The State of Western Australia v Samura [No 3]

[2019] WASC 465

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SAMURA [No 3] [2019] WASC 465

CORAM:   DERRICK J

HEARD:   20 - 21 NOVEMBER 2019

DELIVERED          :   23 DECEMBER 2019

FILE NO/S:   INS 241 of 2018

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

SANNAH JR SAMURA

Accused Samura

AMIRALI FARSIJANI

Accused Farsijani

PORIA AKHBARI SADIQI

Accused Akhbari Sadiqi

WILLIAM WADE KICKETT

Accused Kickett

Catchwords:

Criminal law - Expert evidence - Accused jointly charged with murder - Admissibility of opinion evidence as to make and model of vehicles shown in closed circuit television footage

Legislation:

Criminal Code (WA)
Evidence Act 2008 (Vic)

Result:

Applications to exclude evidence allowed in part

Category:    B

Representation:

Counsel:

Prosecution	:	Ms L E Christian SC & Ms S M Cerqui
Accused Samura	:	Mr G W Massey
Accused Farsijani	:	Mr M T Trowell QC
Accused Akhbari Sadiqi	:	Ms H E Prince
Accused Kickett	:	Ms M R Barone SC

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused Samura	:	Holborn Lenhoff Massey
Accused Farsijani	:	Legal Aid (WA)
Accused Akhbari Sadiqi	:	Legal Aid (WA)
Accused Kickett	:	Angus Hockton

Case(s) referred to in decision(s):

Anderson v The Queen (1992) 60 SASR 90

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19

Bennett v The Queen (1998) 100 A Crim R 228

Brown v The State of Western Australia [2008] WASCA 48

Clarke v Ryan [1960] HCA 42; (1960) 103 CLR 486

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Do v The State of Western Australia [2014] WASCA 218

DPP v Paulino (Ruling No 4) [2017] VSC 346

Hardwick v The State of Western Australia [2011] WASCA 164; (2011) 211 A Crim R 349

Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122

Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1

Meade v The Queen [2015] VSCA 171

Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94

Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

Paulino v The Queen [2018] VSCA 306

R v Bonython (1984) 38 SASR 45

R v Okoli [2018] WASC 116

RST v The State of Western Australia [2016] WASCA 59

SWD v The State of Western Australia [2017] WASCA 39

The Queen v Kotzmann [No 2] [2002] VSCA 21; (2002) 128 A Crim R 479

The Queen v Truong [2007] NTSC 20

Weal v Bottom (1966) 40 ALJR 436

DERRICK J:

Introduction

1. Mr Sannah Samura, Mr Amirali Farsijani, Mr Poria Akhbari Sadiqi and Mr William Wade Kickett (the accused) are jointly charged with one offence of murdering Mr Dejan Dimitrovski contrary to s 279 of the Criminal Code (WA) (the Code).

2. The trial of the accused is listed to commence on 28 January 2020.  The trial has been set down for approximately three months.

3. Mr Samura has filed an application dated 28 October 2019.  By the application Mr Samura applies for an order that the evidence proposed to be adduced by the State at trial from Mr Hsu Yi Tan is inadmissible.

4. Mr Farsijani has filed an application dated 1 November 2019.  By the application Mr Farsijani also applies for an order that the evidence of Mr Tan is inadmissible.

5. Mr Akhbari Sadiqi has filed an application dated 6 November 2019.  By the application Mr Akhbari Sadiqi applies for an order that the evidence proposed to be adduced by the State at trial from Mr David Andrew Jeary is inadmissible.

6. The hearing of the applications took place before me on 20 and 21 November 2019.

7. Mr Samura, Mr Farsijani and Mr Akhbari Sadiqi did not adduce any evidence in support of their applications.

8. In opposing the applications by Mr Samura and Mr Farsijani to exclude the evidence of Mr Tan, the State tendered, among other materials and without objection, a statement made by Mr Tan dated 2 October 2017[1] and an affidavit sworn by Mr Tan on 7 November 2019.[2]  Neither Mr Samura nor Mr Farsijani required Mr Tan to be made available for cross‑examination on the contents of his statement and affidavit. 

   [1] Exhibit 5, Prosecution Brief (PB), 644 ‑ 661.

   [2] Exhibit 9.  The other materials tendered by the State consisted of the closed circuit television (CCTV) footage and documents referred to by Mr Tan in his statement and affidavit.

9. In opposing the application by Mr Akhbari Sadiqi to exclude the evidence of Mr Jeary, the State called Mr Jeary and the investigating officer, Detective Sergeant Brian Connelly, to give evidence.  The State tendered through Mr Jeary, without objection, a statement made by him dated 28 August 2019[3] and an affidavit affirmed by him on 12 November 2019.[4]  Mr Jeary's evidence‑in‑chief was comprised of his statement and affidavit.

   [3] Exhibit 1, PB 3825 ‑ 3841.

   [4] Exhibit 2.  The State also tendered the CCTV footage referred to by Mr Jeary in his statement and affidavit. 

10. For the reasons that follow I allow the applications in part.

The alleged facts of the charged offence

1. The alleged facts of the charged offence, briefly stated, are as follows.

2. In August 2017 the accused were known to Mr Dimitrovski.

3. Between around 8.00 pm and 8.30 pm on Friday 4 August 2017, Mr Dimitrovski was at his home address of 43 Dallington Crescent in Balga.

4. On the evening of Friday 4 August 2017 Mr Samura and Mr Akhbari Sadiqi drove in convoy to Dallington Crescent.

5. Mr Samura drove to Dallington Crescent in his 2007 white Mercedes SUV ML280 cdi model, registration 1 CNS 104.  Mr Samura arrived in Dallington Crescent at approximately 7.55 pm.  He parked his vehicle close to Mr Dimitrovski's house.  Also in the vehicle with Mr Samura was Mr Farsijani. 

6. Mr Kickett may also have been in the vehicle with Mr Samura and Mr Farsijani at the time that Mr Samura drove to Dallington Crescent. 

7. Mr Akhbari Sadiqi drove to Dallington Crescent in a vehicle that he was in possession of and made use of at the relevant time, namely a 2012 white Lexus sedan IS250X model, registration 1 DZM 236.  Mr Akhbari Sadiqi also arrived in Dallington Crescent at about 7.55 pm.  He parked his vehicle in Balney Place, Balga near to the intersection of Balney Place and Dallington Crescent and close to Mr Dimitrovski's house.

8. On arriving in Dallington Crescent Mr Samura, Mr Farsijani, Mr Akhbari Sadiqi and perhaps also Mr Kickett walked to and entered Mr Dimitrovski's house.  At the time that they arrived at the house another male, Mr Saied Akbar Hussaini, was already with Mr Dimitrovski in the house.

9. If Mr Kickett did not travel to Dallington Crescent with Mr Samura in Mr Samura's vehicle, he arrived at Mr Dimitrovski's house earlier that evening with Mr Akbar Hussaini.

10. At some point Mr Samura, Mr Farsijani, Mr Akhbari Sadiqi, Mr Kickett, Mr Akbar Hussaini and Mr Dimitrovski were in the theatre room on the second floor of Mr Dimitrovski's house.  While in the theatre room one or more of the accused and Mr Akbar Hussaini assaulted Mr Dimitrovski.  The assault caused significant injuries to Mr Dimitrovski.

11. At approximately 8.28 pm Mr Samura, Mr Farsijani, Mr Akhbari Sadiqi and Mr Kickett left Mr Dimitrovski's house.  Mr Samura and Mr Akhbari Sadiqi drove away in their respective vehicles.  Mr Akbar Hussaini remained at the house.

12. At approximately 8.29 pm Mr Akbar Hussaini made a triple 0 call which resulted in the police attending Mr Dimitrovski's house.  When the police arrived at Mr Dimitrovski's house Mr Akbar Hussaini was present and was performing cardiopulmonary resuscitation on Mr Dimitrovski.

13. At the time of the arrival of the police Mr Dimitrovski was lying on the floor in the theatre room.  He was lying on his back.  He was wearing underpants, grey tracksuit pants and socks.  He had visible significant injuries to his body.  He was wet. 

14. Underneath and near to Mr Dimitrovski were lengths of rope and duct tape.  A pillow next to Mr Dimitrovski's head was significantly soiled with blood.  Numerous empty 600 ml plastic water bottles were scattered near Mr Dimitrovski.

15. There was a large amount of blood near Mr Dimitrovski and on two couches that were close to where he was lying.

16. An ambulance attended Mr Dimitrovski's address.  At about 8.45 pm the ambulance officers declared Mr Dimitrovski deceased.

17. A post‑mortem examination of Mr Dimitrovski was subsequently carried out.  The pathologist formed the opinion that the cause of Mr Dimitrovski's death was 'injuries to face and neck in a man with focal coronary arteriosclerosis and amphetamines effect.[5]

    [5] PB 770 ‑ 779, 784.

The legal basis for the State's case against the accused

1. The State's case is that the accused and Mr Akbar Hussaini were all present when Mr Dimitrovski was assaulted and killed, and that it was one or more of the accused and Mr Akbar Hussaini who assaulted Mr Dimitrovski and inflicted the various injuries to him.  Therefore, the State's case against each of the accused will be put on three alternative bases.  First, that he was a principal offender within the meaning of s 7(a) of the Code.  Second, that if he was not a principal offender he aided in the commission of the offence within the meaning of s 7(c) of the Code.  Third, if he was neither a principal offender nor an aider, he was criminally responsible for the murder by reason of s 8 of the Code in that he formed a common intention with the other three accused and Mr Akbar Hussaini to prosecute an unlawful purpose, specifically to unlawfully assault Mr Dimitrovski, and that in the prosecution of that unlawful purpose an offence was committed, namely the murder of Mr Dimitrovski, that was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.

The defences

1. Mr Samura's currently disclosed defence, consistently with what he said to police during an interview conducted with him on 16 November 2017, is that he was not one of the offenders and was not present at Mr Dimitrovski's house at the time that Mr Dimitrovski was killed.

2. Mr Farsijani, Mr Akhbari Sadiqi and Mr Kickett have not to this point disclosed the substance of their defences to the court. 

The applications made by Mr Samura and Mr Farsijani to exclude the evidence of Mr Tan

The proposed evidence of Mr Tan

1. The substance of the evidence that the State proposes to adduce from Mr Tan as revealed by his statement and affidavit is as follows.

2. He has been employed by Mercedes Benz (Mercedes) at Westpoint Star Mercedes (Westpoint) since 10 January 2003.  In 2003 he was employed as a salesperson.  He subsequently became the second in charge to the new car manager.

3. In 2015 he was appointed to the position of Brand Manager at Westpoint.  He is the most senior sales person at Westpoint. 

4. As part of his role as Brand Manager he is trained in new Mercedes products.  This includes detailed comparisons between previous generation and new generation vehicles.

