R v Tanner - [2010] SADC 128

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v TANNER
[2010] SADC 128
Reasons for Ruling of His Honour Judge Clayton
2 September 2010
CRIMINAL LAW - EVIDENCE - RELEVANCE - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY - GENERALLY
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - QUALIFICATIONS OF WITNESS
Application to exclude identification evidence. Applicant charged with four offences relating to breaking into a shopping centre and theft of money. CCTV footage showed the offender breaking into the premises. Prosecution sought to lead evidence of expert biological anthropologist and anatomist identifying the offender shown on the CCTV footage as the accused. Applicant sought to exclude evidence on basis that it was irrelevant and/or inadmissible opinion evidence, or that its probative force is outweighed by its prejudicial effect. Facial mapping is a body of recognized scientific knowledge. Evidence of the expert likely to be of assistance to the jury in that it will bring to their attention physical features of the accused which they may not discern by themselves. Evidence of positive identification excluded but the expert can give evidence of particular characteristics, the occurrence of those characteristics within the community and apparent similarities between the person shown in the images and the accused.
Evidence Act 1995 (NSW) s 79, referred to.
Smith v The Queen (2001) HCA 50; 206 CLR 650; R v Tang [2006] NSWCCA 167; HG v The Queen (1999) 197 CLR 414; R v Bonython (1984) 38 SASR 45; Murdoch v The Queen [2007] NTCCA 1; R v Murdoch (No 4) [2005] NTSC 78; Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Gray [2003] EWCA Crim 1001; R v Jung [2006] NSWSC 658; R v Kaliyanda (unreported Supreme Court of New South Wales 17 October 2006); R v Duke (1979) 22 SASR 46, considered.

R v TANNER
[2010] SADC 128
Application to exclude the evidence of Professor Henneberg

Brian James Tanner is charged with four offences which are alleged to have been committed on 4 February 2009. In the early hours of the morning on that day a stolen utility backed up to the doors of the Centro Hilton Shopping Centre and rammed the doors causing them to open. Two men alighted from the utility, entered the building, loaded a large vending machine on to the utility and then drove away.
The incident was recorded on the CCTV security system at the shopping centre. The Crown alleges that one of the two men depicted in the CCTV images was the accused. The identification of the accused is an issue in the case.
The prosecution propose to call at the trial Professor Maciej Henneberg to identify the images shown on the CCTV footage as the accused. The accused has applied for the evidence of Professor Henneberg to be excluded on the grounds that:
a) The evidence is inadmissible as being irrelevant and unqualified and/or unacceptable opinion evidence which effectively usurps the Jury function and is otherwise contrary to Common Law.
REFER: SMITH v THE QUEEN (2001) HCA 50
b) The evidence is uncertain and vague at best and is otherwise dangerous and more prejudicial than probative and ought to be excluded in the interests of a fair trial.
Professor Henneberg describes himself as a professional biological anthropologist and anatomist. He holds the Wood Jones Chair of Anthropological and Comparative Anatomy in the School of Medical Sciences at the University of Adelaide. In 1976 he was awarded a doctorate in Biological Anthropology and a post doctoral qualification (DSc) from a university in Poland. Prior to his current appointment he was the Professor of Anatomy and Human Biology at a university in South Africa and has held academic appointments at the University of Texas and the University of Cape Town. He says that he has practised "forensic identification" since 1976 in Poland, Texas, South Africa and Australia. He has published his forensic research in peer reviewed international journals and chapters in books. His evidence has been accepted in courts in South Australia, Queensland, New South Wales and the Northern Territory as well as in Texas, South Africa and Poland.
On 4 March 2009 a police constable provided Professor Henneberg with still images from the CCTV depicting the ram raid together with police photographs of the accused. He was asked to conduct an anatomical comparison of the two males performing the raid with the accused.
