Honeysett v The Queen [2014] HCATrans 57 (14 March 2014)

Last Updated: 18 March 2014

[2014] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S265 of 2013

B e t w e e n -

ANTHONY CHARLES HONEYSETT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MARCH 2014, AT 12.30 PM

Copyright in the High Court of Australia

MS D. YEHIA, SC: If it please the Court, I appear with MR D.P. BARROW on behalf of the applicant. (instructed by Blair Criminal Lawyers)

MR J.H. PICKERING, SC: I appear for the respondent, your Honour. (instructed by Director of Public Prosecutions (NSW))

FRENCH CJ: Thank you, Mr Pickering. Yes, Ms Yehia.

MS YEHIA: Your Honours, we need an extension of time.

FRENCH CJ: Is that opposed?

MR PICKERING: No issue with that.

FRENCH CJ: Yes, extension of time is granted.

MS YEHIA: Thank you, your Honour. Your Honours, this application is not simply concerned with competing expert evidence in relation to characteristics discernible from CCTV footage. In our submission, to characterise it as such is to fail to grasp the importance of the issues raised by the application and, indeed, the importance of the gatekeeping obligations imposed upon trial judges in the area of the admission of expert evidence in criminal trials.

The application raises questions of general importance pertaining to the criteria that must be satisfied pursuant to section 79 of the Evidence Act, particularly with the respect to the admission of expert evidence and to the admission of evidence that has come to be categorised as “ad hoc” expertise and, indeed, whether such a category of evidence properly survives the Evidence Act under the relevant statutory framework. That relevant statutory framework really refers to section 76 of the Evidence Act and section 79.

In our submission, section 76 is a prescriptive and exclusionary rule intended to cover the field when it comes to the admissibility of opinion evidence, both with respect to opinion evidence in relation to identity and opinion evidence in relation to similarity where that opinion evidence is given by a witness who purports to be an expert witness. To be admissible, of course, the opinion evidence must satisfy section 79 and we ask how does ad hoc expertise comply with the requirements of section 79?

The expansion of this category of evidence, ad hoc expertise, particularly in the context of criminal trials, where it is simply based upon task repetition rather than qualification or study increases the risk, in our submission, that may flow from unsatisfactory expert evidence and, therefore, gives rise to questions of general importance. If I could commence by dealing with what we submit was error on the part of the intermediate court in holding that Professor Henneberg had necessary specialised knowledge and that his opinion was based on that knowledge.

FRENCH CJ: What do we know about – he is a Professor of Anatomy at Adelaide University, I think?

MS YEHIA: Yes, that is right and he has qualifications in anthropology as well. In relation to image comparison, there was no qualifications or study but the court proceeded upon the basis that he had conducted the task on numerous prior occasions.

FRENCH CJ: There was a reference to, I think, seven books and 200 articles. Was there anything on the record about their contents or simply that he was a prolific publisher?

MS YEHIA: Well, more the latter, your Honour. There was nothing on the record in relation to the detail of any of those publications. Indeed, in relation to one of them, I think, that he referred to was a publication that referred to facial and body mapping and the duties of an expert witness given at a conference. In relation to the other material, I think there was some evidence that went to some of those publications relating to anatomy, the recognition or the analysis of skulls and bones. There was some reference, as I say, to one particular paper that I remember in relation to facial and body mapping, but in relation to the majority of the publications there certainly was very little by way of identification of those papers or publications relating to the task at hand.

FRENCH CJ: There is no evidence, I take it, that the practice of facial and body mapping has been – or the asserted expertise in facial and body mapping, has been tested by reference to trials, as it were, to see whether you get it right.

MS YEHIA: That is our complaint, that there was no evidence and no material that was placed in evidence that went to the validity of the methodology used and, indeed, to the reliability of the methodology used. In our submission, in the principle for which we contend, or one of the principles for which we contend, is that in this area of expertise, whether one calls it specialised knowledge or whether one calls it ad hoc expertise, that the word “knowledge” within the context of section 79 imposes a standard of evidentiary reliability. Indeed, in our submission, we say that reliability rather than being an extraneous idea is intrinsic to specialised knowledge and there was no evidence before the court that the methods used by Professor Henneberg in this case were validated.