5. As Brand Manager he attends product launch training in Melbourne at least once or twice a year (he has attended product launch training up to five times in one year).  He also attends International Product Expert Global Training and product launches.  He has attended International Product Expert Global Training on at least seven occasions.

6. He has knowledge of all of the features of each Mercedes vehicle.  He trains sales people at Westpoint in the features of the vehicles.

7. He has sold Mercedes SUV ML models at Westpoint.

8. When a customer is considering purchasing a Mercedes SUV ML model, the other vehicles that they are frequently interested in are the BMW X5, Range Rover Sport, Audi Q7 and Porsche Cayenne.  He therefore has knowledge about the design and features of these vehicles.

9. The Mercedes SUV ML model maintains the same body shape for seven years.  The vehicle gets a 'facelift' in the middle of the 7‑year cycle but the body shape remains the same.  The period prior to the facelift is referred to as 'first generation' and the post facelift period is referred to as 'second generation'.

10. For 2006‑2013 the relevant series was the Mercedes SUV W164 Series.  From 2014 onwards the relevant series was the Mercedes SUV W166 Series.

11. The difference between the Mercedes SUV ML350, ML320 and ML280 models is the engine capacity.  The exterior of these models is identical.

12. On 28 September 2017 detectives from the Homicide Squad attended Westpoint and showed him some closed circuit television (CCTV) footage dated 4 August 2017.  On the same date they also showed him some further CCTV footage dated 29 August 2017. 

13. He can identify the white SUV vehicle shown in the CCTV footage dated 4 August 2017 to be a 2006‑2014 Mercedes SUV ML model.[6]

    [6] In his statement Mr Tan asserts that the vehicle shown in the CCTV footage dated 4 August 2017, the vehicle shown in the CCTV footage dated 29 August 2017 (referred to further below) and the vehicle shown in a number of still images (referred to further below) is a 2006‑2009 white Mercedes SUV ML model.  However, in his affidavit Mr Tan asserts that the Mercedes SUV ML model that he identified from the two pieces of CCTV footage and from the images is a 2006‑2014 model.  In light of this discrepancy the position adopted by the State at the hearing of the application was that I should, for the purpose of dealing with the application, approach the matter on the basis that Mr Tan's evidence will be as set out in his affidavit; that is, that the vehicle he identified from both pieces of CCTV footage shown to him and from a number of images shown to him is a 2006‑2014 Mercedes SUV ML model.  I will approach the matter on this basis.  Accordingly, I will, in setting out Mr Tan's proposed evidence, replace any references made by him in his statement to the period 2006‑2009 with references to the period 2006‑2014.

14. He can identify the SUV vehicle shown in the CCTV footage dated 29 August 2017 to be the same model of vehicle as shown in the CCTV footage dated 4 August 2017.  He can identify the vehicle as the same model of vehicle due to the wheels, bumper and body shape.  The vehicle shown in the CCTV footage dated 29 August 2017 possibly has a side step.

15. Between 2006 and 2007 the aluminium side step on the Mercedes SUV ML model was optional.  From 2008 onwards, the aluminium side step on these models of Mercedes SUVs was standard.

16. Every model of Mercedes SUV has a tow ball attachment underneath the rear, not within the bumper.  The bumper is a Reese hitch bumper.

17. Between 2006 and 2009 roof rails were standard for the Mercedes SUV ML model.  However during this period the cross bar was optional.

18. There is a difference between the Mercedes SUV standard model and the Mercedes SUV AMG model.  The standard model has either 17, 18 or 19 inch wheels and a small bumper.  The AMG model has 21 inch wheels and the front bumper is a box shape.

19. When the detectives attended at his workplace on 28 September 2017 they showed him 12 images taken from CCTV footage.[7]  In relation to the images he can say the following:

    1.The vehicle shown in image 1 is definitely a 2006‑2014 Mercedes ML model with possibly a side step;

    2.The vehicle shown in image 2 is the same vehicle as is shown in image 1;

    3.It is difficult to look at the image of the vehicle shown in image 3 because the image is stretched 'and is going too quick'.  He can, however, say that the vehicle is a white SUV;

    4.The vehicle shown in image 4 is definitely a white Mercedes SUV ML model.  He is 60% sure it has side steps;

    5.The vehicle shown in each of images 5, 7, 8 and 9 is a white Mercedes SUV;[8]

    6.He cannot make any comment about image 10 because the image is stretched and blurred;

    7.The vehicle shown in image 11 is a white Mercedes SUV 'more like the newer model'.  It is definitely a Mercedes as it has Mercedes headlights;

    8.The vehicle shown in image 12 is a late 2007 Mercedes SUV, either an ML350 petrol, ML280 cdi or ML320 cdi model.  The vehicle has optional 18 inch wheels as the 17 inch wheels were standard with this type of vehicle.  The vehicle has a side step.  He does not think the vehicle has privacy glass but this may be due to the light reflection.

    [7] Exhibit 6, PB 650 ‑ 661.

    [8] Although Mr Tan refers in his statement to having been shown 12 images, he does not make any specific reference in his statement to image 6.

20. He owned the 'same vehicle', that is, the same model of vehicle, as is shown in image 12.  He purchased the vehicle new with the optional larger wheels and side steps.

21. The Mercedes SUV ML350 petrol model had a chrome package as standard.  The chrome is on the door handles, bumper and exhaust tips.

22. The features of the vehicle shown in the CCTV footage and a number of the images that enable him to identify the vehicle as a 2006‑2014 Mercedes SUV ML model are as follows:

    1.The body shape of the vehicle;

    2.The guard over the front and rear wheels which has a distinctive line specific to the Mercedes SUV ML model during the 2006 to 2014 time period;

    3.The distinctive shape of the C pillar.  Vehicles have three pillars called the A pillar, the B pillar and the C pillar.  The C pillar is located between the rear passenger seats and the boot of the vehicle;

    4.The 18 inch wheels with a five double spoke design called the R38 alloy wheels; and

    5.The possible side steps.  The vehicle has a tubular side step rather than an aluminum side step.  The tubular side step could not be ordered from the factory and was only available by retro fit. 

23. He provided to the detectives a data card printout for Vehicle Identification Number (VIN) WDC1641202A281465 (this being the VIN for Mr Samura's white Mercedes SUV, ML280 cdi model, registration 1 CNS 104).  By reference to the data card he can advise that the optional extras added to this vehicle at the time of first sale were imitation leather, electronic sunroof, tyre pressure warner, electric driver seats left and right, Alabaster white non‑metallic paint, 18 inch wheels, and 'off road look' being chrome underneath to front and rear bumpers.

24. The tubular side step would not be on the factory data card for the vehicle because it could not be ordered from the factory. 

The origins of the CCTV footage and the 12 images

1. The CCTV footage dated 4 August 2017 shown to Mr Tan is footage recorded on that date by a camera at 37 Dallington Crescent in Balga.

2. The CCTV footage dated 29 August 2017 was also recorded by the camera at 37 Dallington Crescent.  The footage was recorded on 29 August 2017.  The SUV shown in this footage is Mr Samura's 2007 white Mercedes SUV, ML280 cdi model, registration 1 CNS 104.  At the time of the recording of the footage the vehicle was being driven by a detective as part of a re‑enactment of what was seen on the CCTV footage recorded on 4 August 2017.  The re‑enactment took place at about 7.15 pm.

3. Images 1, 3 to 5, and 7 to 12 that were shown to Mr Tan are still shots taken from CCTV footage recorded by various cameras on 4 August 2017.  Images 1 and 3 are still shots taken from the CCTV footage recorded by the camera at 37 Dallington Crescent.  Images 4, 5 and 7 ‑ 11 are still shots taken from CCTV footage recorded by cameras situated at various locations in Westminster and Carlisle during the period between approximately 8.55 pm and 9.48 pm.  Image 12 is a still shot taken from CCTV footage recorded at 5.43 pm near the Rendezvous Hotel in Perth.

4. Image 12 is easily the clearest of all the images.  Although the registration number of the vehicle cannot be discerned from looking at the image, it would appear unlikely, in light of statements made by Mr Samura's counsel during the hearing of the application, that there will be any dispute at trial that the vehicle shown in the image is Mr Samura's vehicle.  However, counsel did not formally commit Mr Samura to this position.

5. Image 2 is a still shot taken from the CCTV footage recorded by the camera at 37 Dallington Crescent on 29 August 2017.

1. I have watched the CCTV footage and viewed the images.

The State's purpose in seeking to adduce the evidence of Mr Tan

1. The State proposes to adduce the evidence of Mr Tan as expert opinion evidence.

2. The State does not seek to adduce from Mr Tan evidence that the vehicle shown in the CCTV footage and the images is Mr Samura's vehicle.  Rather, the State seeks to adduce Mr Tan's evidence to prove that a 2006‑2014 white Mercedes SUV ML model, that is, a model of Mercedes SUV of the type that was owned by Mr Samura as at the date of Mr Dimitrovski's alleged murder, and that was manufactured during an 8‑year period in which Mr Samura's vehicle was manufactured, was driven along Dallington Crescent in the direction of Mr Dimitrovski's house at approximately 7.55 pm on 4 August 2017 and was driven along Dallington Crescent away from the direction of Mr Dimitrovski's house at approximately 8.30 pm on 4 August 2017.  The State will ask the jury to infer from the proved fact that a 2006‑2014 white Mercedes SUV ML model was driven along Dallington Crescent in the direction of Mr Dimitrovski's house at 7.55 pm on 4 August 2017 and was driven along Dallington Crescent away from the direction of Mr Dimitrovski's house at 8.30 pm on 4 August 2017 (assuming the jury finds this fact proved), and from other facts that it will contend are established by other evidence to be adduced, that Mr Samura's vehicle and therefore Mr Samura and Mr Farsijani were in Dallington Crescent during the period in which it is alleged that Mr Dimitrovski was murdered.  In short, the State seeks to adduce Mr Tan's evidence as part of the evidence that it intends to rely upon to prove that Mr Samura and Mr Farsijani were present in Dallington Crescent at the time of Mr Dimitrovski's alleged murder and therefore had the opportunity to commit the murder with the other accused.

