R v Hien Puoc Tang [2006] NSWCCA 167 (24 May 2006)
CITATION: R v Hien Puoc TANG [2006] NSWCCA 167
FILE NUMBER(S):
2121 of 2005
HEARING DATE(S): 6 March 2006
DECISION DATE: 24/05/2006
PARTIES:
Hien Puoc TANG (Applicant)
Regina (Respondent)
JUDGMENT OF: Spigelman CJ Simpson J Adams J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 04/11/0233
LOWER COURT JUDICIAL OFFICER: Finnane DCJ
COUNSEL:
M Ramage QC (Applicant)
D Freason SC (Respondent)
SOLICITORS:
C Blinksy – Horowitz & Bilinsky (Applicant)
S Kavanagh – Solicitor for NSW Director of Public Prosecutions (Respondent)
CATCHWORDS:
CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether opinion evidence of identity based on facial mapping and body mapping admissible.
CRIMINAL LAW – Evidence – Expert opinion – whether facial mapping and body mapping constitute areas of “specialised knowledge” – meaning of “specialised knowledge” – meaning of “knowledge” – s 79 Evidence Act 1995 (NSW).
CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether curriculum vitae of witness correctly admitted.
CRIMINAL LAW – Practice and Procedure – Whether the use of the phrase “ultimate issue” in directions constituted a miscarriage of justice.
WORDS AND PHRASES - "specialised knowledge", "knowledge".
LEGISLATION CITED:
Evidence Act 1995 (NSW): s 79, 177, 135, 137
Federal Rules of Evidence 2004 (United States): Rule 702
DECISION:
1 Appeal allowed
2 Conviction quashed
3 A new trial to be held.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
2005/2121
SPIGELMAN CJ
SIMPSON J
ADAMS J
Wednesday 24 May 2006
REGINA v Hien Phuoc TANG
Facts
The Appellant was convicted of one count of robbery when armed with an offensive weapon. The robbery occurred in a convenience store and was videotaped by a surveillance device. The tape showed three offenders but was not of sufficient quality to enable clear identification of the offenders.
Two of the offenders were arrested forty minutes after the offence. The car in which they were travelling contained property like that stolen from the convenience store. DNA evidence connected the co-offenders to hats in the car, which matched those worn by two of the offenders on the surveillance video. The co-offenders pleaded guilty.
The Appellant came to the attention of the police eight months after the robbery and was linked to the offence through fingerprints found on some of the stolen goods. At trial the Appellant gave evidence that he had met the co-offenders some months prior to his arrest in order to purchase marijuana. As part of this transaction he said he had purchased some cigarettes, in the course of which he handled various packets within the bag of stolen goods.
The Crown case turned to a significant degree on opinion evidence from Dr Meiya Sutisno, who identified points of resemblance between the surveillance images of the third offender and photographs of the Appellant based on facial mapping and body mapping techniques. Dr Sutisno expressed three kinds of opinion: first, that the two bodies of photographs depicted the same person; secondly, that there was a level of support to this conclusion by application of a six point scale; and, thirdly, that certain characteristics were “unique identifiers”.
Held (allowing the appeal):1. Admission of the curriculum vitae
Dr Sutisno’s curriculum vitae was correctly admitted and did not lead to unfair prejudice. [92]
2. Directions as to the ultimate issue
The use of the phrase “ultimate issue” in the trial judge’s directions did not lead to a miscarriage of justice, particularly as the witness did eventually give evidence of identity. [97]
3. Expert evidence regarding co-accused
The expert evidence identifying the co-accused from the surveillance video was relevant. It was a significant part of the Crown’s case to establish that the co-accused were two of the offenders pictured in the video tape. The Crown was not restricted in how they established that fact. This evidence reinforced the witness’ methodology and expertise. [99]-[100], [102]-[104]. However, the Appellant did not at trial, or on appeal, seek to rely on the discretion to exclude unfairly prejudicial evidence. Rule 4 applied. [104]
4. The jury question
When putting a question from the jury to Dr Sutisno, the trial judge did not invite a self-serving answer or impermissibly descend into the arena. [107], [109].
5. The trial judges’ directions
The trial judges directions were not confusing or inadequate. In one respect raised on appeal, his Honour directed the jury in accordance with the submissions of the Appellant’s legal representative at the trial. [113], [117]-[119].
6. Admissibility of expert opinion evidence
Evidence of similarities between the photographs of the Appellant and the photographs of the third offender was admissible. This evidence was based on the witness’ specialised knowledge and on experience gained through multiple viewing of the two sets of images. [120]
(Butera v Director of Public Prosecutions (Vict.) [1987] HCA 58; (1987) 164 CLR 180; R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405; R v Li (2003) 139 A Crim R 28 cited.)
The three kinds of opinion expressed by Dr Sutisno were not admissible. [121]
(In the matter of the appeal of BLM (District Court of New South Wales, unreported, 14 September 2005) and The Queen v Murdoch (No 4) [2005] NTSC 78 considered.)
In order to be admitted under s79 Evidence Act 1995 an opinion must satisfy the two limbs of the section. First, an area of “specialised knowledge” derived from either “training, study or experience” must be identified. Second, the opinion must be shown to be based “wholly or substantially” on the identified area of specialised knowledge. [134]
The focus of attention must be on the meaning of the statutory phrase “specialised knowledge”, rather than by invoking extraneous ideas such as “reliability”. In the context of “specialised knowledge”, the word “knowledge” connotes more than subjective belief and unsupported speculation.
(Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402, Perpetual Trustee Co Ltd v George (New South Wales Supreme Court, unreported, 19 November 1997), Idoport Pty Ltd v National Australia [1999] NSWSC 828 cited; Daubert v Merrell Dow Pharmaceuticals Inc [1993] USSC 99; 509 US 579 (1993) considered.)
On the evidence at trial there does appear to be an area of specialised knowledge based on facial identification. However, no foundation was lain that evidence of body mapping constitutes an area of specialist knowledge. (R v Li (2003) 139 A Crim R 28 referred to.) Because this technique formed an important part of the three opinions set out above, they fail to satisfy the first limb of s79. [135]-[136], [140].
With respect to each of the three opinions expressed, the witness did not reveal her process of reasoning and therefore failed to satisfy the second limb of s79. [141]-[147], [152]-[155]
(R v Gilmore (1977) 2 NSWLR 935 and R v McHardie and Danielson [1983] 2 NSWLR 733; HG v The Queen [1999] HCA 2; (1999) 197 CLR 414; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 and R v Gray [2003] EWCA Crim 1001 considered; R v JCG (2001)127 A Crim R 493; Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; (2000) 120 FCR 146; Australian Securities & Investments Commission v Rich (No 2) [2005] NSWCA 152; (2005) 54 ACSR 326; R v Adler [2000] NSWCCA 357; (2000) 52 NSWLR 451; R v Krausch (1913) NZLR 1229; Daubert v Merrell Dow Pharmaceuticals Inc [1993] USSC 99; 509 US 579 (1993); United States v Havvard 117 F. Supp 2d 848 (S.D. Ind 2000); United States v Llera Plaza I Nos. CR. 98-362-10 (E.D. Pan Jan. 7 2002); United States v Llera Plaza II 188 F. Supp 2d 549 (E.D. Pa. 2002); United States v Mitchell [2004] USCA3 86; 365 F. 3d 215 (3d Cir. 2004) referred to.)
7. Orders
1 Appeal allowed.
2 Conviction quashed.
3 A new trial to be held.
IN THE supreme COURT
OF new south wales
court of CRIMINAL APPEAL
2005/2121
SPIGELMAN CJ
SIMPSON J
ADAMS J
Wednesday 24 May 2006
REGINA v Hien Phuoc TANG
Judgment
1 SPIGELMAN CJ: The Appellant was charged with one count of robbery when armed with an offensive weapon. An offence occurred on 14 March 2003 at about 3.55am at a convenience store in Ultimo, Sydney. The Appellant was tried before Finanne DCJ and a jury. He was found guilty.
2 The robbery had been videotaped by means of a surveillance device installed on the premises. The videotape showed that three offenders were involved. However, it was not of sufficient quality to enable viewers to clearly identify the offenders. Two co-accused, Hai Dang Nguyen and Qouc Toan Nguyen, pleaded guilty on the first day of a joint trial. The issue in the trial that proceeded was whether the Appellant was the third offender. The Crown case was that the Appellant was the person who appeared on the tape wearing black clothing and, at one stage, had a gun in his right hand.
3 The property stolen from the convenience store comprised $910 in cash, 202 packets of cigarettes of different brands and a quantity of chewing gum of a particular type and brand. The co-accused were arrested about 40 minutes after the offence. In the car in which they were travelling there was located a plastic garbage bag containing 44 packets of cigarettes and eight packets of chewing gum of the type and brand taken in the course of the robbery along with cash in the form of $53 in coins. One of the co-accused had $300 in bank notes in his pockets. The clothing worn by the co-accused at the time of their arrest and/or located in their car matched that worn by two of the participants in the robbery as displayed in the surveillance video. The connection was reinforced by DNA found in the distinctive caps of the co-accused.
4 The Appellant came to the attention of the Police some eight months after the robbery. His fingerprints were found to match fingerprints located on three of the packets of cigarettes found in the car driven by the co-accused on the day of the robbery.
5 At his trial the Appellant gave evidence that, on an occasion some months before his arrest, he had arranged to meet Dang Nguyen and Qouc Toan Nguyen in order to buy a quantity of marijuana. He said that he met them, in company with a third man, in a vehicle corresponding to the description of that in which the co-accused were arrested, which was parked in a laneway in the City of Sydney. He said it was in the early hours of the morning. He got into the car and bought some marijuana and four packets of Winfield Gold cigarettes at a discount price. His evidence was that, in the process of making this purchase, he handled a number of objects in the black garbage bag, while looking for his preferred brand of cigarettes.
6 The person working at the convenience store at the time of the robbery gave evidence that the offender, being the man in a black shirt who produced the gun, asked for Winfield Gold cigarettes. That is the brand that the Appellant said was his brand. However, the person was not able to give positive identification evidence from the photographs shown to him. Instead he chose three photographs saying that they “might be” the third offender.
7 The Crown case turned to a significant degree on the expert testimony of Dr Meiya Sutisno. Dr Sutisno’s qualifications to give evidence and his Honour’s directions with respect to this evidence is the critical issue in this appeal.
The Voir Dire
8 The admissibility of the evidence of Dr Sutisno was challenged on a voir dire. His Honour viewed the videotape of the robbery and still photographs taken from that videotape. His Honour said with respect to the photographs of the third offender:
“Still photographs have been prepared of that particular view of that particular robber's face and photographs of him and the others at various stages have also been obtained. It is my opinion, looking at that photograph, that the jury could not determine who that photograph actually showed; it is too blurry; the facial features are quite hard to see; it is not possible to see if the person is of any particular racial composition.”
9 On the basis of the material before him, his Honour concluded with respect to the expertise of Dr Sutisno:
“Dr Sutisno is clearly an expert in the field of forensic anatomy and she has a particular specialty within that quite broad field of facial identification; that is, analysing faces from surveillance images and face reconstruction from the skull. I am satisfied from her curriculum vitae and the examples she has given of analysis she has done that she has on numerous occasions performed face analysis to assist police with possible identification of persons who have committed crimes. She has also considerable experience in identifying people from skulls and parts of their body.
For the purpose of determining whether a particular person is a person whose face she is looking at, she on occasions examines the whole of the body movements, posture, walking, the way in which hands are held and other features which indicate the way in which particular people stand and move and look. She is much more than an artist or someone qualified by long experience of doing something. She is someone who has very high qualifications in anatomy and extensive experience in applying those qualifications.
As part of her technique of identification of persons, she studies videos of the type I have mentioned that have been shown in this court and still photographs and compares them with photographs taken of particular suspects. She uses computer programming to enhance the video images to determine what characteristics there are of the particular face, looking for distinctive features, eyes, nose, cheek bones, mouth and so on.”
