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Court of Criminal Appeal 5 June 2013

Honeysett v R

[2013] NSWCCA 135

Assault & violenceTheft & property
EVIDENCE ROBBERY OF HOTEL OPINION EVIDENCE S 79 EVIDENCE ACT 1995 COMMON ANATOMICAL FEATURES IDENTIFIED WHETHER BASED ON SPECIALISED KNOWLEDGE

Citation: Honeysett v R [2013] NSWCCA 135
Court: Court of Criminal Appeal, New South Wales
Date: 5 June 2013
Judge(s): Macfarlan JA; Campbell J; Barr AJ

Background

The appellant was convicted by jury of armed robbery at the Narrabeen Sands Hotel in September 2008. Three armed men entered the hotel after closing time and stole $4,800. The appellant was alleged to have been the offender who carried a pink-handled hammer.

The prosecution's case rested on several strands of evidence: DNA matching the appellant's profile found on the hammer and on a white T-shirt recovered from a vehicle identified as the getaway car; eyewitness descriptions from hotel employees; and the opinion evidence of a Professor of Anatomy who compared CCTV footage of the offender with police footage of the appellant.

The appellant challenged his conviction on two grounds: first, that the anatomical comparison evidence should not have been admitted; and second, that the jury's verdict was unreasonable and could not be supported by the evidence.

  • Whether the anatomical comparison evidence given by the Professor of Anatomy was admissible as expert opinion evidence under section 79 of the Evidence Act 1995, specifically whether it was "wholly or substantially based on specialised knowledge" derived from training, study or experience
  • Whether the evidence was distinguishable from the opinion evidence approved in Morgan v R [2011] NSWCCA 257, where an expert had expressed a conclusion of "high anatomical similarity"
  • Whether the jury's verdict was unreasonable or unsupportable having regard to the totality of the evidence

Decision

On the admissibility of the expert evidence, the Court found that Professor Henneberg's evidence was properly admitted. His extensive academic qualifications in anatomy, combined with his forensic experience in identifying anatomical characteristics from CCTV images since the mid-1970s, established the necessary specialised knowledge base. The Court accepted that his identification of eight anatomical features common to the First Offender and the appellant, including body build, posture, head shape, and handedness, was an exercise of that specialised knowledge rather than mere lay observation.

On the distinction from Morgan, the Court noted that the expert in this case did not go so far as to express an opinion of "high anatomical similarity" between the offender and the appellant. The evidence was limited to identifying common features and did not assert a positive conclusion that the two were the same person. This more measured form of the opinion was found to be within the admissible range, and any concern about it going too far was addressed by its relative restraint compared to the evidence considered in Morgan.

On the unreasonable verdict ground, the Court applied the established test requiring it to make its own assessment of the evidence and determine whether a reasonable jury, acting on proper instructions, could have been satisfied beyond reasonable doubt of the appellant's guilt. The DNA evidence alone, while not conclusive given that the offender wore gloves, constituted strong evidence linking the appellant to the robbery. The T-shirt DNA, the eyewitness descriptions, the Professor's anatomical evidence, and the CCTV footage collectively supported the verdict. The Court concluded the Crown had proved the case beyond reasonable doubt and rejected this ground.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • An anatomist with forensic experience in CCTV image comparison can qualify as an expert under section 79 of the Evidence Act 1995, provided the opinion is wholly or substantially based on the witness's specialised anatomical knowledge rather than observations available to any lay person.
  • The Court of Criminal Appeal confirmed a meaningful distinction between expert evidence that identifies common anatomical features and evidence that asserts positive identification or "high anatomical similarity." The latter, as discussed in Morgan v R, carries greater risks and requires careful scrutiny; the former, if properly grounded, may be admissible.
  • In dismissing the unreasonable verdict ground, the Court reaffirmed that an appellate court must undertake its own independent assessment of the evidence, but conviction will stand where a reasonable jury could have been satisfied beyond reasonable doubt on the whole of the evidence.
  • DNA evidence retains significant probative weight even where an offender wore gloves during the offence, provided it is found on items physically connected to the crime scene or getaway vehicle.
  • Where multiple independent strands of evidence point to the same conclusion, the cumulative effect can support a verdict even if individual pieces of evidence are not conclusive on their own.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 79
- Crimes Act 1900 (NSW), s 97(2)

Cases:
- Morgan v R [2011] NSWCCA 257; 215 A Crim R 33
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
- Smith v The Queen [2001] HCA 50; 206 CLR 650
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- The Queen v Hillier [2007] HCA 13; 228 CLR 618
- The Queen v Keenan [2009] HCA 1; 236 CLR 397
- Festa v The Queen [2001] HCA 72; 208 CLR 593
- Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
- R v Tang [2006] NSWCCA 167; 65 NSWLR 681
- R v Leung [1999] NSWCCA 287; 47 NSWLR 405
- Li v The Queen [2003] NSWCCA 290; 139 A Crim R 281
- Murdoch v The Queen [2007] NTCCA 1; 167 A Crim R 329
- R v Gardner [2004] EWCA Crim 1639
- R v Dastagir [2013] SASC 26