Criminal Appeal: Kourakis CJ, Vanstone and Stanley JJ

THE COURT: The appellant, Hameed Ullah Dastagir, was found guilty by a jury of aggravated causing serious harm with intent to cause serious harm. On 3 May 2013 the appellant was sentenced to ten years and four months imprisonment with a non-parole period of six years.
The appeal is against conviction. The appellant contends that evidence was wrongly admitted, that there were misdirections in the summing up and that the verdict is unsafe and unsatisfactory. He also applies for permission to appeal against sentence.
Background
In the early hours of 22 May 2010 Giovanni Foccarelli was stabbed twice outside Ink Central, a tattoo studio on Hindley Street, Adelaide. A black Nissan Skyline motor vehicle was seen to pause adjacent to Ink Central. The victim (V), who was working at Ink Central and standing on the footpath, approached the passenger side of the Nissan. Almost immediately V was stabbed, one wound being to the stomach and the other to his upper chest. The Nissan then drove away.
There were two issues at trial. The first was as to identity. The second was proof of specific intent. In fact the offence for which the appellant was convicted was an alternative to the more serious offence of attempted murder. The appeal against conviction focuses on what the appellant claims were deficiencies in the evidence of identification. He argues that security footage and still photographs derived from it taken at a service station further west on Hindley Street, Adelaide a few minutes before the stabbing were not of such quality as would enable the jury to conclude that they depicted the appellant. He argues that a direction given by the judge in effect inviting the jury to conclude on the basis of the photographs alone that the appellant was the man at the service station were necessarily flawed. He further argues that a direction inviting the jury to compare the appellant’s appearance in the dock with the photographs was in error. Then he argues that the trial judge erred in admitting the evidence of Professor Henneberg, a professor of anatomy, who gave evidence about the anatomical features of the person photographed at the service station. In addition the appellant argues that evidence of the finding of clothing at the appellant’s home, which was comparable to that worn by the offender, should not have been admitted. Finally he argues that the verdict is unreasonable and cannot be supported by the evidence.
The appellant also wishes to challenge the sentence. It is argued that the term of ten years and four months with a non-parole period of six years is manifestly excessive and that in the remarks on sentence that he delivered the judge made certain errors.
The prosecution case
The prosecution case was circumstantial. A Police Security Services Branch camera provided closed circuit television footage of the stabbing incident. It showed V walk across the footpath to the kerbside and bend over as if to talk to someone at or near the front passenger window of the Nissan Skyline and then, almost instantly, reel back, bend over and stumble back into the premises.
Footage of a black Nissan Skyline was also obtained from other Police Security Services Branch cameras on Hindley Street. Then there was the important footage from the Liberty Service Station on Hindley Street, which was about 350 metres west of the Morphett Street intersection. The footage showed a person getting out of the passenger side of a black Nissan and, a little later, resuming his position in the front seat. Further footage inside the service station shop showed a man of similar appearance making a purchase at the counter.
It was the prosecution case that it was open to the jury to conclude that the Nissan at the service station was the same as that containing the stabber seen outside Ink Central; that V was stabbed by the person occupying the front passenger seat; that the front passenger in the Nissan outside Ink Central was the same front passenger as seen in the footage at the service station and that this person was demonstrated by the still photographs and by other circumstantial evidence to be the appellant.
The victim of the stabbing did not give a statement to police regarding the incident and, by the time of the trial, had died.
Witnesses at or nearby to Ink Central gave general descriptions of the incident, but no witness purported to identify the offender. Several witnesses related that after V stumbled back into the premises he made a number of statements including that “Notorious got me”. It appears from the service station footage that the person who left and returned to the Nissan was wearing a black windcheater which bore the word “Notorious”.
The Nissan motor vehicle seen at the Liberty Service Station bore the number plate WKR 099 and was registered to the brother of the accused, Atiq Dastagir. The Nissan arrived at the service station some minutes after 4:00 am and remained there for about two minutes. The car was depicted leaving the service station and turning east onto Hindley Street. The appearance of the appellant’s brother was inconsistent with him having been the passenger.
The vehicle, or at least a vehicle consistent with being the Nissan, was then seen in footage taken from various police security cameras as it progressed to the east. The timing of the sightings of the car were consistent with it being the same car which paused outside Ink Central, albeit that there were some discrepancies in the clocks associated with the relevant security cameras.
On the evening of the day of the stabbing police located Atiq Dastagir’s Nissan at his home at 11 Marrett Street, Ingle Farm. The number plates had been removed from the vehicle. The keys were found in an Adidas “bumbag” which also contained the bolts from the number plate. Both the appellant and his brother were present at the time of police attendance.
Apart from the black windcheater with its logo, the passenger seen at the service station was also wearing a “bumbag” showing a white marking consistent with the Nike branding. On 11 August 2011 police searched the house where the appellant was living and found in the carport a red windcheater with logos and the word “Notorious” written across the chest. Police also located a Nike bumbag. The prosecution did not contend that the red windcheater located by police and the windcheater worn by the stabber were one and the same; they were of a different colour. However, the prosecution pointed to the coincidence of the appellant having in his possession an item of clothing which bore the same word as that allegedly worn by the stabber. It showed, it was argued, an interest in clothing of that type. The prosecution suggested to the jury that the “bumbag” seen in the footage at the service station matched the one found at the appellant’s house.
