R v Dastagir - [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

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.
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 of Medical Sciences at the University of Adelaide. I ruled both to be admissible although I limited the extent or nature of the evidence of Professor Henneberg that could be lead by the Crown. These are my reasons for those rulings.
The Crown case
In order to understand the relevance of the CCTV footage in question and the evidence of Professor Henneberg to the Crown case it is necessary that I briefly outline the case presented by the Crown and ultimately accepted by the jury at trial.
In the very early hours of the morning of 22 May 2010 Giovanni Focarelli was stabbed in the stomach and in the chest when he approached a black Nissan Skyline that had pulled up in Hindley Street immediately adjacent the Ink Central tattoo premises where Giovanni Focarelli was working at the time as an assistant manager. A police security services branch (PSSB) camera provided CCTV footage of the incident itself. However, all that can be seen in this footage is a person (Giovanni Focarelli) walk across the footpath to the kerbside, appear to bend over as if to talk to someone at or near the front seat passenger window, to then almost immediately reel back, bent over, and stumble back into the Ink Central premises. Only then did it become apparent to bystanders that he had been stabbed. The Nissan Skyline motor vehicle drove off with some haste.
The Crown case relied in part on CCTV footage of the car in question obtained from various other PSSB camera sites along Hindley Street and some CCTV footage obtained from local businesses on Hindley Street including from the Liberty service station on Hindley Street some 350 metres or so west of the Morphett Street intersection. The Ink Central premises are situated on Hindley Street between Morphett Street and King William Street and rather closer to King William Street than to Morphett Street.
The Crown case was wholly circumstantial. In order to prove that the defendant was the perpetrator of the stabbing the Crown needed to establish beyond reasonable doubt the following four propositions:
(i)that the car seen outside Ink Central at the time of the stabbing is the same car shown some minutes earlier as stationary at the Liberty service station according to the Liberty service station CCTV footage;[1]
(ii)that Giovanni Focarelli, whilst standing adjacent to the front passenger side door and window of the car shown on the PSSB CCTV footage as stationary outside Ink Central, was stabbed by an occupant of that car;
(iii)that the person who stabbed Giovanni Focarelli is the person who was sitting in the front passenger seat of that car; and
(iv)that it was the defendant who is the person to be seen in the Liberty service station CCTV footage, getting out of and re-entering the front passenger seat of the black Nissan Skyline, shortly prior to the car leaving the service station and proceeding easterly along Hindley Street towards Ink Central.
[1] The Liberty service station CCTV footage shows a black Nissan Skyline enter and park on the apron adjacent to the petrol pumps whilst a person exits the front passenger door and approaches the entrance of the service station. The number plate details of the black Nissan Skyline are readily ascertainable. A black Nissan Skyline with those registration details was at all material times registered to the name of Atiq Dastagir, the defendant’s brother.
These four fundamental propositions were essential to the inference, the Crown asked the jury to draw and which the jury must have drawn, to the effect that it was the defendant who stabbed Giovanni Focarelli. It can be seen, therefore, that the admissibility of the Liberty service station CCTV footage was essential to the Crown case. In addition, of potential significance, although not essential, to the Crown case was the evidence of Professor Henneberg. He purported to observe or identify and describe anatomical features of the person of interest shown getting out of and back into the black Nissan Skyline at the Liberty service station. In addition, Professor Henneberg purported to observe or identify and describe similar anatomical features of the defendant as shown in a bundle of photographs taken by the police at the time of his arrest some three months or so after the crime was committed.
It was to this comparison exercise undertaken by Professor Henneberg that the defence objected.
Ultimately, the members of the jury were invited to review the Liberty service station CCTV footage together with some still images extracted from that footage and the arrest photos of the defendant for themselves. They were invited to undertake the comparison exercise themselves but with the assistance of the evidence of Professor Henneberg.
When ruling that the Liberty service station CCTV footage was admissible I took the view that the considerable number of criticisms levelled against that evidence by the defence essentially concerned matters of weight that a jury, adequately instructed, would be able to properly take account of.
As far as the evidence of Professor Henneberg is concerned I ruled that certain aspects of the evidence were admissible and could be led by the Crown but certain aspects were inadmissible. As far as the aspects ruled admissible are concerned these were and remained the subject of trenchant criticism by the defence. I took the view that to the extent that such criticisms had any validity they did not render the evidence inadmissible; they, again, raised matters of weight that a jury, adequately instructed would be able to properly take account of.
To assist in the determination of the defendant’s objections I heard, over a number days, evidence on the voir dire from Professor Gale Spring, an Associate Professor at the Scientific Photography Branch of the Royal Melbourne Institute of Technology in Victoria; Dr Meiya Sutisno, a forensic anatomist, both of whom were called by the defence and Professor Henneberg, called by the Crown. Neither Professor Spring nor Dr Sutisno gave evidence for the defence at trial. However, the content of their evidence given on the voir dire was of assistance both in informing defence counsel’s cross-examination of Professor Henneberg at the trial and the content of my directions to the jury.
The Liberty service station CCTV footage
The Liberty service station CCTV footage (which became exhibits P5 and P6 in the trial) and the extracted still images (which became exhibit P10 in the trial) were admissible at least for certain purposes. Exhibit P5 shows vision of the apron area between the pumps and the entrance to the service station shop. It shows a black Nissan motor vehicle pull up and stop on the apron area and a person of interest exit the passenger side and head in the direction of the shop entrance. The footage also discloses the registration number on the car WKR 099. Exhibit P5 is part of a chain of CCTV footage which supported the prosecution case that the black Nissan Skyline with registration details WKR 099 was involved in the stabbing. The registration details WKR 099 assisted the police to identify the defendant’s brother, Atiq Dastagir, as the owner of the car said to be involved in the stabbing.