10 His Honour described Dr Sutisno’s proposed evidence in the present case as follows:
“... [S]he looked for features of the face. What she discovered were a number of features in the video when she played it back and forth and enhanced the photo to determine what the main features were. It showed distinctive features of the person in the video.
She then got the photographs supplied by the police, ensured that they were of correct dimensions and using a technique with which she is familiar, superimposed one photograph on the other and determined that there was a match - four out of six characteristics, or four out of six was her determination. Her view was that the person in the video was the person in the photograph.
In my opinion, no juror looking at the video could come to any such conclusion and if the best evidence and only evidence were the video evidence, if there was no other evidence linking the accused to the case, it would be my view I would have to exclude that evidence altogether as being too unreliable. Without an expert, it would be impossible to determine what the video material showed.”
11 His Honour concluded that Sutisno had the expert knowledge to give the expert opinion and added:
“I have looked carefully at the way in which she expresses her opinion. She appears to me to express her opinion based on facts made known to her and entirely within the field of her own expertise. I do not accept that she can be regarded as an expert anatomist and could give evidence of morphology, but when she uses computer enhancement photographs, she is in some way going outside her field as an expert.
In my opinion her field as an expert requires her to use technology which includes placing photographs through scanners on to computers and using appropriate software to bring those photographs up and enhance them so that she can see the features. I see no difficulty in her being regarded as doing that within her expertise.
There is no requirement, as such, that she establish to a jury by producing the computer images, exactly what she did. She might choose to do that. The Crown might choose to do that. It is a matter for the Crown. Her evidence of course is subject to attack. The fact that in my opinion it is admissible, does not mean it is not subject to attack, and it is a matter for the jury to evaluate that evidence and decide, if they accept it. It has to be said that she is much more than an artist or a person whose expertise has been obtained merely by looking at photographs over many years. She is someone whose expertise comes from her knowledge of anatomy, that is, of the body, features of the body underneath the skin.”
12 His Honour was asked to exclude the evidence in the exercise of discretion.
13 With respect to s135 of the Evidence Act 1995 (NSW), his Honour said that he was of the view that the evidence was of “very substantial value” and added:
“There is nothing, in my opinion, unfairly prejudicial to the accused in the admission of this evidence. I am unable to come to the conclusion that the evidence might be misleading or confusing. At least in theory as to whether in fact, as it is given that occurs, is a different matter, but I cannot prophesy for the purpose of determining whether something should be excluded, whether in fact it could be misleading or confusing, as given to the jury. That may be so.
If that occurred, and I came to the conclusion that the evidence itself, as presented, was misleading or confusing, I would revisit the question of exclusion of it and would exclude the evidence, even though it had been given.”
14 His Honour also referred to the s137 discretion and concluded that the probative value of the evidence was not outweighed by the danger of unfair prejudice. His Honour indicated that he would reconsider the issue of unfairness if raised again after the evidence was given. His Honour concluded:
“I am of the opinion, to make it perfectly plain, that without this evidence, the jury would be unable to come to any conclusion about the identity of the person in the black garb as shown in the video. It would require a guess on their part and I do not think that any jury can be asked to guess.”
15 It will be necessary below to outline some of the evidence given on the voir dire as to the qualifications of Dr Sutisno and the area of expertise which she professes. Further evidence in this regard was given during the course of the trial.
The Course of the Trial
16 Dr Sutisno was supplied with the videotape of the offence and stills extracted from it, together with forensic photographs of the Appellant and his two co-offenders. Dr Sutisno played the video at different speeds, froze the video and magnified the images on her computer. She used a magnifying glass to further enhance the images.
17 Facial and body mapping employs three techniques: photo-anthropometry, morphological analysis and photograph superimposition.
18 A list of definitions became an exhibit at the trial:
“Morphology
Shape, structure, character, form
Morphology analysis [facial and body mapping]
The feature by feature approach to evaluating faces, heads and bodies. It involves the comparison of two images – one from the crime scene and one of the suspect. It involves subdividing the face, head and body into components to obtain a thorough qualitative analysis and to determine visual similarities or differences.
Photograph superimposition
A process of overlaying two comparably enlarged images to provide a visual display through the use of video or computer technology of the definitive similarities or differences between the offender and suspect.
Unique identifiers
These are features distinctive to an individual [the most recognisable features] such as deformities, blemishes, tattoos or habitual characteristics [for example, posture, limp or fidgeting].
Photo-anthropometry
Photo-anthropometry is a technique that attempts to metrically compare the proportional relationships of one photo to another rather than determine absolute visual similarities, as is done in morphological comparisons. It involves the analysis of anthropometric landmarks, dimensions and angles [simply] to quantify facial characteristics and proportions from a photograph.
Adobe Photoshop 6.0
Visual graphic software that enables the operator to magnify, enhance, adjust opacity or contrast or brightness, sharpen, rotate or tilt a photographic image.”
19 Dr Sutisno compared measurements and dimensions of faces (photo-anthropometry) and individual facial and body features (morphological analysis). She magnified photographs of the offender to the same size as the suspect, changed the opacity of one before putting it on top of the other, in order to see whether the features aligned or one could be overlayed over the other (photograph superimposition). Furthermore, she identified distinctive individual characteristic and habits, which she called “unique identifiers”.
20 Dr Sutisno used photo-anthropometry as a first step in facial and body mapping, but did not rely solely on the findings of this procedure because of the possibility of two or more people having the same dimensions. She regards morphological analysis as more accurate than photo-anthropometry, because it compares individual facial and body features and takes into account distinctive characteristic habits of the individual. She asserts that morphological analysis provides results sufficient to show whether two sets of photographs people were of the same person or not.
21 Ms McSpedden, who appeared for the Appellant at trial, made an application to discharge the jury based on the fact that the photo boards used by Dr Sutisno in giving her evidence did not contain the material she had herself used in order to come to her conclusions. The particular mechanisms of computer-generated images which she had employed could not be replicated in the court. His Honour rejected the application on the basis that it was often not possible to reproduce in court the precise tests used by an expert. There is no appeal based on this issue.
22 A substantial proportion of Dr Sutisno’s evidence consisted of identifying comparable features between the two sets of material, i.e. of the offender and of the suspect. The videotape, or the stills derived therefrom, was not in a fit state to be compared by the jury with the photographs of the three suspects. The Appellant does not challenge the admissibility of this part of the evidence about himself.
23 The focus of the appeal is Dr Sutisno’s positive evidence that the Appellant was the person depicted in the video. This was given in the following form:
“Q. Now after you had conducted all of those comparisons and all of those things that you do as part of your method were you in a position to form a view as to the identity of the person in the black shirt on the surveillance video as compared to the person identified as Mr Tang in the forensic procedure photographs?A. Yes.
Q. What opinion did you reach?
...
A. The results of the analysis lends support to positive identification. Given my experience in looking at faces and analysing them, matching them, etcetera and building them up as well, I formed the opinion that given that number of matches I’m of the opinion that they’re of the same, one and the same.
Q. One and the same person?A. Yes.”
24 Dr Sutisno said that the quality of matches of comparable features, not the quantity, were key to her findings. A lot of points which did not uniquely or distinctly characterise a person carried, in her view, less weight than a small number of what she called “unique identifier” points. She said that this type of analysis required an understanding of anatomy, including the interrelationship between bone (a constant) and the gross dimensions of the face. Dr Sutisno confirmed that, in her analysis of the Appellant and the co-offenders, she took into account their underlying skulls and skeletal make-ups. She said morphological analysis was not affected by the height or distance from which a surveillance photograph may have been taken, as long as both photographs used for comparison were of similar perspective (angle). In cross-examination she said that only a gross distortion of the angle (a completely different angle) would make a difference to such analysis.
25 With respect to the Appellant, a photo board containing the two sets of photographs was tendered, along with a Morphological Features Chart. Dr Sutisno outlined her mechanism of adjusting the photographs so that they had the same angle. Her evidence included a comparison between the two sets of material in terms of identifying similarities such as the thickness of the lips, the existence of a dimple on the chin, the fact that each chin was “squarish” and the jaw structure “angular”. She also identified, in accordance with her classification that was before the jury, that the two facial forms were “pentagonal”, that the facial height was “medium”, and there was a “lateral projection” of the cheekbones, meaning a projection to the side. She referred to a wide chin and visible lips seam, a slight projection of the ears and what is described as a “mezzo-cranic head shape”, meaning a short, broad and high head with a flattened occipital region, being the back of the head. She also identified a number of the features in both sets of material as characteristics of an Asian person. She referred to similarities in terms of the “upright posture of the upper torso”. Dr Sutisno also identified three “unique identifiers”: the lips, the wide square chin with a dimple and the posture.
26 In her Statement, Dr Sutisno summarised her morphological analysis of photographs of the Appellant as follows:
“[22] Morphological Analysis of the face and body revealed definitive resemblance of the most noticeable features (i.e. pentagonal face shape, pronounced projection of cheekbones, wide and thick upper and lower lips, wide square chin with dimple and relatively upright posture) and several details of additional morphological features such as slight ear projection and black coloured hair with visible sideburns.
[23] More significantly were the definitive resemblance of the wide and thick upper and lower lips, wide square chin with dimple, and relatively upright posture which constitute as ‘unique identifiers’ or most distinctive features, enhances the support for positive identification.”
27 With respect to the process of Photographic Superimposition Dr Sutisno summarised her more detailed report as follows:
“[31] When enlarged still frame images of the offender were superimposed onto an identically sized forensic photographs of Hein TANG, definitive resemblances were discovered with respect to the facial outline, lateral projections of the cheekbones, form and projection of the chin, jaw line, width and shape of mouth, thickness of upper and lower lips, placement of nose (i.e. right nostril), and placement of eyes.”
28 Dr Sutisno concluded:
“[34] Based wholly and substantially on the above knowledge, it is my opinion that the multiplicity of common morphological features, unique identifiers and Asian characteristics to lend support that the offender and the alleged suspect Hien TANG are one and the same.”
29 It is noticeable from these extracts that the only reference to aspects of the comparison which go beyond the face and head, of the two sets of material being compared, is the reference to “relatively upright posture” in [22] and [23], referred to in the statement as a “unique identifier”. This reflects the more detailed report where under the heading “Summary of the morphological features that have been matched” there were nine characteristics relating to face, cheekbones, jaw, chin, mouth, ears, head and body, of which only one went beyond the face and head and was described in terms only of “posture, upper torso”. The process of photographic superimposition did not involve anything beyond the head and face.
30 Dr Sutisno said that she had adopted a mode of expressing conclusions from an article by MC Bromby “At face value?” (2003) 153 New Law Journal: Expert Witness Supplement 302-304. He advanced six categories:
· Level 1: lends no support;
· Level 2: lends limited support;
· Level 3: lends moderate support;
· Level 4: lends support;
· Level 5: lends strong support;
· Level 6: lends powerful support.
31 The article was directed to facial identification only. Nothing in this article supports the expression of an opinion that the person depicted in the two sets of material were one and the same person.
32 Dr Sutisno produced two reports in the case of the Appellant. Her first report concluded that there was “limited support”. The second drew the conclusion of “support”. She indicated that she had changed her view in this respect recently. She said that the evidence enabled her to draw a conclusion at a higher level.
33 Dr Sutisno gave the following evidence:
“HIS HONOUR: Q. What do you mean by limited support or what do you mean by support?A. Limited support is, there isn’t enough to suggest they are one and the same person. I made a mistake with the first one, for whatever reason I can’t remember, but previous to coming to court this time round when I was reviewing the material, the results and basically my material, my testimony, I was very surprised towards the end when, I was very surprised that I concluded limited support. I thought no, because that’s not right. Given the number of matches including the unique identifiers including the Asian characteristics and how it was able to be superimposed, there is support there, there is suggestive that, you know, support for me to say yeah it’s one and the same.
CROWN PROSECUTOR: Q. At my request did you, once you’d realised you had made a mistake, you prepared your fresh statement and report?A. Yes.
Q. You put in your more recent report, lends support. What’s lends support mean when you use it?
...
