R v Tang

[2006] NSWCCA 167

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Hien Puoc TANG [2006]  NSWCCA 167

FILE NUMBER(S):
2121 of 2005

HEARING DATE(S):               6 March 2006

DECISION DATE:     24/05/2006

PARTIES:
Hien Puoc TANG (Applicant)
Regina (Respondent)

JUDGMENT OF:       Spigelman CJ Simpson J Adams J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/11/0233

LOWER COURT JUDICIAL OFFICER:     Finnane DCJ

COUNSEL:
M Ramage QC (Applicant)
D Freason SC (Respondent)

SOLICITORS:
C Blinksy – Horowitz & Bilinsky (Applicant)
S Kavanagh  –  Solicitor for NSW Director of Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether opinion evidence of identity based on facial mapping and body mapping admissible.
CRIMINAL LAW – Evidence – Expert opinion – whether facial mapping and body mapping constitute areas of “specialised knowledge” – meaning of “specialised knowledge” – meaning of “knowledge” – s 79 Evidence Act 1995 (NSW).
CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether curriculum vitae of witness correctly admitted.
CRIMINAL LAW – Practice and Procedure – Whether the use of the phrase “ultimate issue” in directions constituted a miscarriage of justice.
WORDS AND PHRASES - "specialised knowledge", "knowledge".

LEGISLATION CITED:
Evidence Act 1995 (NSW): s 79, 177, 135, 137
Federal Rules of Evidence 2004 (United States): Rule 702

DECISION:
1 Appeal allowed
2 Conviction quashed
3 A new trial to be held.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

2005/2121

SPIGELMAN CJ
SIMPSON J
ADAMS J

Wednesday 24 May 2006

REGINA  v  Hien Phuoc TANG

Facts

The Appellant was convicted of one count of robbery when armed with an offensive weapon.  The robbery occurred in a convenience store and was videotaped by a surveillance device.  The tape showed three offenders but was not of sufficient quality to enable clear identification of the offenders.

Two of the offenders were arrested forty minutes after the offence.  The car in which they were travelling contained property like that stolen from the convenience store.  DNA evidence connected the co-offenders to hats in the car, which matched those worn by two of the offenders on the surveillance video.  The co-offenders pleaded guilty.

The Appellant came to the attention of the police eight months after the robbery and was linked to the offence through fingerprints found on some of the stolen goods.  At trial the Appellant gave evidence that he had met the co-offenders some months prior to his arrest in order to purchase marijuana.  As part of this transaction he said he had purchased some cigarettes, in the course of which he handled various packets within the bag of stolen goods.

The Crown case turned to a significant degree on opinion evidence from Dr Meiya Sutisno, who identified points of resemblance between the surveillance images of the third offender and photographs of the Appellant based on facial mapping and body mapping techniques.  Dr Sutisno expressed three kinds of opinion:  first, that the two bodies of photographs depicted the…