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District Court 4 June 2007

R v Ali Alrekabi

[2007] NSWDC 110

Assault & violenceTheft & propertyFirearms & weapons
DETAIN FOR ADVANTAGE ARMED ROBBERY WITH DANGEROUS WEAPON CCTV FOOTAGE FACIAL MAPPING ANATOMICAL COMPARISON EVIDENCE OF CLOTHING

Citation: R v Ali Alrekabi [2007] NSWDC 110
Court: District Court of New South Wales
Date: 4 June 2007
Judge(s): Knox SC DCJ

Background

The accused faced three counts arising from an armed robbery at a jewellery store in Lakemba on 20 June 2006. Three men entered the store, one armed with a shortened firearm. Approximately $400,000 in cash and jewellery was taken. The victim, a store employee, was at one point standing roughly a metre from the person alleged to be the accused.

The Crown sought to prove identity partly through CCTV footage from the store and through expert facial mapping evidence. The proposed expert, Professor Maciej Henneberg, would compare photographic stills taken from CCTV footage with photographs of the accused taken later at a police station.

The accused applied by Notice of Motion to exclude both Professor Henneberg's facial mapping evidence and CCTV footage recorded of the accused while he was reporting on bail. The court conducted a voir dire (a preliminary hearing to determine admissibility) over several days before ruling on the application.

  • Whether facial mapping evidence, comparing CCTV stills with photographs of the accused, is admissible as expert opinion evidence
  • Whether Professor Henneberg possessed the requisite expertise under section 79 of the Evidence Act 1995 and the principles in Makita (Australia) Pty Ltd v Sprowles (the "Makita principles") to give opinion evidence on facial similarities
  • Whether the absence of a statistical or validated scientific basis for facial mapping conclusions rendered the evidence inadmissible
  • Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused under section 137 of the Evidence Act 1995
  • Whether the decision in Mundarra Smith v The Queen [2001] HCA 50 operated to preclude the expert evidence

Decision

Knox SC DCJ admitted the facial mapping evidence, finding it relevant and probative of the accused's identity. Professor Henneberg's extensive training in anatomy qualified him as an expert capable of identifying points of similarity and difference between the two sets of photographs. That expertise extended to giving evidence about the precise positions, significance, and characteristics of facial features, and to whether hair visible in the CCTV stills had been drawn back into a baseball cap.

The court acknowledged concerns about Professor Henneberg's use of qualitative descriptions such as "uncommon" when characterising particular similarities. However, the court held these were properly characterised as expert opinion based on experience and expertise, and their accuracy could be tested in cross-examination. The defence retained the ability to challenge the opinions, including through evidence from Dr Kemp about the absence of statistical data supporting facial mapping as a validated technique. The weight of the evidence was ultimately a matter for the jury.

On the question of unfair prejudice, Knox SC DCJ found the probative value of the evidence to be high and not outweighed by any danger of unfair prejudice under section 137 of the Evidence Act 1995. The court was not persuaded that a properly directed jury would be overwhelmed by the scientific or anatomical nature of the evidence, noting that explanation and cross-examination would address those concerns. The court also declined to follow the accused's reading of Mundarra Smith, finding that expert evidence of this kind could assist the jury in understanding what the photographs depicted.

The court noted that the facial mapping evidence could demonstrate similarities but would not be admitted as evidence of positive identification. The court flagged that careful jury directions would be required, covering matters such as the quality and limitations of the CCTV images, the basis for Professor Henneberg's opinions, the critique offered by Dr Kemp, and the proper use to be made of the COMFIT images.

Orders Made

  • The application to exclude Professor Henneberg's facial mapping evidence was refused; the evidence was admitted as relevant and probative
  • The evidence was admitted as opinion evidence going to similarities, not as evidence of positive identity
  • The CCTV evidence was also admitted
  • The court indicated that detailed jury directions would be required on the limitations of the photographic evidence and the use of the expert evidence

Key Takeaways

  • The District Court confirmed that facial mapping evidence, comparing CCTV stills with photographs of an accused, can be admissible as expert opinion evidence where the witness possesses appropriate expertise, even where the conclusions are expressed in qualitative rather than statistical form.
  • Under the Makita principles and section 79 of the Evidence Act 1995, the factual basis for an expert's opinion must be clear, and the opinion must be based on specialised knowledge; qualitative descriptions of similarity were held capable of satisfying these requirements where grounded in the expert's experience.
  • The absence of a validated statistical methodology for facial mapping goes to the weight of the evidence and is a matter for cross-examination and jury assessment, rather than a basis for excluding the evidence altogether.
  • Probative value was found to be high and not outweighed by unfair prejudice under section 137 of the Evidence Act 1995, with the court expressing confidence that proper jury directions could address the risk of a jury being unduly swayed by the scientific character of the evidence.
  • Facial mapping evidence of this kind is admitted to assist the jury in understanding similarities depicted in photographs; it does not constitute evidence of positive identification, and its limits should be the subject of explicit jury directions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(b), 97(1), 97(2)
- Evidence Act 1995 (NSW), ss 79, 137

Cases
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- Mundarra Smith v The Queen [2001] HCA 50
- R v Jung [2006] NSWCCA 658
- R v Tang [2006] NSWCCA 167
- R v Lisoff [1999] NSWCCA 364
- R v Festa (2001) 208 CLR 593
- Murdoch v The Queen [2007] NT CCA 1
- R v Kaliyanda (unreported, NSWSC, 17 October 2006)
- R v BLM (unreported, DC NSW, 14 September 2005)
- R v Mitchell [2005] EWCA Crim 731
- Attorney General's Reference No. 2 of 2002 [2003] 1 Cr App R 21
- Clarke [1995] 2 Cr App R
- R v Gray [2003] EWCA Crim 1001
- Gardner [2004] EWCA Crim 1639