A. ... [W]hen you have support, lends support or lends strong support or lends powerful support, it noting the evidence as showing that they are one and the same. The difference in the classification is just basically noting the number of angles views available. So the powerful support is more or less relating to the more angle view of the perspective you have. But that doesn’t mean that at the level of lends support that it’s not the same person.
Q. What is your current opinion?A. My current opinion is they are of the same person.”
34 In the course of her evidence before the jury, Dr Sutisno outlined her background, qualifications and her approach. As had occurred during the voir dire, the questioning by the Crown Prosecutor referred without distinction to both “facial and body mapping”. No attempt was made to distinguish between the two. The Prosecutor went on to ask detailed questions about morphology which concentrated only on matters of facial form.
35 Dr Sutisno gave evidence applying her technique to the circumstances of the two co-offenders, who were also depicted on the videotape. Although the jury was not informed that the two co-offenders had pleaded guilty, the circumstances of their apprehension 40 minutes after the offence had been committed, in possession of the material found on that occasion, was before the jury. Furthermore, the jury heard evidence that DNA found in the caps worn by the co-offenders confirmed their participation in the robbery. This body of evidence clearly reinforced the evidence which Dr Sutisno gave about the Appellant, and its admission is in issue in this appeal.
36 The detail that Dr Sutisno gave about the facial mapping of the two categories of material about the Appellant was of a different order to that which she provided about body mapping. The same was true about her evidence with respect to the two co-offenders.
37 In the case of the two co-offenders she indicated that one had a medium build upper torso and appeared “rather stocky” and was “broad shouldered” with a “physical slouch” (T114). She concluded with respect to that co-offender that the two sets of materials were “of the same person” (T124.47).
38 With respect to the body of the second co-offender she said that there was a similar kind of proportion between a longer body and shorter legs but wider shoulders together with a curvature of the shoulders (T128-129) and a “slouching of the shoulders and the upper torso and the ... bulkiness of the chest”.
The Trial Judge’s Directions
39 His Honour had directed the jury on the issue of the expert evidence in the course of Dr Sutisno’s evidence in chief. His Honour then said (T 122):
“I have determined before you became involved that this particular witness was qualified to give this evidence. It is for you to decide whether you accept her evidence. The fact that she’s extremely well qualified and expresses views based on her qualification and experience and her study does not relieve you of the liability to decide whether or not there is evidence that satisfies you that the accused has been proved beyond reasonable doubt to be the person in black carrying the gun who was one of the robbers in the shop.”
40 His Honour then referred to the evidence then being given by Dr Sutisno with the use of the photo boards and added (T 123):
“You should understand that she is giving opinions and her opinions - and she’s giving you the process and what it is she looked at and then how she arrived at her opinion. She cannot give you a magnification of the particular photos she looked at. It’s not possible in this Court to do because the equipment is not here.
This is not unusual with expert witnesses, I have to say. Medical practitioners often give evidence in Court about operations they conduct. It is very rare for video footage to be given of the actual operation. There may be a description of what was done. It is very rare indeed for some film to be shown of precisely how it was done. Engineers give evidence, all sorts of experts give evidence and sometimes they are able to show in exact - very exactly, everything that they did. Other times they can explain a process. They can give examples of what they did and they can show you a process of reasoning.
You then have to evaluate that in the end. It is for you and for you alone to decide whether the accused has been correctly identified. That task is not the doctor’s task. She’s giving you her expert opinion. You must take that into account, but you decide whether you accept it or you reject it in the end.”
41 After the evidence had concluded, his Honour provided the jury with written directions which included the following:
“The Crown case in this aspect relies on the identification evidence of Dr Sutisno and fingerprint evidence linking the accused to goods stolen from the premises during the robbery. It is for you to assess the expert evidence and to decide whether you accept it.
You alone decide the facts and no expert, even if highly qualified can take that role away from you. Naturally, you take into account the learning, training and experience of the experts in determining if you accept their opinions.
Dr Sutisno is a witness who has expert qualifications in forensic anatomy. She has a PhD in that field from the University of Sydney. Whilst it is for you to decide if she is an expert and has the qualifications she claims to have, I would direct you that it would be perverse of you to conclude that she is not qualified as she says.
Her evidence is directed to establishing the identities of each of the robbers. Her evidence as to the identities of the other two robbers is supported by other evidence identifying them as the robbers.
The question is whether her evidence identifying the accused as the person, as the robber dressed in black, is correct. You must scrutinise her evidence carefully. If you are satisfied beyond reasonable doubt that she has correctly identified the accused as the robber, you are entitled to find him guilty at the very least of robbery. If you find beyond reasonable doubt that at the time of the robbery he had in his possession a dangerous weapon, namely a gun, you should find him guilty of the offence charged.
If you are not satisfied that her evidence establishes beyond reasonable doubt that the accused is the robber in black that does not conclude the matter, because you must also consider the fingerprint evidence.”
42 In his oral directions, his Honour introduced the evidence of Dr Sutisno in the following way (SU 9-10):
The Crown says it has to assist you with expert evidence of a person who is trained in anatomy and whose speciality is facial and body identification and reconstruction. That is why she is called. She has an expertise in examining faces and bodies and determining whether that person is identical with this person or that person.
You have seen her curriculum vitae. You have been addressed about it by both counsel. You have heard her evidence. You have heard evidence that she has given about getting sculls and building them up into a face. You heard her give evidence she goes to Indonesia and is used to identify bodies, no doubt with other evidence such as DNA evidence. That is her expertise.
The question here is, not is she an expert able to express an opinion? It is a view of the fact, I suppose, that it would be ridiculous, perverse, to come to any conclusion other than the fact that she is an expert. The question is, has she correctly applied her training and experience and knowledge in comparing photographs and going through the processes that she went through to draw the ultimate conclusion that the Accused is the person in black in the store?
Now you examine that issue. You must determine the facts in the case. As I say here, it is not just a matter for an expert. If trials were just decided on the basis of expert evidence we would not have juries, we would just call experts and let them decide.”
43 His Honour said (SU 11-12):
“... [I]n determining her evidence you should take into account a number of factors.
Firstly, she has given evidence not merely about the Accused, but about two other men. Two other men were apprehended in a car about an hour after the robbery and were found with goods that links them to the robbery. Amongst those goods were three packets of cigarettes which has the Accused’s fingerprints on them; fingerprints from his left hand.
She has given evidence identifying, using the same process, each of those persons as being the persons in the shop, and has given evidence as to which one is wearing what sort of clothing.
There is DNA evidence that links one of the caps to one of them and one of the caps to the other one, and it just so happens that those persons who are linked by DNA evidence to the wearing of those caps are the persons that she says were wearing those caps and wearing those clothes.
So her evidence in relation to those two is supported to some extent by other evidence, DNA evidence, supporting what she says.
Coming then to the Accused, there is no DNA evidence as such supporting what she says. It is purely a question of her expert opinion. She is giving this opinion not as a person used to looking at photographs or comparing faces, but as someone who certainly does those things, but does it from the point of view of a person who is skilled in anatomy. That is, she understands the bony structures underneath the skin.
She uses magnification and various processes to come to her conclusion. She cannot and did not purport to bring a laboratory along here and show you precisely how she did it and with all the equipment that she had. She had a magnifying glass which I think you asked for at one point.
I doubt that it would have assisted terribly much unless your eyes are much better than mine, but she did not say she used that magnifying glass. She had some other sort of equipment, and she described the process of doing it. She says that that enabled her to reach this opinion that it was the Accused who was the man in black.
As with the other two men, it was not just his face. It was his body type, his racial origin, the way he held himself and other aspects that she considered important. You heard from both counsel the number of points of identification she made. You consider that.
You also must consider, as Ms McSpedden put to you, the fact that she had earlier expressed an opinion, earlier this year, which is much more doubtful about this identification than currently is her opinion. She has given evidence to you as to how she expressed this earlier view and why she expressed the later view. Basically she has said earlier she made a mistake. Her later view is the correct view. In fact she said it is just the way she expressed it rather than a difference of view.”
44 His Honour also made reference to the two co-offenders in his summing up in the following way (SU 14):
“The Crown says that the circumstances point inevitably to those two men, Phuoc Nguyen and Hien Nguyen, being two of the persons who were the robbers. They are found within an hour, they are Asian, they are the same body types that Mr Maqapleh described. They have got some of the objects that appear to be consistent with the objects taken from the store.
The Crown, in relying on circumstantial evidence I suppose, says that the circumstances point inevitably to their being involved, and them not just being two innocent men who just happened to have this material in their car. Their identification with the scene is assisted by the evidence of Dr Sutisno that they indeed were two of the men at the scene.
Now how does this all fit in? Well the Crown has also produced evidence about fingerprints. If indeed the packets of cigarettes were those taken from the store, and the Accused’s fingerprints are found on them, that is a circumstance that links him to the robbery.
So if you are satisfied beyond reasonable doubt that the circumstances establish that those two men and what they had linked to that robbery, well they were the robbers and this was part of the loot, and the Accused’s fingerprints are on some of the loot, there is a circumstance linking him to the robbery.”
45 Although this part of the summing up was directed to the fingerprint evidence in terms, it is pertinent to note what his Honour had said only a few moments before, in the passage already quoted above, about Dr Sutisno’s identification of the co-offenders, when he drew attention to her use of the same methodology in the case of her identification of the Appellant.
46 In the course of giving the jury directions on the issue of circumstantial evidence, his Honour said (T 10/12/04 SU 10-12):
“... [O]n all that circumstantial evidence there is built the evidence of Dr Sutisno, and if you accept her evidence then you should convict. If you are not sure whether you should accept it or not, you should find him not guilty.
You have to look at everything. I think the clearest example of something that could be consistent with guilt or innocence, to give you an example of that circumstantial evidence, is the fingerprint evidence. On its own it could point to either. If, however, the other two men are in the store, you accept that they have been shown to be in the store by a combination of the other circumstantial evidence and Dr Sutisno’s evidence that they were the men in that video, then the men in the video shown to have cigarettes in their possession which were stolen from the store and the accused’s fingerprints are on three of those packets. That would be a combination of circumstantial evidence of the evidence of Dr Sutisno which would entitle you to come to the conclusion that the accused was the third man.
Dr Sutisno’s evidence goes further because she also says he was the third man; just as the other two were there so was he. Now if you don’t accept her evidence then you have got a whole lot of circumstances pointing to suspicion but you haven’t got anything else. You should think long and hard about rejecting the evidence of an expert. It has to be said, of course, it is not like fingerprint technology, it is not something that has been going on for a hundred years, it is a new field and she has given an opinion. Maybe in a hundred years time, like fingerprint evidence, identification of this type will be so common place no one will question it. But anyhow, that is how we put together circumstantial evidence.”
47 In response to the jury’s request that they be given a transcript of his Honour’s directions on circumstantial evidence, he indicated that he could not do that but would repeat the circumstantial evidence direction if requested. The foreperson of the jury indicated that the jury wished that to occur. His Honour then proceeded to refer again to the evidence, including the oral evidence of the employee in the convenience store on the night of the robbery and the fingerprint evidence. He referred again to the video evidence involving the two co-accused but warned the jury not to speculate as to why the two co-accused were not on trial in the proceedings before the Appellant. He outlined the evidence about their arrest and what was found in their possession within 40 minutes of the robbery occurring. His Honour then repeated directions about the finding of the Appellant’s fingerprints on the cigarette packets.
48 He then said (T 13/12/04 SU 11-12):
“The Crown then puts before you evidence to show that the other two men were in fact the robbers, two of the robbers. Now if the Crown establishes beyond reasonable doubt that the other two were the robbers then their possession of the bag with the cigarettes in it obviously is a very closely linked circumstance isn’t it. If the Crown establishes they are the robbers and within an hour they are found with items that were taken from the shop, well there is something that is more than just a coincidence, on the Crown case.
