R v Hawi (No 24)

[2011] NSWSC 1670

Supreme Court

New South Wales

Medium Neutral Citation:	R v Hawi & ors (No 24) [2011] NSWSC 1670
Hearing dates:	24 August 2011
Decision date:	24 August 2011
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Evidence not admissible
Catchwords:	Evidence - admissibility and relevancy - opinion evidence - expert opinion - whether expert evidence relating to identification based on specialised knowledge - whether evidence relevant - evidence not relevant
Legislation Cited:	Evidence Act 1995
Cases Cited:	Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Hawi Christian Adam Menzies Farres Abounader Ishmail Eken Usama Potrus Zoran Kisacanin David Padovan
Representation:	Counsel: Ms N Adams with Ms H Roberts (Crown) Mr P Dunn QC with Mr S Grant (Hawi) Mr J Stratton SC (Menzies) Mr J Trevallion (Abounader) Mr P Young SC (Eken) Mr R Driels (Potrus) Mr J Gordon (Kisacanin) Mr A Conwell (Padovan) Solicitors: Solicitor for Public Prosecutions (Crown) Sid Hawach & Co (Hawi) Hunter Flood Pty Limited (Menzies) Archbold Legal (Abounader) Purcell Felton Lawyers (Eken) Barakat Lawyers (Potrus) Elie Rahme & Associates (Kisacanin) Nyman Gibson Stewart (Padovan)
File Number(s):	2009/50087

Judgment

1. HIS HONOUR: In relation to the evidence of Professor Henneberg, I am of the view that in respect of each of the two reasons indicated by Mr Stratton as to which it might be relevant and admissible, that it is not. In short, the two aspects of the evidence which were asserted to be admissible were: firstly, that it was not possible to identify a person of interest (who the Crown asserts is the accused Menzies) in the "Deng footage"; and secondly, that this person was wearing a long-sleeved garment and could not be discerned to be wearing jewellery (which is of consequence because Mr Menzies was wearing a t-shirt and jewellery at the relevant time).

1. Relevant evidence is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding": Evidence Act 1995, s 55(1). It became clear in the course of submissions that no one was suggesting that it is possible to identify the person shown in the "Deng footage" that the Crown alleges is the accused Menzies. The Crown asserts that it is Mr Menzies but primarily through recourse to other evidence that supports such an inference. The Crown Prosecutor indicated that she will be submitting to the jury that it can be discerned that the person is tall and is wearing a dark-coloured top. That much is self-evident and uncontroversial. The evidence of Professor Henneberg that he, with all of his "specialised knowledge based on [his] training, study [and] experience" (s 79), is unable to identify that person is clearly not relevant.

1. As to the second issue, it became clear in the course of the cross-examination of Professor Henneberg by the Crown Prosecutor on the voir dire that this opinion was not wholly or substantially based on specialised knowledge that, in turn, is based on Professor Henneberg's training, study or experience. Professor Henneberg is a biological anthropologist and anatomist (T3929.27). He gave evidence of having been frequently called upon for his expertise in making anatomical comparisons between images of persons involved in crimes and images of persons suspected to be the perpetrators (e.g. T3930.37). I do not purport to set out the full range of Professor Henneberg's study, training and experience and I mean him no disservice in not doing so.

1. In the course of his evidence on the voir dire, Professor Henneberg gave evidence of having included in his anatomical comparisons a consideration of garments worn by persons depicted in the images submitted to him. He has some experience working with those involved in standard sizing of garments and garment construction (T3932). At no stage, however, was there any evidence of Professor Henneberg having any particular study, training or experience in being able to identify the style of a garment worn by a person depicted in a still or moving image.

1. The evidence in question on this topic appears in Professor Henneberg's report of 30 January 2011 in paragraph 9. He indicated first that the quality of the images was insufficient to allow for "observation of any anatomical detail that could be used in anatomical comparisons aimed at establishment of identity of an individual" and that no enhancement of the images provided any "anatomically useful information". He continued:

"On all images, the entire depiction of the person in question is of dark, practically black, colour with the exception of distal upper extremities (hands and distal forearms) that are of a lighter hue. It must be, however, taken into account that the image is taken against the daylight coming through panoramic windows behind the individual, and thus anything on the camera side will be dark due to the contrast against the daylight. The lighter colour of distal upper extremities, especially the right one, extends from the hand to approximately the middle of the forearm. This would indicate that the 'offender' wore loose long sleeves that slid down towards elbows when the upper extremities were raised. The poor quality of the images and significant pixilation prevent any precise observation of this situation."

1. Professor Henneberg conceded in cross-examination on the voir dire that he was a specialist in anatomy but not a garment specialist (T3945.48). Moreover, the opinion quoted above from his report, heavily qualified as it was in the last sentence of the quote, was even further diminished in value by his concession when shown a still image from the "Deng footage" that "one could not even exclude that this is a T-shirt. It's difficult to judge what kind of garment it is" (T3945.37).

1. In relation to the presence or absence of jewellery on the person of interest, Professor Henneberg said in his report (at paragraph 9):

"There are no areas on the image of the 'offender' that would suggest presence of gold/silver colour jewellery ..."

1. However, there was no evidence of Professor Henneberg having any study, training or experience in the discernment of jewellery in photographs. His expertise as a biological anthropologist and anatomist was not relevant to the statement in his report just quoted. In any event, saying that there is nothing "that would suggest presence of ... jewellery" is not to say that the person was not wearing jewellery.

1. The point was demonstrated in cross-examination when the Crown Prosecutor showed the professor a still image taken from security camera footage that he agreed was a much larger and clearer photo (T3943.49 - 3944.3). This image depicted Mr Menzies, who was known to be wearing jewellery. Professor Henneberg could not see jewellery in that image either (T3943.47).

1. I was not satisfied that the professor's evidence as to clothing and jewellery qualified for admission as opinion evidence pursuant to s79 of the Evidence Act . More significantly, however, it also seemed to me that his evidence fails the primary test of relevance. Professor Henneberg was really attempting a task that the jury could well undertake for themselves. It was not established that he had any particular skill, experience, training, capacity or technological assistance that he brought to bear on the task. All that was established was that he looked at a photo with the naked eye and endeavoured to relate what he saw. It appears to me that this evidence is in the nature of what is referred to in the authorities as an ipse dixit. It was not established that the jury are any less able to do what Professor Henneberg did. Generally as to these issues, see Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650.

1. I was not persuaded that Professor Henneberg's evidence on the topics of clothing and jewellery could add anything to what the jury could discern for themselves. None of the evidence is capable of rationally affecting the assessment by the jury of the probability that the person of interest in the "Deng footage" is Mr Menzies.

1. For these reasons, I concluded that the evidence was not admissible.

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Decision last updated: 14 February 2012