R v Carter CA155/05 [2005] NZCA 422; (2005) 22 CRNZ 476 (19 December 2005)

Last Updated: 22 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA155/05

THE QUEEN

v

CRAIG JOSEPH CARTER

Hearing: 17 October 2005

Court: Glazebrook, Wild and Heath JJ Counsel: J K W Blathwayt for Appellant

E M Thomas for Crown

Judgment: 19 December 2005

_{JUDGMENT OF THE COURT}

A The appeal against conviction is dismissed.

_{B The appeal against sentence is dismissed.}

REASONS

(Given by Heath J)

Table of Contents

Para No

The appeal [1] Grounds of appeal [4] Background facts [6]

R V CARTER CA CA155/05 19 December 2005

The conviction appeal [16] Conviction against weight of evidence [16] Ammunition evidence [25] Fingerprint evidence [41] (i) Introduction [41]

(ii) The nature of fingerprint evidence [46] (iii) The fingerprint evidence at trial [54] (iv) The authorities [62] (v) Scientific advantages in fingerprint analysis [65] (vi) Evaluating Mr Sambajon’s evidence [76] (vii) Were the Judge’s directions adequate? [80]

Trial Judge’s jury directions on other evidential issues [91] Sentence appeal [96] Result [103]

The appeal

[1] Following a trial before Frater J and a jury in the High Court at Wellington in late February and early March 2005, Mr Carter and Mr Townsend were found guilty of attempting to manufacture a Class A controlled drug (methamphetamine), possession of equipment and possession of precursor substances. Mr Townsend and Mr Carter were acquitted on other charges. Two other accused, Mr Pirimona and Mr Morehu, were acquitted on all charges they faced.

[2] Mr Carter was sentenced to four years imprisonment on the attempted manufacturing charge. Concurrent sentences of two years imprisonment were imposed on the possession of equipment and precursor substances charges.

[3] Mr Carter appeals against both conviction and sentence. Mr Townsend has also appealed against conviction and sentence. His appeal has been adjourned because new counsel has been instructed.

Grounds of appeal

[4] Mr Carter’s appeal against conviction is advanced on the following grounds:

(a) The verdicts of the jury were unreasonable or contrary to the weight of evidence.

(b) The trial Judge ought not to have admitted evidence relating to the finding of ammunition on Mr Carter.

(c) Expert evidence of fingerprint analysis ought not to have been admitted because the witness could give no reasoned basis for his opinion.

(d) The trial Judge gave inadequate directions to the jury in respect of the weight that could be attached to evidence relating to:

(i) the finding of ammunition;

(ii) fingerprint evidence against Mr Carter;

(iii) the connection (if any) between Mr Carter and a white Honda vehicle; and

(iv) the existence of a warrant for Mr Carter’s arrest at the time of the offending.

[5] Mr Carter’s appeal against sentence is based on manifest excess. The sentence appeal focussed on the starting point adopted by the sentencing Judge.

Background facts

[6] The charges on which Mr Carter was convicted arose out of a Police operation known as “Operation Who”. The operation centred on a house property situated at 9 Holborn Drive, Stokes Valley.

[7] The property had been under Police surveillance for some time. The Police suspected that property was being used for the manufacture of the Class A controlled drug methamphetamine.

[8] At approximately 3am on 19 December 2003, police officers noticed a light on in the house. A search warrant was obtained promptly. Shortly after 5am the police officers returned to the house, together with members of the Armed Offenders Squad and dog handlers. While members of the Armed Offenders Squad entered the dwelling down a driveway, the two dog handlers waited in the street.

[9] Although light, at 5am most streets in the vicinity were deserted. Police officers came across three men in close proximity to the Holborn Drive address. One of these men was later identified as Mr Carter. Mr Carter was said to have fled in the opposite direction to the house on seeing the police officers. The dog handlers and their dogs gave chase.

[10] One of the dogs followed a track up a steep bank and through bush leading, ultimately, to 9 Holborn Drive. A search of the basement of the house ensued. Nothing of interest was located.

[11] When the dogs followed another line of scent along the top of the bank, Mr Carter was apprehended in an alleyway. A magazine with two cartridges was found on him. The ammunition matched other ammunition located in a stream he had crossed shortly before his apprehension.

[12] While the dogs and dog handlers endeavoured to locate others who had fled from the scene, members of the Armed Offenders Squad searched the property. Equipment and substances, consistent with those required for the manufacture of methamphetamine, were located inside.

[13] In an upstairs room, a television set was found together with a scanner. The scanner was operating on the Police channel. A recipe printed off the Internet for the production of methamphetamine was also located.

[14] Scientific evidence established that toluene, hydrochloride, iodine, hydrochloric acid, pseudo-ephedrine and methamphetamine were found within the dwelling. The presence of all of those substances is consistent with the manufacture of methamphetamine. Waste material, commonly associated with the manufacture of methamphetamine, was also located in glass jars and drums at the property.

[15] Fingerprint evidence given at trial linked Mr Carter to the printed recipe for methamphetamine. That was the only evidence that directly linked Mr Carter to the Holborn Drive address.

The conviction appeal

Conviction against weight of evidence

[16] While two aspects of this ground of appeal concern issues determined adversely to Mr Carter on pre-trial applications under s 347 of the Crimes Act 1961 (the Act), the challenge is based squarely on two submissions that the conviction was against the weight of evidence: s 385(1)(a) of the Act.