In a statement of 6 March 2009 Professor Henneberg said that he used a method of anatomical comparison that describes those morphological traits of the offenders that can be discerned from security images and compared them with morphological traits of the suspects.
In the case of the accused, he noted that the accused is a young male of apparently European origin with a round face, that his brown hair forms a large "widows peak" on the forehead with deep hairless lacunae on both sides, his nose had a straight back (bridge, dorsum) and his body build appeared to be mesomorphic.
He concluded that taking into account morphological similarities between an offender shown in the CCTV footage and the accused and the lack of any dissimilarity in any characteristic he could observe that the offender was "very likely to be Mr Brian J Tanner".
Appended to the statement is a document which explains the method in detail and lists about ten cases in which the evidence of Professor Henneberg has been accepted by courts in South Australia, Queensland and the Northern Territory.
On 3 May 2010 a solicitor with the office of the DPP provided Professor Henneberg with further images of Mr Tanner and requested him to conduct further comparative analyses. Professor Henneberg has described his examination of the further images in another statement dated 15 August 2010.
Again Professor Henneberg used a method of anatomical comparison which described the morphological traits of the offender which could be discerned from security images, and compared them with morphological traits of Mr Tanner. After referring to his original description of Mr Tanner he said:
…Upon re-inspection of images from the offence I could notice that the widows peak was very pronounced, "sharp", and placed asymmetrically on the offender’s forehead. The lacuna (bald patch) on the left side of the offenders’ forehead was larger than the one on the right side, thus the peak was directed to the right instead of being placed symmetrically in the exact centre of the forehead…
Professor Henneberg expressed the following opinion:
In addition to morphological similarities between the offender (1) and Mr Tanner in body build, nose shape and face shape there is a very close similarity of the hairline on the forehead illustrated below. It is not only that both Mr Tanner and the offender (1) have widows peak, but that its shape and asymmetry are exactly alike in detail. According to the research on forehead hairlines conducted by Monica Domaracki for her BSc (Honours) in 2005 at the University of Adelaide on 177 Australians, the hairline with a widows peak occurs in 16% of Australian males. She also found that hairlines are individually variable, that is each person's hairline is somewhat different from a hairline of other persons. She quantified these differences using a system of polar co-ordinates. In addition Ms Domaracki found that in the case of hairline asymmetry the bald patch (lacuna) is usually receding further back on the right side of the forehead than on the left. The offender and Mr Tanner both have the opposite arrangement - the lacuna is greater on the left side of their foreheads than on the right. This is less common in persons resident in Australia.
Professor Henneberg concluded:
Taking into account the rare arrangement of the hairline in both the offender and Mr Tanner and their body build, face shape and nose similarities, I am practically certain that the offender is Mr Brian J Tanner. My opinion is strengthened by the fact that I could not observe any discernible difference between the offender and Mr Tanner.
The identification of persons depicted in photographs by experts is a comparatively recent development. In Smith v R [2001] HCA 50; 206 CLR 650 the High Court decided that evidence given by two police officers at the trial that the accused was the person depicted in security photographs had been improperly received. The court said that because the police officers assertion of identity was founded on material no different from the material available to the jury for its own observation, that the witnesses assertion that they recognized the appellant was not evidence that could rationally affect the assessment by the jury of the question whether the evidence could rationally affect (directly or indirectly) the assessment by the jury of the probability of the existence of the facts in issue in the proceeding. The court said:[1]
…The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury…
[1] at p 655 para 11.
The majority held that the evidence of the police was irrelevant and should not have been received.
Kirby J held that the police evidence was opinion evidence, not evidence of fact, and was not admissible to prove that the appellant was a participant in the robbery. His Honour said the evidence "should be excluded as nothing more than a lay opinion upon a subject about which the jury were required to form their own opinion".[2]
[2] at p 670 para 61.