Exhibit P6 shows footage only of the interior of the service station shop. It shows that, at or about the same time that the person of interest exits the car and heads in the direction of the shop entrance, as disclosed on exhibit P5, a person dressed similarly enters the shop and approaches the service counter.[2] Exhibit P6 was relevant at least as part of the Crown proofs that the person of interest from the black Nissan Skyline made a purchase at a specific time, as recorded on the till receipt.
[2] The Crown evidence was to the effect that the various CCTV cameras deployed at the Liberty service station were synchronised as to time both with each other and with the electronic till and the bank controlled automatic teller machine.
The timing of the events, as they occurred at the Liberty service station, was a matter of some significance to the defence case and to the prosecution case given that the Liberty service station CCTV cameras, its till and its bank controlled automatic teller machine were not synchronised with the police PSSB CCTV cameras.
In addition, the footage was also admissible because it showed clothing, with “Notorious” writing and insignias on it, worn by the person of interest. This became of significance because Giovanni Focarelli was heard to utter “Notorious” immediately after the stabbing and similar clothing was found in the defendant’s carport.
Nevertheless, and leaving aside for the moment the admissibility or otherwise of Professor Henneberg’s evidence concerning exhibits P5, P6 and P10, the defence maintained that the CCTV footage was of insufficient quality to be left to the jury on the issue of identification. By way of summary, defence counsel submitted that the CCTV footage could not serve its intended purpose in this respect because it did not reliably record sufficient detail, it carried a high potential for inaccuracy which potential had not been and could not be properly quantified and it was liable to be misinterpreted by a jury adversely to the accused.
In support of these submissions the defence relied upon extensive and comprehensive evidence given by Professor Spring. I accept that Professor Spring is well qualified formally with respect to and has substantial experience and expertise in the area of forensic photography and the interpretation of digital photography. I accept defence counsel’s submission that, in this respect, Professor Spring’s level of expertise is both impressive and greater than any experience or expertise possessed by Professor Henneberg. The opinions and criticisms offered by Professor Spring included the following.
(i)The CCTV footage was “classic moderate to low quality image”.[3]
(ii)The footage is unable to record fine detail of images.[4] Although Professor Spring recognised that there was an element of subjectivity to this proposition.[5]
(iii)The footage, the raw data, was not of sufficient quality to enable the process of anatomical comparison that Professor Henneberg attempted.[6]
(iv)The camera is of moderate to low resolution and operating at a great distance, at a high angle and under less than optimal lighting conditions. As a result, fine detail has not been recorded and cannot be said to reliably exist within the footage.[7]
(v)The translation of the images introduces information and detail to enhance the image. This detail is not necessarily an accurate record of the subject’s actual presentation. There is a process of enhancement by the software responsible for the process of translation, the impact of which cannot be quantified.[8]
(vi)For example, CCTV footage lacks the resolution to enable the presence of either the fine detail of the ear or the depression to the forehead of the person of interest to be observed with any certainty, reliability or accuracy.[9]
(vii)There are many image variables that may account for the apparent presence of these features. These include lighting,[10] focal plane,[11] lineal distortion,[12] distance to subject,[13] and the process of printing and reproduction.[14]
(viii)The impact of such photographic variables can be quantified by optical tests, but the impact of these variables cannot be removed.[15]
(ix)Features, such as those identified by Professor Henneberg, may be attributable to an image artefact; further expert analysis would be required to attempt to settle the issue.[16]
[3]    Voir dire transcript T54.
[4]    T56, 63.
[5]    T63.
[6]    T112-114.
[7]    T57,61.
[8]    T59, 72, 116-118.
[9]    T74-75, 78, 86-87, 96, 102-104, 120.
[10] T66.
[11] T67.
[12] T69-70.
[13] T108, 114.
[14] T111.
[15] T71.
[16] T89, 103.
The above records only in summary form a number of Professor Spring’s main criticisms of CCTV footage of the type and quality that was before the Court. His evidence on the voir dire on these and other topics extended for more than 100 pages of transcript. I accept that CCTV footage of the type before the Court can present significant challenges for a trier of fact, particularly where an issue such as the identification of a person is concerned. As a consequence and in order to illustrate these challenges, the directions given to the jury in this matter included the following.
The use of the photographs and the CCTV film for identification type or comparison purposes is attended by other problems. Experience shows that it can be prone to error. Photographic and CCTV representations do differ from nature. They have a two dimensional quality. Still photos have a static quality. The arrest photos provide clear or clearer better lit pictures in contrast to the CCTV film of the person of interest. The CCTV pictures are dark at times and grainy with obvious distortions. The movement depicted is stilted and can look unnatural. Colours, light and shade, shadows and what they represent, can be misleading or unreliable. The pictures are taken from camera angles above the person of interest which has its own distorting effect. It is difficult to reliably assess distances and angles between the subject and the camera. Most of the CCTV footage would appear to have been taken over greater distances when compared with the police photos of the accused.
You also heard evidence from Professor Henneberg on the topic of the presence in all CCTV, particularly that toward the lower end of quality, such as here, of things such as pixilation, fish-eye effect, curvilinear and rectilinear distortion. One example of the distorting effect is where the camera is positioned above a subject. This can lead to making the subject appear thinner than he or she may actually be, with the top section disproportionately longer than the bottom section.
