Citation: R v Hawi & ors (No 24) [2011] NSWSC 1670
Court: Supreme Court of New South Wales
Date: 24 August 2011
Judge(s): R A Hulme J
Background
This decision arose in the course of a criminal trial in which the Crown alleged that one of the accused, referred to by his role as a person of interest in security footage known as the "Deng footage," was identifiable as a participant in the relevant events. The Crown sought to prove identification primarily through circumstantial evidence, not through direct visual identification from the footage itself.
The defence sought to tender expert evidence from Professor Henneberg, a biological anthropologist and anatomist, to assist the jury in interpreting what could be seen in the footage. His proposed evidence addressed two matters: first, that the person in the footage could not be identified; and second, that the person appeared to be wearing a long-sleeved garment and was not discernibly wearing jewellery, which was said to be inconsistent with the accused's known appearance at the relevant time.
The admissibility of Professor Henneberg's evidence was determined on a voir dire (a hearing held in the absence of the jury to assess the admissibility of evidence).
Legal Issues
- Whether Professor Henneberg's evidence that the person of interest could not be identified from the footage was relevant within the meaning of s 55(1) of the Evidence Act 1995.
- Whether his opinion evidence about the style of garment worn by the person of interest was based on specialised knowledge derived from his training, study or experience, as required by s 79 of the Evidence Act 1995.
- Whether his opinion evidence about the absence of visible jewellery met the same threshold under s 79 and the general relevance requirement under s 55(1).
- Whether the proposed evidence went beyond what the jury could determine for themselves from viewing the footage.
Decision
Issue 1: Identification evidence
Hulme J found that the evidence about inability to identify the person in the footage was not relevant. No party was actually contending that the footage permitted positive visual identification. The Crown's case on identity rested on other evidence from which an inference could be drawn. Professor Henneberg's expert confirmation that he, with all his specialised knowledge, could not identify the person added nothing to what was already accepted, and therefore could not rationally affect any fact in issue under s 55(1).
Issue 2: Clothing evidence
The court found that Professor Henneberg's opinion that the person appeared to be wearing long sleeves was not wholly or substantially based on specialised knowledge within the meaning of s 79. He conceded under cross-examination that he was not a garment specialist. His heavily qualified opinion in his report was further undermined when he acknowledged, upon being shown a still image, that one could not even exclude the possibility that the garment was a T-shirt.
Issue 3: Jewellery evidence
Professor Henneberg's opinion that nothing in the images suggested the presence of jewellery was similarly found to fall outside his area of expertise. There was no evidence of any study, training or experience in discerning jewellery in photographs. Critically, when shown a clearer image that depicted the accused known to be wearing jewellery, Professor Henneberg could not see it there either, demonstrating the limited probative value of his negative finding.
Issue 4: Evidence within the jury's own capacity
Hulme J held that the clothing and jewellery evidence amounted to no more than an ipse dixit, meaning an assertion based on personal observation rather than on any expertise that elevated the evidence above what a lay observer could do. It was not shown that Professor Henneberg brought any particular skill, technological assistance, or analytical method beyond looking at the photographs with the naked eye. In accordance with the approach in Smith v The Queen [2001] HCA 50, such evidence was not admissible opinion evidence.
Orders Made
- Evidence not admissible.
Key Takeaways
- Expert opinion evidence under s 79 of the Evidence Act 1995 must be wholly or substantially based on specialised knowledge derived from the witness's training, study or experience; a general scientific qualification does not extend to every related subject matter touched on in an opinion.
- Where an expert does no more than look at an image with the naked eye and describe what they see, that evidence may be characterised as an ipse dixit and excluded on the basis that it falls within the ordinary capacity of the jury, consistent with the High Court's reasoning in Smith v The Queen.
- A negative finding by an expert (such as the absence of identifiable features) carries diminished weight where the same expert cannot detect those features in a control image known to contain them.
- Relevance under s 55(1) of the Evidence Act 1995 requires that the evidence could rationally affect the assessment of a fact in issue; evidence confirming a proposition that is already uncontested by all parties fails that threshold.
- The Supreme Court's ruling illustrates that the admissibility of expert image-analysis evidence depends not merely on the expert's general credentials but on whether their specific expertise meaningfully applies to the precise question their opinion addresses.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650