Now the Crown seeks to prove they are robbers by relying on a number of things. First of all there is the direct evidence of Mr Maqapleh as to their general descriptions. Secondly there is the video evidence of how they stood and looked and walked and so on. And thirdly there is the evidence of Dr Sutisno. Because she says that each of them was in fact one of the people in that store. And she nominates which one is which, which one is wearing this cap and which one is wearing that cap. And in that case her evidence is supported as to the wearing of caps by DNA evidence, which is not disputed, there is no query about it. There is DNA evidence linking each of those two men separately to wearing a particular cap. So obviously they took the cap off and they left traces of themselves inside the cap, as I am sure my DNA is inside this wig. They tested it and they said “right, that man wore that cap - that man wore that cap”. Her evidence using visual comparisons, the way they stood, you may remember her evidence as to one stands with a concave sort of a look about him and one stands in a slightly different way, their physical stature and their faces. She said that man was wearing that clothing in the video and that cap and that man was wearing that clothing, and that man was at the scene and so was that man. That is expert evidence and of course it is based on a number of things. First of all photographs were taken of both of them. You have seen the photographs. She describes what the photographs mean to her, as to how they were standing and looking and so on. Well you take into account what she has said. If she has in fact established to your satisfaction beyond reasonable doubt that those two men were two of the robbers then that evidence supports the circumstantial evidence pointing to that and the circumstantial evidence pointing to that is the evidence of them being found with the cigarettes in the bag and the other things in that bag within an hour and wearing these particular clothing. Throwing the baseball caps in the back of the car, everything they did at the time. All that circumstantial evidence points to their involvement. If you accept Dr Sutisno’s evidence, that involvement which is pointed to by the circumstances, is established by her evidence. Now if her evidence does establish that they were, to your satisfaction and beyond reasonable doubt that they were two of the people at the scene, then those two people at the scene had in their possession a bag with cigarettes in it that were stolen at the scene and on which there were the fingerprints of the Accused, he has left fingerprints. The Crown then says, look at the video. How was the man with the gun, the man wearing the dark clothes, putting cigarettes in the bag. He was putting them in with his left hand. That is the explanation about how his left fingerprints got onto those packets. If you were satisfied beyond reasonable doubt that those two men were shown to be the robbers and they have in their possession with some of the stolen objects in it and his left fingerprints on those packets, there is circumstantial evidence linking him to the robber as the third man.”
49 His Honour then went on to say (SU 14-17):
“We have established to your satisfaction, says the Crown, that those two men were the robbers. We now wish to establish to your satisfaction that he also was the third man, the man in black and the man with the gun. Now, the photographs of him that were used to compare were obviously taken nine months afterwards, not on the night, because he was not arrested on the night. There was no DNA evidence to link him to any item of clothing because no-one could suggest that when he was arrested he was wearing the same clothing as the person in the shop on the night. So it then gets down to, really, Dr Sutisno’s science. Has she proved to you beyond reasonable doubt, or rather, has the Crown. She does not have to prove anything she is only a witness. Has the Crown proved to you beyond reasonable doubt that her evidence to you that that man in black is the Accused is correct? Because if the Crown has proved that, then the Crown has proved its case beyond reasonable doubt. It does not rely just on the circumstances, it does not rely just on the other two men were there and his fingerprints were in the bag. It relies on something more- direct, scientific evidence, scientific evidence that says:
‘I have measured his face. I have looked at it, using equipment that I have access to but which you the jury do not have access to. I am a trained anatomist, I know all the bone structures underneath the skin, I reconstructed faces from skulls, I often identify people who are dead, using this process and I say that the man in black, shown in that video, is the same man as the man in these photographs. That man is the Accused.’
Now if the Crown establishes that, beyond reasonable doubt, then the Crown has proved its case. If you have some doubts about that particular aspect, you still have to consider if you are satisfied she has already established the identity of the other two men, you still have to consider whether, because of the circumstantial evidence in the case, and the proof that the other two men were there, taking into account his explanation, you are satisfied beyond reasonable doubt the Crown has proved the case anyway. So there are different levels in a sense in which you are asked to look at the case. You have to decide yourself whether you accept Dr Sutisno’s evidence or you reject it or you are not certain about it. If you are certain about it in relation to the identification of the other two men you can of course then look at that fact when assessing how certain are you of it in relation to the Accused. You may want to look at it globally, that is, all three at once. You may say that is not a process that appeals to you just looking at this bit and then that bit, you want to look at the whole thing. Now if you are satisfied, it comes down to this. If you are satisfied beyond reasonable doubt that what she has said accurately identifies the accused as the man in black with the gun then you should find him guilty. If you have doubts about that then you must consider whether the Crown has proved its case beyond a reasonable doubt. If the Crown has not proved its case beyond a reasonable doubt, even if you are highly suspicious about the matter, you must find the Accused not guilty. If you totally reject Dr Sutisno’s evidence, you think it is unreliable, you do not like it, then of course you must find the Accused not guilty because there would be nothing to show the other two men were there, beyond reasonable doubt and the circumstances of a fingerprint in a bag would not be sufficient on its own, without more to prove the Accused was there and a robber.
So a great deal depends on Dr Sutisno but all the other circumstances come into play. Her science operates on what she has given. She was not there, she is not giving direct evidence of what she saw. She is saying I am asked to compare what I can tell of a person’s body shape, size, face, lips, prominent features, with something seen in a video. I look at this and I look at this and I do my comparisons. I consider the anatomy of it and I come to this conclusion. Now you are not required to accept her conclusion. There is no requirement that a jury must accept an expert’s conclusion. An expert is like any other witness, the evidence has to be evaluated by you the jury. If you consider she has sufficiently established the identity of each of these three men then it must follow, I would have thought, that you would be satisfied beyond reasonable doubt. If you are satisfied she has established the identity of two of them, you have then got to look at the circumstances of how the fingerprints got into that bag, onto those cigarette packets. Do the circumstances point inevitably to guilt or could they point to some innocent explanation. If you think they point inevitably to guilt - you are satisfied beyond reasonable doubt of that, well again you are entitled to convict him whether or not you then want to go on and consider whether Dr Sutisno accurately identified him.”
50 During the course of the jury’s deliberations, they formulated a question as follows:
“Accepting Dr Sutisno’s qualifications should we therefore accept her methodology?”
51 The Crown asserted, and the person then representing the Appellant, who was not trial counsel, agreed that there was no challenge to her methodology during the trial but only to her conclusions.
52 His Honour told the jury (on 13/12/04 SU 20-22):
“Well first of all can I say this, that during the course of the trial Dr Sutisno was asked many questions, the attack that was made upon when if one call it that what the accused counsel put to her, seemed to be concerned, and you’ve got the transcript so you can look at this yourself, only with the conclusion she drew concerning the accused. Nothing was suggested to her that the method she chose when doing her work were erroneous. Nothing was put to her to suggest that the approach she took was untenable or wrong. Nothing was put to suggest that her conclusions in relation to the other two persons Phuoc Nguyen and Hai Nguyen were wrong. Nothing was put to suggest that the way in which she approached the conclusions in relation to the accused were wrong as such, rather she was attacked for the conclusions she drew.
Now she, you might think caused some complications herself by referring to the fact that in an earlier - she apparently did a couple of reports on this. Now we have not seen these reports they have not been tendered, so this only comes from questions that were asked of her by the Crown Prosecutor and by defence counsel. But it would appear she did a couple of reports presumably to the Crown the prosecuting authority. And in the first of these reports she claimed in relation only to the accused, not in relation to the other two men, in respect of whom she also did reports. But in relation to him she said what she had gave limited support and what she looked at gave limited support to his being the person in the store.
She then said that she reviewed those conclusions and came to the conclusion that was wrong. She said that there was a sort of scale of six levels of support and in her second report she said that her investigations lent support to his being the person, and she in fact was of the opinion he was the person.”
53 His Honour also said:
“But the essence of her evidence you might think is this and I invite you go and read it all again for yourselves because you’ve got the whole lot of it. But the essence of her evidence comes does to this, she is an expert in forensic anatomy, she has developed a method of doing things, she is now in the process of patenting that method. Other people have expressed views over the years and she’s taken into account their views including Mr Bromby’s views. But she’s developed her own method of doing it, she is in the process of patenting it because no else has had this same method. And she then expresses her views as being certain views but acknowledges that on an earlier occasion in relation to her consideration of this accused she expressed her views in a way that were much less definite. She still expressed the opinion they were the same person but the reasoning process was less definite. She says it was a mistake and she’s now definite.”
54 His Honour also said:
“You can accept her qualifications and you can still reject her evidence if you honestly consider you should.
I’m not urging you to reject her evidence. I express an opinion as an opinion of fact and you’re entirely entitled to disregard it if you wish - But if a person is appropriately qualified and expresses opinions within that appropriate field and those opinions are not seriously in doubt, then perhaps considerable caution should be exercised before you’d reject that person’s evidence. Nevertheless, in the end you must decide whether you accept or you reject it or whether you are just not sure whether you should one way or the other. If you’re not sure one way or the other then you might come to the conclusion you should find the accused not guilty.
But if you accept her evidence in relation to the other two men, - again I express an opinion, that you’re entitled to disagree with if you accept that in relation to the other two men she identified them correctly. And I tell you that if you look at the evidence that it was never suggested to her that, that identification was wrong, you should think carefully before rejecting her evidence about the accused. If you accept it in relation to the other two it might seem illogical not to accept it in relation the accused, you should think carefully about that issue.”
The Evidence of Specialised Knowledge
55 The admissibility of Dr Sutisno’s opinion evidence turns on the application to her of s79 of the Evidence Act 1995 which provides:
“79 If a person has specialised knowledge based on the person’s, training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”
56 In the present case there were certificates, relevant to each of the three offenders, in compliance with s177 of the Evidence Act, which relevantly provides:
“177(1) Evidence of a person’s opinion may be adduced by tendering a certificate (expert’s certificate) signed by the person that;
(a) states the person’s name and address; and
(b) states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate; and
(c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge.”
57 The opinion evidence in the present case had two quite distinct dimensions. The first was concerned with identification of the Appellant as the person in the videotape on the basis of facial characteristics, referred to in the case as “facial mapping”. The second dimension concerns the identification of the Appellant as the person in the videotape on the basis of physical characteristics of other parts of his body and of posture, referred to as “body mapping”. The evidence about specialised knowledge with respect to the latter is of a qualitatively different character to that relating to the former.
58 In each expert certificate under s177 of the Act, Dr Sutisno identified her area of expertise as a Forensic Anatomist specialising in Facial Identification. This is reinforced by her formal research. Her Honours thesis for a Bachelor of Science degree, in which she graduated with Honours in Forensic Anatomy in 1994, was on the subject: “An assessment of two methods of facial reconstruction”. Her PhD thesis at the University of Sydney was entitled: “Human facial soft tissue thickness and its value in forensic facial reconstruction”.
59 Each of the original expert certificates under s177 of the Evidence Act had annexed to it a form of curriculum vitae which was not tendentious. It identified her as Forensic Anatomist with an Expertise of Facial Identification, under which the following particulars appeared:
· Facial identification using surveillance images;
· Facial reconstruction from the skull;
· Determination of age, race and sex of human remains;
· Casting bones and fossils.
60 This curriculum vitae went on to outline her educational background, her theses, various awards, grants and scholarships, professional memberships and her employment history, including her role as an expert witness which included the following:
“1998-2000 Forensic Anatomist (Freelance) Department of Forensic Medicine, Glebe
Expertise: Assist Police with identifying suspects from surveillance images and individuals from their skeleton remains.
2002-current Consultant Forensic Anatomist
Facial Identification Expert
Particularly expertise using video surveillance, images, face reconstruction from the skull, determination of age, race and sex of human remains, duplicating bones and fossils.”
61 Examples of cases conducted for Police were two in each of 1994 and 1997 on the subject of “Face reconstruction from skulls” and six between 1998 and 2002 on the subject of “Face Identification from surveillance images”.
62 Reference was also made to a number of presentations, conferences, seminars and media interviews. There were no entries after 2003.
63 During the trial there was tendered before the jury a different form of curriculum vitae, which updated information until 2004. Much of the information as to basic qualifications and presentations was the same, subject to updating. However, the nature of her expertise was set out in a different manner. There was no restriction of the area of expertise of the character that appeared in the original Expert Certificates to “Facial Identification”. Four separate “specialities” were identified in the following order:
· Speciality 1: Face and Body Mapping;
· Speciality 2: Facial Reconstruction;
· Speciality 3: Human Remains Identification;
· Speciality 4: Bones and Fossils Reproductions.