The grounds of objection to Mr Tan's evidence

1. Mr Samura and Mr Farsijani object to the admissibility of the proposed evidence of Mr Tan that the vehicle shown in the CCTV footage and images 1 and 2 is a 2006‑2014 Mercedes SUV ML model, that the vehicle shown in image 4 is a white Mercedes SUV ML model, that the vehicle shown in images 5, 7 ‑ 9 and 11 is a white Mercedes SUV, and that the vehicle shown in image 12 is a late 2007 Mercedes SUV ML350, ML280 cdi or ML320 cdi model.  The grounds on which they object to Mr Tan giving this evidence, which were advanced by Mr Samura and simply adopted by Mr Farsijani, are in summary as follows:

   1.The identification of the specific make and model of a vehicle from viewing CCTV footage and images is not a sufficiently established field to have gained general acceptance in the motor vehicle industry; that is, is not part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience;

   2.Mr Tan does not have the required specialised knowledge to give the proposed opinion evidence;

   3.A lay‑person is able, without the assistance of the evidence of Mr Tan, to form a sound judgment on whether the vehicle depicted in the CCTV footage and the images is a similar vehicle to the vehicle that the State asserts is associated with Mr Samura;

   4.The probative value of Mr Tan's evidence is outweighed by its prejudicial effect; and

   5.The proposed evidence is unreliable in that Mr Tan would need to have specialised knowledge of all makes and models of vehicles, not just Mercedes vehicles, to be in a position to exclude those makes and models as not being depicted in the CCTV footage or the images.

Admissibility of opinion evidence - applicable legal principles

1. At common law opinion evidence is admissible only if it is relevant to a fact or facts in issue, and only if it is given by a witness possessing specialised knowledge on a subject in relation to which unqualified persons require assistance to form a sound judgment.[9]  The specialised knowledge may be of matters that are not of a scientific or technical kind.[10]  Accordingly, specialised knowledge may be obtained from the person's practical experience in a given field as opposed to by formal study or formal training.[11]  What is critical is that the 'expert' has acquired by study or experience sufficient knowledge of the subject to render their opinion of value in resolving the issues before the court.[12]   Thus, as Olsson J stated in Anderson v The Queen:[13]

   As is pointed out by the learned author P Gillies, in Law of Evidence in Australia (2^nd ed, 1991), at pp 377‑379, whilst the classic field of expertise is that which relates to an organised branch of knowledge which is identifiable as a discipline in the social or physical sciences, fields of expertise, for the purposes of the law of evidence, are not so confined.

   A person may be viewed as relevantly being an expert in an area of skill or knowledge by virtue of nothing more than his or her practical experience in a field which may not necessarily have been reduced to organised, documented knowledge.

   …

   The courts have, in any event, long held that (as in Weal v Bottom ((supra)) a person may be classified as having relevant expert status by virtue of formal training, or through mere practical experience or informal study in appropriate circumstances … The credentials required depend fundamentally on the field of expertise in question.

   The basic principle involved is that the person must, through knowledge, however acquired, have reliable knowledge and/or skill reaching beyond that in the possession of the trier of fact…[14]

   [9] Clarke v Ryan [1960] HCA 42; (1960) 103 CLR 486, 491; R v Bonython (1984) 38 SASR 45, 46 ‑ 47; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85]; Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 [253]; SWD v The State of Western Australia [2017] WASCA 39 [101]; RST v The State of Western Australia [2016] WASCA 59 [24]; Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [122].

   [10] Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 [23]. In Honeysett v The Queen the court was dealing with the admissibility of expert evidence under s 79(1) of the Evidence Act 1995 (NSW). However, there is no reason for concluding that the statement of principle made by the court as to the meaning of 'specialised knowledge' within the meaning of the section is not equally applicable at common law.

   [11] Weal v Bottom (1966) 40 ALJR 436; Anderson v The Queen (1992) 60 SASR 90, 103; Bennett v The Queen (1998) 100 A Crim R 228, 233 ‑ 234; Honeysett v The Queen [23]; R v Okoli [2018] WASC 116 [12] ‑ [13]. See also the following decisions in which opinion evidence as to the brand and model of an item shown in video footage or photographic images has been held to be admissible: The Queen v Kotzmann [No 2] [2002] VSCA 21; (2002) 128 A Crim R 479 [28] ‑ [31]; The Queen v Truong [2007] NTSC 20 [13] ‑ [26]; Meade v The Queen [2015] VSCA 171 [188] ‑ [222].

   [12] R v Bonython (47); Liyanage v The State of Western Australia [23].

   [13] Anderson v The Queen (103), King CJ agreeing.

   [14] The principles as stated by Olsson J in Anderson v The Queen were referred to with approval by Wheeler JA, with whom McLure and Miller JJA agreed, in Brown v The State of Western Australia [2008] WASCA 48 [20] ‑ [21] and by Mazza JA, with whom McLure P and Hall J agreed, in Do v The State of Western Australia [2014] WASCA 218 [82].

2. In summary, in order for opinion evidence to be admissible the following requirements must be met:[15]

   1.The evidence must be relevant; that is, the evidence must be capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings;

   2.The witness must have acquired, by study or experience, sufficient knowledge of the subject to render their opinion of value in resolving the issues before the court; and

   3.The subject must be one in relation to which a person of ordinary experience is unable to form a sound judgment without the assistance of an 'expert' witness with specialised knowledge of the subject.

   [15] Liyanage v The State of Western Australia [23].

3. Further, in those instances where the opinion evidence sought to be adduced relates to scientific subject matter,[16] it is clear that a further requirement for the admissibility of the evidence is that the subject matter forms part of a body of knowledge or experience that it sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.[17]

   [16] The term 'scientific' is used in this context in its broadest sense, that is, as referring to social and physical sciences.

   [17] Liyanage v The State of Western Australia [23].  The term 'scientific' is in this context used in its broadest sense, that is, as referring to social and physical sciences.

4. Finally, it is worth referring in this context to the following statements made by Dawson J in Murphy v The Queen[18] by which his Honour emphasised the importance of expert evidence only being admissible if it contributes materially to the fact finding process, and warned against the dangers of wrongly admitted expert evidence in the context of a criminal trial before a judge and jury:[19]

   Although the modern attitude towards expert evidence is, perhaps, less exclusionary than in the past, it is nevertheless still important to recognise the dangers of wrongly admitting it.  The admission of such evidence carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense.  And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give to it an authority which is not warranted.  In addition the calling of unnecessary expert evidence tends to prolong a trial, particularly when it provokes the calling of further expert evidence in reply.  Moreover there is then a risk that the focus of the trial will shift from the evidence of the facts in dispute to the conflict between the competing theories of the various expert witnesses.

Is the evidence relevant?

[18] Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94.

[19] Murphy v The Queen (130 ‑ 131).

1. As stated above, in order for expert opinion evidence on any subject matter to be admissible it must be relevant; that is, the evidence must be capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[20]  Therefore, before turning to the individual grounds of objection advanced by Mr Samura and Mr Farsijani to the proposed evidence of Mr Tan it is, in my view, necessary to address the issue of the relevance of the evidence.

   [20] Liyanage v The State of Western Australia [122].

2. In my view the proposed opinion evidence of Mr Tan in so far as it relates to the CCTV footage and most of the images from 4 August 2017 is relevant.  More specifically, in my view the evidence of Mr Tan that the vehicle shown in the 4 August 2017 CCTV footage is a 2006‑2014 Mercedes SUV ML model, that the vehicle shown in image 1 is a 2006‑2014 white Mercedes SUV ML model, that the vehicle shown in image 4 is a white Mercedes SUV ML model, that the vehicle shown in images 5, 7 ‑ 9 and 11 is a white Mercedes SUV, and that the vehicle shown in image 12 is a late 2007 Mercedes SUV ML, ML350, ML280 cdi or ML320 cdi model is evidence that, considered in conjunction with other evidence to be adduced by the State, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings, namely whether it was Mr Samura's vehicle that was in Dallington Crescent at 7.55 pm and 8.30 pm on 4 August 2017, and consequently whether Mr Samura and Mr Farsijani were present in Dallington Crescent at the time of Mr Dimitrovski's alleged murder.  Mr Samura and Mr Farsijani did not, subject to what I say below in relation to the 'reliability' ground of objection, attempt to argue to the contrary. 

3. The one qualification to my above expressed view relates to image 12.  If at trial it is formally admitted by Mr Samura that the vehicle shown in image 12 is his Mercedes SUV ML280 cdi model, the need to adduce Mr Tan's opinion evidence in relation to the make and model of the vehicle shown in the image will fall away.  In those circumstances Mr Tan's evidence in relation to image 12 will not be relevant and will not need to be adduced.

4. I am not persuaded that the proposed evidence of Mr Tan relating to images 3 and 10 is relevant.  Given that in relation to image 3 Mr Tan can say nothing more than the vehicle shown is a white SUV, and that in relation to image 10 he cannot make any comment at all about the make of the vehicle shown, his evidence in relation to these two images is not, in my view, evidence that, considered in conjunction with other evidence to be adduced by the State, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings, namely whether it was Mr Samura's vehicle that was in Dallington Crescent at 7.55 pm and 8.30 pm on 4 August 2017, and consequently whether Mr Samura and Mr Farsijani were present in Dallington Crescent at the time of Mr Dimitrovski's alleged murder.

5. I turn to the proposed opinion evidence so far as it relates to the CCTV footage and single image, image 2, from 29 August 2017. 

6. As I have already indicated, the vehicle shown in the CCTV footage from 29 August 2017 and in the image obtained from that footage, image 2, is Mr Samura's vehicle.  The State submits that Mr Tan's opinion that the vehicle shown in the CCTV footage and in the image, which is known to be Mr Samura's 2007 white Mercedes SUV ML280 cdi model, is the same make and model of vehicle as is shown in the CCTV footage from 4 August 2017 (that is, is a white 2006‑2014 Mercedes SUV ML model) is relevant because it supports the reliability of Mr Tan's opinion evidence as to the make and model of the vehicle shown in the CCTV footage and images from 4 August 2017.  That is, the State contends that the fact that Mr Tan identified the vehicle shown in the 29 August 2017 CCTV footage and image as a white 2006‑2014 Mercedes SUV ML model, when it is known that the vehicle in that footage and image is a white Mercedes SUV ML model manufactured within that period, supports the reliability, or in other words bolsters the credibility of, his opinion evidence given in relation to the CCTV footage and images from 4 August 2017.

7. I do not accept the State's submission.  A party is not, subject to some recognised exceptions none of which are applicable in the present context, permitted to adduce, whether from the witness in question or some other witness, evidence supporting the credibility of the evidence given by the witness; evidence is not admissible if it merely bolsters the credibility of a witness.[21] 

   [21] Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 [49]; Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [22] ‑ [24], [134]; Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [215] ‑ [216].

8. In my view Mr Tan's opinion that the vehicle shown in the CCTV footage from 29 August 2017 and in image 2, which is known to be Mr Samura's 2007 white Mercedes SUV ML280 cdi model, is the same make and model of vehicle as shown in the CCTV footage from 4 August 2017 (that is, is a 2006‑2014 white Mercedes SUV ML model) is not evidence that, considered in conjunction with other evidence to be adduced, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings, namely whether it was Mr Samura's vehicle that was in Dallington Crescent at 7.55 pm and 8.30 pm on 4 August 2017, and consequently whether Mr Samura and Mr Farsijani were present in Dallington Crescent at the time of Mr Dimitrovski's alleged murder.  The fact that in Mr Tan's opinion the vehicle shown in the CCTV footage of a police re‑enactment undertaken on 29 August 2017 and in the image obtained from that footage, which is known to be Mr Samura's 2007 Mercedes SUV ML280 cdi model, displays the characteristics of a 2006‑2014 Mercedes SUV ML model (which it obviously must) says nothing about whether the vehicle shown in the CCTV footage and images from 4 August 2017 displays the characteristics of a 2006‑2014 Mercedes SUV model.