You also heard from Professor Henneberg about lighting and equipment caused artefacts. That is, the appearance on occasion of something in the picture which may not truly be there in the subject.
. . . .
Ladies and gentlemen, the defence maintains that the CCTV pictures, whilst showing events as they happened over time, are inadequate to be used for identification purposes, particularly where as here, a focus is on fine detail, the defence submits that the quality is too poor and dangerously unreliable. The Crown submits that at the end of the day, these pictures show you what they show you and they are there for you to assess using your common sense and your own experience, together with the assistance of Professor Henneberg’s evidence.
In my view, the criticisms of Professor Spring levelled at the CCTV footage itself were matters going to weight and were not such as would necessarily lead to the exclusion of the evidence. Furthermore, Professor Henneberg was of a different view as to the suitability of the CCTV footage for his purposes. Whilst Professor Henneberg was much less experienced in Professor Spring’s field of expertise and with no formal qualifications he had, as I discuss later in these reasons significant working experience in viewing and assessing CCTV footage. In addition, Professor Henneberg is highly qualified and experienced in the study of, including the observation of, human anatomy. He knows what to expect and what might be reliably inferred about a person’s anatomy. He would have a greater capacity to make sense of anatomical features shown on CCTV than would Professor Spring. If Professor Spring is saying that the CCTV footage in question can be of no assistance to Professor Henneberg then a fortiori it should not go before the jury and this raises other consideration dealt with elsewhere in these reasons. In my view, the most that can be taken from Professor Spring’s evidence is that the Liberty CCTV footage falls well short of optimal quality for the purpose the Crown wished to use it and brought with it significant difficulties and risks as to the reliability of any conclusions drawn from it.
A number of the concerns and difficulties identified by Professor Spring, at least insofar as they may have been of direct relevance to this CCTV footage, were identified during the evidence before the jury of Professor Henneberg, both in chief and in cross-examination, and adverted to in the summing up. However, Professor Spring was not called by the defence to give evidence in the trial and, as such, the jury did not have before it this evidence of Professor Spring and his evidence as to his undoubted expertise. As a consequence the jury did not have before it the contest between the opinions of Professor Spring and Professor Henneberg as to the use to which the CCTV footage might properly be put.

Photographs or film of a crime being committed are admissible as evidence in proof of the matters recorded. So also is CCTV footage of an event or an incident that is relevant in aid of proof of the commission of a crime. Photographs and digital images taken by CCTV cameras have routinely been admitted in the courts in this State as being of potential relevance to the identification of the perpetrator of a crime. In Police v Dorizzi[17] Gray J said this.[18]
[17] (2000) 84 SASR 403.
[18] At [37]-[40]. Citations omitted.
Photographs, tapes (audio or visual) or film of a crime being committed are admissible. All must be authenticated. There must be evidence to establish their provenance and integrity. [His Honour then quoted at some length from English authority].
. . . .
Photographs of people, objects or scenes are admissible as evidence of the appearance of the matters recorded, including any inferences fairly arising. For example, a photograph may contain a photograph of a victim of an alleged crime. The appearance of a victim may be relevant to the nature of the injury inflicted or to the angle of a blow. A photograph taken by a security camera may be relevant to the identification of an assailant. [His Honour again quoted extensively from further English authority].
. . . .
Once it is established that a videotape has not been altered or changed or that it depicts the scene of an alleged crime then it becomes relevant and admissible evidence. Not only is the videotape real evidence but it is to an extent testimonial evidence. It can and should be used by a trier of fact to determine whether a crime has been committed and whether the accused committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate “witness” with a complete and instant recall of events. It may provide strong, convincing evidence that will demonstrate clearly either the innocence or guilt of an accused.
The weight that should be afforded to videotape evidence can only be assessed after viewing the particular tape. The degree of clarity and quality of the images are factors which go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of recording may or may not be significant. Even if there are only a few frames which clearly show an assailant this may be sufficient for the purposes of identification. The trier of fact is entitled to review the tape, to stop it and then study the pertinent frames and to repeat the process as needed.
CCTV recordings have been admitted as evidence and employed in a range of ways in previous cases, including:
(i)to enable a jury to compare the photos of the offender with the appearance of the accused in a courtroom;[19]
(ii)to enable a witness to attempt to identify an offender after having viewed footage of the crime;[20]
(iii)to enable a witness to refer to and refresh their memory from the CCTV footage of a crime being committed;[21]
(iv)to enable a police officer to give evidence as having identified an offender from security footage that is no longer available;[22] and
(v)to enable a witness to give evidence as to their recognition of an offender as depicted in security footage published in a newspaper article or on an internet site;[23]
[19] R v Dodson [1984] 1 WLR 971; Smith v R (2001) 206 CLR 650.
[20] Kajlala v Noble (1982) 75 Cr App R 149.
[21] R v Sitek [1987] 2 Qd R 284.
[22] Taylor v Chief Constable of Cheshire [1987] 1 All ER 225.
[23] R v Marsh [2005] NSWCCA 331; Murdoch v R (2007) 167 A Crim R 329.