[17] The s 385(1)(a) point is that the appeal ought to be allowed on the basis that the jury, acting reasonably and after proper direction, must have entertained a reasonable doubt as to the guilt of the appellant: see R v Ramage [1985] 1 NZLR 392 (CA). Delivering the judgment of this Court, Somers J said, at 393:

The Crown case against the accused was circumstantial. In such a case the jury may infer guilt where that is the only rational conclusion on the facts proved: see the direction in R v Hodge (1838) 2 Lew CC 227. The common ground advanced by the applicants-that the verdict is unreasonable or cannot be supported having regard to the evidence-is that contained in s 385(1)(a) of the Crimes Act 1961. A verdict will be of such a character if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict of the jury: see R v Mareo (No 3) [1946] NZLR 660; R v Ross [1948] NZLR 167; R v Kira [1950] NZLR 420; Chamberlain v R [1984] HCA 7; (1984) 51 ALR 225.

[18] The case against Mr Carter was circumstantial in nature. The circumstances on which the Crown relied were:

(a) his location, in close proximity to the Holborn Drive address, at 5am; (b) his attempts to flee from the Police when seen;

(c) the presence of a white Honda motor vehicle registered in the name of his wife outside the Holborn Drive address;

(d) ammunition and a weapon found in his possession consistent with both ammunition found at the Holborn Drive address and ammunition located close to the address;

(e) the presence of mud and grass staining on his clothing and shoes; and

(f) fingerprint evidence linking Mr Carter to the recipe for methamphetamine found at 9 Holborn Drive.

[19] Mr Blathwayt, for Mr Carter, submitted that a reasonable jury, properly directed, could not have convicted Mr Carter on the basis of inferences to be drawn from that evidence.

[20] With respect, we disagree. The facts set out in [18] above provided an adequate foundation for the jury to infer guilt.

[21] Inferences that a jury may draw will be coloured by the way in which evidence is given. The trial Judge took the view that there was sufficient evidence to go to a jury. We are not disposed to disagree with her assessment on that point.

[22] Whether a jury should have convicted is an entirely different question and not one on which we ought to speculate. The test we must apply is whether a jury could have convicted on the evidence adduced. As Somers J pointed out in Ramage, it is not for this Court to substitute its view for that of the jury.

[23] This Court cannot properly conclude that the convictions were against the weight of evidence. Inferences were open to the jury from which they could find the case against Mr Carter to have been proved to the requisite standard.

[24] This ground of appeal fails.

Ammunition evidence

[25] Two challenges were made to the admission of evidence that ammunition was found on Mr Carter. The first is that the arrest and subsequent search of him was unlawful, arbitrary and unreasonable. The second was that, absent a forensic link between the ammunition and activities at the Holborn Drive address, the prejudicial effect of the evidence outweighed the probative value.

[26] Admission of the evidence was challenged before the trial Judge. Both grounds were advanced.

[27] Mr Blathwayt relied on evidence of Constable Rider to support his submission that the arrest and subsequent search of Mr Carter was illegal. In answer to questions put in cross-examination, the Constable (who had arrested Mr Carter) said that he could not remember the reason he gave for arresting Mr Carter, but that it was probably under the search warrant. No further questions were asked on that topic, either in cross-examination or re-examination.

[28] The Crown position was that the arrest was lawful but, in any event, could not amount to more than a technical breach. Further, the probative value was sufficient to justify admission of the evidence.

[29] Frater J ruled the evidence admissible. She said:

[8] Notwithstanding the words used by Constable Rider, I am satisfied that there was a sufficient link between what went on at the premises and his arrest, and that there were clear grounds for his arrest in relation to methamphetamine. But even if the grounds for arrest were not spelt out, in the exercise of the balancing process, I consider it is appropriate to admit the evidence. I accept that possession of the ammunition is a significant factor which the Crown can rightly ask the jury to take into account in determining whether or not Mr Carter was in fact involved in what went on at the premises.

[9] However, I will make it clear, when summing up to the jury, that Mr Carter has not been charged with possession of ammunition, and also warn them against speculation.

[30] The first question is whether there was a basis to arrest and search Mr Carter. The context in which that issue falls to be considered is this:

(a) His possession of the ammunition could be linked to the search of the Holborn Drive property where a weapon and similar ammunition were found.

(b) The location of the ammunition on Mr Carter negated any suggestion that he was present on the street, shortly after 5am, without criminal intent.

(c) The ammunition was of a type located in the creek through which

Mr Carter was said to have decamped.

[31] Section 315 of the Act permits arrest without warrant in specific circumstances. Section 315(2)(b) provides:

315 Arrest without warrant

...

(2) Any constable, and all persons whom he calls to his assistance, may arrest and take into custody without a warrant—

_...

(b) Any person whom he has good cause to suspect of having committed a breach of the peace or any offence punishable by imprisonment.

_....

[32] The term “good cause to suspect” creates a lower threshold than the “reasonable grounds for believing” criterion required for the issue of a search warrant under s 198 of the Summary Proceedings Act 1957 or for a warrantless search under s 18(2) of the Misuse of Drugs Act 1975. The question must, however, be determined objectively: Police v Anderson [1972] NZLR 233 (CA) and Duffy v Attorney-General [1985] NZHC 135; (1985) 1 CRNZ 599.

[33] Good cause to suspect must be more than idle speculation but need not be more than an apprehension with some evidential basis: eg Seven Seas Publishing Pty Ltd v Sullivan [1968] NZLR 663. Further, the suspicion of the police office need not

be raised on only legally admissible evidence: eg Police v Cooper [1975] 1 NZLR

216 (CA).

[34] In Neilsen v Attorney-General [2001] 3 NZLR 433 (CA), this Court considered the inter-relationship between s 315 of the Act and s 22 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), the right to be free from arbitrary arrest. Section 22 of the Bill of Rights provides:

22 Liberty of the person

Everyone has the right not to be arbitrarily arrested or detained.

[35] In Neilsen, at 441 - 442, this Court said:

There is no tension in this regard between s 315 of the Crimes Act and s 22 of the Bill of Rights. They are congruent. Section 22 affirms the fundamental principle of our law that no person should be arbitrarily arrested or detained by agents of the state. It applies as much to a short deprivation of liberty as to a long-term deprivation.

Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures. Read together, s 22 affirms and infuses values underlying s 315 that are reflected, too, in the relevant general instructions issued by the commissioner to all members of the police and in the Manual for Detectives.

[36] The Police were executing a search warrant in respect of controlled drugs. There was no challenge to the issue of the warrant to search the house. That there was a reasonable apprehension that firearms might be involved can be seen from the presence of the Armed Offenders Squad when the Police executed the search warrant.

[37] In the circumstances in which Mr Carter was located, we have no doubt that Constable Rider did have good cause to suspect that Mr Carter had committed an offence punishable by imprisonment. Accordingly, the Constable was entitled to arrest and to search Mr Carter under s 315 of the Act. Section 22 of the Bill of Rights does not advance Mr Carter’s case, for the reasons given in Neilsen.

[38] Having found that Constable Rider was entitled to arrest and search Mr Carter, it is unnecessary for us to consider whether the evidence could, nevertheless, be admitted on Shaheed (R v Shaheed [2002] 2 NZLR 377 (CA)) principles.

[39] The remaining issue is whether the prejudicial value of the evidence outweighed its probative value. Frater J was well placed to make the assessment that it was not. We are not prepared to interfere with that decision, which was clearly open to her on the evidence.

[40] This ground of appeal also fails.

Fingerprint evidence

(i) Introduction

[41] The accused who were acquitted at trial were not linked specifically to the house at Holborn Drive. Mr Carter was linked through the fingerprint evidence. If accepted, that evidence proved that his fingerprint was on the recipe for methamphetamine located in the house.

[42] Mr Blathwayt submitted that the expert called by the Crown to give fingerprint evidence failed to provide any foundation for his opinion that the print on the recipe came from Mr Carter. Mr Blathwayt submitted that the expert’s failure to give reasons for reaching his opinion or, alternatively, to disclose documentation demonstrating the methodology by which his opinion was reached, rendered his evidence of no value. Accordingly, he submitted that the Judge ought to have directed the jury to disregard the expert’s evidence or, at least, have given a warning to the jury that they should be cautious about relying on fingerprint evidence alone: see R v Buisson [1990] 2 NZLR 542 (CA) at 548.

[43] While accepting there was neither reasoning to support the conclusion reached by the expert nor documents disclosed that recorded the expert’s

methodology, Mr Thomas submitted that there had been a change in practice in the last five years which meant that the Buisson approach to fingerprint evidence (based on the number of points of comparison) was no longer appropriate. He submitted that Buisson did not govern the present case.

[44] Mr Thomas submitted that the evidence given by the expert was admissible and that it was unnecessary for the Judge to go further in directing the jury than to give the standard direction dealing with expert testimony.

[45] Following the hearing, we gave leave for Mr Thomas to put before us materials explaining how fingerprint analysis is currently undertaken. Without objection from Mr Blathwayt, we have received that material. We refer to it later.

(ii) The nature of fingerprint evidence

[46] Evidence linking a fingerprint to a particular person is expert evidence. Accordingly, fingerprint evidence must comply with the rules that regulate expert evidence.

[47] The following principles are uncontroversial and apply in all cases where expert evidence is called:

(a) an expert must state his or her qualifications when giving evidence;

(b) the facts, matters and assumptions on which opinions are expressed must be stated explicitly;

(c) the reasons for opinions given must be stated explicitly;

(d) any literature or other material used or relied upon to support opinions must be referred to by the expert;

(e) the expert must not give opinion evidence outside his or her area of expertise;

(f) if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated;

(g) an expert has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise; and

(h) an expert is not an advocate for any party.

Those propositions reflect the truism that expert evidence must be based on reason as opposed to conclusions incapable of being tested in any meaningful manner. It is for that reason that underlying assumptions and reasons for opinions reached must be stated explicitly.

[48] This Court considered the nature of fingerprint evidence in Buisson. That was also a drugs case, an important part of which was the need to identify the person from whom a fingerprint came. The print was found on a block of hashish discovered in a hedge near the property.

[49] In Buisson, two experts were called for the Crown. Each gave evidence that the fingerprint belonged to Mr Buisson. They said that they were able to find 12 - 15 identical points or characteristics with a print taken from him by the Police. On the other hand, two retired police officers, called as expert witnesses by the defence, testified that they could find only six to nine such points or characteristics.

[50] The issue was whether the Crown evidence linking the fingerprint to Mr Buisson was sufficiently reliable to go to the jury. Evidence given at trial had suggested that there was no “hard and fast rule” as to the number of points or characteristics that would enable an expert to make a positive identification linking a fingerprint to a particular person.

[51] The Court referred to an article by Donald Campbell, Fingerprints: A Review (1985) Crim LR 195 at 199. Mr Campbell was described by the Court as “an English Barrister who appears to be experienced in this field”. Mr Campbell said:

An expert, faced with a scene of crime mark which corresponds in every one of the required sequence of characteristics [16 in England] will say, without hesitation, that the mark was made by the person who supplied the known sample. Where there are less than the standard number, the expert will still hold a firm and reasonable belief that the marks are of common authorship until there comes a point where the identification becomes truly suspect. However, the only value such an incomplete identification can have is as a pointer to those concerned with investigating the crime. The danger in treating incomplete identifications as evidence is that certainty of fingerprint identification may be subject to wholly unjustified attack. What number of points in agreement justify a ’probable’ and how many are required to suggest ’highly probable’? What magic raises high probability into certainty? One can visualise the cross-examination and one can see the element of uncertainty intruding into one of the few forms of wholly reliable evidence available to the courts.