9. For the reasons I have given, the opinion evidence of Mr Tan, to the extent that it relates to the CCTV footage from 4 August 2017 and images 1, 4, 5, 7 ‑ 9, 11 and 12 is relevant.  However, the opinion evidence of Mr Tan, to the extent that it relates to the CCTV footage from 29 August 2017 and images 2, 3 and 10 is, on the basis of the material that is currently before me, irrelevant and inadmissible as part of the State's case. 

10. In the course of making her submissions, counsel for the State asserted that if my ruling is that the opinion evidence of Mr Tan relating to the 29 August 2017 CCTV footage and image 2 is not relevant, the evidence might ultimately be rendered relevant by any cross‑examination of Mr Tan at trial.  I accept that certain lines of cross‑examination of Mr Tan might result in his opinion evidence relating to the 29 August 2017 CCTV footage and image 2 being rendered relevant.  However, whether this situation arises is something that remains to be seen.  At present, and as I have stated, the evidence is not admissible.

11. Given my above stated decision in relation to Mr Tan's evidence relating to the 29 August 2017 CCTV footage and images 2, 3 and 10, my following remarks relating to the specific grounds of objection to the admissibility of Mr Tan's evidence advanced by Mr Samura and Mr Farsijani should be read as being confined to Mr Tan's opinion evidence relating to the CCTV footage from 4 August 2017 and images 1, 4, 5, 7 ‑ 9, 11 and 12.

The grounds of objection - analysis

First ground of objection - evidence not part of a sufficiently organised or recognised body of knowledge or experience

1. As I have already indicated, by their first ground of objection to Mr Tan's proposed evidence Mr Samura and Mr Farsijani contend that the identification of the specific make and model of a vehicle from viewing CCTV footage and images is not a sufficiently established field to have gained general acceptance in the motor vehicle industry.  In other words, it is contended that Mr Tan's proposed evidence is not part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.

2. In my view the contention frames the subject matter of the proposed opinion evidence too narrowly.  The relevant subject matter is not the identification of the make and model of a vehicle through the observation of CCTV footage and images, but rather the identification of the make and model of a vehicle through observation, by whatever means, of the external physical characteristics of the vehicle. 

3. Leaving aside the correct characterisation of the subject matter of the evidence, in my view the contention forming the basis of this ground of objection is misguided.  As I have already indicated, it is clear that when opinion evidence relates to subject matter of a scientific kind, a pre-requisite for the admissibility of the evidence at common law is that the subject matter is part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.[22]  However, and as is apparent from the cases to which I have referred above,[23] this is not a requirement for admissibility where the subject matter of the opinion evidence does not relate to an area of knowledge which is identifiable as a scientific discipline.  The reason for this, as was in effect recognised by Olsson J in making his above cited statements in Anderson v The Queen, is relatively obvious, namely that subject matter that is not of a scientific kind does not often lend itself to being characterised as forming part of an organised or recognised body of knowledge or experience.

   [22] See the cases cited in footnote 9 above.

   [23] See the cases cited in footnotes 10 and 11 above.

1. The proposed 'expert' opinion evidence of Mr Tan is clearly not of a scientific kind.  Rather, it is evidence based on informal and practical training, experience and observation.  Accordingly, it is not, in my opinion, a requirement for the proposed evidence to be admissible that the evidence is shown to form part of an organised or recognised body of knowledge or experience.  This conclusion is in itself an answer to the ground of objection.

2. If contrary to my above expressed view it is necessary to establish, as a pre-condition to the admissibility of Mr Tan's proposed evidence, that the subject matter of the evidence does form part of an organised or recognised body of knowledge or experience, I do not accept the submission made by Mr Samura and Mr Farsijani that the subject matter of the evidence does not meet this requirement.

3. In DPP v Paulino (Ruling No 4)[24] Bell J permitted a witness to give his opinion, based on his specialised knowledge of Mitsubishi vehicles, as to whether a vehicle shown in CCTV footage was a Mitsubishi Challenger similar to the one owned by the accused in that case.[25] In arriving at this decision Bell J rejected the argument that vehicle identification based on the external physical characteristics of a vehicle is not a proper subject of specialised knowledge based on training, study or experience. His Honour held that the external physical characteristics of vehicles of a particular make and year, such as the vehicle in question in the case before him, was a subject of specialised knowledge. Accordingly, and although Bell J was dealing with the question whether the proposed expert evidence was admissible under s 79(1) of the Evidence Act 2008 (Vic), his Honour's decision provides, in my respectful view, a proper basis for concluding that vehicle identification, based on the external physical characteristics of a vehicle is, even if not an organised body of knowledge or experience, a body of knowledge or experience that is recognised as a reliable body of knowledge or experience.

   [24] DPP v Paulino (Ruling No 4) [2017] VSC 346.

   [25] DPP v Paulino (Ruling No 4) [8] ‑ [9], [14].

4. In summary, if contrary to my above expressed view it is necessary to establish, as a pre‑condition to the admissibility of Mr Tan's proposed evidence, that the subject matter of the evidence does form part of an organised or recognised body of knowledge or experience, I am satisfied that the subject matter of the proposed evidence of Mr Tan, namely the identification of the make and model of a vehicle through observation of the external physical characteristics of the vehicle, does form part of a body of knowledge or experience which is sufficiently recognised to be accepted as a reliable body of knowledge or experience.  For this reason also I do not accept this ground of objection to Mr Tan's proposed evidence.

Second ground of objection - absence of required specialised knowledge

1. I have already referred to Mr Tan's work history and experience.

2. Counsel for Mr Samura, in the course of making his oral submissions, argued that Mr Tan's work history and experience is not sufficient to qualify him to give the proposed evidence.  In this regard counsel pointed out that the 'qualifications' of Mr Tan are not as extensive as the qualifications that were possessed by the expert who was permitted to give evidence in DPP v Paulino (Ruling No 4).[26]

   [26] DPP v Paulino (Ruling No 4) [9].

3. It is the case that Mr Tan does not have any formal qualifications.  Unlike the expert who gave evidence in DPP v Paulino (Ruling No 4), Mr Tan is not a qualified mechanic and mechanical engineer.  Nonetheless, his proposed evidence reveals that he has many years experience selling all models of Mercedes vehicles, that since his appointment as Brand Manager he has been trained in new Mercedes products, and that as a result of his long‑term employment with Westpoint in his various capacities he has gained knowledge of all features of all Mercedes vehicles.  On the basis of this proposed evidence, I am satisfied that Mr Tan does, as a result of his work training and experience, have detailed and specialised knowledge of the external physical characteristics of all Mercedes vehicles, including Mercedes SUV ML models. 

4. It may be that Mr Samura's and Mr Farsijani's fifth ground of objection to the admissibility of Mr Tan's evidence, despite its reference to the reliability of the evidence, is intended to be directed, in whole or in part, to the question of Mr Tan's expertise (although this is not, having reviewed counsel's oral submissions, clear to me).  If this is the case, that is, if the argument being advanced is that Mr Tan does not have sufficient specialised knowledge to give the proposed opinion evidence because he does not have detailed knowledge of the external physical characteristics of all makes and models of SUVs, then I reject this argument.  In my view it does not follow from the fact that Mr Tan does not have detailed knowledge of all makes and models of SUVs that the specialised knowledge that he does have, namely specialised knowledge of the external physical characteristics of Mercedes SUV models, is not sufficient to enable him to give his opinion as to whether the vehicle shown in the relevant CCTV footage and images is a Mercedes SUV ML model.  The fact Mr Tan may not be able to say that no SUV manufactured by a company other than Mercedes has all of the external physical characteristics that he can identify from looking at the relevant CCTV footage and images does not justify the conclusion that the specialised knowledge that he does have is not sufficient to render his opinion evidence as to whether the vehicle shown in the CCTV footage and images is a Mercedes SUV model, when considered in conjunction with other evidence to be adduced, of value in resolving the question whether the vehicle shown in the relevant CCTV footage and images is in fact a Mercedes SUV ML model.  Mr Tan's lack of detailed knowledge of all makes and models of SUVs is something that can be the subject of cross‑examination and will go to the weight of his opinion evidence that the vehicle shown in the CCTV footage is a 2006-2014 Mercedes SUV ML model. 

5. I find support for my above expressed view in the decision of Bell J in DPP v Paulino (No 4).  A reading of Bell J's decision reveals that there was no suggestion that the expert witness in that case had any detailed or specialised knowledge of makes of vehicle other than Mitsubishi vehicles.[27]   That is, it was accepted by Bell J that the witness's specialised knowledge of the external physical characteristics of Mitsubishi vehicles in the apparent absence of any specialised knowledge of the external physical characteristics of other makes of vehicle, was sufficient to permit the witness to give his opinion as to whether a vehicle shown in CCTV footage was a Mitsubishi Challenger similar to the one owned by the accused in that case

   [27] See also The Queen v Kotzmann (No 2) [28] ‑ [31], a case in which the Victorian Court of Appeal upheld the decision of the trial judge to permit witnesses to give evidence of their opinion as to the brand and specific type of certain items of clothing that a robber shown in CCTV footage was wearing despite, it would seem, the witnesses not having detailed or specialised knowledge of all other brands of similar items of clothing.

6. In summary, I am satisfied that Mr Tan does, as a result of his work training and experience, have sufficient specialised knowledge to render his proposed opinion evidence of value in resolving the issue before the court, the issue being whether the vehicle shown in the relevant CCTV footage and images is a Mercedes SUV ML model manufactured during a period in which Mr Samura's vehicle was manufactured.

   Third ground of objection - lay-person able to form sound judgment without the assistance of an expert

7. It is proposed that Mr Tan give his opinion, based on his knowledge of the external physical characteristics of Mercedes SUV ML models, that the vehicle shown in the CCTV footage is a 2006‑2014 white Mercedes SUV ML model, that the vehicle shown in image 1 is a 2006‑2014 Mercedes SUV ML model, that the vehicle shown in image 4 is a white Mercedes SUV ML model, that the vehicle shown in images 5, 7 ‑ 9 and 11 is a white Mercedes SUV, and that the vehicle shown in image 12 is a late 2007 Mercedes SUV ML350 petrol model, ML280cdi model or ML320cdi model.