I viewed the relevant CCTV footage in court and in chambers and I have had regard to the many and varied criticisms as to the reliability of the CCTV footage advanced by the defence. The footage is of relatively low quality. It does not have the professional production values that one would see on television or at the cinema or indeed with a reasonably competently created home movie on modern equipment. Nevertheless, as far as CCTV footage of the type employed in public streets, hotels, service stations and other public places is concerned, this footage compares quite favourably. It does bring with it the various difficulties as identified in the direction to the jury set out above. Nevertheless, I formed the view that it was relevant to the question of identification of the person of interest shown in the CCTV footage and that the defects or difficulties in interpreting or assessing it were not so serious or problematic that it ought to be withdrawn from the jury for this purpose.[24] No prejudice apart from its probative value (if properly used) has been identified. There was no unfairness identified which caused me to exclude it as a matter of discretion. Of course, it is likely that it would have been before the jury, in any event, at least for the purposes earlier identified.
[24] Cf; Murdoch v R [2007] NTCCA 1 at [231]-[236].
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.
The paragraph under the heading “The Opinion” which I excluded was in the following terms.
Based wholly or substantially on the above knowledge I am of the opinion that the person of interest as shown in the CCTV images is Mr Hameed Ullah Dastagir. I make this statement with practical certainty since not only all anatomical features that could be described from CCTV clips match those of Mr Dastagir, but also because of the depression on the left side of the forehead that is not a normal anatomical feature and thus constitutes a unique identifier.
This “opinion” of Professor Henneberg was excluded for at least three reasons. The first was that, in my view, it purported to usurp the function of the jury. At the end of the day the question before the jury in this trial was whether or not the person of interest at the Liberty service station footage was, beyond reasonable doubt, the defendant. As part of that exercise it was the jury’s task to compare the two sets of images and to make its own assessment. Second, there was no evidence before the jury of the relative frequency within the general population of any of the anatomical features referred to by Professor Henneberg. As such, his opinion that the same person was involved was purely subjective. It could not be supported by any objective reference to population data bases. Third, there was no foundation in the proposed evidence of Professor Henneberg which could support the conclusion that the depression on the left side of the forehead (if the jury were to be satisfied of its existence) constituted a “unique identifier”. The Crown conceded these matters at an early time and did not press for this aspect of Professor Henneberg’s evidence to be admitted.
It was the Crown case, that because of the large number of anatomical similarities identified and described by Professor Henneberg the defendant could not be excluded from being the person of interest. Whilst any one of the features on its own might carry little weight, all of the similarities in combination carried much greater weight, particularly when considered in the context of the other circumstantial evidence in the case which pointed to the defendant’s involvement. It was this proposed use of Professor Henneberg’s evidence to which I had regard when considering whether or not the evidence was admissible.
The nature or aspects of Professor Henneberg’s, undoubtedly substantial, expertise as a forensic anatomist that were brought to bear on this exercise were really quite limited. Nevertheless, the defence’s trenchant criticism of both the limits of Professor Henneberg’s expertise, of what he purported to do and of what he did not do in reliance on the evidence of Professor Spring and Dr Sutisno ranged far and wide.
The defence did not challenge that Professor Henneberg has acquired, over many years, significant expertise and experience in anatomy and, in particular, anthropomorphic (human) anatomy. What the defence did contest was his expertise and level of experience in accurately interpreting CCTV and still photographs and his ability to reliably bring to bear his anatomy experience and expertise when considering only CCTV or only photographs rather than a person in real life.
However, as already indicated, ultimately, Professor Henneberg’s evidence was quite limited. He used his experienced anatomical eye to identify a number of anatomical features he said he could see in the person of interest. He explained how he assessed a number, although not all of those features, in accordance with what he described as a categorical scale for that feature in common use in his discipline. For some features where there was no available categorical scale he provided a description in lay terms. Where he was able to employ a categorical scale he positioned a number of the features he observed along the scale relevant to the feature under consideration. He then described the position on the scale of the feature in ordinary English terms. He repeated this process with respect to the arrest photos. In addition to bringing an anatomically trained eye for observation of human features to bear on the materials Professor Henneberg positioned or described the various features observed in accordance with a common language. The employment of a common language was of potential assistance in the jury’s task of comparing the two data sets.
As I have said, much of the defence challenge was informed by the evidence given by Professor Spring and Dr Sutisno. I have already referred to Professor Spring and my general acceptance of him as a highly experienced and competent expert in the area of digital image production, reproduction and analysis. However, he is not an expert in anatomy and, as such, there came a point where his evidence ceased to be of direct assistance on the question of the extent to which Professor Henneberg had the necessary experience and expertise to make and describe the observations he did from the photographic materials available.
Dr Sutisno is also a very well qualified forensic anatomist. I was less impressed with her evidence than I was with that of Professor Spring. What became clear, upon hearing her evidence and that of Professor Henneberg, was that there are very few forensic anatomy experts in Australia. Dr Sutisno and Professor Henneberg have routinely found themselves on opposite sides of forensic enquiries including criminal cases. As a consequence they have been called on from time to time to present a different position from and, if necessary, to criticise the work of the other. It also became plain to me that there was significant professional rivalry and antipathy between the two.
Dr Sutisno, in her evidence, and defence counsel in his cross-examination of Professor Henneberg, devoted a significant amount of time to criticising Professor Henneberg for approaches that he might have but did not take (such as the techniques of photo super-imposition and of anthropometric analysis). There was also substantial criticism of Professor Henneberg for work he has performed in other matters, including other criminal court cases, the full facts and circumstances of which were never satisfactorily placed before the court.