64 Speciality 1 was described in the following way:
“Suspects’ identification from surveillance evidence using principles of visual biometrics and morphological assessments of the face, head and body.”
65 Under this heading, a number of cases were identified, including each of the cases previously described in the former curriculum vitae as cases of “face identification”. To this was added a range of cases in the years 2003 and 2004, including the present case. All of these cases were described in terms of the location of the offence and the particular branch of the police force which obtained her assistance.
66 Dr Sutisno produced an Expert Certificate with respect to the Appellant dated 27 February 2004. The final Certificate was dated 30 November 2004, being the date of the voir dire. It is sufficient to concentrate on this Certificate in its final form for purposes of this appeal. It was to this final Certificate to which Dr Sutisno appended what she described as the “updated curriculum vitae”, to which I have referred above.
67 The addition of “body mapping” to “facial mapping” is of significance. During the voir dire examination, when Dr Sutisno was explaining why she had upgraded her opinion from “lends limited support” in her February Certificate, to “lends support”, she said:
“Now what I’ve experienced since that time and now I realise posture and discussions with other experts posture is quite a big unique identifier, because it’s habitual and it’s what we were born with or what our environment has – as in if we’re you know a sports person, so I mean its habitual, and it’s individual. So I wasn’t aware at the time that posture does have such a great weight.”
68 In this Certificate Dr Sutisno asserted that she was a Forensic Anatomy expert with speciality in Facial Identification and added the following:
“Training: My Honours and PhD research provided training in Facial Reconstruction from the skull, and Face and Body Mapping for suspect’s identification from surveillance evidence. I am also skilled in the following: forensic osteology, statistical data analyses, archaeological/anthropological excavation, sculpting, photography, visual graphics software (eg FACE, Adobe Photoshop), and bones and fossils reproductions.
Experiences: I have given lectures, presentations, seminars, interviews and workshops in Australia and abroad on forensic anatomy and related areas. I have assisted exhumations for forensic, historical or archaeological purpose. I have assisted Police to identify suspects from surveillance evidence (Face & Body Mapping) or anonyms from their skull (Facial Reconstruction).”
69 Under the heading “Face and Body Mapping” the Certificate set out:
“[7] The technique of Face & Body Mapping was applied to compare images of the offender with those of the alleged suspect in an effort to identify the offender.
[8] One application of Face & Body Mapping is ‘Morphological Analysis’ of the face, head and body to determine absolute visual similarities or differences.
[9] The addition of ‘Photographic Superimposition’, a process of overlaying two comparably enlarged images, provides the visual display through the use of video or computer technology, of the definitive resemblances or differences between the offender and suspect (Maat 1989, Iscan 1993).
[10] Please see Appendices B and C for technical information.”
70 Appendix B to the Report was entitled “Morphological Analysis”, which is described in the following way:
“Morphological analysis is the feature-by-feature approach to evaluate faces as used by the 19th and 20th Century anthropologists. The technique is better known today as Visual Biometric Analysis or Facial Mapping (Bromby 2003). It involves the ‘comparison of two images – one from the crime scene, and one obtained of the suspect’ (Bromby 2003: 302). In the past decade, the method has enabled experts in the United States (Iscan 1993; Halberstein 2001), United Kingdom (Bromby 2003), Japan, Malaysia (Hashimoto 2000), and Australia (Porter and Doran 2000; Sutisno PhD Thesis 2003) to produce reports to provide identification evidence, principally in criminal cases.
The philosophy behind the method is to ‘subdivide the face into components to obtain a thorough analysis’ (Iscan 1993: 58) and determine absolute visual similarities. This qualitative assessment prevents ‘complications arising from perspective and the distance from the camera to the subject’ and/or ‘the need for complicated statistical matching of population samples and thorny issues of probability’ (Bromby 2003: 302).
Generally for the images to be of comparative use, the ‘heads of the subjects must be of the same angle’ (Bromby 2003: 302). Furthermore, ‘the images can be cropped or scaled to allow the comparisons to be made’ (ibid). To assist with the analysis is a set of standards covering an entire range of examinable morphological characteristics of the head and facial features (eg Table 1). These standards have been ‘designed to make individual variation and population differences emerge from a seemingly unremarkable visage’ and thus guide ‘the expert in making a decision about the viability of the match’ (Iscan 1993: 58).
...
It is crucial to include the most noticeable features when selecting the standards. The addition of any deviations from the ‘norm’ such as disproportionately large nose or protruding ears can prove very useful as it creates distinctive appearances. Furthermore, the analysis commonly involves multiple comparisons of images taken from different angles. It is important to note relative similarities and/or differences between the images as well as the presence of any distinguishing ‘unique identifiers’ that would strongly support that the two people are likely to be one and the same.”
71 This Appendix also outlined in both written and graphic form the kinds of differences that can exist amongst different facial features, which is unnecessary to set out, it is pertinent to note that none of these referred to differences in body types or posture. The evidence was limited to the face and head of a person.
72 Appendix C was entitled “Photographic Superimposition”. It stated:
“Photographic Superimposition
Photographic Superimposition is a process of overlaying ‘two comparably enlarged’ images to ‘determine if facial features and dimensions can be correctly superimposed on each other’ (Iscan 1993: 67). It can be achieved through the use of either video or computer technology. The ‘video or computer system allows the expert to develop and demonstrate a series of visual effects and to focus on morphological details and [dimensions]’ and enable the viewers to ‘see the entire procedure and visualize exactly how the expert came to his or her conclusions’ (Iscan 1993: 68).
Using a computer system photo-to-photo superimposition is possible using Adobe Photoshop software. The first step would be to select the surveillance image and forensic photograph or similar tilt, roll and yaw of the head, and digitally transfer them to one canvas. Position the image and photograph side-by-side, crop and scale to achieve a size of one to one proportion. Using the opacity tool, reduce the transparency of the forensic photograph in the range of 30-50%. Using the move tool, move the forensic photograph and place it over the surveillance image to see if the facial features and dimensions are different or of a perfect match.
The superimposition can be visually displayed on hard copies by printing the surveillance image on high quality photo paper and the forensic photograph on a transparency film. The would allow the viewers to see the alignment of morphological features in form and dimensions by flipping the forensic photograph over the surveillance image.
Photo-to-photo superimposition is only possible with images of identical pose (Bromby 2003; Iscan 1993; Maat 1989). To maintain scientific objectivity the images are required to be of one to one proportion. Identification should not be based on this method alone. The method is most useful when coupled with the results of Morphological Analysis or Photo-Anthropometric Assessment to highlight and demonstrate important areas where there are marked differences or perfect matches.
References
Bromby, MC (2003)
At face value? New Law Journal Expert Witness Supplement, 153(7069): 302-304.
Iscan, MY (1993)
Introduction of techniques for photographic comparison: Potential and problems. In Iscan, MY and Helmer, RP (eds) Forensic analysis of the skull, pages 57-70. USA: Wiley-Liss, New York.
Maat, GLR (1989)
The positioning and magnification of faces and skulls for photographic superimposition. Forensic Science International, 41: 225-235.”
73 Dr Sutisno gave the following evidence:
“Q. In order to do this comparative morphological study between photographs does that require any understanding of anatomy?A. Greatly, yes. You need to know how the underlying bone gives rise to the overlying flesh, because how we appear in life and when we’re alive with our flesh and muscles and so forth, that is given rise by the formation of our bone. That’s why, for example, with a Caucasian with the protruding nose you can read that from the bone as opposed to an Asian with more flatter nose. So there’s this co-relationship between - or interrelationship between the bone as an underlying architecture that holds the surface, the gross dimensions of the face.
Q. And when you’re talking about that, is that, for example where you’ve done facial reconstructions and building up from a skull and trying to work out what the person would have looked like?A. Yes.
Q. You have consideration to individual features on the skull, such as where the nose opening is, or an eye socket?A. Yes.
Q. And to you, as someone who is trained in this area, for example a particular eye socket in a skull will indicate to you what sort of fleshy skin and muscle would have been around the eye and how, for example, deeply set an eye would have been?A. Yes.
Q. So when you are doing this morphological comparative study, is what you’re doing not only looking at what you can see by way of the skin but you’re in fact forming an assessment of, I look at the skin, I know what the muscle is underneath, I know where the bone is underneath?A. Yes.
Q. And then you are thinking about the underlying anatomy when you’re comparing the two photos?A. Yes.”
74 After a luncheon adjournment during the course of Dr Sutisno’s evidence in chief, the jury asked the following pertinent, indeed perspicacious, questions:
“Was there any photo anthropometry performed in comparing the surveillance images and forensic photos of the accused, what were the results. How accurate is morphology analysis as a technique? What percentage of cases are correct matches of persons versus incorrect matches? Could we please ask Dr Sutisno how many matching morphological features she needs to form the opinion that two photos are the same person, what would be the minimum?”
75 This led to the following evidence being given, over objection, in the presence of the jury (T 138-139):
“CROWN PROSECUTOR: Q. Dr Sutisno just in relation to one of the questions asked by the jury about the number of matches required, is there any set number of comparable feature matches that you require before you make a conclusion that you’re identifying the same person in two different photos?A. Not in that sense because it’s not a match of quantity, it’s a match of quality. Whether you have a lot of points but yet none of them uniquely or distinctly characterises that person it would weigh less than if you only have a small number of points but yet those are strong points, they are unique identifiers.
Q. And is that something that you do in looking at the product, you look at the quality of the product and the quality of the comparative features?A. Yes.
...
HIS HONOUR: ... [H]ow accurate is morphology analysis as a technique, are you able to answer that?A. Yes. From my experience and from what I’ve studied I believe it can be fairly accurate in narrowing it down to whether or not they are one and the same person. Mainly because as I said, unlike just looking at the dimensions or proportion which some people may be similar but looking at the characteristics and habits, things that are generated individually as a person then more or less it tends to be more accurate than the previous one and as--
Q. What was the previous one?A. The photo anthropometry.
Q. Which is, just explain that again?A. Which is just comparing the dimensions, measurements and proportions.
Q. Of two photos?A. Yes, of two faces.
Q. Two faces?A. Yeah. Usually that’s only of faces, not the rest of the body. In terms of morphology and the way I conduct it it’s more accurate in the sense that it gives you a more broader field of features to look at and not only just the features of the face, the body, that everyone can see such as the eyes, the nose and the mouth and so forth which you think well everybody has those, what’s so different about that person to another, but it’s the addition of those unique identifiers or distinctive characteristics which if you’re trained to look at - okay, this is because of the way they walk or the way they hold themselves, for whatever reason, whether they have a paralysis, whether they have deformities, you know, things that narrows it down and individualise the person and something that a lay person would then use as a point of recognition.
Q. Now have there been any studies to indicate the percentage of cases where the matches are correct as opposed to incorrect?A. From the literature that I have read in terms of looking at morphology they’ve always been more correct than - to identify a person than just looking at the measurements.
Q. That’s as far as you can go with that question, would that be right?A. Yes and from--
Q. You say it’s more likely to be correct than merely looking at somebody’s features and measuring?A. Mm mm - I don’t understand, what do you mean?
Q. Well the anthropometry is looking at somebody’s facial features and measuring it--A. Yes.
Q. --and comparing it with another photograph and measuring the facial features there?A. Yes.
Q. What you’re saying is morphology produces more correct answers in your opinion from that method?A. Yes and that is supported in the literature as well.”
76 She then gave the following evidence:
“CROWN PROSECUTOR: Q. You just mentioned then that in relation to morphology you believe it to be fairly accurate?A. Well, enough to be able to provide in results that would be sufficient to show that there are matches or no matches. Basically to show that they are of the same person or disprove it altogether and say that they’re not of the same person.”
77 After she had completed her evidence, Dr Sutisno was given permission to add to her earlier answer about the accuracy of her technology. She said (T201):
“A. ... my answer to you that it was fairly accurate was based on the literature of other experts. Now from my own opinion and experience and especially at the recent Jakarta bombing that I was called to in Indonesia, I find that with the innovative system of analysis that I apply is very accurate. It has been supported by DNA results ...”