8. Mr Samura and Mr Farsijani submit that the question whether the vehicle shown in the CCTV footage and the images is a 2006‑2014 white Mercedes SUV ML model, or a white Mercedes SUV ML model, or a white Mercedes SUV, is something that a person of ordinary experience is able to form a sound judgment on without the assistance of Mr Tan.  It is submitted that if a lay‑person is fully informed of the external physical characteristics of the Mercedes SUV models, they will be just as capable as Mr Tan of looking at the CCTV footage and the images and deciding if the vehicle shown is a 2006‑2014 white Mercedes SUV ML model, or a white Mercedes SUV ML model, or a white Mercedes SUV. 

9. I do not accept the submission made by Mr Samura and Mr Farsijani. 

10. Putting to one side image 12, which is the image obtained from CCTV footage recorded in the hours before the alleged murder of Mr Dimitrovski and which shows a vehicle that Mr Samura is unlikely to dispute is his vehicle, the CCTV footage and images from the evening of 4 August 2017 are not of the highest quality.  The CCTV footage and the images are slightly 'grainy' and/or blurred (some of the images much more than others).  They show the vehicle from a distance.  Further, the CCTV footage and the images show the vehicle after dark and consequently in relatively poor lighting conditions.  In addition, the moving vehicle is only visible on the CCTV footage for two very brief periods of time, and for some of the time during which it is visible is partially obscured by two other vehicles parked on the verge of 37 Dallington Crescent.  In these circumstances, a number of the external physical characteristics of a Mercedes SUV ML model that Mr Tan is apparently able to see in the CCTV footage and in at least some of the images (most specifically, the body shape, the line of the front and rear wheel guards, the distinctive shape of the C pillar and the wheels) will not, in my view, be easily observable to members of the jury without the assistance of the expert evidence of Mr Tan.  This will, in my view, be the position even if the jury are fully informed of the features of 2006‑2014 Mercedes SUV ML models by reference to clear and distinct images of such vehicles.

11. I accept the point made by Mr Samura's counsel, which was in effect conceded by counsel for the State, that it would appear from Mr Tan's statement and affidavit that he is not asserting that he can see all of the above referred to external physical characteristics in all of the images.  This is unsurprising given the quality of some of the images.  However, the fact that Mr Tan may not be able to point out all of the relevant characteristics as being visible on a particular image, assuming this to be the case, does not, in my view, justify the conclusion that his opinion evidence as to the make and model of the vehicle shown in the image, based on the characteristics that he can observe, will not be of assistance to the jury.

12. I have already noted that image 12 is much clearer than the other images.  Nonetheless, I am not persuaded that it is of such clarity as to justify the conclusion that Mr Tan's opinion evidence as to the make and model of the vehicle shown in the image, based on the external physical characteristics that he can observe, will not be of assistance to the jury.

13. For the reasons that I have given this is not, in my opinion, a case in which the members of the jury will, without the assistance of a person with specialised knowledge of the external physical characteristics of Mercedes SUVs, be able to form a sound judgment on the question whether the vehicle shown in the CCTV footage is a 2006‑2014 Mercedes SUV ML model, or whether the vehicle shown in image 1 is a 2006‑2014 Mercedes SUV ML model, or whether the vehicle shown in image 4 is a Mercedes SUV ML model, or whether the vehicle shown in images 5, 7 ‑ 9 and 11 is a Mercedes SUV, or whether the vehicle shown in image 12 is a late 2007 Mercedes SUV ML350 petrol model, ML280cdi model or ML320cdi model.  This is not, in my opinion, a case in which the jury will be in as good a position as a person with specialised knowledge of the particular identifying external physical characteristics of Mercedes SUV ML models and Mercedes SUVs to make the required judgments.  In my opinion the evidence proposed to be adduced from Mr Tan will contribute materially to the fact finding process.

14. The conclusion that I have arrived at is broadly consistent with the reasoning and decision of Bell J in DPP v Paulino (Ruling No 4).[28]  It is also broadly consistent with the reasoning and decisions in the above referred to authorities in which opinion evidence as to the brand and model of an item shown in video footage or photographic images has been held to be admissible.[29]

Fourth ground of objection - probative value of evidence outweighed by prejudicial effect

[28] DPP v Paulino (Ruling No 4) [7], [23] ‑ [24].

[29] See footnote 11 above.

1. It is submitted by Mr Samura and Mr Farsijani that there are three reasons, which considered individually and collectively, lead to the conclusion that the probative value of Mr Tan's evidence, to the extent that it is admissible, is outweighed by its prejudicial effect.

2. First, it is contended that the CCTV footage and at least some of the images are of such low quality that nobody, including Mr Tan, could be expected to express an opinion about the make and model of the vehicle shown in the footage and the images.  It is contended that a number of the external characteristics that Mr Tan identifies as being characteristics of a Mercedes SUV ML model are simply not apparent from the footage and the images.  The obvious difficulty with this submission is that it is contrary to the evidence that Mr Tan is, according to his statement and affidavit, apparently able to give by reason of his specialised knowledge of the external physical characteristics of Mercedes SUV ML models. Accordingly, I do not accept that the low quality of the CCTV footage and the images provides a basis for concluding that the probative value of Mr Tan's evidence is outweighed by its prejudicial effect.

3. Second, it is contended that on a fair reading of Mr Tan's statement he was shown the CCTV footage and all of the images 'at once' with the result that his identification of the vehicle shown in the CCTV footage and some of the images was informed and tainted by what he saw in other images, most specifically image 12.  I do not accept this contention.  A fair reading of Mr Tan's statement, which Mr Samura and Mr Farsijani agreed to being tendered in the absence of Mr Tan and which, together with the affidavit, I must rely upon as being an accurate reflection of what Mr Tan's evidence will be, does not suggest that Mr Tan was shown the CCTV footage and all of the images at once.  In this regard I note the following:

   1.In par 6 of his statement Mr Tan states that when the police attended Westpoint on 28 September 2017 he was 'first' shown the CCTV footage dated 4 August 2017;

   2.In par 7 of his statement Mr Tan states that he 'identified' the white vehicle in the footage to be a Mercedes SUV;

   3.In par 8 of his statement Mr Tan goes on to specify the model of the Mercedes SUV;

   4.In par 9 of his statement Mr Tan states that the detective 'showed' him the CCTV footage dated 29 August 2017;

   5.In par 10 of his statement Mr Tan states that he 'identified this vehicle', that is, the vehicle shown in the footage dated 29 August 2017, as the same vehicle as is shown in the first portion of CCTV footage;

   6.In pars 11 ‑ 24 of his statement Mr Tan goes on to provide further detail about the vehicle shown in the footage dated 29 August 2017 and about Mercedes SUV ML models generally;

   7.In par 25 Mr Tan states that the detective 'showed [him] a series of photographs/CCTV images from 1 to 12'; and

   8.In pars 26 ‑ 39 Mr Tan states what he can identify in the images.

4. Accordingly, and contrary to the argument advanced by Mr Samura and Mr Farsijani, it is clear from the wording of Mr Tan's statement that he was shown the CCTV footage dated 4 August 2017 and having been shown the footage made his identification of the vehicle shown therein, that he was then shown the CCTV footage dated 29 August 2017 and having been shown the footage made his identification of the vehicle shown therein, and that he was then shown the series of images and made his identification of the vehicle shown in each of the images.  Further, even if it is assumed that he was handed all of the 12 images at the one time, there is nothing in his statement to suggest that he did not make his identification of the vehicle shown in each image solely by reference to what he could see in the image. 

5. For these reasons I do not accept that the probative value of Mr Tan's evidence is outweighed by its prejudicial effect because Mr Tan's identification of the vehicle shown in the CCTV footage and some of the images was informed and tainted by what he saw in other images, most specifically image 12.

6. Of course, when Mr Tan comes to give his opinion evidence (assuming, for the moment that I rule it to be admissible) he will be doing so against a background of having seen all of the CCTV footage and all of the images.  The question whether the opinion evidence that he ultimately gives before the jury has in any way been impacted by the fact that he has now seen all of the CCTV footage and all of the images will be able to be the subject of cross‑examination.

7. The third contention in this context is that the probative value of Mr Tan's evidence is outweighed by its prejudicial effect because of the danger that the jury will, particularly in light of the low quality of the CCTV footage and the images, fail to make their own determination of what the footage and the images actually depict.  In other words, it is submitted that the evidence of Mr Tan will give rise to what is commonly referred to as the displacement effect.[30]  I do not accept this argument.  In my opinion any risk that the jury will, in light of Mr Tan's evidence, fail to make their own determination in relation to whether the vehicle depicted in the CCTV footage and any of the images is a Mercedes SUV ML model will be able to be adequately guarded against by the giving of appropriate directions in relation to the use that can properly be made of Mr Tan's expert evidence in their determination of the issues in the case.

   Fifth ground of objection - evidence unreliable

   [30] See DPP v Paulino (Ruling No 4) [36] ‑ [38].

8. As I have previously pointed out, Mr Samura's and Mr Farsijani's fifth ground of objection to the admissibility of Mr Tan's evidence is that his proposed evidence is unreliable because he does not have specialised knowledge of all makes and models of SUVs. 

9. It is not readily apparent to me how the asserted 'unreliability' of expert opinion evidence can of itself provide a basis for a finding of inadmissibility.  It is the role of the jury to assess the reliability of a witness and the weight (if any) to be given to the witness's evidence.[31]  It is for this reason that in dealing with the second of Mr Samura's and Mr Farsijani's grounds of objection I dealt with the possibility that the ground is intended to encapsulate an argument that Mr Tan does not have the requisite specialised knowledge to give the evidence proposed to be adduced from him because he does not have detailed knowledge of the external physical characteristics of all makes and models of SUVs.

   [31] Hardwick v The State of Western Australia [2011] WASCA 164; (2011) 211 A Crim R 349 [71].

1. The only other possible interpretation of the ground of objection, it seems to me, is that because Mr Tan does not have specialised knowledge of the external physical characteristics of all makes and models of SUVs his proposed evidence is so unreliable as to render it irrelevant.  If this is the contention being advanced by this ground of objection, I do not accept it.

2. Opinion evidence does not, in order for it to be relevant, need to be beyond reproach.  It does not, in my view, follow from the fact that Mr Tan does not have detailed or specialised knowledge of the external physical characteristics of all makes and models of SUVs that his identification of the vehicle shown in the CCTV footage and the images, based on his knowledge of an array of external physical characteristics exhibited by Mercedes SUV ML models, is so unreliable as to render it irrelevant.  It is the existence of the array of external characteristics exhibited by Mercedes SUV ML models that Mr Tan is apparently able to observe in the CCTV footage and images that gives his opinion a sufficient degree of reliability to render it relevant.  Mr Tan's lack of detailed knowledge of all makes and models of SUVs is something that can be the subject of cross‑examination and will go to the weight of his opinion evidence that the vehicle shown in the CCTV footage is a 2006‑2014 Mercedes SUV ML model.  Once again, I find support for this view in the decision of Bell J in DPP v Paulino (Ruling No 4).