However, the question before me was whether or not the evidence to be given by Professor Henneberg as to the task he actually undertook was admissible. The fact that Dr Sutisno was of the view that the work should have been done in a different way and of the view that she would not have done what Professor Henneberg did nor reached the conclusions he reached on the evidence before him are not matters that, of themselves, go to admissibility. It is not my task to rule on the question of which of the competing expert positions I preferred. If the evidence of Professor Henneberg was admissible it should go before the jury (subject to discretionary considerations). The various complaints and criticisms expressed by Dr Sutisno were matters that also might go before the jury as relevant to the question of whether or not the triers of fact were prepared to act upon Professor Henneberg’s evidence and, if so, the weight that they might be prepared to place upon it. As it happened, the jury did not have the benefit of Dr Sutisno’s evidence. The jury was left only with the evidence of Professor Henneberg, albeit following an extensive and challenging cross-examination.
The failure of the defence to call either Dr Sutisno or Professor Spring gives rise to this issue. If Professor Henneberg’s evidence had not been admitted it is highly likely that the jury would have been presented with the CCTV footage and asked to do the comparison exercise unaided. The Crown would have been in a position to point to and to articulate the various comparative features disclosed in the expert report of Professor Henneberg, perhaps with the assistance of Professor Henneberg sitting at the back of the court or outside the courtroom. In other words, the jury would have had much the same material before it but without the added imprimatur that might have attached to evidence to this effect having come from a professor of anatomy.[25]
[25] One of the defendant’s objections to Professor Henneberg’s evidence was the risk that it might bring with it a so called “white coat” effect which had to be guarded against. I took the view that, in the circumstances of this case, the potential for any such effect could be eliminated or minimised by a suitable direction to the jury.
However, in the absence of evidence from Professor Henneberg and any defence experts the jury also would not have been put on notice of various of the difficulties with and the potentially misleading nature of the CCTV footage if taken simply at face value, as raised in the evidence of both Professor Spring and Dr Sutisno. Professor Henneberg provided the opportunity to the defence to lay an evidentiary foundation for submissions and jury directions that would allow them to view and consider the CCTV in its proper context.
The criticisms levelled at Professor Henneberg’s proposed evidence were varied and many. However, they can be distilled into four fundamental issues.
The first is that the quality of the raw data (the CCTV footage itself) was so poor as to deprive Professor Henneberg of any capacity to bring his expertise in human anatomy to bear on it. In essence, this criticism has already been dealt with; it relies essentially on the evidence of Professor Spring and the various characteristics inherent in CCTV footage, as already described, which require real caution to be observed before forming conclusions from and placing reliance on CCTV footage, particularly for identification purposes. I have already dealt with this argument in my reasons for the decision to admit the CCTV footage itself. If it is appropriate for a jury, the members of which presumably have little or no expertise, in a professional sense, in the study and understanding of human anatomy, to see and draw conclusions based on the CCTV footage then it cannot be the case that Professor Henneberg should be excluded from doing the same. It is a separate question whether or not Professor Henneberg brings an expertise to bear such that he is doing more or something in addition to that which falls within the province of the jury, that is, the ultimate question of identification. The mere fact that the raw data is of less than optimum quality for this purpose is not a reason, of itself, to exclude Professor Henneberg’s evidence. Indeed, Professor Henneberg has a level of additional expertise, borne of experience with viewing CCTV footage, that arguably renders any conclusions, based on the footage, by him, as more reliable than those a jury, with no prior experience of viewing CCTV footage or prior awareness of its limitations, might reach.

The second major criticism of Professor Henneberg was that he was insufficiently experienced in digital photographic interpretation. Whilst he was a highly experienced and expert human anatomist he did not have sufficient expertise so as to present himself as an expert when it came to assessing anatomical features based solely on digital photographic materials. I reject this criticism of Professor Henneberg. Professor Henneberg conceded that he did not have any formal training or qualifications in photography or photographic interpretation, nor does he hold formal qualifications in physics, mathematics or engineering. He, plainly, is significantly less experienced in these respects than is the highly qualified and experienced Professor Spring.
However, the evidence of Professor Henneberg on the voir dire disclosed that he had undertaken undergraduate study in mathematics and physics in the 1970s; that for decades he has engaged regularly, almost routinely, in taking and analysing photographic images (both pre-digital and post-digital), for the purpose of supporting his own anatomical studies and research; that since about 2002 he has been extensively engaged in forensic anatomy and the preparation of opinions and written reports which has involved the assessment of CCTV footage on approximately 125 occasions; and that he has from time to time had the opportunity to work with persons who are more qualified and more expert in the assessment of digital photographic materials.
Professor Henneberg was pressed at some length in cross-examination about cases where he had worked in conjunction with optical and photographic experts and as to why he did not do so on this occasion. Professor Henneberg said that he saw no need for any such additional assistance in the present case. The whole tenor of Professor Henneberg’s evidence, in this respect, was that as far as he was concerned the particular task at hand on this occasion which involved observation, identification and description was not one that was particularly challenging for him or that fell outside the experience and expertise he had acquired in his forensic practice.
Professor Henneberg explained in some detail his understanding of the digital photographic process and the presence in all photographic representations, to either a greater or lesser degree, of distorting features such as curvilinear distortion, rectilinear distortion, lighting and equipment produced artefacts and so on. Professor Henneberg gave useful illustrations of some of those features arising from the CCTV footage in question. He explained how they needed to be looked for and might be taken account of. I 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 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 Liberty service station’s CCTV footage.