There was no evidence of any studies or research that went to the reliability of the methodology used. Indeed, in this case, your Honours, the evidence was that what Professor Henneberg did was simply visually compare on his laptop footage from CCTV and, indeed, I think his evidence was that really he had regard to the stills from that footage rather than the footage itself because he explained that it was, to use his words, “jerky”. So that the technique, if one can call it that, that was used was a visual comparison between the CCTV footage and images and footage of the applicant. There was nothing by way of any measurements taken. Indeed, the Professor gave evidence that because of the quality of the material it was impossible to do so.

There was nothing done by way of superimposition – photographic superimposition. There was no particular method or technique used other than a visual comparison let alone any evidence of the validity of that technique or methodology or any evidence of the reliability of the method underpinning his opinions. So that in - - -

KEANE J: What do you say to the suggestion that this evidence was admissible and relevant to sensitise the jury to physical features and possibly their significance without actually inviting the jury – without actually suggesting a conclusion about the comparison?

MS YEHIA: The way in which the court below dealt with this was, in effect, to say that this was simply evidence of common features. It was not evidence of a conclusion in relation to identity. In our submission, section 79 applies to evidence of similarity as well as to evidence of identity. So that the Professor, even in giving evidence of common features, indeed, evidence of similarity between the images, had to be qualified as either having specialised knowledge in the area of image comparison or, if indeed, there is a category of ad hoc expertise then setting out some of the requirements that needed to be met in order for the evidence to get in on that basis. In our submission, neither of those things were done.

This was, in effect, in our submission, a situation where Professor Henneberg came along, gave evidence that he was an expert in anatomy and anthropology. There was some evidence that he had conducted this exercise on numerous occasions in the past. However, there was no evidence going to the validity or reliability of the techniques used and, indeed, in the way in which he conducted the comparison in this case it was simply an assertion, an unsupported assertion. We submit that it was a statement of subjective belief.

FRENCH CJ: Could the things that he said, taking out the technical terms relating to head shapes and so forth, could the things that he said about points of comparison have been put by the prosecutor in closing address?

MS YEHIA: Without his evidence, your Honour?

FRENCH CJ: Without evidence, just as observations of a kind that the jury could accept or reject as argument.

MS YEHIA: Certainly, my submission would be that that could have been done, certainly in relation to his features in relation to height or - - -

FRENCH CJ: Well, whether there was, you know, short or long hair under – you might infer, ladies and gentlemen, that they had short hair because, look, the thing fitted the head tightly.

KEANE J: And his unusual deportment.

MS YEHIA: Well, I think that the Crown Prosecutor could have pointed to characteristics from the footage. Again, that may have been disputed by the other representative but that could have been done. Certainly, there was no suggestion in terms of the evidence that was led from Professor Henneberg that there was a basis for that evidence to be received as specialised knowledge.

FRENCH CJ: Well, this is the point that I am putting to you. That if the nature of the evidence in terms of identifying points of comparison which the jury could observe for themselves but which I have pointed out is essentially argumentative, then there is a question whether it is, in fact, evidence at all and whether the true vice of which you would complain is that it is clothed with the authority of “expert” or “expert testimony”.

MS YEHIA: That is certainly what we would submit and, in essence, the approach taken in the court below was that whilst evidence of similarity generally is admissible as relevant for the purposes of circumstantial evidence of identification, there was nothing in the evidence of this witness that added to that because he was not – the opinions he gave did not satisfy section 79.

FRENCH CJ: What about ad hoc expertise, going again along this line of analysis? Do I understand the notion of ad hoc expertise correctly when I suggest that it is the kind of observation that members of the jury if they had long enough time to sit down and make comparison, perhaps guided by someone’s argumentative observations, could make for themselves?

MS YEHIA: Yes, that would be our submission. That is supported by, in my submission, the way in which this category of evidence has developed and the absence of any real analysis as to how it complies with section 79. So that, in effect, the way in which this category of evidence has progressed and, indeed, one can see that from the judgment below if I could take your Honours to the application book at about page 61, your Honours will see that in the court below his Honour Justice Macfarlan went through the relevant case authorities in this area including Tang or starting from Tang and including such cases such as Butera and Leung, your Honours will see that on page 62 of the application book. This was an analysis of the cases that have, in the past, dealt with this category in criminal matters, this category of ad hoc expertise.