Conclusion as to grounds of objection

1. For the reasons I have given, the opinion evidence of Mr Tan, to the extent that it relates to the CCTV footage from 4 August 2017 and images 1, 4, 5, 7 ‑ 9, 11 and 12 is admissible.  However, the opinion evidence of Mr Tan, to the extent that it relates to the CCTV footage from 29 August 2017 and images 2, 3 and 10 is inadmissible.

The application made by Mr Akhbari Sadiqi to exclude the evidence of Mr Jeary

The evidence of Mr Jeary

1. The relevant evidence given by Mr Jeary during the hearing of Mr Akhbari Sadiqi's application, which was comprised of the contents of his statement to the police and his affidavit, supplemented by his oral evidence given during cross‑examination and re‑examination, was in substance as follows.

2. He purchased 'Lexus of Perth' (Lexus Perth) in September 2006.  He is a part owner but assumes the role of managing director and is responsible for the day‑to‑day operation of the business.  Even though he is in management he is still very hands on.

3. There are no other Lexus dealerships in Western Australia.

4. He is the only person who orders vehicles for Lexus Perth.

5. He conducts valuations for every vehicle that comes into Lexus Perth for a potential trade‑in.  It is important that he is able to correctly identify vehicles and their features so that he can arrive at an accurate valuation and not pay too much for a trade‑in vehicle.

6. He has knowledge of specific features of Lexus vehicles through product alerts provided by Lexus.  Some other types of vehicle have some of the features of Lexus vehicles.  However, all cars have specific features. 

7. He does not keep abreast of the features of other luxury vehicles.  However, there are some features that he has no doubt are specific to the Lexus range.

8. The Lexus IS model has a combination of features including the shape of the car, the shape of the lights, the 'L finesse' features, the 'L' in the lights, and the exact way the car locks and unlocks.  The 'L finesse' design incorporates lots of references back to the 'L' itself.

9. Some time prior to 19 February 2019 Mr Richard Pyke, his technical advisor from the service department, provided to him through his personal assistant a document containing a number of questions relating to Lexus vehicles.[32]  His professional assistant told him that Mr Pyke had asked if he could assist him (Mr Pyke) in answering the questions contained in the document.  At the time that he received the document he could see that Mr Pyke had handwritten on the document answers to some of the questions.

   [32] Exhibit 4.

10. On Tuesday 19 February 2019 he arranged for Mr Pyke to come and see him.  At the meeting Mr Pyke told him that he was assisting a police investigation and that the police had asked him to answer the questions.  Mr Pyke did not say that the investigation was a murder investigation.  This was the first time that he had heard that Mr Pyke was assisting the police in an investigation.  He does not remember Mr Pyke telling him that he had been shown CCTV footage by the police.

11. He began to look at, and write answers to, some of the questions.  The questions were of a sales nature and related specifically to Lexus models.  The questions were more within his particular skill set than that of Mr Pyke.  Mr Pyke's knowledge is more related to how a vehicle is engineered and what is going on 'under the hood'.  His knowledge is more specific to the external features and how the vehicle looks.  This knowledge is important when valuing a vehicle because it is necessary to distinguish between different years and models. 

12. After meeting with Mr Pyke he had reservations about Mr Pyke's ability to answer the questions being asked of him by the police. 

13. After his meeting with Mr Pyke, Mr Pyke asked him whether he wanted the answers that he (Mr Jeary) had written on the document to be provided to the police.  He told Mr Pyke that his answers could be provided to the police.

14. Within a few days of his meeting with Mr Pyke, Mr Pyke informed him that the police investigation was a murder investigation.  Mr Pyke did not, at this time, tell him that he had previously been shown CCTV footage by the police.  Mr Pyke did not say anything like, 'Look, they've actually shown me some footage and I think it's an IS250'.  Mr Pyke never said anything to him to this effect.  Mr Pyke did not tell him that he had given a statement to the police.  He does not believe he has ever seen a statement made by Mr Pyke, although he is not sure because he cannot remember.

15. At about 1.00 pm on 21 February 2019 he met with Detective Connelly from the Homicide Squad.  Detective Connelly came to his office.  Detective Connelly told him that the police were making inquiries as part of a homicide investigation in relation to the identification of a vehicle.  He spoke to Detective Connelly about Mr Pyke's suitability to answer the questions that had been put to him about the external features of Lexus vehicles.  He told Detective Connelly that he would be more suited to assist the police with their line of inquiry given his position and experience with sales and evaluations.  He considered himself to be the more appropriate person to deal with the inquiries being made by the police. 

16. Detective Connelly told him that the police had some CCTV footage that they wanted him to look at to see if he could identify the vehicle shown in the footage.  His understanding was that the police wanted him to see if he could identify the vehicle shown in the footage as a Lexus.  Detective Connelly did not tell him that Mr Pyke had looked at the CCTV footage and identified the vehicle shown in the footage as an IS250 model.

17. On 5 March 2019 he attended the Homicide Squad offices.  He was met by Detective Connelly.  Detective Connelly was the only detective he dealt with while at the Homicide Squad. 

18. He was shown CCTV footage that was date and time stamped 2017‑08‑04, 19:55:56.  He saw on the footage a vehicle travelling from right to left.  He instantly recognised the vehicle as a 2008 to 2013 Lexus IS model.  It appeared to him from the footage that the model was white due to it being a lot lighter in colour than two 4WD vehicles that were shown in the foreground of the footage parked on a verge.

19. The most significant features of the vehicle that he recognised straight away were the slope of the windscreen, the profile view of the side windows, and the slope of the rear window.  He also noticed that the front and rear bumpers had the same colour code as the external body work inclusive of the side mirrors.  He noticed the reflectors on the bumper.  He noticed the 'L finesse' styling accents common across the whole Lexus vehicle range.  He noticed the rear light configuration which was consistent with Lexus IS models.  He noticed that the vehicle was relatively low to the ground which was consistent with the Lexus IS model.  The 'L finesse' styling 'popped' out at him.

20. The 'L finesse' styling is an overall look.  On a Lexus vehicle there are a lot of references back to the 'L'.  The 'L' has always been an aspect of the design.  The aspects of the 'L finesse' styling that 'popped' out at him were the way the windscreen sloped up, the 'L particularly of the back window', and 'other L's around the car'.

21. After watching the footage he asked Detective Connelly to rewind and stop the footage as the vehicle came into frame because he wanted to look specifically at the wheels.  Detective Connelly stopped the footage when the time on the screen showed 19:56:08.  The wheels appeared to him to fill the guard and the way the body sat on the wheels suggested to him that the wheels had an 18 inch rim.  An 18 inch rim would rule out earlier models of the Lexus IS.  Although it was not quite clear from the footage, the rims looked flatter and spoked which was more consistent with a sports model which offered an 18 inch alloy as standard.

22. He noticed that when the vehicle parked and locked the lights flashed signalling the locking mechanism being engaged.  This was again consistent with all Lexus models.

23. He could not distinguish from the footage whether the model was an IS250 or IS350.  The reason for this is that the main differentiating factor between these two models is the engine.

24. Detective Connelly then showed him footage which appeared to be from a different location.  It appeared to capture the front of a house focussing on the driveway.  The time shown on the screen at the commencement of the footage was 20:08:15.

25. As he watched the footage he saw a white sedan pull into the driveway of the house from which the footage was being taken and reverse onto the street.  The vehicle then reversed travelling right to left a small distance before parking close to the kerb on the opposite side of the road with the nose of the car facing to the right of the screen.  He saw a person get out of the driver's side door and walk to the right of the screen.  He asked Detective Connelly to play the footage again and pause it so that he could see the side profile of the car.  The time shown on the footage when paused was 20:08:22.

26. From the side profile of the vehicle he could see that the car looked like a Lexus IS model sedan either a 250 or a 350.  He could see the 'L finesse' styling more clearly.  The front grille, headlights and slope of the front window were all indicative of Lexus IS models.

27. He could see that the indicators were built into the side mirrors and that they were the same colour code as the bumpers which is also consistent with a Lexus IS model.

28. Other identifying features that he looked for to try and narrow the model down were the rims, a decal on the front guard which is present on Lexus F sport and special edition models, and a spoiler.  However, he could not see any of these features on the footage due to the quality of the footage and the distance that the car was from the camera. 

29. He could see that the vehicle did not have a sunroof.  Sunroofs are an option and are factory fitted. 

30. Detective Connelly then showed him some CCTV footage which was date and time stamped 2017‑08‑04, 20:27:44. 

31. On watching the footage he saw a person walk up to the vehicle shown in the footage and use their hand to unlock the vehicle.  Lexus IS models have a heat sensor installed in the door handle so that if a person touches the door handle with their hand and the keys are in the person's pocket the vehicle unlocks and causes the lights to flash.

32. He was next shown CCTV footage which was date and time stamped 2017‑08‑04, 20:28:20.  The footage followed on from the footage that he had previously been shown when the person had got into the vehicle. 

33. The footage showed the headlights of the vehicle being turned on.  He noticed how the headlights behaved.  They appeared to zoom in and then zoom out.  This is what high intensity discharge (HID) automatic levelling headlights do when they are first switched on.  They do a self‑test characterised by a movement downwards and then back up to a level.  These HID headlights with auto levelling were first fitted to the Lexus IS range from August 2010. 

34. He again watched the footage date and time stamped 2017‑08‑04, 19:55:56 showing the two 4WD vehicles parked on the verge outside the white picket fence.  He was told by Detective Connelly that on this version of the footage the police had enhanced the audio.  He saw on the footage at 19:56:40 the driver's door open, a person get out and the person close the door.  At this point he could hear on the footage a continuous beeping sound.  He recognised the sound instantly.  It occurs if the person attempts to lock the vehicle having left the smart key inside the vehicle.  Lexus smart keys allow the person to lock, unlock and start the vehicle by simply having the key in their pocket.  To lock a Lexus vehicle all the person has to do is exit the vehicle, close the door, grip the door handle and push in a particular area.  However, if the person gets out of the car and tries to touch the door handle to lock it while having left the smart key inside the vehicle the continuous beep or alarm will sound to let them know the car is not locking. 

35. While he could hear the continuous beeping he observed on the footage the person open the driver's door again.  At the same time he could hear the familiar single beep and see the four way flashers flash once to signal that the vehicle was locked. 

36. He has constantly driven Lexus vehicles since purchasing Lexus Perth.  His family members also drive Lexus vehicles.  His daughter has driven a Lexus IS model for years until recently.  He has heard the continuous beep many times and has seen and heard the lock/unlock procedure on even more occasions.