Ground 1 – inspection of accused in dock and associated direction
If the prosecution case were to succeed, prosecuting counsel had to satisfy the jury that the front passenger in the Nissan motor vehicle shown in the Liberty Service Station photographs (Exhibit P24) was the accused. The prosecution then relied on items of circumstantial evidence to show that the same person was the offender.
The ground of appeal was framed as follows:
1.The Learned Trial Judge erred as a matter of law in directing the jury that they were entitled to take into account their own inspection of the accused in the dock in determining whether they were able to identify the person of interest shown in the CCTV footage taken at the Liberty Service Station as the accused.
However, upon the appeal hearing, the appellant’s counsel put the argument quite differently. She instead argued that the error was contained in directing the jury that it was entitled to conclude solely by comparing Exhibit P24 and the arrest photographs with the accused’s appearance in the dock that it was he who was depicted. The essence of the direction complained of was this:
First of all, from the Crown’s perspective, there are two possible ways by which it would be open to you to approach this issue. After you have completed your consideration of the photographic evidence, the police arrest photos and the Liberty footage and stills, it would be open to you to be satisfied beyond reasonable doubt on this basis alone – you are the jury, you are the triers of fact – that is, on the basis of your comparison of the Liberty pictures with the arrest photo, photos of the accused and your own inspection of the accused, you might on that basis be satisfied that the person of interest in the Liberty pictures is the accused.
However, ladies and gentlemen, for reasons I will come to in a moment, you should exercise great caution before relying on this comparison exercise alone to find that the two persons are the one and the same.
Counsel’s argument contained the following aspects. She put that, although a jury can have regard to the accused’s appearance in the dock in a general way, a jury may never be invited to compare that appearance with photographs of a suspect at a scene with a view to concluding on that basis alone that the photographs show the accused. Counsel put that no case in Australia had sanctioned such a possibility. The proposition was put as an absolute one; that is, that even where the photographs were exceptionally good, it was not open to the jury, as a matter of law, to draw such a conclusion. She likened such a process to a dock identification, although she did not develop that argument. She noted that in this case prosecuting counsel had not framed his case in this way, but rather had relied on the whole of the evidence which tended to link the accused with the front passenger in the Nissan.
Then the appellant’s counsel argued that, in any event, there were factual matters here which undermined such a comparison and meant that it would be impossible to safely draw any such conclusion. For example, of the Liberty photographs, only two were relatively clear. These were still photographs taken from the security camera at the service station and were said to be of generally poor quality. Mrs Shaw pointed to the fact that the photographs were necessarily distorted, that they were views taken from above the man depicted and did not provide a frontal view. She referred to evidence about distortion of them which was given in the trial by the prosecution expert witness, Henneberg. Then counsel argued that there was very little independent evidence of the accused’s appearance on the night. It consisted of several civilian descriptions of varying quality. The only other roughly contemporaneous evidence of that was found in the arrest photographs taken about three months later on 17 August 2010 (Exhibit P18). All in all counsel put that there was, in evidentiary terms, no sound foundation for the direction advising the jury that it was entitled to proceed in this way and for that reason the verdict was unsafe.
Reference was made to R v Dodson [1984] 1 WLR 971, a decision of the Court of Appeal. It was acknowledged that the position in England seems to be that photographs taken at a scene are relevant and admissible and, given they are of sufficient quality, may be used by the jury for a comparison with the accused’s appearance in the dock with a view to a conclusion that the photographs depict him. The Court said this at 978:
Moreover, we reject the attempt here made to persuade this court to prevent a jury from looking at photographs taken by means of this technique, looking at a defendant in the dock and then to conclude if it be safe to do so that the man in the dock is the man shown in the photographs. Photographs of the same man taken at other times we regard as permissible aids in this process, bearing in mind that some offenders after the commission of crime by one device or another change their appearances.
Dodson was referred to with approval in Attorney-General’s Reference (No 2 of 2002) [2003] 1 Cr App R 321.
The appellant’s counsel referred the Court to Smith v The Queen (2001) 206 CLR 650, although she said that it was “probably not really on point”. It is true that the case turned on a slightly different principle, namely that a person (there police officers) having a familiarity with the appearance of a person may not, as a general rule, give evidence that he recognises him in security camera photographs taken during the commission of a crime, because such an opinion is irrelevant. However, the case is clear authority for the proposition that a jury is entitled to compare the photographs with the appearance of the accused in the dock and ultimately to draw its own conclusion as to whether the photographs depict the accused. That second proposition is not obiter; rather it is essential to the reasoning leading to the first proposition. Having noted that there was no suggestion that the accused’s appearance had changed materially between the offence and the trial date, the plurality said (at 655) that:
The police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors …
The judges went on:
The police officers' conclusions and the jury's conclusion both depended upon combining their observation of the appellant's appearance with their observation of the photographs. (Having regard to the quality of the photographs we saw, it is not clear that the jury could not have compared them with the accused.)