Kirby J also referred to the difficulties with identification evidence and continued:[3]
…The risks, already large, may be enhanced by the natural desire of a person performing the act of identification to produce an affirmative outcome rather than to admit to incapacity and failure. The risks are still further increased where the person concerned has a relevant professional motivation (even if only subconsciously) to identify a person…
[3] at p 668 para 56.
Mr Tanner's application to exclude the evidence of Professor Henneberg relies upon the decision in Smith.
However since Smith the law has developed in the opposite direction so far as the identification of alleged offenders from photographic images is concerned.
A significant decision is R v Tang [2006] NSWCCA 167 where expert evidence had been given at trial by Dr Sutisno, who described herself as an expert in the field of forensic anatomy with a particular specialty of facial identification, that is, analysing faces from surveillance images and face reconstruction from the skull. Whether the evidence was admissible in Tang depended upon the application of s 79 of the Evidence Act 1995 (NSW) which allows for the admission of opinions based on specialised knowledge. There is no similar statutory provision in South Australia where the admissibility of expert evidence is governed by the common law. It is accepted that the position in South Australia is described in R v Bonython (1984) 38 SASR 45.
Initially Dr Sutisno claimed expertise in the area of "face identification" but in an updated curriculum vitae dated 2004, she claimed to be an expert in "body mapping" as well as "facial mapping".
The Court of Appeal in Tang held that before evidence can be admitted in respect of a field of specialised knowledge the foundation must be laid that there is in fact that field of "specialised knowledge". The court held that while there appeared to be a body of expertise based on facial identification, "facial mapping" evidence was not shown to constitute "specialised knowledge" of a character that could support an opinion of identity. That was because of the absence of any kind of objective standard or database which was capable of leading to a quantification of probabilities such as applies, for example, in the context of DNA evidence. That fact found that the opinion of the expert did not go beyond bare assertions and was not based on any other authority. The Court said:[4]
…The evidence in this trial did not disclose, and did not permit a finding, that Dr Sutisno’s evidence was based on a study of anatomy. That evidence barely, if at all, rose above a subjective belief and it did not, in my opinion, manifest anything of a "specialised" character. It was not, in my opinion, shown to be "specialised knowledge" within the meaning of s 79.
[4] (2006) 65 NSWLR 681 at p 713 para 140.
Additionally Chief Justice Spigelman said:[5]
…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.
[5] at p 714 para 146.
However Chief Justice Spigelman did say that evidence of the particular similarities between the photographs of the accused and the offender was admissible. His Honour said: [6]
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 was 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".
[6] at p 709 para 120.
Dr Sutisno's evidence had previously been rejected by Blanch J, the Chief Judge of the District Court of New South Wales, in Re an appeal of BLM (14 September 2005 unreported). Blanch J had said:
In a case where it is necessary to establish that it is a proper matter for expert evidence obviously it is necessary to show what the area of expertise is and what the witness is doing in respect of that field of expertise. The failure in this case to identify what novel approach she had adopted makes it very difficult to make any assessment about whether it is a proper field for expert evidence or not. What is known about it of course is that she is the only person who does it and who knows about it. That might tend to suggest that it is not an established field of expertise.
Spigelman CJ observed that Dr Sutisno's evidence was admitted in the Northern Territory in R v Murdoch (No 4) [2005] NTSC 78. In arriving at that finding Martin CJ relied upon the evidence of Professor Henneberg. Martin CJ referred to the test enunciated by King CJ in R v Bonython (1984) 38 SASR 45 and found
"… facial mapping "forms part of a body of knowledge or experience which is sufficiently organised or recognized to be acceptable as a reliable body of knowledge or experience". Further, by study and experience, Dr Sutisno posses a sufficient knowledge of the subject matter to render her opinion of value in resolving the issues before the Court".
With respect to the first limb of s 79 of the Evidence Act 1995 (NSW) Spigelman CJ said, after referring to Murdoch and the evidence of Professor Henneberg, that there does appear to be a body of expertise based on facial identification.[7] He held that the knowledge of anatomy which Dr Sutisno had, together with her training, research and experience in the course of facial reconstruction supported her evidence of facial characteristics.
