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Supreme Court 28 November 2011

R v Smith (No 5)

[2011] NSWSC 1459

Homicide
CRIMINAL LAW MURDER EVIDENCE OF EXPERT WITNESS

Citation: R v Smith (No 5) [2011] NSWSC 1459
Court: Supreme Court of New South Wales
Date: 28 November 2011
Judge(s): Buddin J

Background

The accused was charged with the murder of a man at Fairfield in June 1995. The Crown alleged the accused killed the deceased while robbing him of his shoes and wallet. The case remained unsolved for over a decade until a DNA match, made in 2008 after the accused was apprehended in Queensland for an unrelated offence, linked him to the crime scene.

Central to the Crown's case was a pair of Adidas running shoes found near the deceased's body. DNA matching the accused was found inside the shoes, and blood matching the deceased was also present on them. The Crown's theory was that the accused had worn the shoes and discarded them after realising they were bloodstained.

The Crown sought to call Dr Paul Bennett, a podiatrist, to give expert evidence comparing the wear characteristics of the Adidas shoes with footwear, foot impressions, and gait footage obtained from the accused in 2009. Defence counsel applied to have that evidence excluded.

  • Whether Dr Bennett's opinion evidence was admissible under s 79 of the Evidence Act as specialised knowledge evidence
  • Whether the probative value of the evidence was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act
  • Whether s 135 of the Evidence Act operated to exclude the evidence
  • Whether the 14-year gap between the crime scene shoes (1995) and the comparison footwear and impressions (2009) undermined admissibility

Decision

Buddin J dismissed the application to exclude Dr Bennett's evidence. After the Crown clarified the scope of its reliance on the report, it became common ground that Dr Bennett was qualified as a podiatrist and could give evidence identifying points of similarity. The objection under s 79 effectively fell away once the Crown abandoned reliance on the phrases "significant correlation" and "relative uniqueness," limiting its case to Dr Bennett's observations of comparable characteristics across the footwear.

On the s 137 challenge, the court found that the probative value of the evidence was not outweighed by any danger of unfair prejudice. Buddin J acknowledged the limitations of the evidence but considered those limitations went to weight rather than admissibility. The court noted that any risk of the jury placing undue weight on the evidence, or treating a finding that the accused "cannot be excluded" as equivalent to positive identification, could be managed through appropriate jury directions at the time of the evidence and in the summing-up.

The court also addressed the accused's argument that he was prejudiced by his inability to produce evidence of his own wear pattern from 1995. Buddin J rejected this, observing that the absence of such evidence could itself be highlighted to the jury, and that it could not simply be assumed that any such evidence would have assisted the accused.

The court indicated it would give further warnings concerning the perceived weaknesses in Dr Bennett's evidence, consistent with the High Court's guidance in Domican v The Queen regarding identification evidence. The s 135 argument was not separately argued and was rejected for similar reasons to s 137.

Orders Made

• The challenge to the evidence pursuant to s 137 of the Act must fail
• The submission that s 135 is engaged in the present case is rejected
• Dr Bennett's evidence is admissible

Key Takeaways

  • Podiatric expert evidence identifying points of similarity in footwear wear patterns is capable of satisfying the specialised knowledge requirement under s 79 of the Evidence Act, provided it does not overreach into individualising or identification-style opinions.
  • Where the Crown confined the evidence to comparative observations rather than conclusions of uniqueness or significant correlation, the s 79 objection lost much of its force, illustrating how the scope of an expert's proffered opinion can be decisive to admissibility.
  • Under s 137, a court may decline to exclude expert evidence whose limitations go to weight rather than admissibility, particularly where appropriate jury directions can address the risk of undue reliance.
  • The Supreme Court confirmed that the inability of an accused to produce contemporaneous evidence of their own physical characteristics does not, without more, establish actual prejudice sufficient to enliven s 137.
  • Jury directions, including warnings about weaknesses in expert evidence consistent with Domican v The Queen (1992) 173 CLR 555, were identified as the appropriate mechanism for managing the risk of misuse of the comparative footwear evidence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 79, 135, 137, 191

Cases
- Domican v The Queen (1992) 173 CLR 555
- Smith v The Queen (2001) 206 CLR 650
- Louizos v The Queen (2009) 194 A Crim R 223
- R v Tang (2006) 161 A Crim R 377
- R v Shamouil (2006) 66 NSWLR 228
- R v Suteski (2002) 56 NSWLR 182
- R v Mundine (2008) 182 A Crim R 302
- Mainwaring v R [2009] NSWCCA 207
- R v SJRC [2007] NSWCCA 142
- R v Le [2000] NSWCCA 49
- R v Blick (2000) 111 A Crim R 326
- Parish v The State of Western Australia [2008] WASCA 90
- R v N, GF and N, SG (No 2) [2010] SASC 8
- Rose v R (1993) 69 A Crim R 1