The third major criticism of Professor Henneberg was that he did not employ a satisfactory or acceptable methodology. Again, counsel for the defendant relied heavily on the evidence of Dr Sutisno. I do not accept that the criticisms, in this respect, based on Dr Sutisno’s evidence are pertinent to the task in fact undertaken by Professor Henneberg. His task was essentially observational and descriptive. The criticisms of Dr Sutisno, to the extent they had validity, went to the question of weight but did not deprive Professor Henneberg’s evidence of its admissible character.
The fourth collection of criticisms essentially revolved around various criminal cases where the evidence of either Dr Sutisno or of Professor Henneberg has been described and criticised. I accept that there are a number of authorities where Professor Henneberg’s evidence and the evidence of so called facial mapping and at times body mapping has been the subject of significant and persuasive criticism. Nevertheless, the criticisms must be viewed in the context of the facts and issues raised in each of the particular cases concerned and with reference to the particular nature of the evidence adduced (and subsequently criticised on appeal) or sought to be adduced at trial and either admitted in modified form or entirely rejected altogether.
A number of recent authorities were referred to by the parties. In Morgan v R[26] the New South Wales Court of Appeal held that evidence of Professor Henneberg had been wrongly admitted at the trial. In that case, Professor Henneberg had engaged in an exercise described as “body mapping”. The person of interest was clothed and wearing a balaclava. Professor Henneberg nevertheless made observations as to the features of the anatomy of the body of the person and compared those with photographs of the accused. He compared the various observations and arrived at the following conclusion.
Based wholly or substantially on the above knowledge, I am of the opinion that there is a high level of anatomical similarity between the offender and the suspect… My opinion is strengthened by the fact that I could not observe on the suspect any anatomical detail different to those I could discern from the CCTV images of the offender.
In his written report he also provided the following by way of clarification of his methodology in that case.
I use a method of anatomical observation. It consists of inspection of images in order to form an opinion on the individual characteristics of the body and the face of a specific person. Since individuals differ in a number of details, and since each set of photographs or digital images allows observation of a different number and quality of details, statistical analysis is not a practical approach. Statistical analyses provide reliable results in cases where anthropometric measurements can be taken precisely, or where standard photographs in prescribed body positions are taken at same [sic] angles. Surveillance materials and standard police photographs are not of the quality allowing such analyses.
It can be stated that the anatomical analysis of images is similar to recognition of persons on such images by lay observers, such as, for example, eye witnesses. The only difference is that observations are conducted by an experienced anatomist who has good understanding of shapes and proportions of various details of a human body.
When making a statement regarding the degree of certainty or uncertainty of my specific individual identifications I take into account observable biological characteristics of particular individuals in their unique combination. For example, my statement that the identification is 95% certain is an estimate based on the fact that, due to the quality of images, I could not observe enough anatomical detail to reach certainty.
[26] [2011] NSWCCA 257.
The ground of appeal relevant for present purposes (ground 1) was that the trial Judge erred in admitting the evidence of Professor Henneberg to the effect that:
(a) the appellant was similar in appearance to one of the robbers; and
(b) that the appellant was identical in appearance to one of the robbers.
The Court of Criminal Appeal[27] held that ground 1(b) was not made out because the case was only conducted on the basis that Professor Henneberg’s evidence was to the effect of similarity of appearance not identity. However, the appeal based on ground 1(a) was allowed. The Court was not satisfied that there was evidence of a sufficient body of expertise concerning the notion of “body mapping”. It also was not apparent on the evidence before the Court how the anatomical expertise of Professor Henneberg allowed him to take account of the clothing worn by the person of interest when undertaking the body mapping exercise. In addition, the Court was not satisfied that Professor Henneberg’s comparison of the images necessarily derived from any particular expertise that Professor Henneberg was able to bring to bear. In particular, the Court was not persuaded that the comparison undertaken by Professor Henneberg was a task that the jury would not have been able to undertake for itself albeit that the jury would require expert evidence explaining the effect of photographic distortion in the CCTV images.
[27] Hidden J with whom Beazley JA and Harrison J agreed.
There is no doubt that Professor Henneberg or, more to the point, his evidence, was the subject of extensive and strong criticism by the Court of Criminal Appeal. However, it was in the context of a purported body mapping exercise where a person of interest was fully clothed and wearing a balaclava and in the context of an opinion expressed bordering on the ultimate issue that is, that there was “a high level of anatomical similarity between the offender and the suspect”. These are not features of the present case. Furthermore, the evidentiary base before the New South Wales Court of Criminal Appeal was different from that in the present case. It remains open for me to conclude in the present case, which I have done, that the evidence given by Professor Henneberg of his relevant experience and expertise was sufficient to ground the quite limited opinion he was allowed to express in this case. Nevertheless, the strong criticism of Professor Henneberg and the decision reached by the New South Wales Court of Criminal Appeal in Morgan, together with the criticisms of Professor Henneberg’s evidence (and, for that matter, Dr Sutisno’s when she has purported to undertake similar tasks) in other cases brought to my attention, did cause me to pause before conceding the admissibility of Professor Henneberg’s opinion evidence in this case.
In R v Tang[28] the New South Wales Court of Criminal Appeal[29] considered the admissibility of so called “facial mapping” evidence given by Dr Sutisno. The court held that although there appeared to be a body of expertise based on facial identification, there was not a body of specialised knowledge concerning “facial mapping” that could support an opinion of identity. The court was influenced in this respect by the absence of any kind of objective standard or database capable of leading to a quantification of probabilities. In other words, there was an insufficient body of objective fact available from which the relative frequency of any particular feature or features or combination of features in the wider population could be discerned with any pretence at scientific certainty. As such, any opinion as to identity expressed as based on a facial mapping exercise could rise no higher than a subjective belief. Spigelman CJ (with whom Simpson and Adams JJ agreed) said this.[30]
… facial mapping, let alone body mapping, was not shown, on the evidence in the trial, to constitute “specialist knowledge” of a character which can support an opinion of identity.