What one sees, in my submission, is that the category of ad hoc expertise has its genesis in the case of Butera in common law authority, that is, prior to the introduction of the Evidence Act. So that post the Evidence Act, what seems to have occurred is that the courts have continued to take up the common law position in relation to the existence of an area of ad hoc expertise without an analysis of how it complies with section 79 because as I have said earlier the statutory framework is such that section 76 now covers the field. The opinion is non-admissible unless it is an exception pursuant to section 79.

What is lacking from the authorities that have been referred to in the court below is any analysis as to how it is that this area of ad hoc expertise meets the requirements set out in Makita and set out in Dasreef by this Court as to specialised knowledge. In our submission, the task of repeatedly watching the CCTV footage and comparing it with other footage is not anything more than what the jury could have done for themselves. Indeed, the only difference really is that the Professor in this case had spent, I think he gave evidence of several hours conducting that task, but there was no evidence that he brought anything further to that task, in my submission. Certainly, there was no analysis as to how it was that ad hoc expertise complies with section 79.

KEANE J: Ms Yehia, accepting for the sake of argument that there is an issue here in relation of admissibility of this evidence, in terms of the ultimate prospects of success of an appeal, what do you say to the point that is made against you that, in any event, there was no miscarriage of justice here because the T-shirt that was observed was found in the getaway car with your client’s DNA and the implement used in the robbery was found in the getaway car with your client’s DNA and on that basis there has been no substantial miscarriage of justice, even if the evidence was wrongly admitted.

MS YEHIA: Your Honour, in response to that, our submission would be that far from being – Professor Henneberg’s evidence, far from being evidence of little moment or relatively minor in the way in which it was relied upon during the trial, it was crucial to the Crown case in that it provided the link between the DNA evidence and the commission of the

offence and perhaps to develop that a little bit, if the Court allows me to briefly summarise the limitations of that DNA evidence because it is important to appreciate those limitations to properly respond to your Honour’s question. The DNA was crucial to identifying the applicant as the offender but only if the jury accepted that the DNA profile that was said to be consistent with the applicant was deposited at the time of the robbery.

FRENCH CJ: This is all to do with life on the block and so forth?

MS YEHIA: Well, yes, that is so, your Honour, and also to do with the – if I can take the hammer first, which was the item found at the scene, to do with the fact that from the CCTV footage and, indeed, some of the stills that appear in the application book at, I think, page 131, the first offender who was said to be the applicant, wore gloves. So the DNA profile found on the hammer had to have been deposited on the hammer some time before the actual commission of the robbery; when and in what circumstances the DNA expert and the evidence could not assist in the trial, so there was that aspect.

There was also a limitation in relation to the DNA on the hammer because the evidence from, I think it was Ms Bielby, was that there were traces of DNA from a second individual. It was not simply one profile found on the hammer, there were at least two. One of them was consistent with the applicant, the other there could not be any real assessment because of the trace. That was the limitation in relation to that. The other item was the T-shirt found in the Audi said to be the getaway car. I will not go into that. I think for present purposes we accept that the circumstantial evidence established that.

That car was found nine weeks after the offence. The T-shirt was found in a bag, a Fitness First bag, inside the car. On the T-shirt was – there was a profile that was consistent with the applicant. Again, there was trace evidence of at least one other individual. These are some of the limitations in relation to the DNA evidence. That takes me back to then the - - -

FRENCH CJ: We might hear from Mr Pickering now. Yes, Mr Pickering.

MR PICKERING: Can I deal with that last part first and can I take your Honours to page 112 of the appeal book, in particular, paragraph 3.1 of the respondent’s reply. Your Honour can see there, in a very brief nutshell, the eight general characteristics from the CCTV footage that Professor Henneberg gave. In dealing with this question of how important Professor Henneberg’s evidence was, it should be kept in mind that in truth a great deal of those eight general characteristics were already in the trial through other admissible means. In other words, if you look at those characteristics, adult male – the victims of the armed robbery described an adult male being this person:

skinny build, medium height, dark skin –

was all given in oral evidence by those members who were the workers at the hotel who suffered this robbery. So, you already have four of the so-called crucial eight characteristics already in evidence, will be in the next trial whether Professor Henneberg is called or not. Equally, if you then look at the aspect of dark skin, that was something that the jury could have observed themselves on the CCTV. This was where I want to go to the points raised by both your Honours in the oral argument of my learned friend.