[52] Delivering the judgment of this Court in Buisson, Casey J said that there was no rule that an opinion based on a lesser number of points or characteristics than 12 was inadmissible. His Honour noted that the standard of proof in criminal trials was beyond reasonable doubt, not scientific certainty. It was not, therefore, necessary for the trial Judge to remove fingerprint evidence from the jury when 12 or fewer characteristics had been identified by the expert witness. Casey J said (at 549):

The standard of proof in criminal trials is beyond reasonable doubt, not scientific certainty. There can be no public policy requiring the Court to set an inflexible minimum on what can be admitted as tending to prove a fact, nor is it desirable that it should do so. It is clear from the testimony of the Crown experts that something less than 12 points may be acceptable for safety, and in some special cases as few as six.

[53] Mr Blathwayt did not suggest that there was any inflexible rule as to the way in which fingerprint evidence could be given. Rather, he submitted that the question was whether, in this case, there was evidence that was sufficiently reliable to be considered by the jury. That issue, he submitted, fell to be determined by reference to the usual evidential rules governing expert evidence.

(iii) The fingerprint evidence at trial

[54] Fingerprint evidence was given at trial by Mr Sambajon, a Fingerprint Officer with the Fingerprint Section at the Wellington Central Police Station. At the time of the trial, Mr Sambajon had over eight years experience as a fingerprint officer.

[55] In evidence-in-chief, Mr Sambajon (after qualifying himself as an expert) explained the theory of fingerprint analysis to the jury. As part of that explanation, Mr Sambajon referred to the Level 1, 2 and 3 analysis. He said:

Now we use the scientific methodology of analysis, comparison, evaluation and verification. So firstly we analyse the print, we look at all the available information. That information comes into 3 broad categories: first level information which is a pattern; second level information and throughout your palms, soles and feet there are lines of raised skin and those are called ridges, they are not continuous, there are interruptions along the ridges. That is second level detail. That is used to individualise to make an identification; the third level of detail usually smaller than ridge width is pore detail and ridge edge detail. When these details agree in type, direction, special orientation and ridge separation when I’m comparing the latent with an ink print I have an identification.

[Spelling changes made from original transcript.]

Mr Sambajon then gave specific evidence in relation to the identification of fingerprints from two of the accused, one of whom was Mr Carter.

[56] During the course of Mr Sambajon’s evidence-in-chief, an issue arose about whether Mr Sambajon could refer to notes made at the time of his analysis. A voir dire was held. In evidence-in-chief, the following exchange occurred between counsel for the Crown and the witness:

Do you have notes that you made as you were making your comparison at that time? ... Yes and those notes are essentially the photographs to the back of the scene of crime and trace form.

Were those made available to the defence during the adjournment? ... Yes.

Is that all you need to give your evidence as to identification? ... There are no notes you make during an identification. The identification is occurring in the head. Once we have reached identification we produce a photograph and we have a photograph here that is used by two other qualified fingerprint officers to verify the identification ...

[Spelling changes made from original transcript.]

[57] Following the voir dire, Frater J ruled, without objection, that Mr Sambajon could give evidence based on the notes he had identified.

[58] When the jury returned, Mr Sambajon completed his evidence-in-chief and was cross-examined. In cross-examination, Mr Blathwayt put in issue the basis for

Mr Sambajon’s opinion. He asked specifically whether Mr Sambajon had a document for the jury to consider that noted the points of comparison that he said supported his opinion that the fingerprint located on the recipe came from Mr Carter. He also put it directly to Mr Sambajon that there was no way the jury could “look at the factors” that had caused him to reach his opinion. The following exchange occurred:

Are there any standards now adopted by fingerprint officers in New Zealand, any minimum standards?.....Again its based on training and experience and correct application of the methodology which is ACE, analyse, compare, evaluation and verification.

So at Level 2 you look at certain things and Level 2 and you find the same thing in comparison?.....Yes.

Do you have a document for the jury to look at noting out the points of comparison that you found supported your opinion that the print in photograph you produced and Exhibit 33 were from one in the same person. Have you any notes made at the time recording the data on which you formed your opinion?....I need to explain. As a matter of practice we don’t provide a detailed summary of points of comparison. It’s basically a holistic approach. We analyse a print, look at all the available information in that print including second level detail which are your points, compare that details with the ink print, evaluate the matching detail, this doesn’t happen on a piece of paper it happens in the mind, in the head.

There is no way that this jury can look at the factors that have caused you to reach the opinion you have?....Fingerprint identification is a visual processing system requiring human problem solving techniques. If I am going to analyse one print I can’t apply that analysis to a different print because they are not the same, they are different prints altogether. Each analysis involves the print that I am looking at. And if the methodology is followed properly I come to a conclusion which is then verified.

But its all in your mind?....In my opinion I have been trained to look and examine fingerprints, make the comparison and evaluate the information. Is it a conclusion is it an identification or not an identification.

...

I can’t ask you anymore questions about your methodology I simply put to you that you may be wrong identifying the print on the 8 page document with the print of Carter?....In my opinion I have made an identification, that identification has been verified.

By whom?....We have a form of peer review. It is part of the methodology. ACE. The correct application of the science will lead to the correct result.

...

I put the question again, do you accept you could be wrong?....No.

Never wrong?.....No, in other things but not in the identification process itself.

Why should the jurors simply accept your opinion?....I have been trained, I have 5 years of training and experience and 8 years of built up experience, training courses and so on and I have been proficiency tested.

.... [emphasis added]

[Spelling changes made from original transcript.]

[59] During the course of cross-examination by counsel for both Mr Townsend and Mr Carter, Mr Sambajon was unable to respond affirmatively to questions about the points of comparison noted. Mr Sambajon explained that the point chart had always been a demonstration tool, providing only “Level 2” information, restricted to points or characteristics.