[28] (2006) 65 NSWLR 681.
[29] Spigelman CJ, Simpson and Adams JJ.
[30] At [146].
However, the Chief Justice went on to observe that evidence of particular similarities was admissible.
As indicated above, in the circumstances of this case, the evidence of particular similarities between the two categories of photographs of the accused and the third offender was admissible. The process of identification and magnification of stills from the videotape was a process that had to be conducted by Dr Sutisno out of court. Furthermore, the quality of the photographs derived from the videotape is such that the comparison of those stills with the photographs of the appellant could not be left for the jury to undertake for itself. The identification of points of similarity by Dr Sutisno was based on her skill and training, particularly with respect to facial anatomy. It was also based on her experience with conducting such comparisons on a number of occasions. Indeed, it could be supported by the experience gained with respect to the videotape itself through the course of multiple viewing, detailed selection, identification and magnification of images. By this process she had become what is sometimes referred to as an “ad hoc expert”.[31]
[31] At [120].
I interpolate here that the essence of Spigelman CJ’s observations just set out apply equally to Professor Henneberg’s evidence in the present case. Professor Henneberg explained his methodology of viewing all of the CCTV imagery available to him in full on a number of occasions, stopping and starting and reviewing the imagery until he was satisfied as to all of the features he was able to observe. In addition to his experience and expertise acquired over many years of viewing CCTV footage for these purposes, I was satisfied after hearing Professor Henneberg’s evidence that he also had acquired an ad hoc expertise with respect to the particular footage considered by him in this case.
In Murdoch v R[32] the Northern Territory Court of Criminal Appeal[33] was called upon to consider the evidence of both Dr Sutisno and Professor Henneberg.
[32] [2007] NTCCA 1; 167 A Crim R 329.
[33] Angel ACJ, Riley J and Olsson AJ delivered the judgment of the Court.
In that case, Dr Sutisno was called on behalf of the Crown to give evidence of face and body mapping and posture comparison. The defence called Professor Henneberg on this occasion. Dr Sutisno expressed the following conclusion in front of the jury.
The multiple number of features matched which includes the most noticeable or recognisable features, the distinctive, unique identifiers, the habitual characteristics and racial traits indicate the level of identification is the same person.
This time, Professor Henneberg gave evidence to the effect that, in his view, the CCTV images available to court could not be used to assess the anatomical detail that Dr Sutisno described in her report. Professor Henneberg in the course of his evidence indicated that he was unable to identify or discern various features apparently discerned by Dr Sutisno. According to Professor Henneberg, both he and Dr Sutisno undertook “the same basic principal approach of comparing images, feature by feature, the images from CCTV footage and images of suspects. To that extent it’s the same procedure”.
The Court of Criminal Appeal undertook an extensive review of English and Australian authorities that have touched upon or dealt with evidence of facial mapping and of anatomical similarity. I found that review, with respect, to be of significant assistance. The Court referred to R v Paul Edward Gray[34] where the English and Wales Court of Appeal (Criminal Division) dealt with the situation where the jury had been invited to compare stills from CCTV footage with the appellant as he appeared in court. The Court of Appeal said (by way of obiter dictum):
We do not however wish to pass from this appeal without making general observations about the use of facial imaging and mapping expert evidence of a reliable kind. Mr Harrow, like some other facial imaging and mapping experts, said the comparison of the facial characteristics provided “strong support for the identification of the robber as the appellant”. No evidence was led of the number of occasions on which any of the six facial characteristics identified by him as “the more unusual and thus individual”, were present in the general population, nor as to the frequency of the occurrence in the general population, of combinations of these or any other facial characteristics. Mr Harrow did not suggest that there was any national database of facial characteristics or any accepted mathematical formula, as in the case of fingerprint comparison, from which conclusions as to the probability of occurrence of particular facial characteristics or combinations of facial characteristics could safely be drawn. This court is not aware of the existence of any such database or agreed formula. In their absence any estimate of probabilities and any expression of the degree of support provided by the particular facial characteristics or combinations of facial characteristics must be only the subjective opinion of the facial imaging or mapping witness. There is no means of determining objectively whether or not such an opinion is justified. Consequently, unless and until a national database or agreed formula or some other such objective measure is established, this court doubts whether such opinions should ever by expressed by facial imaging or mapping witnesses. The evidence of such witnesses, including opinion evidence, is of course both admissible and frequently of value to demonstrate to a jury with, if necessary, enhancement techniques afforded by specialist equipment, particular facial characteristics or combinations of such characteristics so as to permit the jury to reach its own conclusion – see Attorney-General’s Reference (No 2 of 2002) [2002] EWCA Crim 2373; but on the state of the evidence in this case, and if this court’s understanding of the current position is correct in other cases too, such evidence should stop there.
[34] [2003] EWCA Crim 1001.
The Northern Territory Court of Criminal Appeal in Murdoch observed[35] that in Gray the Court of Appeal made it clear that opinion evidence identifying similarities is admissible and frequently of value to a jury. However, it cannot extend to positive identification. The Court of Criminal Appeal also referred to the summary of the, then, position in the United Kingdom taken from Attorney-General’s Reference (No 2 of 2002).[36]That summary included the following.