Really, a lot of what is getting back to the argument here is the question of relevancy and actual exclusion of the evidence. It was important to note in this particular Court of Criminal Appeal hearing that the applicant specifically disavowed relevance and disavowed discretionary exclusion under 137. The significance of that is this then, when your Honours raised the question of well, could the jury not have just done this themselves, were they not in the same position? That, of course, the threshold question of relevance. That was what was looked at by the High Court in Smith. The applicant did not seek to make that argument in the Court of Criminal Appeal. The Court of Criminal Appeal nevertheless looked at it despite also noting that it was disavowed and specifically found, and it can be seen at page 67 of the appeal book, particularly at the bottom of page 67 of the appeal book of saying:

It could not in these circumstances be said that Professor Henneberg’s evidence was simply of obvious matters that the jury could have necessarily have discerned for itself.

That really is another way of expressing the test of relevance in this aspect. In this case, it is hardly surprising that the applicant in the Court of Criminal Appeal did not seek to argue relevance because if you simply say that the jury could have observed all this for themselves you have to remember that in this actual trial the applicant called two experts themselves, Dr Sutisno who could not observe any of those eight general characteristics and Mr Porter who also could not observe any of those particular characteristics and also could not observe that there was a pink hammer. That then directly feeds into what your Honour the Chief Justice, I think, was getting at in talking about discretionary exclusion, that is, what weight you would give to it if it was clothed in the veneer of expert evidence that it gets excess weight over what it deserved.

FRENCH CJ: It is not so much that, I suppose, it is a question of why should this be treated as expert evidence and admitted on that basis under section 79. I suppose if one then goes behind that and asks what is the vice, one looks to the direction to the jury, for example, at page 13 of the application book and you see they are told about the characteristics of expert witnesses:

someone who has a specialised knowledge based on their training –

et cetera, et cetera. Then they are told that Professor Henneberg is an expert witness. So, although some of the things he said, perhaps all of the things, are matters that could be observed by the jury, they are given a special status, are they not, by reference to being clothed of the authority of coming from an expert?

MR PICKERING: There are still two aspects there. I completely accept that if it does not comply with section 79 it is not admissible, but if it does comply with section 79, many of their aspects that your Honour then raising of concern about its use is a 137 issue.

FRENCH CJ: This goes back to, though, whether it all matters, which was your opening gambit in response - - -

MR PICKERING: It does.

FRENCH CJ: - - - a proviso point.

MR PICKERING: The only point I wanted to make about the 137’s use and it was important because your Honour actually raised it in saying could not the Crown Prosecutor have said it and, indeed, this trial could have run and this is one of the reasons, again, why 137 does not necessarily arise here, the Crown Prosecutor could have got the report from Professor Henneberg, chosen not to call Professor Henneberg, could have played the video to the jury, had the jury watched it and then could have effectively made a submission saying, members of the jury it is a matter for you but you might observe that the head was elongated in this matter.

FRENCH CJ: And that would have been merely argument and they were being told that.

MR PICKERING: Ironically, though, none of those commentary or submissions by the Crown Prosecutor could be tested in court whatsoever. It would simply be, I accept, an argument that there would be no assessment, there would be no question of the weakness of that submission by the Crown Prosecutor, outside of argument perhaps by - - -

FRENCH CJ: Argument from the other side.

MR PICKERING: When Professor Henneberg gives evidence, every single one of those weaknesses is explored extensively in cross-examination. That is, the particular methodology used because at the end of the day the Crown Prosecutor is still using a methodology in the argument of making the comparison. Equally, the question of whether the camera distorts colour, whether it distorts the picture itself, none of that could be explored directly with the Crown Prosecutor making the submission and they are questions that go to this issue of whether you would be concerned to exclude the evidence under 137 because actually what you have is a full exploration – in this trial even more of an exploration because you have had two other experts come along and well and truly point out any weaknesses in Professor Henneberg’s evidence and offer their own opinions.

That is why I still say that – and this may be part of the reason the applicant did not seek to invoke 137 in the Court of Criminal Appeal because if the evidence is admissible under 79 and I accept that that is the first threshold question, there are actually good reasons not to exclude it because the jury, ironically, if there is no expert, are actually invited to do exactly what is criticised that Professor Henneberg has done. That is for the jury to go out without any evidence before them and just do the comparisons themselves without any exploration before them in an evidentiary way of the weaknesses in doing that.

