R v Dastagir

Case [2013] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Voir Dire)

R v DASTAGIR

[2013] SASC 26

Reasons for Ruling of The Honourable Justice Nicholson

27 February 2013

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - IDENTIFICATION FROM PHOTOGRAPHS

CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - EVIDENCE BY CLOSED-CIRCUIT TELEVISION

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - QUALIFICATIONS OF WITNESS

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - OTHER CASES

The defendant was convicted after a re-trial before a jury of one count of aggravated causing serious harm with intent to cause serious harm contrary to s23(1) of the Criminal Law Consolidation Act 1935. Immediately prior to the initial trial the defendant, by way of an application under Rule 9 of the Supreme Court Criminal Rules 1996, challenged the admissibility of certain CCTV footage proposed to be introduced by the Crown for identification purposes and the evidence of a professor of anatomy which, inter alia, drew attention to various alleged anatomical similarities between the person of interest in the CCTV footage and the defendant.

Held:  Defendant’s application to have the evidence, in each case, excluded refused.

Supreme Court Criminal Rules 1996 Rule 9, referred to.
Police v Dorizzi (2000) 84 SASR 403; R v Dodson [1984] 1 WLR 971; Smith v R (2001) 206 CLR 650; Kajlala v Noble (1982) 75 Cr App R 149; R v Sitek [1987] 2 Qd R 284; Taylor v Chief Constable of Cheshire [1987] 1 All ER 225; R v Marsh [2005] NSWCCA 331; Murdoch v R (2007) 167 A Crim R 329; [2007] NTCCA 1; Morgan v R [2011] NSWCCA 257; R v Tang (2006) 65 NSWLR 681; (2006) 161 A Crim R 377; R v Paul Edward Gray [2003] EWCA Crim 1001; Attorney-General’s Reference (No 2 of 2002) [2003] 1 Cr App R 321; R v Bonython (1984) 38 SASR 45; Murphy v R (1994) 62 SASR 121, considered.

R v DASTAGIR
[2013] SASC 26

Introduction

  1. On Monday 18 February 2013 the defendant was convicted after a trial by jury of the offence of aggravated causing serious harm with intent to cause serious harm.  The conviction followed a re-trial.  The first trial came to an end prematurely following an unfortunate disclosure by a member of the jury made after the jury had retired to consider its verdict but before the verdict was given.  Shortly prior to the first trial, in October 2012, I made a number of rulings in response to the defendant’s application to exclude evidence brought pursuant to Rule 9 of the Supreme Court Criminal Rules 1996.

  2. The issues raised by the defendant included first, a challenge to the admissibility of certain closed circuit television (CCTV) footage and second, a challenge to the evidence of Marciej Henneberg, the Wood Jones Professor of Anthropological and Comparative Anatomy in the school…

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AGLC
R v Dastagir [2013] SASC 26
Case
[2013] SASC 26
Decision Date

CaseChat Overview and Summary

The case of R v Dastagir involves the admissibility of evidence presented in the form of CCTV footage and still images, as well as expert testimony from Professor Henneberg. The evidence was admitted subject to the Crown establishing the provenance, which was not contested. The footage and images were identified as exhibit P5, P6, and P10, respectively. The expert testimony from Professor Henneberg included his qualifications in human anatomy and forensic anatomy, his experience with identifying anatomical features in photographs and CCTV footage, and his understanding of digital photography processes. The court allowed Professor Henneberg to provide evidence concerning the anatomical features of the person of interest and the defendant, following observations of the arrest photographs.

The legal issues the court had to address pertained to the admissibility of the CCTV footage and still images, as well as the scope of Professor Henneberg's expert testimony. The court had to determine whether the evidence was relevant to the facts in issue and whether there were any discretionary considerations to exclude the evidence. The court ruled that the CCTV footage, still images, and Professor Henneberg's testimony were admissible, subject to certain exclusions. These exclusions included references to right-handedness, the use of terms implying prevalence or lack of prevalence within the community, and specific details about the ears of both the person of interest and the defendant.

The court's reasoning was based on the relevance of the evidence to the facts in issue and the potential for the evidence to be prejudicial or misleading if not properly restricted. The court found that Professor Henneberg's expertise in human anatomy and forensic anatomy, as well as his experience with digital photography processes, made his observations and testimony relevant and reliable. However, the court also recognised the need to limit the scope of the evidence to avoid potential prejudice or confusion for the jury. As a result, certain aspects of Professor Henneberg's testimony were excluded, including references to right-handedness and the use of terms implying prevalence or lack of prevalence within the community. The court also excluded specific details about the ears of both the person of interest and the defendant, except for the first sentence of the relevant paragraphs.

