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10
Court of Criminal Appeal 24 May 2006

Hien Puoc TANG v R

[2006] NSWCCA 167

Also reported as (2006) 65 NSWLR 681 161 A Crim R 377
Assault & violenceTheft & property
CRIMINAL LAW EVIDENCE CRIMINAL LAW EVIDENCE EXPERT OPINION MEANING OF “SPECIALISED KNOWLEDGE”

Citation: R v Hien Puoc Tang [2006] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 24 May 2006
Judge(s): Spigelman CJ; Simpson J; Adams J

Background

The appellant was convicted in the District Court of robbery while armed with an offensive weapon. The robbery occurred at a convenience store and was captured on surveillance video, though the footage was of insufficient quality to enable clear identification of the offenders. Two co-offenders were arrested shortly after the robbery and pleaded guilty. The appellant came to police attention eight months later, linked to the offence by fingerprints found on stolen cigarette packets.

At trial, the appellant gave evidence that he had handled cigarette packets when purchasing marijuana from the co-offenders some months before his arrest, explaining how his fingerprints came to be on stolen goods. The Crown's case depended substantially on expert opinion evidence from Dr Meiya Sutisno, a facial and body mapping analyst who compared surveillance images of a third unidentified offender with photographs of the appellant.

Dr Sutisno expressed three categories of opinion: that both sets of images depicted the same person; that a six-point scale supported that conclusion; and that certain physical characteristics constituted "unique identifiers." These opinions formed a central plank of the Crown's case that the appellant was the third offender.

  • Whether Dr Sutisno's curriculum vitae was correctly admitted into evidence
  • Whether the trial judge's use of the phrase "ultimate issue" in directions caused a miscarriage of justice
  • Whether expert evidence identifying the co-accused from the surveillance video was admissible and relevant
  • Whether the facial mapping and body mapping opinion evidence satisfied the requirements of s 79 of the Evidence Act 1995 (NSW)
  • Whether facial mapping and body mapping constitute areas of "specialised knowledge" within the meaning of s 79
  • Whether Dr Sutisno adequately disclosed her reasoning process to support the opinions she expressed

Decision

The Court of Criminal Appeal allowed the appeal, quashing the conviction and ordering a new trial. On the subsidiary grounds, the Court held that admission of Dr Sutisno's curriculum vitae caused no unfair prejudice, that the use of "ultimate issue" in the trial judge's directions did not produce a miscarriage of justice, and that the expert evidence identifying the co-accused from the video was relevant and admissible. The Court also found no error in the trial judge's conduct in relaying a jury question to the witness, nor any confusion in the overall directions given.

The central issue was the admissibility of Dr Sutisno's three categories of conclusory opinion under s 79 of the Evidence Act. That provision requires two things: first, that an identifiable area of "specialised knowledge" exists, derived from training, study or experience; and second, that the opinion is based wholly or substantially on that specialised knowledge. The Court emphasised that "knowledge" in this context means more than subjective belief or unsupported speculation.

The Court accepted that facial identification can constitute an area of specialised knowledge. However, it held that no sufficient foundation was laid at trial to establish that body mapping constitutes such an area. Because body mapping formed an important component of all three opinions Dr Sutisno expressed, each failed the first limb of s 79. Separately, the Court found that Dr Sutisno had not disclosed her reasoning process in relation to any of the three opinions, meaning all three also failed the second limb of s 79.

The Court added a broader observation about probabilistic expressions in facial mapping evidence. In the absence of a national database or agreed formula for assessing the statistical weight of particular facial characteristics, any estimate of probability or scaled degree of support represents only the subjective opinion of the witness. The Court indicated that, until such objective measures exist, such opinions should not be expressed by facial mapping witnesses, though evidence demonstrating particular facial characteristics for the jury's own assessment remains both admissible and potentially valuable.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • A new trial to be held

Key Takeaways

  • Under s 79 of the Evidence Act 1995 (NSW), expert opinion evidence must satisfy two distinct limbs: the witness must possess specialised knowledge derived from training, study or experience, and the opinion must be based wholly or substantially on that knowledge.
  • Facial identification may constitute an area of specialised knowledge, but body mapping requires its own evidentiary foundation, which was not established on the facts of this case.
  • An expert witness who fails to disclose the reasoning process underlying an opinion cannot satisfy the second limb of s 79, regardless of the expert's qualifications.
  • Probabilistic or scaled expressions of identity in facial mapping evidence, such as a six-point scale or "unique identifier" designations, are of doubtful admissibility in the absence of an established national database or agreed formula that would give those expressions objective content.
  • Evidence from a facial mapping witness demonstrating particular physical characteristics or combinations of characteristics, and allowing the jury to draw its own conclusions, remains admissible and can carry weight even where conclusory identity opinions are excluded.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW): ss 79, 135, 137, 177
- Federal Rules of Evidence 2004 (United States): Rule 702

Cases
- Butera v Director of Public Prosecutions (Vict.) (1987) 164 CLR 180
- HG v The Queen (1999) 197 CLR 414
- Smith v The Queen (2001) 206 CLR 650
- Velevski v The Queen (2002) 76 ALJR 402
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- R v Leung (1999) 47 NSWLR 405
- R v Li (2003) 139 A Crim R 28
- R v Gilmore (1977) 2 NSWLR 935
- R v McHardie and Danielson [1983] 2 NSWLR 733
- R v Adler (2000) 52 NSWLR 451
- The Queen v Murdoch (No 4) [2005] NTSC 78
- In the matter of the appeal of BLM (District Court of NSW, unreported, 14 September 2005)
- Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)
- R v Stockwell (1993) 97 Cr App R 260
- R v Gray [2003] EWCA Crim 1001
- Australian Securities & Investments Commission v Rich (No 2) (2005) 54 ACSR 326