Ironically, a jury in this case, would have gone out the back and had their single laptop and had the benefit of all the witnesses, all the criticism and said, we are still able to look at it ourselves but we should keep this in mind. If they did this without any of the expert evidence, they would have the arguments of counsel but they would actually have no evidence before them whatsoever of any of the weaknesses in this process. That is, of course, one of the significances of why this evidence can be, not just relevant, but also is not excluded.

But getting back to the 79 point, can I say immediately, the ad hoc expert aspect is only an alternative argument anyway. The Court of Criminal Appeal accepted, and your Honours can see this at page 67 of the application book at paragraph 60. The court specifically found:

In addition to his specialised knowledge based on his training, study or experience occurring prior to the present case –

and then they went on to describe the concept of an ad hoc expert evidence. So he had actually been found to have specialised knowledge. At page 56 of the appeal book at paragraph 17 they had outlined his relevant experience which, I might note, included that from 1996 to the present day he had been involved in “identification from security camera photographs” and, indeed, he had been involved in specific - - -

FRENCH CJ: It is not unusual that such claims are made by forensic experts, I am not denigrating but say which are really claims of the form of I have done this hundreds of times. One does not draw any inference – is unable to draw any inference from that as to whether they have been right or wrong hundreds of times. It is just a statement that I have done a lot of this.

MR PICKERING: No, but experience is a factor of section 79. He is a Professor of Anatomy. He is not - - -

FRENCH CJ: I mean, it does not cover this territory, does it, or was there evidence as to that?

MR PICKERING: I cannot pretend that there was extensive questioning about his degree in anatomy and how he actually used it.

FRENCH CJ: Well, the field, I mean, in terms of - - -

MR PICKERING: A field, no – I accept that that was – but it links into the question of anatomy, obviously, a description of the bodily parts but the experience factor is still relevant because this is different to Smith. In Smith in the High Court, it was just a single still photograph, a perfect picture, from an old-fashioned bank security camera. The concept of closed-circuit television does carry more difficulties in the comparison that a jury must make – problems that can arise from it. You can actually develop specialised skill as Professor Henneberg did outline over a period of time of learning the weaknesses and the strengths and the problems of doing this identification and as such can develop specialised skill and knowledge in this area. It is not simply as easy as simply just saying well, anyone can do it, the jury could have done it so, therefore, it is not an expert skill.

KEANE J: The expertise is really almost like that of a radiologist.

MR PICKERING: In many ways, that is not such a bad example because if someone suffers a broken arm and it is a clean break one could actually hold up the X-ray before the jury and all the jury could see is a broken arm, would that be satisfactory? However, anyone who particularly looks at more complex CT scans or MRI scans particularly of a brain would not be able to read it to save their life. But equally a neurologist who treats a patient can actually have the patient walk and notice aspects of his gait and the way he walks and can diagnose potentially Parkinson’s disease and a

whole range of mental conditions which, again, if the general public just saw it would think, it is just another way that a person walks.

You can develop specialised skills. Particularly, even for a doctor, it is not even just their training and knowledge. It is the experience from treating thousands of patients and seeing it in those patients and observing these characteristics. So, experience is still important. I appreciate what your Honour says. If you have done it a thousand times and it was never expertise, it does not make it expertise a thousand - - -

FRENCH CJ: ..... along to talk about the behavioural characteristics of ectomorphs and endomorphs?

MR PICKERING: I appreciate that, and that is a significant part of CCT but it must be remembered that a jury is likely to have never actually examined close-circuit television before in their lives when they come in and participate in a jury trial. They do not always necessarily even have the facilities or the ability to do it as the expert does. They are my submissions, thank you, your Honours.

FRENCH CJ: Thank you. There will be a grant of special leave. I would not expect this to take more than a day – half a day to a day, perhaps?

MS YEHIA: Yes.

FRENCH CJ: Mr Pickering?

MR PICKERING: Yes, your Honour.

FRENCH CJ: Yes. There is a standard timetable for each of you. The Court will now adjourn to reconstitute.

AT 1.03 PM THE MATTER WAS CONCLUDED