It is noteworthy that in Smith’s case the only other evidence before the jury did not add to the critical issue of identity. It comprised evidence proving the robbery and the production of the security camera images. The police officers’ opinion evidence was the only evidence, apart from the photographs themselves, going to prove that the photographs depicted the accused. (See [9], [26], [30] and [32].) Notwithstanding the decision that the police officers’ evidence was inadmissible, a re-trial was ordered. Kirby J, who agreed in the result, gave separate reasons. His Honour found that the police officers’ evidence was relevant, but should have been excluded as being merely lay opinion evidence. His Honour elaborated on why it was appropriate to order a re-trial. He said this at [63]:
Contrary to the apparent belief of the prosecutor at the trial, this outcome does not necessarily mean that there was no basis upon which the appellant might properly be convicted. Were it otherwise, an order for the retrial of the appellant would be unnecessary, indeed inappropriate. The photographs were properly proved and received in evidence. Arguably, one of them, at least, is sufficiently clear and depicts the well-lit face of a person said to be the appellant. There is no suggestion of a change of appearance on the part of the appellant between the date of the robbery and the trial. Therefore, even if the appellant gave no evidence and the jury had no magnifying glass, properly instructed, they might still conclude to the requisite standard, from their own senses, if that was their opinion, that the person depicted in the photographs was the accused placed in their charge.
Therefore, it is apparent that all members of the Court saw no impediment to a finding of guilt based only on the jury’s comparison of the photographs with their observations of the accused in the dock.
The result is, in our minds, unsurprising. Whether a single strand of evidence might support a finding of guilt is for a jury to determine; subject always to there being a case to answer in the first place and to the judgment of a court of appeal on an argument that the verdict is unreasonable.
The next question is whether the judge was wrong in this case to give the impugned direction. The answer to that turns principally on the sufficiency of the evidence, that is, whether the photographs were of such a quality that it was open to conclude on the basis of a comparison with his appearance in the dock that it was the accused who was depicted in them. That leads us to say a little more about the evidence.
An employee of the Liberty service station produced to police the closed circuit television footage taken by a number of cameras during the time when the Nissan motor vehicle was at the service station. The footage was in the form of a disk. There was footage both inside the shop area as well as in the driveway. A police officer, Lienert, produced stills from the disk. Several stills of the driveway scene showing a man whom the prosecution claimed was the accused were tendered Exhibit P22. Stills inside the service station, said by the prosecution to depict the same man were tendered Exhibit P24. These were much less clear.

Photographs taken of the accused by a police officer, Hayes, at the City Watch House after the accused’s arrest on 17 August 2010 were tendered Exhibit P18. They comprised 17 views of him, most showing his head at different angles. His appearance, including his hair style, is very similar to his appearance in the dock before this Court and to that of the man at the service station.
It was all these photographs which the judge directed the jury could found a conclusion that the “person of interest in the Liberty pictures is the accused”. (The direction is set out earlier.)
The prosecution expert, Professor Henneberg, gave evidence of some, fairly minor, distortion seen in the photographs Exhibit P22.
The Court has had the opportunity to examine the photographs to which we have referred. Professor Henneberg’s evidence of course is also available to us. We also had opportunity to observe the appellant during the day long argument in support of his appeal. Of course the jury had much longer than that. His trial occupied about ten days. Notwithstanding that the members of the Court of Criminal Appeal saw less of the appellant than did the jury, in our opinion we are in a position to assess the photographs and undertake a comparison with the appearance of the accused in a way which is roughly comparable to the opportunity the jury had. We consider that, plainly, it was open to the jury to conclude on the basis of the comparison alone that the accused was the person of interest at the Liberty service station.
Given our view that the jury was entitled to reach such a decision, the next question is whether the judge should have directed the jury that it was entitled to proceed in that way. The appellant’s counsel submitted to the Court that prosecuting counsel did not issue an invitation to the jury to consider the case in that narrow way. Should the judge have done so?
As a general proposition we consider that it is undesirable to invite a jury to approach a case in a manner which is quite different – even at odds with – the way in which the prosecution has invited the jury to proceed. However, that is not to say the judge did that. In his opening address prosecuting counsel told the jury that the facial characteristics seen in the still photographs were “sufficient to identify the accused”. Perhaps that, combined with his own appreciation of the matter, led to the judge’s statement to the jury that it was open to them to proceed in that way.
However, in a case such as this it was a bit unrealistic to suggest to the jury that it might approach the case in that way and put out of its mind the items of circumstantial evidence which the prosecution also relied on in support of the subject comparison. In any event, the appellant’s counsel did not place emphasis on the fact that the prosecution had not ultimately invited the jury to, in effect, extract the photographs from the entirety of the case and decide this crucial issue on their basis alone. Counsel’s argument was directed to what she suggested was the impossibility of safely concluding from a comparison of the photographs with the accused’s appearance that he was the person depicted.
In our view the direction complained of was not such as to have given rise to a risk of a miscarriage of justice.