[60] Mr Blathwayt raised Level 2 analysis directly with Mr Sambajon. As part of a series of questions designed to ascertain the reasoning process that led Mr Sambajon to make a positive identification, Mr Blathwayt asked about the number of marks indicating commonality between the lifted print and one known to come from an accused. Mr Sambajon was unwilling or unable to indicate whether there were any points of comparison identified.

[61] In effect, Mr Sambajon asked the jury to accept his conclusory observations based solely on his own experience and the fact of peer review, the latter not being proved independently of his evidence. No other reasons were given by Mr Sambajon to support his opinion that the fingerprint taken from the methamphetamine recipe came from Mr Carter.

(iv) The authorities

[62] Buisson was decided on the basis of scientific opinion prevailing at the time. Having held the fingerprint evidence admissible, this Court considered whether the Judge ought to have told the jury that identity could be proved only if they were satisfied there were at least 12 points or characteristics of similarity or identity. Casey J, for the Court, said at 547-548:

... In the light of what we have said in rejecting the first ground, it will be clear that we see no such obligation on the Judge. He gave the jury a fair summary of the conflicting observations and conclusions of the two sets of expert witnesses, and left with them the task of evaluating their evidence and deciding which opinion they could accept. He also told them that the decision about identity was for them and not the experts, and pointed to the evidence of the scar as another matter they could take into account.

In our view this was an appropriate direction in the circumstances of this case, in which none of the experts discussed the degrees of probability raised by the similarities found. They focused on the number needed to establish virtual certainty, assuming the fingerprint evidence to stand by itself, without regard to the possibility of taking it into account with other evidence. In this context it is instructive to see the approach in a Manitoba case involving footprints, where evidence had been given by experts of similar print patterns. They could only say it was highly probable the prints discovered at the scene were identical with the accused's prints, and conceded that somebody else could have been their author. Huband JA, delivering the judgment of the Court of Appeal, ruled the evidence admissible and said: ". .

. it no doubt added to the already cogent body of evidence pointing to

Nielsen's guilt." (R v Nielsen (1984) 16 CCC (3d) 39, 70).

We mention this case only to suggest that by insisting on maintaining a standard of virtual certainty, as a condition of tendering opinion evidence of identity from fingerprints, police agencies may be depriving the prosecution of useful information based on a lesser degree of statistical probability. Taken in conjunction with other evidence tending to implicate the accused, it may still help to establish his or her guilt beyond reasonable doubt. The Courts frequently receive evidence of probability based on the occurrence in the community of specific blood types or other physical characteristics, as part of the overall circumstances relied on to establish an offender's identity. Of course any opinion that a fingerprint is enough by itself to establish identity should still be based on a sufficient number of points to be to all intents conclusive. But, as the evidence in this case indicated, to achieve that standard they need not amount to as many as 12 in every instance. If the prosecution in any case were to contend that less than 12 points should be accepted as conclusive, it would be desirable for the Judge to warn the jury that the 12 point standard has normally been followed in New Zealand and that they should be cautious before convicting on fingerprint evidence alone if that standard has not been met.

[63] Mr Thomas referred us to more recent decisions which, he submitted, were of greater relevance given changes in fingerprint analysis since Buisson was decided. He referred us to the decision of the Court of Appeals for the Third Circuit in United States of America v Mitchell, [2004] USCA3 86; 365 F 3d 215 (2004) and two earlier decisions of the Supreme Court of the United States of America (Daubert v Merrell Dow Pharmaceuticals Inc, [1993] USSC 99; 509 US 579 (1993) and Kumho Tire Co v Carmichael, 526 US

137 (1999)). United States of America v Mitchell deals extensively with questions of

contestability of expert evidence in the context of a Daubert hearing, a special hearing that determines, in the United States, admissibility of expert evidence.

[64] Mr Thomas also referred us to a judgment of Tipping J in R v Calder HC CHCH T154/94 12 April 1995. Calder involved charges of attempted murder and causing a poison to be taken with intent to cause grievous bodily harm. Expert evidence was led by the Crown to establish that the accused caused the victim to be administered with a poison. While not a fingerprint case, Tipping J was required to consider the proper approach to novel expert evidence. At 7 - 8, Tipping J said:

Before expert evidence, such as that in issue in this case, can be put before the jury by a suitably qualified person it must be shown to be both relevant and helpful. To be relevant the evidence must logically tend to show that a fact in issue is more or less likely. To be helpful the evidence must pass a threshold test which can conveniently be called the minimum threshold of reliability. This means the proponent of the evidence must show that it has a sufficient claim to reliability to be admitted. If this threshold is crossed the weight of the evidence and its probative force can be tested by cross- examination and counter evidence and is ultimately a matter for the jury.

If the minimum threshold of reliability is not crossed, the evidence is deemed unhelpful and is excluded. The rationale for such exclusion is that evidence which, although relevant, fails to cross the threshold is regarded as more prejudicial than probative. It is possible, albeit unlikely, that evidence which is relevant and has crossed the threshold may still be found more prejudicial than probative. If so it will be excluded. Thus in short the proponent must show that the evidence in question is (a) relevant (b) helpful and (c) more probative than prejudicial. As the proponent has the onus of persuasion any real doubt should be resolved in favour of exclusion.

It might be said that a test which requires “a sufficient claim to reliability” is too general to be of much help. In a sense that is true but the test demonstrates what one is looking for and has desirable flexibility. ... Whether the Judge, as gatekeeper, opens the door or keeps it shut may depend in an individual case on a whole variety of subsidiary issues all influencing the ultimate decision whether there is in the particular evidence a sufficient claim to reliability to allow it to go before the jury.

(v) Scientific advances in fingerprint analysis

[65] The approach to analysis of fingerprints of which Mr Sambajon gave evidence is consistent with the scientific literature provided to us by Mr Thomas. The methodology follows guidelines issued by the Scientific Working Group on

Friction Ridge Analysis, Study and Technology (the Guidelines) for friction ridge examination for latent print examiners.