78 During the course of her cross-examination, Dr Sutisno rejected the suggestion that there was a degree of subjectivity in her assessment (T188.1-14). She said, more than once, that she had followed a “strict protocol” (T188.1-14). She acknowledged that this “protocol” had been developed by herself (T191.25).
79 The following important evidence was given:
“Q. Is that protocol something that has been assessed and put up to your peers for review?A. It has been assessed and accepted through my PhD thesis. As to publication, I’ve been advised not to publish yet because I’m in the process of patenting my innovations.”
80 As noted above, her PhD thesis was on the subject of forensic facial reconstruction.
81 In re-examination she gave the following evidence (T200):
“Q. When you made the protocol did you rely on anything to set the parameters of the protocol?A. Yes.
Q. What did you rely on?A. I relied on my experiments and the studies that I had to conduct, and as well on the field experiences.
Q. Are field experiences your experiences or other experiences?A. Both. Well mainly mine personally, because it’s an innovation which I was developing, but knowing the limitation which other experts in the field have.”
Issues on Appeal
82 The grounds of appeal are:
“1. His Honour the learned trial judge erred in admitting the evidence of Doctor Sutisno concerning the Appellant:
(a) generally, either because it was not evidence of opinion based on recognised and testable body of reliable scientific or specialised knowledge, training, study or experience or because it was a subjective opinion and that there was no means of determining objectively whether the opinion was justified or based wholly or substantially on such a body of knowledge;
(b) generally in the exercise of discretion because the evidence was vague, could not be tested, and was presented in a manner and form which gave rise to a high degree of unfair prejudice to the Appellant the danger of which outweighed its probative value, or because it was misleading and confusing and unfairly prejudicial to the Appellant as result of the way in which it was presented to the jury.
2. His Honour erred in admitting the Doctor’s Curriculum Vitae (Exhibit C19).
3. His Honour erred in admitting the evidence of Doctor Sutisno concerning purported ‘identification’ of the co-accused Hai Dang Nguyen and Quoc Nguyen in the trial of the Appellant.
4. His Honour erred in his directions to the jury in relation to the witness Doctor Sutisno on 2 December 2004.
5. His Honour erred in asking Doctor Sutisno for her own assessment of the accuracy of her analysis, and further examining the Doctor on issues related to jury questions asked on 2 December 2004.
6. His Honour erred in his directions to the jury in relation to the witness Doctor Sutisno in his summing up.
7. The verdict was unsafe and unsatisfactory and resulted in a miscarriage of justice.”
83 At common law there is a distinction between evidence of resemblance and evidence of identification. (See R v Murphy [1994] SASC 4674; (1994) 62 SASR 121 at 123-124; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [10]- [11]; Pitkin v The Queen [1995] HCA 30; (1995) 69 ALJR 612 at 614 and 615-616.) Evidence of similarity may be relevant and admissible as part of a circumstantial case. There was no suggestion on this appeal that evidence of this character was not admissible.
84 It could not be said that the quality of the videotape and the stills taken from the videotape were such that Dr Sutisno was in no better position than the jury to compare the two sets of material. I do not intend to suggest that this is a requirement of admissibility under s79, but this was a case which fell within observations of the joint judgment in Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at [15]:
“In other cases, the evidence of identification will be relevant because it goes to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and the photograph which is said to depict the accused ... If it is suggested that there is some distinctive feature revealed by the photographs (as, for example, a manner of walking) which would not be apparent to the jury in court, evidence both of that fact and the witnesses’ conclusions of identity would not be irrelevant. ...”
85 In the present case, as his Honour held in his judgment on the voir dire, features displayed on the videotape or on the stills taken from the videotape were not such as the jury could themselves make a comparison. The process of computer enhancement and magnification of the images and the detailed comparison with undisputed photographic images of the Appellant, was evidence of similarity that was, in my opinion, relevant and admissible. Mr M Ramage QC, who appeared for the Appellant, did not suggest that this part of Dr Sutisno’s evidence was inadmissible.
86 I should note that the Evidence Act contains a definition of “identification evidence” which includes evidence of resemblance. However, it was not suggested, either at trial or on appeal, that Pt 3.9 of the Evidence Act applied to the circumstances of this case.
87 The grounds of appeal focus particular attention on the admissibility of the opinions expressed in the evidence and also on the quality of that evidence. It appears to me that there are three distinct pieces of opinion evidence given by Dr Sutisno with respect to the Appellant. These are:
(i) Dr Sutisno’s evidence that the two bodies of photographs depict the same person;
(ii) Dr Sutisno’s evidence that, on the six point scale she applied to the photographic evidence, “the similarities” did “lend support” to the conclusion that the offender and the Appellant were one and the same person;
(iii) Dr Sutisno’s characterisation of certain matters as “unique identifiers”.
88 The evidence of identity referred to in (i) is plainly an opinion. The “six point scale” in (ii) is derived from Bromby and has no scientific basis. It is no more than a series of convenient labels, arranged in an ascending hierarchy, that state a conclusion. As to (iii) the categorisation of an “identifier” as “unique” similarly has no scientific basis and is no more than an emphatic statement of an opinion.
89 It is convenient to defer consideration of the grounds of appeal which are directed to this opinion evidence and deal with a number of the more specific grounds of appeal first.
Admission of the Curriculum Vitae
90 I have set out above the pertinent passages of the doctor’s “updated” curriculum vitae. At the trial an objection was taken to the document on the basis that it was more in the form of an advertising blurb than a curriculum vitae. On the appeal the Appellant submitted that the assertions of accuracy contained in the document were not appropriate for presentation as evidence and were unduly prejudicial to the Appellant.
91 The objection taken at trial was raised in advance by counsel for the Appellant in the absence of the jury. On the appeal the Crown said that subsequently, when the curriculum vitae was actually tendered, no further objection was put on the record at that stage. The Crown relied on rule 4. In my opinion rule 4 cannot be said to apply. A clear objection and a clear ruling were made at trial.
92 Some aspects of the curriculum vitae were tendentious, particularly the assertion of “Speciality 1” and its detailed description, which I have set out above. Nevertheless, these aspects of the curriculum vitae were open to cross-examination with the suggestion that Dr Sutisno was exaggerating her skills and technique in order to obtain additional work as a forensic expert. In cross-examination she was asked whether, save on one occasion, she had always been called by the prosecution and that, as her evidence had never before been admitted before a jury, she had a desire to have it admitted on this occasion (T 199). Although she was not cross-examined on her curriculum vitae as such, in the course of final address, counsel for the accused drew attention to the curriculum vitae, described it in disparaging terms and submitted that it lent support to the proposition that “the doctor was a little over keen to establish her credibility to you” (T 290). By the stage of addresses, of course, the objection had been overruled. Nevertheless it indicates the use to which a document of this character can properly be put.
93 In the submissions in this Court no particular aspect of the curriculum vitae was identified as causing unfair prejudice. I can detect none. I would not uphold this ground of appeal.
Directions as to the Ultimate Issue
94 As set out above, his Honour gave some directions to the jury during the course of Dr Sutisno’s evidence in chief. In addition to those observations, during the course of this part of the trial, his Honour said:
“The doctor is giving an opinion, the opinion is in the sense an opinion about the ultimate issue in the case. But only you the jury can decide that ultimate question. If it were otherwise we wouldn’t have juries we’d just call experts and get opinions and that would be the end of it. And that is not the system at all. The system is you decide, you look at the witness.”
95 Ground 4 is directed to this passage in his Honour’s directions. The objection taken on appeal is the use of the terminology “ultimate issue” in this direction. The Appellant submitted that, at this stage of her evidence, Dr Sutisno had not in fact given the evidence that the Appellant was the same person as the person depicted in the videotape of the offence. That evidence came later.
96 There had been such evidence during the voir dire. Although her written report had used the language of “lends support”, Dr Sutisno had answered a question from his Honour about “how certain” she was that it was “the same man”, by adopting his Honour’s terminology that “the two people are one and the same” (T VD 9 ll 24-29). His Honour referred to this evidence in his judgment on the voir dire (at p5.9). It was this evidence which the Crown Prosecutor no doubt thought helpful and, subsequently, adduced before the jury.
97 The words “the ultimate issue” would be understood by lawyers, in the circumstances of this case, to refer to the identification of the Appellant as the person depicted in the videotape. It is by no means clear to me what a jury would have understood the words to mean that at the time the directions were given. In any event, as Dr Sutisno did eventually give the evidence of identity, I can see no miscarriage of justice. This ground of appeal should be rejected.
Expert Evidence About Co-accused
98 Ground 3 is that his Honour erred in admitting the evidence of Dr Sutisno about the two offenders who pleaded guilty. The Appellant submits that the evidence was irrelevant. The Appellant also submits that the principal effect of this evidence was to give unjustified weight to the evidence of Dr Sutisno.
99 The Crown submits, correctly in my opinion, that evidence to establish that the two persons identified were in fact two of the three co-offenders displayed on the videotape was relevant. It was a significant part of the case against the Appellant that his fingerprints were found on cigarette packets in their possession. Moreover he had, on his own admission, been in their company within 40 minutes of the offence occurring. He gave an innocent explanation as to his presence on that occasion. Nevertheless the link was an important one in the case. Accordingly, it was relevant for the Crown to establish that the two other persons were in fact two of the offenders displayed on the videotape.
100 The other evidence admitted in these proceedings included evidence of the time and circumstances of their apprehension, the goods which were found in their possession, together with the baseball caps linked to them by DNA evidence and which matched the caps of the other two offenders displayed on the video. Dr Sutisno’s evidence also inculpated the two co-offenders. Plainly there were other ways of proving their guilt. Nevertheless, the Crown is not restricted from establishing the fact that the two persons were in fact offenders in a particular way, merely because there is other cogent evidence.
101 One way that the problem could have been averted was if the fact of their pleas of guilty had been before the jury. Indeed, Ms McSpedden in the course of the voir dire indicated that the Appellant was not in a position to dispute the assertion that they were the other two offenders (T VD p14 lines 51-56). The Crown was under no obligation to take up this offer and the matter does not seem to have been raised again.
102 When Dr Sutisno’s evidence about the co-offenders came to be tendered before the jury there was no objection to the tender. Rule 4 applies. It may be that counsel for the Appellant at trial assumed that his Honour’s ruling on the admissibility of Dr Sutisno’s evidence with respect to the Appellant would determine this issue. However, that would only be the case on the general question of admissibility of opinions of this character, which I will discuss further below. On the question of the discretion to exclude evidence, most relevantly under s137 of the Evidence Act, quite distinct considerations arose with respect to Dr Sutisno’s evidence about the two co-accused.
103 Whether or not this evidence was unfairly prejudicial to the accused had to be assessed in a context where there was no real issue about the fact that the other two persons were two of the three offenders. The strength of the circumstantial case against the two offenders, even without a formal admission that they had pleaded guilty, was considerable. The impact on the trial of the Appellant was to provide considerable, direct reinforcement of the validity of Dr Sutisno’s methodology.
104 As the extracts from the summing-up set out above indicate, his Honour made numerous, explicit references linking the evidence against the two undisputed co-offenders, as supported by other evidence establishing their participation in the crime, to Dr Sutisno’s evidence about the Appellant. The scepticism implicit in some of the jury’s questions may very well have been substantially allayed by this direct reinforcement of Dr Sutisno’s methodology and expertise. A real case of unfair prejudice could have been mounted at trial. It was not. Accordingly, as the Crown submits, r 4 applies.
105 The trial judge was never called upon to make the judgment for which s137, or for that matter s135, calls with respect to the admissibility of the evidence of Dr Sutisno concerning the two co-offenders. No doubt for that reason, no submission has been made that his Honour erred in any respect in this regard. Nor has any submission been made that this Court should make any such judgment for the first time. This matter can be revisited in any new trial. On the basis of the submissions made in this Court, in my opinion, r 4 should be applied and leave to argue Ground 3 should be refused.