This ground of appeal is not made out.
Ground 2
This ground complains that the trial judge erred in admitting the evidence of Professor Henneberg. Professor Henneberg is the professor of anatomy at the University of Adelaide.
Professor Henneberg gave evidence at trial in which he identified certain anatomical features of the person captured on the CCTV footage at the Hindley Street service station and compared those features with features that he observed on the photographs of the appellant taken shortly after his arrest.
This ground can be distilled to four discrete submissions. First, the matters to which Professor Henneberg gave evidence were already within the knowledge and experience of the jury, and accordingly were not matters requiring the assistance of an expert. Second, the images used for the purposes of comparison, both the CCTV footage from the service station and the still photographs taken of the accused shortly after his arrest, were not suitable for the purpose to which they were applied. Third, Professor Henneberg did not have sufficient expertise to give the evidence admitted at trial, or his evidence went beyond his expertise to the extent that he did not have any adequate qualification in the area of interpretation of digital imagery. Fourth, Professor Henneberg did not apply scientific methodology such that his opinion should be regarded as an expert opinion and admissible as a consequence.
On the voir dire, there was a challenge to the admissibility of Professor Henneberg’s evidence. The challenge was the subject of a ruling by the trial judge: R v Dastagir [2013] SASC 26.
The judge ruled that Professor Henneberg’s task was essentially observational and descriptive, and he rejected criticism that Professor Henneberg did not employ a satisfactory or acceptable methodology. He ruled that the evidence of similarity that Professor Henneberg could give was relevant and admissible as part of what was a circumstantial case. He found that Professor Henneberg offered an expertly trained eye for observation of anatomical features, an expert capacity to compare a feature in one set of images with a cognate feature in another set of images, and to describe them, insofar as anatomical considerations permitted, as similar or dissimilar. He found that Professor Henneberg possessed an expertise to position anatomical features on a categorical scale accepted in the profession as a useful means of categorising like as opposed to unlike anatomical presentations of a particular feature. He found Professor Henneberg had the capacity to use a common language for these descriptions.
The judge considered the admissibility of evidence that was proposed to be led from Professor Henneberg of similarities between the appellant and the person depicted on the CCTV footage taken at the service station on Hindley Street a few minutes before the victim was stabbed. The judge ruled that the evidence from Professor Henneberg that the person depicted on the CCTV footage was the appellant was inadmissible. Neither would he permit the prosecution to lead evidence from Professor Henneberg that the person in the CCTV footage appeared to be someone of “good physical abilities”, any reference to right-handedness, detailed description of that person’s ears, any opinion that the depression on that person’s forehead was a “unique identifier”, and any reference which implied prevalence or lack of prevalence in the community of a particular anatomical feature. However, he was prepared to allow evidence as to physical similarities between the person depicted on the CCTV footage and the photographs of the appellant taken shortly after his arrest.
The learned trial judge concluded that he was satisfied that:
… Professor Henneberg had acquired, over many years, substantial practical expertise in the understanding and examination of digitally produced images. I was satisfied that he had acquired a level of expertise. I was satisfied that he had acquired a level of expertise sufficient for the task at hand which was to bring his undoubted expertise as a human anatomist to bear to observe and describe anatomical features of the person of interest shown in the … service station CCTV footage.
At the trial, Professor Henneberg described his extensive academic experience over many years at universities in Poland, the United States, South Africa and Australia. He is the author or co-author of some three books and 275 papers. He has given evidence before various courts over nearly 20 years as a forensic expert in the identification of anatomical features of persons in photographs and CCTV footage. He gave evidence about the process undertaken in this matter when he compared the CCTV images of the person of interest at the service station on Hindley Street with the photographs of the appellant taken shortly after his arrest.
Professor Henneberg identified and described a number of anatomical features of the person of interest seen in the CCTV footage. He then characterised them according to a categorical scale which he translated into ordinary English terms. Those features were:
·An adult male of ectomorphic (thin) body shape with a mesomorphic (athletic or muscular) component;
·Straight legs (as opposed to bowed or knock-kneed);
·Rounded shoulders (as opposed to straight or sloping);
·Light (as opposed to black) skin colour and dark hair;
·A long, oval, symmetrical face;
·A nose of medium width and straight back (dorsum);
·A mouth of medium width with lip (“vermillion”) of medium height;
·Eyes that are deep (sunken);
·A strong, rounded chin; and
·Ears lying close to the head.
In addition, Professor Henneberg identified some features for which there was no categorical scale. He described those features in these terms:
·Very straight brows located low on the forehead;
·A deep, horizontal wrinkle on the forehead and a depression on the left side of the forehead;
·A hairline where the hair on both sides of the temples forms peeks jutting forwards and above which the hairline recedes forming deep lacunae; and
·A hairline that curves in the centre of the forehead.
Professor Henneberg then adopted the same process in relation to the photos of the appellant taken immediately following his arrest and gave the same evidence about the anatomical features observable in those photographs.