37. He was shown two pieces of CCTV footage that capture a well‑lit road with what appears to be a bus shelter and bin in the background.  He saw in the first piece of footage a small white sedan move from right to left.  The sedan moved quite fast.  It had some features of a Lexus IS model such as the body, bumpers and side mirrors being all the same colour and an 'L finesse' styling on the back quarter panel windows.  In the second piece of footage he saw a car move from left to right.  From the second piece of footage he could not be sure that that vehicle was a Lexus IS250 model or a Lexus IS350 model.  The vehicle looked a little more compact than a Lexus IS sedan, like a hatch or a coupe. 

38. The final CCTV footage that he was shown was date and time stamped 08‑04‑2017, 13:05:52.  The footage looked like it was taken from an underground carpark and was of a much better quality than the other footage shown to him.  The car shown in the footage was definitely a Lexus IS250 or IS350 model.  He recognised in the footage the Lexus badge in the middle of the front grille and other external features indicating that it was an IS250 or IS350.  The other external features that told him that the vehicle was a Lexus were the 'L finesse' styling, the slope of the front window, the indicators built into the side mirrors, daytime running lights, and the shape of the bumper and the spoiler below.  Most significant was the front grille, the 18 inch 5 spoke flat dish rims, the rear lip spoiler and the 'X decal' on the front fender which is only included on Lexus IS250 and IS350 'X' special edition models.  'X' special edition models are released periodically and only about 250 to 450 are released in Australia depending on the year.  They are essentially IS250 and IS350 prestige grade models with upgrades from other models.  IS250X editions were offered each year between 2008 and 2013.  Lexus did not offer an IS350X until 2012.

39. From August 2010 the IS250X model had the headlights with automatic levelling, headlight washers and daytime running lights.  These features are standard on the IS350.

40. A moonroof was an optional extra on the 'X' editions.  The vehicle shown in the carpark footage did not have a moonroof.

41. The vehicle shown in the car park footage was a 2010, 2011, 2012 or 2013 IS250X special edition model, or a 2012 or 2013 IS350X special edition model.  It was not a 2014 model because the shape has changed a lot.

42. He subsequently arranged for a video to be made of the headlight automatic levelling feature of the start‑up sequence of Lexus models.

43. He was at the Homicide Squad offices on 5 March 2019 for about three hours.  He would move the footage backwards and forwards when he was looking at it.  He went over the footage 'again and again'.  He watched the footage many times because he wanted to make sure that he was giving the right information. 

44. Detective Connelly was with him for the whole time that he was viewing the CCTV footage.

45. After he had viewed the CCTV footage on 5 March 2019 he did not have any further conversations with Mr Pyke about the matter. 

46. On 12 November 2019 he again attended the Homicide Squad offices at the request of Detective Connelly. 

47. He was shown three video clips.  He was told that the clips showed police re‑enactments using the Lexus vehicle that was owned by one of the accused.  He was asked to identify whether the vehicle shown was a Lexus IS250 model.  To the best of his recollection he was, before being shown any of the CCTV footage, told by Detective Connelly that the car shown in the footage was the same car that he had viewed in the footage shown to him on 5 March 2019.

48. The first of the video clips shown to him was date and time stamped 2017‑08‑29, 20:27:44.  He recognised the camera angle because he had seen it when he had been shown CCTV footage on 5 March 2019. 

49. The footage showed two 4WD vehicles parked behind a white picket fence.  He saw on the footage a white SUV travel from right to left followed by a light coloured sedan.  The sedan displayed features consistent with a Lexus vehicle, specifically an IS model.  It had a sloped front windscreen.  Its rear passenger window and rear quarter panel were in 'L finesse' style. 

50. As the sedan turned right he could see that the rear tail lights were consistent with a Lexus IS model. 

51. He observed on the footage a person get out of the vehicle after it had reverse parked on the street.  He saw the front lights flash which is consistent with someone locking the doors on a Lexus IS model with a hand held remote as they walked away.

52. He was next shown another video clip.  It was the same camera angle.  However, the date and time stamp was 2017‑08‑29, 20:29:54.  The vehicle he could see in the footage was stationary on the road.  It appeared as though someone had just got into the driver's seat.  The headlights were turned on and he could observe that they appeared to zoom in and zoom out consistent with the automatic levelling headlights of a Lexus IS model.

53. He was then shown some further footage from a different camera angle.  He recognised the footage as being from the same camera angle as footage that he had been shown on 5 March 2019.  Detective Connelly paused the footage at 2017‑08‑29, 20:20:45 and then pressed play.  He watched as the same white sedan, with the same Lexus IS model features, pulled into the driveway of an adjacent property.  He asked Detective Connelly to press pause at 2017‑08‑29, 20:20:54.  He was able to confirm that the vehicle that he was looking at was a white Lexus IS model.  Detective Connelly then pressed play and he observed on the footage the vehicle reverse park on the road and turn its lights off.  He then observed the lights turn back on and perform the self‑levelling function.  The footage then showed the vehicle driving off at 2017‑08‑29, 20:21:56.

1. In my view the admissibility of Mr Jeary's proposed evidence does not depend on establishing that the identification of the make and model of a vehicle through observation of the external physical characteristics of the vehicle is a recognised field of expertise; that is, is a sufficiently organised or recognised body of knowledge or experience to be accepted as a reliable body of knowledge or experience.  Further, if contrary to my view the establishment of an organised or recognised body of knowledge or experience is a pre-condition to the admissibility of Mr Jeary's evidence, I am satisfied, in light of the decision in DPP v Paulino (Ruling No 4), that the subject matter of the proposed evidence of Mr Jeary, namely the identification of the make and model of a vehicle through observation of the external physical characteristics of the vehicle, does form part of a body of knowledge or experience which is sufficiently recognised to be accepted as a reliable body of knowledge or experience.

Second ground of objection - absence of required specialised knowledge

1. I have already referred to the proposed evidence of Mr Jeary relating to his experience with Lexus vehicles.  The evidence is to the effect that he has been the part owner and managing director of the sole Lexus dealership in Perth for approximately 13 years, and that in order to enable him to run his business he has developed and acquired an intimate knowledge of all aspects of Lexus vehicles.  The depth of his knowledge of Lexus vehicles was, in my view, demonstrated by a number of the answers that he gave when he was cross‑examined.  On the basis of Mr Jeary's proposed evidence, I am satisfied that he does, as a result of his work experience, have detailed and specialised knowledge of the external physical characteristics of all Lexus vehicles, including Lexus IS models. 

2. Mr Akhbari Sadiqi submits that Mr Jeary does not have sufficient specialised knowledge to give the evidence proposed to be adduced from him because he does not have knowledge of the external physical characteristics of all makes and models of sedans.  I do not accept this submission.  I do not do so for the reasons that I have given in rejecting the same argument in dealing with Mr Samura's and Mr Farsijani's objections to the evidence of Mr Tan.  That is, the fact that Mr Jeary may not be able to say that no sedan manufactured by a company other than Lexus has all of the external physical characteristics that he can identify from looking at the relevant CCTV footage, does not justify the conclusion that the specialised knowledge that he does have is not sufficient to render his opinion evidence as to whether the vehicle shown in the relevant CCTV footage is in fact a Lexus IS model, when considered in conjunction with other evidence to be adduced, of value in resolving the question whether the vehicle shown in the CCTV footage is in fact a Lexus IS model.  Mr Jeary's lack of detailed knowledge of all makes and models of sedans is something that can be the subject of cross‑examination and will go to the weight of his evidence that the vehicle shown in the CCTV footage is a Lexus IS model. 

3. In summary, I am satisfied that Mr Jeary does, as a result of his work experience, have sufficient specialised knowledge to render his proposed opinion evidence of value in resolving the issue before the court, the issue being whether the vehicle shown in the relevant CCTV footage is a Lexus IS model.

Third ground of objection – lay‑person able to form sound judgment without the assistance of an expert

1. The proposal is for Mr Jeary to give his opinion, based on his detailed knowledge of the external physical characteristics of Lexus IS models, as to whether the vehicle shown in the CCTV footage recorded by the cameras at 37 Dallington Crescent, 6 Balney Place and 99A Princess Road is a white Lexus IS, and as to whether the vehicle shown in the CCTV footage recorded by the camera at 60 Grose Avenue is a Lexus IS250X or Lexus IS350X. 

2. During the course of her oral submissions Mr Akhbari Sadiqi's counsel argued, in effect, that the question whether the vehicle shown in the CCTV footage is a white Lexus IS model is something that a person of ordinary experience is able to form a sound judgment on without the assistance of Mr Jeary.  I do not accept this argument.  

3. As I have already pointed out in dealing with the same submission made by Mr Samura and Mr Farsijani in support of their objection to Mr Tan's evidence, the CCTV footage recorded by the cameras at 37 Dallington Crescent and 6 Balney Place on 4 August 2017 is not of the highest quality.  The footage is slightly 'grainy' and/or blurred.  Both pieces of footage show the vehicle from a distance.  Both pieces of footage show the vehicle after dark and consequently in relatively poor lighting conditions.  In addition, when the vehicle is at its closest to both cameras it is moving and only in that position for a brief period of time.  Further, once the vehicle is parked in Balney Place and the headlights are turned off it is very difficult to see the vehicle. 

4. The first piece of footage recorded by the camera at 99A Princess Road on 4 August 2017 is also not of the highest quality.  The footage is slightly 'grainy' and shows the vehicle from a distance in lighting conditions that are well below optimal.  In addition, the footage shows the vehicle while it is moving from right to left and only for a very brief period of time.

5. In light of the matters to which I have referred, it is my view that a number of the external physical characteristics of a Lexus IS model that Mr Jeary is apparently able to see on the CCTV footage recorded by the cameras at 37 Dallington Crescent, 6 Balney Place and 99A Princess Road (most specifically, the windscreen slope, the profile of the side windows, the slope of the rear window, the colour code of the front and rear bumpers, the reflectors on the bumpers, the 'L finesse' styling, the relatively low height of the vehicle above the ground, the size of the wheel rim, the front grille and the headlights) will not be easily observable to members of the jury without the assistance of the expert evidence of Mr Jeary.  This will, in my view, be the position even if the jury are fully informed of the external characteristics of Lexus IS models by reference to clear and distinct images of such vehicles.

6. It follows, in my opinion, that this is not a case in which the members of the jury will, without the assistance of a person with specialised knowledge of the external physical characteristics of Lexus IS models, be able to form a sound judgment on the question whether the vehicle shown in the CCTV footage recorded on 4 August 2017 by the cameras at 37 Dallington Crescent, 6 Balney Place and 99A Princess Road is a Lexus IS model.  This is not, in my opinion, a case in which the jury will be in as good a position as a person with specialised knowledge of the particular identifying external characteristics of Lexus IS models to determine if the vehicle shown in the footage displays those characteristics.  In my opinion the evidence proposed to be adduced from Mr Jeary in relation to the footage recorded by the cameras at 37 Dallington Crescent, 6 Balney Place and 99A Princess Road will contribute materially to the fact finding process.

