R v Smith (No 5)

Case [2011] NSWSC 1459

Supreme Court


New South Wales

Medium Neutral Citation: R v Smith (No 5) [2011] NSWSC 1459
Hearing dates:17 June 2011
Decision date: 28 November 2011
Jurisdiction:Common Law - Criminal
Before: BUDDIN J
Decision:

Evidence admitted

Catchwords: Criminal law - murder - evidence of expert witness - comparison of footwear patterns on crime scene shoes and footwear of accused
Legislation Cited: Evidence Act
Cases Cited: Domican v The Queen (1992) 173 CLR 555
Louizos v The Queen (2009) 194 A Crim R 223
Mainwaring v R [2009] NSWCCA 207
Parish v The State of Western Australia [2008] WASCA 90
R v Blick (2000) 111 A Crim R 326
R v Le [2000] NSWCCA 49
R v Mundine (2008) 182 A Crim R 302
R v N, GF and N, SG (No 2) [2010] SASC 8
R v Shamouil (2006) 66 NSWLR 228
R v SJRC [2007] NSWCCA 142
R v Suteski (2002) 56 NSWLR 182
R v Tang (2006) 161 A Crim R 377
Rose v R (1993) 69 A Crim R 1
Smith v The Queen (2001) 206 CLR 650
Category:Interlocutory applications
Parties: Regina
Darren Paul Smith
Representation: Counsel:
C Everson (Crown)
D Yehia SC (Accused)
Solicitors:
S Kavanagh (Solicitor) Director of Public Prosecutions
Legal Aid Commission
File Number(s):2009/50517

Judgment

Introduction

  1. The accused, Darren Paul Smith, is charged with having murdered Russell Lyons at Fairfield on 3 June 1995. Ms Yehia SC, who appears for the accused, made application that the evidence of Dr Paul Bennett, whom the Crown intends to call, be excluded. On 28 June 2011 I overruled the objection. What follows were my reasons for doing so.

  1. The deceased's body was located in a carpark at the end of a laneway which runs off Smart Street in Fairfield at about 8.40 am on 3 June 1995. According to Dr Ellis, who conducted the post-mortem, his death was caused by head injuries with alcohol toxicity said to have been a contributing factor. The deceased was fully clothed but his shoes and wallet were missing. Despite a lengthy police investigation, it was not until 7 June 2009 that the accused was arrested. Indeed, he only came to the attention of investigating police when a DNA profile matching his profile connected him to the crime scene. His DNA profile was not entered onto the national database until 2008 following his apprehension in Queensland in relation to an offence of stealing a bicycle. Following analysis, a match was made between his profile and DNA material that was located inside each shoe of a pair of Adidas running shoes. The shoes themselves were located on 5 June 1995 a short distance from where the deceased's body was found. Also found on the shoes was blood staining which matched the deceased's DNA profile. A DNA profile matching that of the accused was also located in the area of the rear right pocket of the jeans which the deceased was wearing when his body was discovered. The Crown case is…

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AGLC
R v Smith (No 5) [2011] NSWSC 1459
Case
[2011] NSWSC 1459
Decision Date

CaseChat Overview and Summary

In the case of R v Smith (No 5), the defendant faced a charge of murder. The crux of the prosecution's case relied heavily on expert evidence from Dr Bennett, who compared the wear patterns on the shoes found at the crime scene to those on the footwear of the accused. The court was tasked with determining whether this expert evidence was admissible and, if so, whether it was sufficiently probative to be of value in establishing the accused's guilt.

The primary legal issue before the court was the admissibility of Dr Bennett's expert evidence under the provisions of the Evidence Act. The defence sought to exclude the evidence on the basis that it did not meet the criteria for admissibility set out in sections 79, 135, and 137 of the Evidence Act. Specifically, the defence argued that the probative value of the evidence was weak due to the significant temporal gap between the crime and the examination of the accused's footwear, as well as the concessions made by Dr Bennett during cross-examination.

The court found that despite the challenges to the probative value of Dr Bennett's evidence, it was still admissible and of value. The court noted that Dr Bennett's report and testimony identified several points of similarity between the wear patterns on the shoes from the crime scene and those on the accused's footwear. The court also took into account Dr Bennett's assertion that gait patterns tend to remain relatively unchanged over time unless there are significant changes in the individual's physical condition. Ultimately, the court ruled that the evidence, although subject to scrutiny, was admissible and could be considered in determining the accused's guilt.

In conclusion, the court allowed the expert evidence to be presented to the jury, finding it admissible under the Evidence Act. The final orders of the court permitted the prosecution to rely on Dr Bennett's evidence in establishing the connection between the footwear patterns of the accused and those found at the crime scene. The jury was instructed to weigh this evidence alongside other evidence presented in the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Counsel for the accused initially sought the exclusion of the evidence "pursuant to ss 79, 135 and 137 of the Evidence Act ". A voir dire was then conducted in relation to the admissibility of Dr Bennett's evidence. Shortly after that procedure had commenced, the Crown Prosecutor indicated that he did not intend to rely upon certain parts of the report. That had the effect of significantly reducing the scope of the challenge to his evidence as the following exchange makes clear: Dr Bennett gave the following evidence in chief: Dr Bennett's conclusion as to the wear pattern of the Adidas shoes was expressed in the following terms in his report: As I have said, Dr Bennett also examined the footwear seized from the accused after his arrest in 2009 and identified various points of similarity in the wear patterns of each of those boots and two of the three pairs of thongs. (The third pair displayed minimal wear and appear not to have been relied upon for the purposes of the examination). For example, Dr Bennett noted significant plantar flexion of the right hallux when compared to the left hallux and opined that this will produce asymmetrical wear patterns in both the insoles and outsoles of the shoes. Dr Bennett noted that the foam impression of the right hallux is 4mm wider than the left hallux and that both this feature, and the greater plantar flexion of the right hallux, are consistent with the greater outsole wear and compression characteristics of the right hallux insole of the Adidas shoes. Dr Bennett concluded that the foam impressions, the plaster casts and the inked impressions of the accused's feet all demonstrated features that are consistent with the wear characteristics seen in the accused's footwear and in the Adidas shoes. Dr Bennett was then cross-examined at some length by Ms Yehia. She had previously cross-examined him at the committal hearing and the transcript of those proceedings was before the Court. It is unnecessary to set out the details of that cross-examination because Dr Bennett was prepared to concede much of what was put to him. As a consequence, counsel for the accused submitted that the probative value of the evidence of Dr Bennett must be assessed as being "weak" in the light of the following matters: At one stage counsel went so far, in written submissions, to contend that "it is arguable that the evidence of Dr Bennett does not even meet the requirements of s 55". Counsel further submitted that "[h]is evidence only has minimal probative value insofar as it identifies similarities between the Adidas shoes and the accused's footwear and feet in 2009. That evidence, even if accepted, cannot rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, namely, the accused's wear patterns and the condition of his feet in 1995." It may be observed that Dr Bennett also said in his report that, notwithstanding the factors to which I have referred, "gait patterns tend to remain relatively unchanged over time unless some or all of the above change to a major extent."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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