Matters were within the knowledge and experience of the jury
The appellant submits that the evidence of Professor Henneberg was central to the prosecution’s ability to prove that the appellant was the person seen on the CCTV footage at the Hindley Street service station alighting from and returning to the black Nissan Skyline. His counsel argues that once the evidence which Professor Henneberg was allowed to give was restricted, that evidence did not extend beyond observations which the jury might have been able to make for themselves. He submits that what remained was, in effect, only vague taxonomic descriptors of features of facial anatomy, coupled with observations that suggested there was similarity between the person observed on the CCTV footage and the photos of the appellant taken shortly after his arrest. These were all matters the jury could have assessed unaided by expert evidence. The appellant submits that Professor Henneberg was in no better position than the jury to form an opinion as to the existence or otherwise of the particular anatomical features he observed and described, and any similarity which might or might not exist as between the appellant and the person observed at the service station. Accordingly, Professor Henneberg’s opinion as to these features ought not to have been received by the jury.
The principles that govern whether the opinion evidence of an expert is admissible at trial can be reduced to two questions. First, whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This question of itself may be divided into two parts:
(i)whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area; and
(ii)whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his or her opinion of assistance to the Court.
Second, whether the witness has acquired, by study or experience, sufficient knowledge of the subject to render his or her opinion of value in resolving the issues before the Court: R v Bonython (1984) 38 SASR 45 at 46 to 47; Murphy v The Queen (1989) 167 CLR 94 at 111.
The appellant’s first challenge goes to the first of these two questions. The relevant principle is explained in R v Turner [1975] QB 834 at 841 where Lawton LJ said:
An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience or knowledge of a judge or jury. If on proven facts, a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does.
In our view, Professor Henneberg was able to assist the jury by bringing to bear on the task knowledge and learning that extended beyond a lay person’s common knowledge or experience. First, Professor Henneberg, because of his training, was better able than the ordinary lay person to observe and identify the anatomical features in the CCTV footage and the photographs taken of the appellant by the police. If the evidence of Professor Henneberg was accepted by the jury, it had more information and analysis available to it than if left to itself. It was for the jury to assess the significance of the fact that the person in the CCTV footage had the same anatomical features as were observable in the police photographs of the appellant and, the weight to be attached to that evidence.
For these reasons, we reject this submission.
Images were not suitable for purpose
The appellant contends that the images used for the purposes of comparison by Professor Henneberg were not suitable for the purpose to which they were applied. His counsel submits that the CCTV footage was of low to moderate quality and could not provide for fine detail recording of images. Counsel contends that the images were inadequate as a basis for anatomical comparison, because of low resolution, the distance to the subject, the focal plane, distortion, pixilation and image manipulation. Further, she submits the photographs taken of the appellant by the police shortly after his arrest were not suitable for the use to which they were applied. The photographs were still images. There was no detail as to lighting, distance to subject or angle subject to lens. There was no evidence about any change in appearance from the time of the alleged offence to the time the photographs were taken. No attempt was made to reproduce the conditions of the scene images.
It is a trite proposition that an expert opinion is only as good as the facts upon which it is based. Accordingly, the CCTV footage and the police photographs had to be suitable for the purpose for which they were used.
Professor Henneberg said that the footage was suitable for his purposes. That assessment was shared by one of the experts called by the appellant on the voir dire, Dr Sutisno. The only person who held a contrary view was the second of those, Professor Spring. Unlike Professor Henneberg, he is not an expert in anatomy. Professor Spring’s evidence went no higher than supporting a conclusion that the CCTV footage was short of optimal quality and presented significant difficulties in drawing reliable conclusions based upon it. In the end, these are matters going to weight. The same point can be made in relation to the police photographs. Professor Henneberg was aware of the criticisms of the quality of the photographs but did not consider that these difficulties stood in the way of his forming his opinion.
For these reasons, we reject this submission.
Professor Henneberg is not an expert in digital imagery
The appellant submitted that Professor Henneberg lacked adequate qualification in the area of interpretation of digital imagery such that he did not possess the necessary expertise to give the evidence admitted at trial or that his evidence in that regard went beyond such expertise as he had.
An investigation into the methods used by an expert witness in arriving at an opinion may be relevant in determining whether there is a particular field of expertise and, if there is, whether or not the witness is an expert in that field. If the witness has made use of new or unfamiliar techniques or technology the court may require satisfaction that such techniques or technology have a sufficient scientific basis to render the results reached by that means part of a field of knowledge which is a proper subject of expert evidence: Bonython at 47. Once a witness’ status as an expert is established however, his or her methodology will only be relevant to the weight of the opinion evidence and not the competence of the witness to express the opinion: Bonython at 46 to 47.
Professor Henneberg gave evidence that established that he had experience with photography, digital images and identifying anatomical features in such images and in taking into account potential infirmities in such images when identifying and describing anatomical features. This experience was sufficient to qualify Professor Henneberg as, what Spigelman CJ described in R v Tang (2006) 65 NSWLR 681, an “ad hoc expert”.
The appellant called in aid the judgment of the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.