[66] Mr Sambajon’s evidence on methodology is also consistent with recent developments in England and Wales. In that jurisdiction, a new fingerprint standard was adopted by police forces on 11 June 2001. Until that standard was approved, Courts in England and Wales had required evidence identifying 16 similar ridge characteristics to establish identification by fingerprint: see R v Buckley [1999] EWCA Crim 1191 (CA).

[67] The 2001 standards enable fingerprint evidence to be presented in England and Wales without reference to a minimum number of matching characteristics: see Leadbetter Fingerprint Evidence in England and Wales – The Revised Standard [2005] 45 Med Sci Law 1. However, an important (and integral) part of the new procedure is the need for peer review (a minimum of three independent examiners: Leadbetter at 5) of proposed fingerprint evidence.

[68] The Guidelines describe principles by which examinations are conducted, the methodology for friction ridge examination and the conclusions that may result from examination.

[69] There are five basic principles for friction ridge examinations: (a) The morphology of friction ridge skin is unique.

(b) The arrangement of friction ridges is permanent barring trauma to the basal layer of the epidermis.

(c) An impression of the unique details of friction ridge skin can be transferred during contact with a surface.

(d) An impression that contains sufficient quality and quantity of friction ridge detail can be individualised to, or excluded from, a source.

(e) Sufficiency is the examiner’s determination that adequate unique details of friction skin source area are revealed in the impression.

[70] The Guidelines then discuss Level 1, Level 2 and Level 3 detail in a manner consistent with Mitchell, in which the Court of Appeals for the Third Circuit said (at 221):

Fingerprints are left by the depositing of oil upon contact between a surface and the friction ridges of fingers. The field uses the broader term “friction ridge” to designate skin surfaces with ridges evolutionarily adapted to produce increased friction (as compared to smooth skin) for gripping. Thus toeprint or handprint analysis is much the same as fingerprint analysis. The structure of friction ridges is described in the record before us at three levels of increasing details, designated as Level 1, Level 2 and Level 3. Level 1 detail is visible with the naked eye; it is the familiar pattern of loops, arches and whorls. Level 2 detail involves “ridge characteristics” – the patterns of islands, dots and forks formed by the ridges as they begin and end and join and divide. The points where ridges terminate or bifurcate are often referred to as “Galton points,” whose eponym, Sir Francis Galton, first developed a taxonomy for these points. The typical human fingerprint has somewhere between 75 and 175 such ridge characteristics. Level 3 detail focuses on microscopic variations in the ridges themselves, such as the slight meanders of the ridges (the “ridge path”) and the locations of sweat pores. This is the level of detail most likely to be obscured by distortions.

[71] The Guidelines identify a four-step process to determine whether a fingerprint can be matched to a particular person. The four steps are described as analysis, comparison, evaluation and verification. Those are the standards to which Mr Sambajon referred as ACE in his evidence: see at [58] above.

[72] Analysis is the assessment of a friction ridge impression to determine suitability for comparison. Comparison is the direct or side by side observation of friction ridge detail to determine whether the detail of two impressions is in agreement based upon similarity, sequence and spacial relationship. Evaluation is the formulation of a conclusion based upon analysis and comparison of friction ridge impressions: evaluation may result in individualisation of friction ridge impressions, giving rise to identification or exclusion or an inconclusive result. Verification is a peer review process which must occur following a positive identification and which may occur if a finding results in exclusion or an inconclusive result. The verification process is an integral part of the procedure to identifying fingerprints now used by those who conduct analysis of them.

[73] It is clear from the materials made available to us that an approach of the type to which Mr Sambajon referred is known as “a holistic approach”. That expression, however, simply differentiates the process of examination and evaluation we have just described from one where identification is proved by reference only to the number, and sometimes the type, of ridge characteristic. The new approach does not make the process any less amenable to the standards expected for any expert witness: see [47] above.

[74] Vanderkolk Forensic Individualization of Images Using Quality and Quantity of Information (1999) 49 Journal of Forensic Identification 246 at 246 - 247 explained understanding the source of an image as follows:

Friction ridge skin is uniquely arranged. Having been taught this concept, I did not truly understand it until being enlightened by ridgeology. Ridgeology is the study of the uniqueness of friction ridge structures and their use for personal identification. Ridgeology is the compilation of studies of the development and growth of friction ridge skin. The uniqueness of the morphology, or shape, or the structure of friction ridge units and ridges is explained by ridgeology. The shapes and arrangements found in friction ridge skin will not be reproduced on any other skin. Not being able to personally observe the development of friction ridge skin, I am grateful for the previous studies documenting its formation and shared with the forensic community via ridgeology.

Friction ridge skin structure is uniquely arranged. It also regenerates itself. The new friction ridge skin will form in the same arrangement as the previous friction ridge skin arrangement. It is also durable. If random trauma occurs to friction ridge skin, damage can occur to the skin. Uniqueness from the trauma is added to the uniqueness of the friction ridge skin. The durability of that uniqueness is affected by the significance of the trauma. This trauma uniqueness can be temporary because of skin regeneration, or very durable because of scarring during regeneration. The scarred area is then durable, unless the friction ridge skin is damaged again. Understanding the durability of friction ridge skin is important for understanding images produced by friction ridge skin. There is no need to ignore any uniqueness in friction ridge skin, no matter the durability of that uniqueness. All uniqueness is valid. All uniqueness should be analyzed, compared and evaluated.

[75] Further, at 251, Mr Vanderkolk said:

I am a supporter of the belief that there is no required minimum number of unique “points” needed to determine the source of an image. First of all, there is no specific definition of what a unique “point” is. A unique “point” is not like any other “point”. The many generic labels attached to unique “points” should not diminish their actual uniqueness. Texture and features and characteristics along a generically defined “point” add quantity to a

single “point”. My question would be, How many “points” are in a “point”? Since no forensic science (except some latent print examiners) has a required minimum number of points needed to determine the source of an image, the determination must rely on a combination of quality and quantity of information in the images.