7. That leaves the CCTV footage recorded on 4 August 2017 by the camera at 60 Grose Avenue.  This footage is far clearer than the footage recorded by the other cameras.  The vehicle can be clearly seen for a relatively lengthy period.  Further, as the vehicle is shown exiting the car park area, a good view of the front and passenger side of the vehicle is provided.  The vehicle's Lexus 'L' badge is clearly visible on the vehicle's front grille.  In short, in my view a jury would have no difficulty deciding for themselves in the absence of Mr Jeary's evidence that the vehicle shown in the footage is a white Lexus sedan.  Further, it is also my view that a jury would have little or no difficulty, in the absence of Mr Jeary giving evidence by reference to the footage, identifying for themselves some of the external physical characteristics of the vehicle that Mr Jeary asserts that he can see in the footage, specifically the slope of the front window, the indicators built into the side mirrors, the rear lip spoiler and the 18 inch 5 spoke flat dish wheel rims.  However, despite the relative clarity of the footage, there are a few characteristics of the vehicle that Mr Jeary asserts that he can see in the footage, and which contribute to his conclusion that the vehicle shown in the footage is a Lexus IS250X or IS350X special edition model, that would, in my view, not be so readily observable by the jury in the absence of the expert evidence of Mr Jeary.  I refer in particular to the 'X decal' on the (left) front fender, the daytime running lights and the precise shape of the bumper and spoiler below the bumper.  Accordingly, this is not, in my opinion, a case in which the jury will be in as good a position as Mr Jeary, a person with specialised knowledge of the particular identifying external physical characteristics of Lexus IS models, to determine if the vehicle shown in the footage is a Lexus IS250X or IS350X special edition model.  In my opinion the evidence proposed to be adduced from Mr Jeary in relation to the footage recorded by the camera at 60 Grose Avenue will contribute materially to the fact finding process.

8. Again, I make the point that the conclusion that I have arrived at is broadly consistent with the reasoning and decision of Bell J in DPP v Paulino (Ruling No 4)[36] as well as the reasoning and decisions in the previously referred to cases in which opinion evidence as to the brand and model of an item shown in video footage or photographic images has been held to be admissible. 

Fourth ground of objection - identifications not made spontaneously

[36] DPP v Paulino (Ruling No 4) [7], [23] ‑ [24].

1. The essence of Mr Akhbari Sadiqi's argument so far as his fourth ground of objection is concerned, is that in light of the sequence of events that led to Mr Jeary being shown the various pieces of CCTV footage, Mr Jeary's identifications of the make and model of vehicle shown in the footage is so tainted that its probative value is outweighed by its prejudicial effect.  In my opinion there is no merit in this ground of objection, at least in so far as it relates to the relevant CCTV footage from 4 August 2017.

2. It is clear from Mr Jeary's evidence that he and Mr Pyke did, on 19 February 2019, speak about, and go through, some if not all of the questions contained in the document that Detective Connelly had provided to Mr Pyke.  It is also clear that at the time that Mr Jeary was provided with the document a number of the questions already had answers written next to them, these being the answers that Mr Pyke had previously given to Detective Connelly and which Detective Connelly had written on the document.[37]  However, with one exception none of the questions expressly referred to what Mr Pyke had previously told the police he had been able to see in the CCTV footage that had been shown to him and which was subsequently shown to Mr Jeary.[38]  Further, it was not until 5 March 2019, that is, approximately two weeks after Mr Jeary had gone through the document with Mr Pyke, that Mr Jeary was shown the CCTV footage.  In addition, there is no evidence to suggest that Mr Jeary had the substance of the questions in mind at the time that he viewed the footage.  Finally, there is no evidence to support a finding that Mr Jeary had, prior to viewing the CCTV footage, read the statement that Mr Pyke had made to the police on 11 April 2018.[39] 

   [37] Detective Connelly testified that save for the answers written on the document by Mr Jeary, all of the answers written on the document were the answers that he had written during his meeting with Mr Pyke in February 2019.  Accordingly, Mr Jeary's evidence that he recognised the handwriting on the document that was not his handwriting to be the handwriting of Mr Pyke was clearly mistaken and incorrect.

   [38] The one exception is a question that read as follows: 'Aside from the tail lamp you mentioned reflectors on the bumper and the high level brake light as being standard features that assisted you in identifying the vehicle you saw in the CCTV as an IS250.  What are the other standard external features that identify them?'

   [39] PB 526 ‑ 532.

3. It is also clear from the evidence of Mr Jeary and Detective Connelly that there was, during their meeting on 21 February 2019, some discussion about what had already occurred between the police and Mr Pyke and what Detective Connelly now wanted Mr Jeary to do.  There is no doubt that Mr Jeary, as a result of this meeting, appreciated that the police suspected or believed that the vehicle shown in the CCTV footage was a Lexus and wanted him to look at the footage for the purpose of ascertaining if he could identify the vehicle shown in the footage as a Lexus.  As would have been obvious to Mr Jeary, if the police did not suspect or believe that the vehicle shown in the CCTV footage was a Lexus, there would have been little point in them asking the Managing Director of Lexus Perth to look at the footage.  However, there is nothing in the evidence given by Mr Jeary or Detective Connelly that provides a basis for concluding that Detective Connelly said anything of an impermissibly leading or suggestive nature to Mr Jeary before showing Mr Jeary the CCTV footage from 4 August 2017.[40]  There is no suggestion that Detective Connelly made a statement to Mr Jeary to the effect that the police believed that the vehicle shown in the footage was an IS250 model and that they wanted Mr Jeary to look at the footage to confirm their belief.

   [40] See by way of comparison Paulino v The Queen [2018] VSCA 306 [135] ‑ [136].

4. Further, nothing about the way that Mr Jeary gave his evidence during the directions hearing causes me to doubt that he brought an independent, open and cautious mind to his review of the 4 August 2017 CCTV footage (and that he will do so during the trial).  The fact that he did so is borne out not only by his conduct in informing Detective Connelly that he wanted to go away and check the operation of the HID automatic levelling headlights, but also his refusal to exclude the possibility that the vehicle shown in the second piece of footage recorded by the camera at 99A Princess Road was not a Lexus IS sedan.

5. In short, on the basis of the evidence before me I am not persuaded that Mr Jeary's proposed evidence relating to the 4 August 2017 CCTV footage has been so tainted by his discussion with Mr Pyke, the document containing the questions, or any conversations or communications that he had with Detective Connelly that it should be excluded on the basis that its probative value is outweighed by its prejudicial effect.  In my opinion the circumstances that led up to Mr Jeary being shown the footage to which I have referred go to the weight of his opinions not their admissibility.  These circumstances will, of course, be able to be cross‑examined upon if counsel considers this to be the forensically appropriate course.

6. The situation is, however, in my view different so far as the evidence of Mr Jeary relating to the CCTV footage from 29 August 2017 is concerned.  As I have indicated, Mr Jeary's evidence was that he was told that the footage showed police re‑enactments using the Lexus vehicle that was owned by one of the accused, and that he was asked to identify whether the vehicle shown was a Lexus IS250.  He also testified, albeit to my observation with a degree of hesitation, that to the best of his recollection he was told that the car shown in the footage was the same car that he had viewed in the footage shown to him on 5 March 2019 (that is, was the same car as the car that he had identified from the 4 August 2017 footage as a Lexus IS).  Mr Jeary's evidence to this effect was not contradicted by the evidence of Detective Connelly.

7. In essence, on Mr Jeary's evidence he was all but told through the combination of statements made to him, that the vehicle that he was about to see in the 29 August 2017 CCTV footage was a Lexus IS250.  The result, in my opinion, is that his opinion evidence as to the make and model of the vehicle shown in the footage is so tainted, so influenced, as to compel the conclusion that the probative value of the evidence is outweighed by its prejudicial effect.  Accordingly, even if contrary to my above expressed conclusion the opinion evidence of Mr Jeary relating to the 29 August 2017 CCTV footage is relevant, I would exclude the evidence in the exercise of my discretion.

8. It was not argued on behalf of Mr Akhbari Sadiqi that Mr Jeary's evidence as to his conversation with Detective Connelly prior to being shown the 29 August 2017 CCTV footage provides a basis for concluding that Mr Jeary's proposed opinion evidence relating to the 4 August 2017 CCTV footage is now so tainted as to justify the conclusion that it should be excluded on the basis that its probative value is outweighed by its prejudicial effect.  In any event, in light of the fact that the evidence establishes that Mr Jeary identified the vehicle shown in the 4 August 2017 CCTV footage as a Lexus IS model well before being shown the 29 August 2017 CCTV footage, I would not exclude Mr Jeary's opinion evidence relating to the CCTV footage from 4 August 2017 on this basis.  The impact, if any, of the statements made to Mr Jeary prior to being shown the 29 August 2017 footage on the validity of the opinion evidence that it is envisaged he will give at trial in relation to the 4 August 2017 footage will, if counsel thinks it forensically appropriate, be able to be addressed in cross‑examination.

Fifth ground of objection - probative value outweighed by prejudicial effect

1. Counsel for Mr Akhbari Sadiqi did not in the course of her oral submissions identify any reason, additional to the arguments advanced in support of the fourth ground of objection, for asserting that the proposed evidence of Mr Jeary should be excluded on the basis that its probative value is outweighed by its prejudicial effect. 

2. In my opinion there is no other basis for concluding that the probative value of the evidence of Mr Jeary relating to the 4 August 2017 CCTV footage that I have held to be admissible is outweighed by its prejudicial effect.  The probative value of the evidence cannot be described as small when it is considered in the context of the other evidence to be adduced.  Further, in my opinion any risk that the jury will, in light of Mr Jeary's evidence, fail to make their own determination in relation to whether the vehicle depicted in the CCTV footage is a Lexus IS model will be able to be adequately guarded against by the giving of appropriate directions to the jury in relation to the use that they can properly make of Mr Jeary's expert opinion evidence in their determination of the issues in the case. 

Conclusion as to grounds of objection

1. For the reasons I have given, the opinion evidence of Mr Jeary, to the extent that his evidence relates to the CCTV footage from 4 August 2017, other than the second piece of footage recorded by the camera at 99A Princess Road in Balga, is admissible.  However, the opinion evidence of Mr Jeary relating to the second piece of footage recorded by the camera at 99A Princess Road on 4 August 2017 and the CCTV footage from 29 August 2017 is inadmissible.

Conclusion

1. The applications made by Mr Samura and Mr Farsijani to exclude the evidence of Mr Tan are allowed in part to the extent specified in these reasons.

2. The application made by Mr Akhbari Sadiqi to exclude the evidence of Mr Jeary is allowed in part to the extent specified in these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CP

Associate to the Honourable Justice Derrick

23 DECEMBER 2019