In Dasreef an employee sued his former employer in the Dust Diseases Tribunal of New South Wales after contracting silicosis from exposure to silica dust. The tribunal admitted evidence of the opinion of a person qualified as a chartered chemist and professional engineer of the likely level of respirable silica dust in the employee’s breathing zone on a numerical basis. The expert did not state his reasoning. The High Court concluded that this witness’ evidence was inadmissible. The absence of a statement of reasoning by the witness meant there was a failure to demonstrate that his opinion was based wholly or substantially on specialised knowledge grounded in his training, study or experience. The High Court cited with approval the judgment of Heydon JA, as he then was, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 744:
[T]he 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 as to produce the opinion propounded.
Unlike the witness in Dasreef, Professor Henneberg gave evidence of his training, study and, in particular, the experience which permitted him to give the evidence of morphological comparison derived from his viewing, observation and assessment of the CCTV images and the police photographs.
It was open to the judge to find that Professor Henneberg is a person with extensive practical experience in examining CCTV footage, with all its deficiencies, for the purpose of attempting to identify anatomical characteristics of persons depicted in it. This case is clearly distinguishable from Dasreef, where the evidence did not enable the Court to understand how the witness’ training, study or experience permitted him to provide the numerical estimates that he proffered.
Further, Professor Henneberg gave evidence of taking into account potential infirmities in the relevant images when identifying and describing anatomical features. He described assessing the images, taking into account distortion and other potential inadequacies or problems with the images. This evidence of itself went to demonstrate his possession of the necessary and relevant expertise to express his opinions in his field of expertise as an anatomist.

For these reasons, we reject this submission.
Professor Henneberg did not apply scientific methodology
The appellant submits Professor Henneberg did not apply scientific methodology so that his opinion should be regarded as an expert opinion and admissible as a consequence. The appellant submits that the absence of scientific methodology on the part of Professor Henneberg is illustrated by the following:
(i)Professor Henneberg did not apply any precise methodology or scientific protocol, neither qualitative nor quantitative, for the conclusions he reached;
(ii)His findings are based principally, if not entirely, on visual observations. There is an absence of scientific, or quantifiable, evaluation of the validity and/or reliability of the associated findings;
(iii)His reasoning process is veiled. It is not sufficiently disclosed so as to demonstrate that the opinions proffered are based on specialised knowledge and approved scientific methods;
(iv)Professor Henneberg does not draw upon published data as to the frequency of the occurrence of particular anatomical features;
(v)Professor Henneberg’s work does not have an identifiable error rate; and
(vi)There is insufficient peer testing or peer review.
The appellant seeks to rely upon criticisms of Professor Henneberg’s methodology made by the appellant’s expert witness, Dr Sutisno.
We do not accept this submission.
On the voir dire, Dr Sutisno agreed that the process of morphological comparison adopted by Dr Henneberg was a proper scientific procedure. The criticisms of Professor Henneberg’s methodology made by Dr Sutisno are criticisms that go to the weight of the evidence not its admissibility. Finally, the criticisms numbered (iv) and (v) may have been important if Professor Henneberg had expressed an opinion as to the probability that the same person was depicted in all of the photographs, but he did not. He simply identified similar psychological features apparent on the face of the photographs.
We observe in passing that the trial judge’s reasons for his ruling on the voir dire have recently been approved by the Court of Criminal Appeal of New South Wales in Honeysett v R [2013] NSWCCA 135 at [50]-[61].
For these reasons, we reject this submission.
Ground 3
The next ground advanced was that the verdict was unsafe and unsatisfactory. There were several strands to the argument.
It was submitted that, even if the jury found that the appellant was the front passenger in the Nissan at the Liberty Service Station, it could not safely conclude that he was still the front passenger when the vehicle paused outside Ink Central. Then it was said that even if he were still in the front passenger seat, the jury could not conclude that some other person within the vehicle was responsible for the stabbing. The appellant also relied on his arguments going to what he said were deficiencies in the evidence of Professor Henneberg. We have already dealt with those arguments and have rejected them.
Next it was argued that a direction which the judge gave the jury in summarising the circumstantial evidence going to the question of whether there was proof that the man seen at the Liberty Service Station was the appellant was flawed. In summarising that evidence the judge referred to the fact that both the accused and his brother were present at the brother’s house during the evening of the morning of the stabbing when the vehicle was located. The judge told the jury “you might infer from this that Atiq and the accused were associating with each other at this time. Or, as the prosecution put it to you, that they were not estranged from one another.” The appellant’s counsel argued that this statement tended to invert the onus of proof, by directing that the association between the brothers was “an extra strand” of the circumstantial case.
We do not find it necessary to descend to the detail of the evidence given by those persons who were nearby to the Nissan motor vehicle when the stabbing took place. There were various accounts of what occurred when the victim approached the vehicle and when he recoiled from it. In our view it was open to the jury to conclude that the person occupying the front passenger seat was the stabber. The jury had available to it the evidence of those witnesses, as well as the security footage taken outside Ink Central; it had the motor vehicle of the appellant’s brother and it had the benefit of a police re-enactment of the sequence of events. There was no evidence tending against a conclusion that the front passenger was the stabber.