The Jury Question
106 Ground 5 turns on the intelligent question posed by the jury which led to a series of questions, including some by his Honour. The question and the passage from the transcript are fully set out in [74]-[75] above. The questioning arising from the jury’s note was primarily pursued by the Crown Prosecutor. The ground of appeal relates only to a question by the trial judge.
107 The Appellant submits that the question posed by his Honour to the witness was “not a response to the jury’s question nor did they address the issue that the jury note indicated”. This submission should be rejected. The question that was asked and answered was “How accurate is morphology analysis as a technique?”. That was precisely the second sentence of the jury note. It could not be suggested that his Honour had impermissibly descended into the arena by putting to the witness in terms a question that had been posed by the jury.
108 The second submission made in support of this ground was that the question invited a self-serving answer. There is no doubt that the answer that was given was self-serving. It amounted to no more than a statement that Dr Sutisno believed it was accurate, without any supporting material beyond her assertion. As noted above at [77], at the end of her evidence, Dr Sutisno was given leave to strengthen her evidence by replacing the words “fairly accurate” with the words “very accurate”. However, no objection was taken on appeal to this evidence.
109 Although the question did receive an entirely self-serving answer, it did not, in terms, invite such an answer. It was put in a manner which could have led to Dr Sutisno outlining such evidence of an objective character as may exist in support of a technique she purported to apply. That that was not forthcoming in any shape, manner or form would no doubt have been noticed by a jury that asked so pertinent and perspicacious a question. In any event the question as posed was relevant and did not necessitate an answer of the inadequate character which it received.
110 Ground 5 should be rejected.
The Trial Judge’s Directions
111 The Appellant submitted that the trial judge’s directions to the jury were confusing and unhelpful and on occasions contradictory. The submissions did not, however, descend to any level of particularity with respect to this proposition, save in two respects to which I will refer.
112 One matter said to manifest “confusion” was his Honour’s reference, which this submission itself states was quite quickly retracted, that Dr Sutisno had to prove the Crown’s case beyond reasonable doubt. It appeared in the following passage at SU 14:
“So it gets down to, really, Dr Sutisno’s science. Has she proved to you beyond reasonable doubt, or rather, has the Crown. She does not have to prove anything. She’s only a witness. Has the Crown proved to you beyond a reasonable doubt that her evidence to you that the man in black is the accused is correct.”
113 This was a minor and transient slip not manifesting any level of confusion, let alone any other inadequacy.
114 The only other example given in the Appellant’s submissions was what was said to be “confusion” when the jury asked the question, that I have set out at [50] above, as to whether or not they had to accept Dr Sutisno’s methodology. The submission of the Appellant is that his Honour in some way erred in stating to the jury that Dr Sutisno’s methodology had not been challenged. However, the statement was made after that very proposition had been agreed to by the person at that time representing the Appellant. (See [51]-[52].)
115 It may have been true, as the Appellant submits, that if trial counsel had been present at this particular moment she may have taken a different view. It is the case that in oral submissions trial counsel questioned the validity of the protocol. The Appellant in written submissions states that there was, in fact, a challenge to the way in which Dr Sutisno had developed what was referred to as the “Bromby Scale” in expressing her opinion. No doubt, this was a reference to her evidence that the two categories of photographs were of the same person.
116 The passage in the oral submissions of trial counsel which refer to this matter is as follows:
“You might agree with the doctor that the comparison of the two and the features that are similar lend support to the proposition that the thief could be the accused. Lends support. But on a true valuation of the evidence and truly taking into account what the doctor says, and the limitations on the material that she had to make her analysis upon, and the limitations in her technique, protocol that’s not apparently shared by anyone else operating in this field, you could not be satisfied beyond reasonable doubt.”
117 What his Honour did say to the jury was in accordance with what the person at that point representing the Appellant had acknowledged. It does not appear to me that the submissions by trial counsel were of sufficient force or clarity so that his Honour could in any way be criticised for not himself remembering the element of challenge to methodology that may have been implicit in trial counsel’s address to the jury.
118 The submission of trial counsel I have set out is not of a character which would render inappropriate his Honour’s reliance on an express acknowledgement by the person representing the Appellant at the relevant time that there had been no challenge to her methodology.
119 There are some aspects of his Honour’s directions to the jury which could be understood as giving a significant level of judicial support to the evidence of Dr Sutisno. In the absence of specific submissions directed to these matters I would not uphold this ground of appeal.
Admissibility of the Opinions
120 As indicated above, in the circumstances of this case, the evidence of particular similarities between the two categories of photographs of the accused and the third offender was admissible. The process of identification and magnification of stills from the videotape was a process that had to be conducted by Dr Sutisno out of court. Furthermore, the quality of the photographs derived from the videotape was such that the comparison of those stills with the photographs of the Appellant could not be left for the jury to undertake for itself. The identification of points of similarity by Dr Sutisno was based on her skill and training, particularly with respect to facial anatomy. It was also based on her experience with conducting such comparisons on a number of other occasions. Indeed, it could be supported by the experience gained with respect to the videotape itself through the course of multiple viewing, detailed selection, identification and magnification of images. By this process she had become what is sometimes referred to as an “ad hoc expert”. (See Butera v Director of Public Prosecutions (Vict.) [1987] HCA 58; (1987) 164 CLR 180 at 195; R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405 at [37]- [68]; R v Li [2003] NSWCCA 290; (2003) 139 A Crim R 281 at [39]- [44].) In any event, as noted above, no complaint is made of this evidence.
121 However, the three opinions I have identified at [87] above, were not, the Appellant contends, admissible.
122 The admissibility of Dr Sutisno’s evidence has been considered in previous cases. Justice Blanch, Chief Judge of the District Court of New South Wales, rejected her evidence in In the matter of the appeal of BLM, (unreported) District Court of New South Wales, 14 September 2005. The facts of that case were closely analogous to the present. Three men robbed a post office. The robbery was video recorded. Although some DNA of the Appellant was found in the car used in the robbery, there was no other evidence to connect him to the scene. Additional material became available some two years after the robbery, being the evidence of Dr Sutisno. The case came before the Court some three years after the robbery.
123 As in the present proceedings Dr Sutisno gave evidence that she had developed a previously established area of forensic anatomy into a “new area” and that this constituted an “innovation”.
124 Dr Sutisno had inspected the surveillance video and blown up still photographs from it, and compared it with photographs taken of the Appellant, although those photographs were taken some two years later. Blanch J set out her evidence as follows:
“She then gave evidence about a morphological analysis in which she compared various features of the appellant as shown in the photographs and features of the offender as shown in the CCTV. She identified an habitual gesture of side bending or lateral flexion of the neck. She also identified similarities in the nose and upper lip and she prepared a table which set out a significant number of features about the face as shown in the CCTV footage which could be compared to similar features in the face of the appellant. She came to the conclusion that they were the same person.”
125 His Honour then indicated that Dr Sutisno referred to her “new progression of a prior field of expertise” and:
“She then went on to indicate that she was not prepared to discuss precisely what she had developed or the protocols for using it.
In a case where it is necessary to establish that it is a proper matter for expert evidence obviously it is necessary to show what the area of expertise is and what the witness is doing in respect of that field of expertise. The failure in this case to identify what novel approach she had adopted makes it very difficult to make any assessment about whether it is a proper field for expert evidence or not. What is known about it of course is that she is the only person who does it and who knows about it. That might tend to suggest that it is not an established field of expertise.”
126 His Honour added:
“ ... it is also very difficult to know on the basis of the evidence that was given in the Magistrate’s Court how she applied that new area of what she calls her expertise to her conclusions in respect of any of the ways she came to a conclusion about the appellant’s identity.”
127 Blanch J concluded:
“... in view of the fact that she was not prepared to disclose the protocols (by which she means all the points that you should look for) it is impossible to conclude that in respect of her identifications that they are free from the criticism that she has not disclosed the methods which can then be reviewed by a tribunal of fact.”
128 Dr Sutisno’s evidence was admitted by Martin CJ in the Supreme Court of the Northern Territory in The Queen v Murdoch (No 4) [2005] NTSC 78. Martin CJ indicated that there was no challenge to the expertise of Dr Sutisno or to the scientific basis upon which she worked in respect of both facial and body mapping (at [91]). The objections in that case were based on three propositions: that the “field of science should not be recognised in Australia”; that the jury is in as good a position as Dr Sutisno to make a comparison between the features and, alternatively, that her evidence should be limited to the comparison of features and she should not be permitted to express an opinion as to whether the accused is the person on the videotape.
129 The scale of certainty adopted by Dr Sutisno in her evidence in Murdoch was not based on the Bromby Scale but on the following characterisation:
“[94] In her statement, Dr Sutisno identified the levels of identification that she adopts in the following terms:
‘1. Unable to determine: Features not visible due to poor quality images for comparison or incorrect perspectives for comparison
2. Not the same person: No features match
3. Inconclusive: Incomplete or limited features for comparison with the lack of characterising or recognisable features, distinctive unique identifiers, or habitual characteristics.
4. The same person: Multiple number of features match such as the most noticeable or recognisable features, distinctive unique identifiers, habitual characteristics and/or racial traits’.”
130 Martin CJ analysed at [97]-[106] the English decisions on the subject particularly R v Stockwell (1993) 97 Cr App R 260; R v Clarke [1995] 2 Cr App R 425; R v Hookway [1999] Crim LR 750.
131 His Honour rejected the proposition that the jury could make the comparison themselves. He concluded:
“[108] Further, in my view, it is not appropriate to limit the assistance to merely identifying the relevant characteristics. When regard is had to the nature and detail of the characteristics and the methodology employed by Dr Sutisno, it is readily apparent that her knowledge and expertise in the area of anatomy give Dr Sutisno a significant advantage in the assessment of the significance of the features of comparison both individually and in their combination. Dr Sutisno possesses scientific knowledge, expertise and experience outside the ordinary knowledge, expertise and experience of the jury. This is not a case in which the jury, having been informed of the relevant features, would not be assisted by the expert evidence of Dr Sutisno as to her opinion of the significance of the features individually and in their combination.
[109] In my view, applying the language of King CJ in R v Bonython (1984) 38 SASR 45, facial mapping ‘forms part of a body of knowledge or experience which is sufficiently organised or recognised to be acceptable as a reliable body of knowledge or experience’. Further, by study and experience, Dr Sutisno possesses a sufficient knowledge of the subject matter to render her opinion of value in resolving the issues before the Court.
[110] Body mapping has received limited attention within the scientific community. For that reason it may be regarded as a new technique, but as Dr Sutisno explained it is merely an extension of the well recognised and accepted principles of facial mapping to the remainder of the body. I am satisfied that the technique has ‘a sufficient scientific basis to render results arrived at by that means part of a field of knowledge which is a proper subject of expert evidence’.”
132 Martin CJ, after having admitted the evidence, in his judgment added the following, which supported the admissibility of the evidence including evidence capable of satisfying the tests outlined in HG V The Queen [1999] HCA 2; (1999) 197 CLR 414 and Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (discussed below):
“[114] My decision with respect to the admission of the evidence of Dr Sutisno was based upon both her report and evidence given in the absence of the jury. In evidence before the jury, Dr Sutisno provided greater detail of the work she undertook in arriving at her opinion. In particular, the evidence demonstrated the significance of Dr Sutisno’s expertise and experience in assessing the existence and significance of various characteristics both individually and in their combination. Having heard Dr Sutisno give evidence before the jury, I remained of the view that her evidence was admissible and should not be excluded in the exercise of my discretion.
[115] Subsequently the accused called Professor Henneberg who is a particularly experienced scientist in the field of anthropological and comparative anatomy. Professor Henneberg commenced learning how to identify individuals from the analysis of their anatomical features in the 1970s. Since the mid 1980s on many occasions he has undertaken analyses of the images of persons depicted in security CCTV systems or photographs for the purposes of anatomical comparison with suspects.