The final orders of the court were that the CCTV footage, still images, and Professor Henneberg's testimony were admissible, subject to the exclusions outlined in the court's ruling. The Crown was entitled to lead the evidence, but had to comply with the specified exclusions. The court's decision balanced the need for relevant and reliable evidence with the need to prevent potential prejudice or confusion for 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

I ruled that both the CCTV footage that became exhibit P5 and P6 and the extracted still images that became exhibit P10 were admissible subject to the Crown satisfactorily establishing provenance. There was no challenge to the provenance of these exhibits.The evidence of Professor Henneberg The evidence which Professor Henneberg was permitted to give and which he gave included the following:(i)evidence as to his professional qualifications and expertise in the study of human anatomy generally and in the practice of forensic anatomy;(ii)evidence as to his experience and acquired expertise in making observations of and identifying anatomical features of interest in persons depicted in photographs and CCTV footage, including that obtained by the use of digital photographic devices;(iii)evidence of his experience and acquired expertise in understanding and accommodating some of the problems presented by the processes involved in capturing, storing and representing imagery by way of digital photography and digital CCTV;(iv)evidence as to the process he undertook when he compared the CCTV and still images of the person of interest with the arrest photographs of the defendant including, in particular, the steps he undertook to avoid or limit the possibility of his observations being compromised by the notion of “displacement”;(v)evidence to the effect that, at an earlier stage in the process, he looked carefully for any anatomical feature in either the person of interest or the defendant that would serve to positively exclude the hypothesis that they are one and the same person; and(vi)evidence as to his observations of anatomical features of the person of interest in the CCTV footage, namely:(a)an adult male of ectomorphic (thin) body build with a mesomorphic (athletic or muscular) component;(b)dark hair and skin of light (as opposed to black) colour;(c)straight legs (as opposed to bowed or knock-kneed);(d)rounded shoulders (as opposed to squared-off or triangular sloping shoulders) when viewed from the front or back;(e)a long, oval symmetrical face;(f)a prominent nose of medium width and straight back (dorsum);(g)a mouth of medium width with lip (vermillion or red part) of medium height;(h)a strong, rounded chin;(i)very straight brows located low on the forehead;(j)eyes that appear deep or sunken below the brows;(k)a hair line where, on both sides immediately over the temples, peaks protrude forwards and above which the hairline recedes forming deep lacunae;(l)a hair line that curves gently forward in the centre of the forehead;(m)an uneven surface of the forehead showing one or more horizontal wrinkles in the middle and a depression on the left side which depression produced a shadow; and(n)ears on both sides lying close to the head. The evidence permitted and ultimately lead from Professor Henneberg concerning the defendant, following observations of the arrest photographs, mirrored the above descriptions. In my ruling at the conclusion of the Rule 9 argument I excluded a number of aspects of Professor Henneberg’s evidence, as first proposed by the Crown. The ruling I gave was in the following terms.The proposed evidence under the headings “The Person of Interest” and “Mr Hameed Ullah Dastagir” is admissible and the Crown will be entitled to lead it, save for the following:Under the heading “The Person of Interest” I exclude:(i)The whole of the sentence [in his appearance and movements he makes an impression of a person of good physical abilities].(ii)Any reference to right-handedness.(iii)The use of the terms “characteristically” and “characteristic shape” or any similar terms implying prevalence or lack of prevalence within the community.(iv)That part of the final paragraph under this heading that deals with the left ear. However, the first sentence – “the ears of the PI are lying close to his head” – may be led.Under the heading “Mr Hameed Ullah Dastagir” I exclude:(v)Any reference to right-handedness.(vi)The paragraph dealing with the ears apart from the first sentence – “the ears of Mr Dastagir lie close to his head” – which may be led.(vii)The use of the term “characteristic shape” or any similar term implying prevalence or lack of prevalence within the community.As conceded by the Crown the matters set out under the heading “The Opinion” are not to be led.In these rulings the term “admissible” incorporates my findings that the evidence referred to is relevant to a fact in issue and that there are no discretionary considerations otherwise sufficient to cause me to exclude it. I will provide reasons for these rulings if and to the extent it were to become necessary.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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