We would say the same in relation to the possibility that between the time of leaving the Liberty Service Station and arriving at Ink Central the appellant might have vacated his seat in the front of the Nissan and either left the car or positioned himself elsewhere. It will be remembered that the passage of time between the attendance of the vehicle and its occupants at the Liberty Service Station and the stabbing outside Ink Central was a very short one. There was no suggestion from any quarter that there was any movement by the passengers within the car or any departure from it. Accordingly, what is suggested is a theoretical possibility. We consider the jury was entitled to reject it.
The evidence that the appellant and his brother were found together within a short time of the stabbing was plainly relevant and was not the subject of objection. Had the brothers been estranged then no doubt the defence would have sought to prove as much. That was not the position. In the absence of evidence that the Nissan had been stolen, its occupants on the night in question were likely to be its owner or persons associated with its owner. All the evidence did was to prove an association between the owner of the Nissan and the appellant. In our view the purpose of the leading of that evidence and the use to be made of it would have been perfectly plain to the jury. It was not something which implicated the appellant in a positive sense in the crime, but was there to negate the possibility that the brothers were not associating.
We note that at the end of the summing up no complaint was made about this aspect of the judge’s summing up.
None of the particular complaints making up this ground are made good. We have conducted an independent review of the evidence presented by the prosecution. In our opinion the prosecution case was a strong one. The comparison of the Liberty service station photographs with the arrest photographs and the appellant’s appearance in the dock, assisted by Professor Henneberg’s evidence, amounted to compelling evidence that the appellant was the front passenger at the service station. The inference that he was still in that position a short time later when V approached the Nissan outside Ink Central was well open to the jury. We have no misgivings in relation to the jury’s verdict.
Ground 4
The appellant’s counsel argued that evidence that police located the red “Notorious” windcheater at the home of the appellant should not have been allowed into evidence, because it was plainly not the windcheater worn by the man at the Liberty Service Station and could not otherwise be shown to be linked with the crime.
There was some evidence before the jury that such clothing was worn by the members of a New South Wales gang. There was no evidence of an association between that gang and the appellant. In our view evidence regarding the finding of the red “Notorious” windcheater at the house being occupied by the appellant was relevant and admissible. Its admissibility was not affected by the fact that the prosecution did not contend that a red windcheater was used in the crime. What it showed was that the appellant had an interest in, or a taste for, clothing which had marked parallels with the windcheater apparently worn by the stabber. The appellant and the offender were members of a subgroup within the community which shared that taste and the evidence therefore added, albeit not strongly, to the circumstantial case that the appellant and the offender were one and the same person.
In R v Curran (2008) 100 SASR 71 evidence that the appellant possessed knives of a distinctive type which fitted the general description of the knife used in the killing was found to have been properly admitted, notwithstanding that there was no suggestion that any particular knife was the murder weapon. In R v Gassy (No 3) (2005) 93 SASR 454 at 534 to 538 no question was raised about evidence adduced to the effect that the appellant was found in possession of two Glock pistols, despite the fact that no parallels were found in the comparison between the relevant projectiles and the cartridges found at the scene. It is true that the appellant’s argument goes further than arguments raised in those two cases, because here, it was clear on the evidence that the red windcheater was not associated with the crime. However, in our view the evidence was relevant, both as a fact bearing on the failure of the police to locate a black “Notorious” windcheater such as the one worn by the passenger at the Liberty Service Station – and inferentially, by the stabber – and also to the interest of the appellant in such clothing or his taste for such clothing. It showed that both the appellant and the offender were members of a subgroup of the community.
Appeal against sentence
The appellant seeks permission to appeal against sentence.
The appellant was sentenced to a term of imprisonment of 10 years and four months with a non-parole period of six years. The sole ground of appeal in respect of which permission is sought is that the sentence is manifestly excessive. The maximum penalty for aggravated unlawfully causing serious harm with intent to cause serious harm is a term of imprisonment for 25 years.
The judge identified a starting point of 11 years imprisonment. That was reduced by eight months to take into account eight days in custody and about two years and one month on home detention bail. The sentence of imprisonment was backdated to commence on 19 October 2012.
The circumstances in which an appellate court may interfere with a sentence are well known. It is sufficient to mention that in Markarian v The Queen (2005) 228 CLR 357 Gleeson CJ, Gummow, Hayne and Callinan JJ described those circumstances as follows (at 370-371):
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
Gravity of the offending
The appellant makes a number of submissions going to specific matters. The appellant submits that the offending was an isolated incident, that involved the infliction of two stab wounds, only one of which may have been deliberately inflicted. He relied upon the depth of the chest wound, the degree of force required to inflict the wound, the mechanics of the infliction of the injury having regard to the position of the victim and the appellant at the time and the victim’s physical reaction to the infliction of the first wound.
The appellant complains that the sentencing judge did not resolve this issue of fact. Counsel submits that the distinction between the infliction of a single stab wound as opposed to the deliberate infliction of two stab wounds is significant and had to be resolved. To the extent that there was any doubt, the issue should have been resolved in the appellant’s favour. It did not form part of any course of conduct or part of a gang war and which, while it occurred in a public place, did not expose others to risk of injury.