[7] at p 712 para 135.
However he said that there was nothing before the court "which indicates, in anyway, that Dr Sutisno's extension from facial to body mapping, with respect to matters of posture, has anything like that level of background and support. Specialist knowledge of posture can of course exist".[8]
[8] at p 712 para 136.
Spigelman CJ referred[9] to the following passage in the reasons of Gleeson CJ in HG v The Queen (1999) 197 CLR 414:[10]
… the provisions of s 79 (of the Evidence Act) will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in the form which makes it possible to answer that question.
[9] at p 714 para 147.
[10] at p 427 para 39.
Gleeson CJ said:[11] "… The witness had to identify the expertise he could bring to bear and … his opinions had to be related to his expertise".
[11] at p 427 para 40.
Spigelman CJ also referred to the reasons of Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, where after referring to the observations of Gleeson CJ in HG v The Queen Heydon JA said:[12]
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness’s expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the experts evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.
[12] at p 743 para 85.
Spigelman CJ noted that in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 at 150 the Full Court required "exposure of the reasoning process" so as to demonstrate "that the opinion is based on… specialised knowledge".
In Makita Heydon JA thought that it was relevant to ask:[13]
… did it [the report] furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit?...
[13] at p 745 para 87.

Chief Justice Spigelman referred to the remarks of the Court of Appeal on this topic in R v Gray [2003] EWCA Crim 1001:[14]
… Mr Harrow, like some other facial imaging and mapping experts, said that 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 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 be expressed by facial imaging or mapping witnesses. The evidence of such witnesses, including opinion evidence, is of course both admissible and frequently 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… 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.
[14] at para 16.
The end result in Tang was that the expert identification evidence was not simply excluded but the Chief Justice accepted that Dr Sutisno’s experience enabled her to observe and describe similarities between the person in the images and the photographs.[15]
[15] see para 120 above.
There are subsequent cases in which expert identification evidence has been accepted: R v Jung [2006] NSWSC 658, and the appeal in R v Murdoch (No 4) [2005] NTSC 78. The present position is that the study and experience of facial images has become a recognized field of expertise. See the remarks of Hall J in R v Jung [2006] NSWSC 658 where an expert was permitted to give facial mapping evidence but was prevented from making a positive identification. A similar approach was adopted in R v Kaliyanda, (unreported judgment) Supreme Court of NSW 17 October 2006.
In the appeal in R v Murdoch one of the grounds of appeal related to the admissibility of the facial mapping evidence given by Dr Sutisno. The court held that the technique employed by Dr Sutisno did not have a sufficient basis to render the results arrived at by that means part of a field of knowledge which is the proper subject of expert evidence, but the court did find that the evidence given by Dr Sutisno was capable of assisting the jury in terms of similarities between the person depicted in the images and Mr Murdoch. Dr Sutisno was not qualified to give evidence based on face and body mapping as to whether the two persons were the same. See Murdoch v The Queen [2007] NTCCA 1 at para 300. Dr Sutisno should not have been permitted to make positive identifications.
There is no reason why the observations made in Tang which were made in the context of the Evidence Act 1995 (NSW) should not be relevant to South Australia where the common law applies. Ultimately the requirements are the same.
In the present case, Dr Henneberg gave evidence on the voir dire. He acknowledged areas of concern such as the quality of CCTV images, problems with distortions of images and the problem of displacement. He acknowledged that there is always an element of uncertainty and that there have been cases in the United Kingdom where errors have occurred. He acknowledged that one can never be 100% certain about conclusions when comparing photographic images. In my opinion, such matters go to the weight of the evidence rather than its admissibility.
Professor Henneberg also gave evidence on the voir dire that there is specialist training in the area of facial mapping in a course anthropological and forensic anatomy which he teaches at the University of Adelaide. The course is not restricted to, but includes, anatomical comparisons in faces. He referred to three different techniques that may be utilised, namely photo anthropometry, photographic superimposition and morphological analysis. In this case he used the latter technique.