Understanding the source of the image, the difference between repeatable class and unique characteristics in the source item, the durability of both unique and repeatable class characteristics in the source item, that the image of the source item will have less information than the actual source item, and the relationship of quality and quantity of all of the information in the images are the keys to determining the source from which the unknown image originated.

(vi) Evaluating Mr Sambajon’s evidence

[76] There is no reason in principle why the processes described in the Guidelines cannot be explained by an expert in evidence. Nor is evidence of that kind inconsistent with the previous approach to fingerprint evidence. This Court, in Buisson at 549, made it clear that admissibility of fingerprint evidence did not depend upon proof of a specified number of points or characteristics. Further, the need for a judicial caution of the type mentioned in Buisson (at 548) has been overtaken by the developments in fingerprinting techniques described in this judgment.

[77] Both the methodology employed and the major factors that influenced the opinion reached must be capable of articulation. In our view, expert evidence given to reflect an approach consistent with the Guidelines must identify the steps undertaken in the process of analysis and the major factors that influenced the expert to reach the opinion expressed.

[78] Verification is an integral part of the identification process under both the Guidelines and the 2001 standards used in England and Wales. Accordingly, in some cases, the Crown may consider whether to call another expert (who has conducted a peer review) to verify the opinion expressed by the primary expert. The absence of a verifying witness may enable counsel for an accused to question the reliability of fingerprint evidence in an address to the jury but will not render unchallenged expert evidence identifying a fingerprint inadmissible. Nor will the absence of a verifying witness require the trial judge to warn the jury that it ought to

exercise caution before relying on it. As to the use of hearsay evidence of peer review of fingerprint evidence, see R v Mokaraka [2002] 1 NZLR 793 (CA) at [38] - [41].

[79] In this case, Mr Sambajon’s evidence fell short of what was necessary to provide a basis for his opinion. The furthest his evidence went was to agree, and then in answer to a leading question from the prosecutor, that there were sufficient identification characteristics in the same ridge sequence to support a positive identification. In addition, in voir dire evidence, Mr Sambajon said that no notes were made during the identification process. He said the process was visual and substantiated by peer review. Although he explained the methodology employed and the need for individual identification by a person having expertise in evaluating such evidence, he failed to explain the major factors (other than reliance on peer review) that led him to the view that the fingerprint lifted at the scene could be identified as Mr Carter’s. Mr Sambajon was asked how he had arrived at his opinion but was unable or unwilling to provide an explanation. The major factors that led him to that view ought to have been elicited through non-leading questions in evidence-in-chief.

(vii) Were the Judge’s directions adequate?

[80] No specific directions were given by the trial Judge in relation to the fingerprint evidence. Rather than tailoring the directions to the specific evidence given, the Judge elected to direct the jury in terms of the standard direction for expert evidence. The Judge said:

[59] The next aspect of the evidence concerns the way you should deal with the evidence given by the experts, and in this case there are four witnesses who come under that heading. They are Dr Coxon, Dr Witherspoon, Mr Hugel and the fingerprint officer, Mr Sambajon.

[60] Normally witnesses are not allowed to give, will only give, evidence about what they saw or heard or did, and they are not allowed to express opinions. So somebody standing in the street who sees somebody running by cannot say, ‘well, they were running from there to there and therefore I think that is why they were doing it”. They can simply give evidence about what they observed. But people who have specialist qualifications and experience are permitted to give opinions about matters within their areas of expertise, and they are allowed to do that because their knowledge may help

you to understand subjects that are outside most people’s areas of general knowledge.

[61] In assessing that evidence, you must have regard to the qualifications and experience of the witnesses, but you have to remember that this is a trial by jury; it is not a trial by expert, and it is for you to decide how much weight or importance you give to the opinions which the expert witnesses have expressed. Indeed, whether you accept them at all in the context of all the evidence that you have heard. You also need to remember that the expert witnesses gave their evidence in relation to their areas of expertise.

[62] Your task is to reach verdicts on the basis of all the evidence, and in that regard you have a much broader perspective. They were not sitting through all the evidence as it was given; you have been.

[81] The Judge’s decision to direct the jury in this way seems to have been made in reliance on the way the respective cases were put to the jury in closing.

[82] Frater J explained to the jury that the Crown had submitted that the fingerprint evidence of Mr Sambajon was “damning”. But, she emphasised, the Crown did not rely upon that evidence alone. She said:

They ask you to look at the fingerprint evidence in conjunction with all the other evidence and, in relation to the argument that fingerprints cannot be dated, Mr Stone suggested that it would be incredible coincidence if fingerprints made a long time ago just happened to turn up on the flask on the stove and on the recipe for the manufacture of the drugs. Obviously those are matters that you need to consider and draw your own conclusions on.

[83] Dealing specifically with the Crown case against Mr Carter, Frater J said:

As far as Mr Carter was concerned, the evidence against him relied upon by the Crown is the presence of his fingerprint on the eight page document containing the recipe for methamphetamine, the fact that he ran away when approached by the Police Officer, the suggestion that he had discarded ammunition, the fact that the Honda car was registered in the name of Tracey Carter and that he was seen by Detective Simpson sometime earlier with the car and, similarly, the link with Mr Pirimona.