[116] Professor Henneberg referred to the process as photo comparison. He agreed that although Dr Sutisno spoke of facial and body mapping, she was undertaking the same process which he had been doing for close to 30 years. Asked if Dr Sutisno undertook the process in the same way, Professor Henneberg gave the following answer:
‘She, in her description – I haven’t seen her performing analysis – in her description, she uses the same basic principle approach of comparing images, feature by feature, the images from some CCTV footage and images of suspects. To that extent, it’s the same procedure’.
[117] In my opinion, the evidence of Professor Henneberg confirmed that the evidence of Dr Sutisno is admissible.”
133 His Honour went on to refer to the judgment of Justice Blanch and said:
“[118] It appears that evidence had been given that Dr Sutisno had developed a new progression of a prior field of expertise and, significantly, that Dr Sutisno was not prepared to disclose the protocols upon which she relied. In those circumstances it is not surprising that his Honour reached the view that the evidence was inadmissible. The difficulty facing Chief Judge Blanch does not exist with respect to the evidence under consideration. Dr Sutisno explained in considerable detail the factual basis upon which she relied and the methodology she adopted.”
134 Section 79 has two limbs. Under the first limb, it is necessary to identify “specialised knowledge”, derived from one of the three matters identified, i.e. “training, study or experience”. Under the second limb, it is necessary that the opinion be “wholly or substantially based on that knowledge”. Accordingly, it is a requirement of admissibility that the opinion be demonstrated to be based on the specialised knowledge. The Appellant invokes each limb.
135 With respect to the first limb of s79, I have set out above the evidence of the nature of the specialised knowledge which Dr Sutisno said she had brought to bear in the formulation of the three opinions she expressed. There does appear to be a body of expertise based on facial identification. The detailed knowledge of anatomy which Dr Sutisno unquestionably had, together with her training, research and experience in the course of facial reconstruction supports her evidence of facial characteristics.
136 Nothing was presented to the Court which indicates, in any way, that Dr Sutisno’s extension from facial to body mapping, with respect to matters of posture, has anything like that level of background and support. Specialist knowledge of posture can of course exist. (See e.g. R v Li supra at [106].) But the foundation for admissibility must be lain. It was not lain in the present case. The so-called “unique identifier” of posture was an essential element of Dr Sutisno’s evidence of identity in the present case.
137 The focus of attention must be on the words “specialised knowledge”, not on the introduction of an extraneous idea such as “reliability”. (Cf Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402 at [82], [154]-[160]; Perpetual Trustee Co Ltd v George NSWSC 19 November 1997 per Einstein J (unreported); Idoport Pty Ltd v National Australia Bank Limited [1999] NSWSC 828 at [242]; Odgers Uniform Evidence Law (6th Ed) at par 1.3.4260; Freckleton and Selby Expert Evidence: Law, Practice, Procedure and Advocacy (3rd Ed) at 97-98; Anderson, Hunter and Williams The New Evidence Law (2002) at 246.)
138 In the immediate context of “specialised knowledge”, picked up by the words “that knowledge” in the second limb of s79, the word “knowledge” has a different connotation to that which it might have in a different context, e.g. “common knowledge”. The meaning of “knowledge” in s79 is, in my opinion, the same as that identified in the reasons of the majority judgment in Daubert v Merrell Dow Pharmaceuticals Inc [1993] USSC 99; 509 US 579 (1993) at 590:
“[T]he word ‘knowledge’ connotes more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds’.”
The quoted definition is from an American dictionary.
139 I do not mean to suggest that Daubert and its progeny in the United States has anything useful to say about s79 of the Evidence Act. Rule 702 of the Federal Rules of Evidence (2004), which fell to be interpreted in Daubert, is in quite different terms to s79. The definition of the word “knowledge” in this cognate context is, however, instructive.
140 In the case of the Appellant the relevant evidence about posture was expressed in terms of “upright posture of the upper torso” or similar words. The only links to any form of “training, study or experience” was the witnesses’ study of anatomy and some experience, entirely unspecified in terms of quality or extent, in comparing photographs for the purpose of comparing “posture”. The evidence in this trial did not disclose, and did not permit a finding, that Dr Sutisno’s evidence was based on a study of anatomy. That evidence barely, if at all, rose above a subjective belief and it did not, in my opinion, manifest anything of a “specialised” character. It was not, in my opinion, shown to be “specialised knowledge” within the meaning of s79.
141 Furthermore, I am of the opinion that the second limb of s79 was not satisfied with respect to each of the three opinions expressed by Dr Sutisno.
142 There was nothing in the present case remotely like the evidence before this Court when it accepted voice identification as a field of expert study or knowledge which could support evidence in the form that the two voices were the same. (R v Gilmore (1977) 2 NSWLR 935 at 937-938, 95-41; See also the considerable detail explaining the new technique in R v McHardie and Danielson [1983] 2 NSWLR 733 at 755-763.)
143 In the absence of any kind of objective standard or data base which is capable of leading to a quantification of probabilities, such as is given in the context of DNA evidence, evidence of similarity may have a cumulative effect, by reason of the number of points of similarity. Directions to the jury of the probability of the various matters coinciding can be helpfully put in terms of the ordinary experience of jurors. An exceptionally useful direction to the jury of this character is that employed in relation to fingerprint evidence in its early years in R v Krausch (1913) 32 NZLR 1229 at 1230-1231, about which I have expressed the view that it could serve as a model for directions on DNA evidence. (See R v JCG [2001] NSWCCA 504; 127 A Crim R 493 at [91]- [93].)
144 Facial mapping and, perhaps, body mapping, about the validity of the latter of which virtually nothing appears on the evidence in this case, has a certain resemblance to fingerprint evidence. By long usage, expert evidence is given in the form of an opinion that the fingerprint of the accused is the same as that from the crime scene. Such an opinion is based on the cumulative effect of a number of points of similarity, each of which is itself an expression of opinion.
145 Following Daubert supra, a debate emerged in the United States as to whether fingerprint evidence had the requisite scientific basis to justify the expression of opinion that the accused and the offender are the same. (United States v Havvard 117 F. Supp 2d 848 (S.D. Ind 2000); United States v Mitchell [2004] USCA3 86; 365 F. 3d 215 (3d Cir. 2004); United States v Llera Plaza I Nos. CR. 98-362-10 (E.D. Pan Jan. 7 2002); United States v Llera Plaza II 188 F. Supp 2d 549 (E.D. Pa. 2002); Michael J Saks “Merlin and Solomon: Lessons from the Law’s Formative Encounters with Forensic Identification Science” 49 Hastings L.J. 1069 (1998); Michael J Saks “Banishing Ipse Dixit: The Impact of Kumho Tire on Forensic Identification Science” 57 Wash. & Lee L. Rev. 879 (2000); Simon A Cole “Grandfathering Evidence: Fingerprint Admissibility Rulings from Jennings to Llera Plaza and Back Again” 41 Am. Crim. L. Rev. 1189 (2004); Nathan Benedict “Fingerprints and the Daubert Standard for Admission of Scientific Evidence: Why Fingerprints Fail and a Proposed Remedy” 46 Ariz. L. Rev. 519 (2004); Katherine Schwinghammer “Fingerprint Identification: How ‘The Gold Standard of Evidence’ Could be Worth It’s Weight” 32 Am. J. Crim. L. 265 (2005); Simon A Cole “Does ‘Yes” Really Mean Yes” The Attempt to Close Debate on The Admissibility of Fingerprint Testimony” 45 Jurimetrics J. 449 (2005).)
146 Evidence in the traditional form has been upheld since Daubert. However, the U.S. debate emphasises the significance of the step from evidence of similarity, to a conclusion about the identity of the suspect and the offender. Facial mapping, let alone body mapping, was not shown, on the evidence in the trial, to constitute “specialised knowledge” of a character which can support an opinion of identity.
147 As Gleeson CJ said in HG v The Queen at [39]:
“The provisions of s79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.”
148 His Honour also said at [40]:
“... the witness had to identify the expertise he could bring to bear and ... his opinions had to be related to his expertise.”
(See also at [44].)
149 To similar effect is the analysis of Heydon JA in Makita (Australia) Pty Ltd v Sprowles at [85] where, after setting out the observations of Gleeson CJ in HG v The Queen, his Honour said:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.”
150 Similarly in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463; (2000) 120 FCR 146 at [18], [23], the Full Court required “exposure of the reasoning process” so as to demonstrate “that the opinion is based on ... specialised knowledge”.
151 See also Australian Securities & Investments Commission v Rich (No 2) [2005] NSWCA 152; (2005) 54 ACSR 326 at [96]- [102].
152 Similarly, evidence based on a new technique such as voice identification was not admissible if the evidence “went outside the field of specialist knowledge ... so that it could be said that that conclusion did not arise from his expertise” (emphasis added). (McHardie and Danielson supra at 754.) Although s79 does not adopt the “field of expertise” approach, this reasoning requiring a demonstrable link to specialised knowledge is applicable to s79 of the Evidence Act, albeit no longer with respect to identification evidence as defined – see R v Adler [2000] NSWCCA 357; (2000) 52 NSWLR 451.
153 In Makita Heydon JA posed a series of questions about the evidence in that case, including:
“[87] ... Did [the report] furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit?”
154 The three opinions of Dr Sutisno in the present case do not, in my view, go beyond a “bare ipse dixit”. Dr Sutisno did not identify the terms of the “strict protocol” that she purported to have applied, nor did she set out the basis on which the “protocol” was developed. Indeed, she said that this information was confidential, because of what she described as a “process of patenting my innovations”. Accordingly, she had not published any of these “innovations”. The critical matter is that she did not identify her “protocol” or explain its basis.
155 The evidence in this case, supports the conclusion the Court of Appeal, Criminal Division, expressed in England in R v Gray [2003] EWCA Crim 1001, admittedly in the context of an expert who had been significantly discredited. The Court said:
“[16] ... Mr Harrow, like some other facial imaging and mapping experts, said that comparison of the facial characteristics provided ‘strong support for the identification of the robber as the appellant’. No evidence was led of the number of occasions on which any of the six facial characteristics identified by him as ‘the more unusual and thus individual’ were present in the general population, nor as to the frequency of the occurrence in the general population, of combinations of these or any other facial characteristics. Mr Harrow did not suggest that there was any national database of facial characteristics or any accepted mathematical formula, as in the case of fingerprint comparison, from which conclusions as to the probability or occurrence of particular facial characteristics or combinations of facial characteristics could safely be drawn. This court is not aware of the existence of any such database or agreed formula. In their absence any estimate of probabilities and any expression of the degree of support provided by particular facial characteristics or combinations of facial characteristics must be only the subjective opinion of the facial imaging or mapping witness. There is no means of determining objectively whether or not such an opinion is justified. Consequently, unless and until a national database or agreed formula or some other such objective measure is established, this court doubts whether such opinions should ever be expressed by facial imaging or mapping witnesses. The evidence of such witnesses, including opinion evidence, is of course both admissible and frequently of value to demonstrate to a jury with, if necessary, enhancement techniques afforded by specialist equipment, particular facial characteristics or combinations of such characteristics so as to permit the jury to reach its own conclusion – see Attorney General’s Reference No 2 of 2002 [2002] EWCA Crim 2373; but on the state of the evidence in this case, and if this court’s understanding of the current position is correct in other cases too, such evidence should stop there.”
The Unsafe and Unsatisfactory Ground
156 For the reasons I have identified above, the appeal should be allowed. The unsafe and unsatisfactory ground only needs to be considered on the issue of whether or not the Court should order a new trial. In my view, the Court should do so.
157 There is a body of evidence of a circumstantial character capable of supporting a conviction. I refer to the fingerprints on cigarette packets, the circumstance that the Appellant happened to be present with the two undoubted offenders within a short period after the event, well before the 40 minutes had elapsed at the end of which the other two were arrested. It is open to a jury to completely reject his version of the events. The evidence of Dr Sutisno of similarity, at least with respect to the facial features, is capable of adding strength to the Crown’s circumstantial case. Even if she is not able to express the conclusory opinions of the character she did express, she can give evidence which supports of the Crown case.
158 In my opinion the appeal should be allowed and the Court should order a new trial.
159 SIMPSON J: I agree with the Chief Justice.
160 ADAMS J: I agree with the Chief Justice.
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