He did acknowledge that there is no standard or regulated technique in relation to the comparison of photographic images anywhere in the world and that it is an emerging area.
In his own case Professor Henneberg has gained his expertise as a result of his work and experience. He now teaches the subject himself. He said that when he attended university in the 1960s there was no such course because there was practically no need for such comparisons. It was only when CCTV systems were introduced that the need evolved.
In his first report Professor Henneberg expressed the opinion that the offender shown in the CCTV images was "very likely to be Mr Brian J Tanner". In his second report he expressed the opinion "I am practically certain that the offender is Mr Brian J Tanner".
The prosecutor advised that having regard to the authorities, in particular Tang and Murdoch, the Crown did not propose to lead that evidence at the trial. The prosecutor advised that what the Crown did propose was to lead in evidence the observations by Professor Henneberg of particular characteristics and his evidence about the occurrence of those characteristics within the community. He referred in particular to Professor Henneberg’s potential evidence about the occurrence of the hairline within the community. The prosecutor acknowledged that it will ultimately be up to the jury to determine the question of identification.
The application by the accused must be considered in the light of that concession.
On the basis of Tang and Murdoch I dismiss the application by the accused to exclude all evidence from Professor Henneberg. I rule that evidence of positive identification should be excluded but that Professor Henneberg can give evidence of particular characteristics, the occurrence of those characteristics within the community and apparent similarities between the person shown in the images and the accused.
I find that the requirements identified by King CJ in R v Bonython (1984) 38 SASR 45 have been satisfied.
I find that the evidence establishes that the subject matter of the opinion of Professor Henneberg is the subject of a body of recognized scientific knowledge. Secondly, I find that the evidence of Professor Henneberg is likely to be of assistance to the jury in that it will bring to their attention physical features of the accused which they may not discern by themselves. The type of physical features that Professor Henneberg may draw to the attention of the jury are features such as the shape of face, hairline, shape of nose and body type. Thirdly, I find that Professor Henneberg does have experience and knowledge in this area which renders his opinion of some value.
Exclusion of the evidence of the accused clothing
The accused also applied to exclude evidence of his clothing, in particular footwear, which was seized by police at the Lyell McEwin Hospital on 23 February 2009.
The grounds of that application are; first, the accused did not consent to the taking of the items, secondly, the police had no lawful basis to seize the items and thirdly, the evidence sought to be excluded is more prejudicial than probative.
The shoes are relevant because they are alleged to be similar to the shoes that a man depicted in the CCTV images was wearing.
The police obtained possession of the shoes on 23 February 2009 when Senior Constable Miller attended at the Lyell McEwin Hospital in relation to a road rage altercation between two groups of people at Mawson Lakes. The accused was a victim of that incident. Senior Constable Miller visited the accused in hospital and took the shoes, with the consent of the accused, for the purpose of using them as evidence in the road rage matter. The accused told her that he was happy for the police to seize his clothing for analysis because he wanted police action in connection with the road rage matter. The clothing which Senior Constable Miller collected might have been used to identify blood or DNA. She took the shoes with her when she left the hospital.
It was later that the shoes came to the attention of the police officers who were investigating the offences with which the accused is currently charged.
I accept the prosecutor's submission that there was nothing illegal, improper or unfair about the seizure of the shoes by Senior Constable Miller. He had consented to the shoes being seized as potential evidence in connection with the road rage incident.
Similarly there is nothing illegal, improper or unfair about the way in which the shoes came into the possession of the officers who were investigating the present charges.
I reject the argument that the evidence of the shoes is more prejudicial than probative. There is no prejudice apart from the probative value of the shoes in identifying the accused.[16]
[16] R v Duke (1979) 22 SASR 46.
The application to exclude evidence of the clothing is therefore dismissed.