Where a witness who does not know the defendant spent substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based on a comparison between those images and a reasonable contemporary photograph of the defendant, provided that the images and the photograph are available to the jury.
A suitably qualified expert with facial mapping skills can give opinion evidence of identification based on a comparison between images from the scene (whether expertly enhanced or not) and a reasonably contemporary photograph of the defendant, provided the images and the photograph are available to the jury.
[35] At [280].
[36] [2003] 1 Cr App R 321.
The Court of Criminal Appeal also referred to R v Tang[37] and the approach taken by Spigelman CJ in that case as already referred to above. With respect to Tang, the Court of Criminal Appeal in Murdoch said this.[38]
Spigelman CJ drew a distinction between evidence of resemblance and evidence of identification. Evidence falling short of positive identification may be of significance when considered in the context of the whole of the evidence: Fester v The Queen (2001) 208 CLR 593 at 599; Murphy v The Queen (1994) 62 SASR 121 at 123-145. In the circumstances his Honour expressed the view that “the evidence of Dr Sutisno of similarity, at least with respect to the facial features, is capable of adding strength to the Crown circumstantial case. Even if she is not able to express the conclusory opinions of the character she did express, she can give evidence which supports the Crown case.
[37] (2006) 161 A Crim R 377.
[38] At [288]. Emphasis supplied.
The Court of Criminal Appeal in Murdoch went on to find that the evidence of Dr Sutisno in that case was admissible. The court said this.[39]
By virtue of her study of the appellant and of the images from the truck stop video, and given her general skill and training, Dr Sutisno had become a so-called “ad hoc expert”: Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; Li v The Queen (supra at 286); R v Tang (supra) and Attorney-General’s Reference (No 2 of 2002) (supra). She could identify similarities that would not be readily apparent to the jury from their observations of the appellant in court. However such evidence would not extend to expressing the opinion that the images were of the same person.
Contrary to the conclusion of the learned trial Judge it was not established that body mapping or “face and body mapping” is a technique that has a sufficient scientific basis to render results arrived at by that means a proper subject of expert evidence.
In our opinion Dr Sutisno was able to give evidence of points of similarity regarding the facial features of the persons shown in the images. She had training and expertise that permitted her to do so. She could also give evidence of similarities of body and movement based upon her detailed study of the images.
The learned trial Judge, having concluded that Dr Sutisno was able to give expert evidence, then considered whether that evidence should be limited to a comparison of the relevant features of the person in the truck stop video and the appellant. He concluded:
Further, in my view, it is not appropriate to limit the assistance to merely identifying the relevant characteristics. When regard is had to the nature and detail of the characteristics and the methodology employed by Dr Sutisno, it is readily apparent that her knowledge and expertise in the area of anatomy give Dr Sutisno a significant advantage in the assessment of the significance of the features of comparison both individually and in their combination. Dr Sutisno possesses scientific knowledge, expertise and experience outside the ordinary knowledge, expertise and experience of the jury. This is not a case in which the jury, having been informed of the relevant features, would not be assisted by the expert evidence of Dr Sutisno as to her opinion of the significance of the features individually and in their combination.
This Court has found that the technique employed by Dr Sutisno did not have a sufficient scientific basis to render the results arrived at by that means part of a field of knowledge which is a proper subject of expert evidence. However the evidence given by Dr Sutisno was capable of assisting the jury in terms of similarities between the person depicted in the truck stop footage and the appellant. It was evidence that related to, and was admissible as, demonstrating similarities but was not admissible as to positive identity. Dr Sutisno was not qualified to give evidence, as she did, based on “face and body mapping” as to whether the two men were, indeed, the same men. Her evidence in this regard should not have been received.
[39] At [296]-[300].

With respect, I agree with the analysis and observations made by the Court of Criminal Appeal in Murdoch. Provided that Professor Henneberg’s evidence was to be limited to the extent indicated in my ruling and was used only for the purposes and in the manner as I directed the jury in this matter, the evidence given by Professor Henneberg was admissible. In addition, I am also satisfied, based on the evidence given by Professor Henneberg that he had the appropriate expertise to give evidence of this limited nature.
The evidence satisfies the requirements as set out by King CJ in R v Bonython.[40]
Before admitting the opinion of a witness into evidence as expert testimony, the Judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) 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 (b) 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 opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.
[40] (1984) 38 SASR 45 at 46.
Having found the evidence to be admissible I could see no reason why I should have exercised any such discretion as may have been available, to exclude it. Virtually all of the criticisms levelled at Professor Henneberg with respect to the evidence actually admitted and given were issues of weight properly to go before the jury. I was satisfied that I would be able to adequately instruct the jury to use the evidence in a way which would protect against its misuse and that would not detract from the requirement that the ultimate issue of identification was one solely for the jury.
Evidence of similarity is relevant and admissible as part of a circumstantial case.[41] In short, 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 the cognate feature in another set of images and to describe them, insofar as anatomical considerations permit, as similar or dissimilar, an expert capacity 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 and a common language for the descriptions.
[41] Murphy v R (1994) 62 SASR 121 at 123-124; Festa v R (2001) 208 CLR 593 at 598-599; Smith v R (2001) 206 CLR 650 at 656; R v Tang (2006) 161 A Crim R 377 at 401; Murdoch v R (2007) 167 A Crim R 329 at 349.