[84] It was open to counsel for Mr Carter, having regard to the way in which Mr Sambajon’s evidence was given, to ask the jury to place no reliance on it because of the absence of any reasons to justify the opinion reached. Counsel for Mr Carter could also have advanced the propositions that the absence of a verifying witness was significant given the emphasis on verification as part of the new approach to fingerprint identification. However, that was not the way in which Mr Blathwayt put

the case for Mr Carter to the jury. The Judge summarised Mr Blathwayt’s submission on the fingerprint evidence as follows:

In relation to his fingerprints on the recipe, [Mr Blathwayt] said that there was evidence that the paper had been handled by a lot of other people. But, in fact, the evidence was, and again you need to look at this, that there were a lot of prints on that paper. So whether you conclude from that that it had been handled by a lot of people or simply that one or two people had handled it, or the same people had handled it a number of times is a matter for you to consider. But, in any event, he, like the other defence counsel, emphasised that the prints were found on a piece of paper and that a piece of paper is inherently portable. So it was not evidence, he submitted, that that particular piece of paper had been used at the time methamphetamine was being produced if, in fact, it had been produced at the time that the Armed Offenders Squad arrived. In that regard he asked you to consider where the paper was found and that it was not with the drug manufacturing equipment.

[85] After the jury had retired at the conclusion of the summing up, the Judge asked whether there were any matters arising out of her summing up that counsel wished to address. She heard from all counsel. It is clear that Mr Blathwayt raised one issue concerning the fingerprint evidence. After recalling the jury for further directions, Frater J said:

And, similarly, Mr Blathwayt, at p 180 [of the notes of evidence], put to Mr Sambajon that many people [had] handled the recipe document. And again you need to look at the evidence in that regard as to what the witness’ replies were, because it is the witness’ evidence that you need to rely on, not what counsel said.

[86] The question for our consideration is not whether another Judge might have directed the jury to take care in evaluating Mr Sambajon’s evidence in the absence of reasons to support his opinion, but whether it was open to Frater J to direct the jury in the way she did.

[87] Although Mr Sambajon’s inability or unwillingness to explain the basis for his opinion was squarely in issue as a result of the questions put to him by counsel for the accused, no reference was made to that inability or unwillingness in their closing addresses. Rather, the focus of closing addresses was on whether there were other people who had handled the recipe who might have been culpable. The portable nature of the documents on which fingerprints were found were matters emphasised by counsel for both Mr Carter and Mr Townsend.

[88] The evidence given by Mr Sambajon passed the threshold described by Tipping J in Calder to render it admissible. Having heard the way in which the cases for the accused were put to the jury, it was open to Frater J to decide that the standard direction on expert evidence was all that was required.

[89] Once admissibility is determined and the evidence is before the jury for consideration, it is for the jury to determine what weight ought to be given to it. It is clear that the jury decided that the totality of the evidence against Mr Carter was sufficient to return guilty verdicts on the charges subject to appeal.

[90] It being open to the Judge to direct the jury in the manner she did, the challenge to the fingerprint evidence must fail.

Trial Judge’s jury directions on other evidential issues

[91] The final appeal point concerns the adequacy of jury directions in respect of the ammunition and fingerprint evidence, the degree of connection between Mr Carter and the white Honda vehicle and the evidence of an outstanding arrest warrant against Mr Carter.

[92] Mr Blathwayt submitted that this evidence required a stern direction that the jury ought to exercise real caution before relying upon it.

[93] Mr Thomas submitted that when the summing up is read as a whole the jury could not have been under any misapprehension as to the way in which the evidence was to be assessed.

[94] We agree with Mr Thomas. The Crown case depended entirely on circumstantial evidence. The Judge made that perfectly plain to the jury. She gave the standard directions on circumstantial evidence and reinforced the need for the jury to assess carefully inferences that the Crown asked them to draw.

[95] We consider it unnecessary to go through the evidential issues in detail. Save for the fingerprint evidence, the directions to the jury were adequate and required no further elaboration.

Sentence appeal

[96] Mr Blathwayt’s challenge to the sentence imposed was to the starting point chosen by the Judge. We were referred to R v Horton [1991] 3 NZLR 549 (CA) dealing with the dividing line between an attempt and a completed act.

[97] Mr Thomas submitted that this case was one in which the penalty ought not to have been too far distant from the sentence that would have been imposed on a manufacturing charge. He submitted that the starting point of five years imprisonment, before taking into account mitigating factors, could not be impugned; nor could the end sentence of four years imprisonment.

[98] In sentencing Mr Carter, Frater J said:

... I do not accept your expression of non-involvement in this offending, especially given the fingerprint evidence. I accept, however, that you are entitled to a reduction in the starting point of five years that I have set to reflect the considerable steps that you have taken to turn your life around in the last year or so. And, accordingly, I impose a sentence of four years imprisonment on you also. I also impose concurrent sentences of two years imprisonment on the charges of possession of pre-cursor substances and possession of equipment.

[99] The lead charge for the purpose of sentencing was the charge of attempting to manufacture methamphetamine. The Judge decided to take a starting point of five years imprisonment. That represented half of the maximum sentence available to the Judge.

[100] In determining that starting point, the Judge had regard to what she considered would have been an appropriate starting point for sentence on a manufacturing charge having regard to R v Arthur [2005] 3 NZLR 739 (CA). Having regard to the “very large quantity of precursor substances” found at the property and “the large amount of waste material and the scientific evidence”, the

Judge took the view that, had the charge been one of manufacturing, a sentence in the range of 7 to 8 years imprisonment would have been appropriate. That view may now be regarded as too lenient: see R v Fatu CA415/04 18 November 2005 at [43].

[101] The Judge did approach sentencing on the basis that the starting point should be lower than that for a manufacturing charge. Even having regard to what was said in R v Horton, we cannot accept that the starting point for sentence was too high in the circumstances described by the Judge. Nor was the end sentence manifestly excessive.

[102] The appeal against sentence also fails.

Result

[103] For the reasons given, the appeals against both conviction and sentence are dismissed.

Solicitors:

Crown Law Office, Wellington