The appellant submits that he did not have any significant offender history, there was no evidence of his having any gang affiliation or connection, he had strong family support and a good work history. These factors, together with evidence that he had been a model prisoner, support the conclusion that he has good prospects of rehabilitation. The appellant also complains that the sentencing judge gave excessive weight to the appellant’s lack of contrition.
In his sentencing remarks the sentencing judge observed that the appellant was fortunate the victim did not die. He said:
Had he done so, a conviction for murder with its mandatory minimum non-parole period of 20 years in prison, would have been almost inevitable.
The appellant complains that he was never charged with an offence of murder and was acquitted of the charge of attempted murder. A consideration of the sentence that might have been imposed, had he been convicted of a charge of murder, was therefore irrelevant. Further, the non-parole period for the offence of murder is mandatory, and the ordinary principles which govern the fixing of a non-parole period for a conviction for the offence of aggravated causing serious harm do not apply. Accordingly, the appellant submits that there was a real risk that the judge had used the mandatory non-parole period as a benchmark in imposing sentence.
In his sentencing remarks, the judge observed that there was no evidence of “any disagreement or fight leading up to the attack” and that the attack was “executed in cold blood”. The appellant points to the evidence of the witness, Piening, who was present in the tattoo parlour on the evening of the offence, who described an argument between the victim and a group of males seated within a black Statesman vehicle in the hours before the victim was stabbed. He gave evidence that soon after this incident there was a heated telephone exchange between the victim and another person. There was some evidence linking this telephone conversation to the argument. There was evidence that the telephone conversation included a threat to stab the victim, who issued an invitation to “come back to the shop then”. Piening gave evidence the same car returned just prior to the time of the stabbing.
The appellant submits that, having regard to these events, it would appear the stabbing occurred in the context of an argument between the victim and the appellant, who had threatened to stab him only a matter of hours before the commission of the offence. It is submitted this inference is overwhelming. Accordingly, the appellant contends that the judge’s characterisation of the context of the appellant’s attack is wrong.
Each of the two wounds sustained by V was life-threatening. In combination there was a heightened risk of fatality.
Even allowing for the validity of the submission that only one of the stab wounds might have been deliberately inflicted, none of the factors particularised by the appellant suggest that the sentence imposed was manifestly excessive. If the factors identified by the appellant had been present, a more severe sentence might have been imposed. The judge was obliged to consider the gravity of this offending not what features might have made it more serious. We do not consider there was any error in this regard.
In our view, the judge took into account the appellant’s personal circumstances. The appellant’s not guilty plea, together with his decision not to give evidence at the trial or to provide any reason for his serious criminal offending, casts doubt on his prospects of rehabilitation. In any event, the factors favouring his rehabilitation do not necessitate a lesser sentence than that imposed.
In relation to the issue of deliberation we can find no error in the approach taken by the judge. It is implicit in the judge’s remarks that he concluded that the two wounds were deliberately inflicted. Such a finding was all but inevitable. In any event, we are satisfied that the sentence imposed was open to the judge whether there was one deliberate wound or two.
In making reference to the mandatory minimum non-parole period for murder the judge made no error. The judge was merely emphasising to the appellant the seriousness of his offending. There is no basis to infer that in imposing a non-parole period of six years, the judge was using the mandatory minimum non-parole period of 20 years for murder as a benchmark.
In relation to the suggestion of a prelude to the attack we reject the appellant’s submission. There was no admissible evidence that the car being driven at the time of the stabbing was a Statesman. It was not disputed at trial that the car in which the stabber was seated was a Skyline. It was open to the judge to make the findings that he did. There is an obvious inconsistency in the appellant at trial seeking to rely upon this evidence to raise a doubt as to his culpability in the attack on the victim, and now contending on appeal that such conduct is mitigatory. In our view there was no error in the judge’s characterisation of the offending as having occurred “in cold blood”.
The appellant also submitted that the sentence was manifestly excessive by reason of a starting point of 11 years imprisonment. The appellant called in aid this Court’s judgment in R v McNamara (2009) 105 SASR 38 where Vanstone J, with whom Kourakis J (as he then was) agreed, said that the offence of aggravated causing serious harm with intent to cause serious harm, committed in the circumstances applicable in that case, would attract a sentence at the level of about six to nine years. The circumstances of the offending in McNamara was that the offender struck a police officer about the head and neck with a full bottle of wine. The offender was attempting to flee from the scene of a crime of serious criminal trespass and theft and thereby avoid apprehension. The case came before this Court as a prosecution appeal.
In our view, nothing said by the Court in McNamara leads to the conclusion that a starting point of 11 years in the present case renders the head sentence manifestly excessive. The premeditated nature of the current offending and the use of a knife rendered the circumstances very different. We are satisfied that the sentence is within the appropriate range. Likewise, the non-parole period, fixed at something less than 55 per cent of the head sentence cannot be characterised as manifestly excessive.
For all these reasons we would refuse permission to appeal against sentence.
Conclusion
We would make the following orders:
1.the application for permission to appeal against sentence is refused;
2.the appeal is dismissed.