Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Honeysett v R [2013] NSWCCA 135
• Hearing dates: 2 May 2013
• Decision date: 05 June 2013
• Before: Macfarlan JA at [1]; Campbell J at [77]; Barr AJ at [78]

Decision

Appeal dismissed.

• Catchwords: EVIDENCE - robbery of hotel - opinion evidence - s 79 Evidence Act 1995 - expert evidence of comparisons of CCTV images of offender and images of appellant - common anatomical features identified - evidence not given that there was "a high level of anatomical similarity" between offender and appellant - Morgan v R 215 A Crim R 33 distinguished - whether admissible as expert opinion evidence - whether based on specialised knowledge - whether witness qualified as an ad hoc expert; CRIMINAL LAW - appeal - whether verdict unreasonable or insupportable having regard to evidence - appeal dismissed
• Legislation Cited: Evidence Act 1995
• Cases Cited: Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180; Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588; Festa v The Queen [2001] HCA 72; 208 CLR 593; Li v The Queen [2003] NSWCCA 290; 139 A Crim R 281; Morgan v R [2011] NSWCCA 257; 215 A Crim R 33; Murdoch v The Queen [2007] NTCCA 1; 167 A Crim R 329; Smith v The Queen [2001] HCA 50; 206 CLR 650; R v Dastagir [2013] SASC 26; R v Gardner [2004] EWCA Crim 1639; R v Leung [1999] NSWCCA 287; 47 NSWLR 405; R v Tang [2006] NSWCCA 167; 65 NSWLR 681; 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 236; CLR 397
• Category: Principal judgment
• Parties: Anthony Charles Honeysett (Appellant); Regina (Respondent)
• Representation: Counsel: D Barrow (Appellant); J H Pickering SC (Respondent); Solicitors: Blair Criminal Lawyers (Appellant); S Kavanagh - Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2009/60929

Decision under appeal

• Jurisdiction: 9101
• Citation: R v Anthony Charles Honeysett
• Date of Decision: 2011-08-26 00:00:00
• Before: Bozic DCJ
• File Number(s): 2009/60929

Judgment

1 MACFARLAN JA: Late on 17 September 2008, after closing time, three armed men entered the Narrabeen Sands Hotel, confronted the three employees present and robbed the business of $4,800 in cash. One offender (referred to in this judgment as the "First Offender") carried a pink-handled hammer, another a shortened shotgun and the third "something long". Each offender was wearing dark clothes with "a white pillow or T-shirt wrapped around his head". They fled in what was later alleged to have been a stolen Audi RS 4 vehicle which bore separately stolen number plates.

2 Subsequently the appellant was charged with armed robbery contrary to s 97(2) of the Crimes Act 1900, it being alleged that he was the First Offender. After a plea of not guilty and a trial before a jury, he was convicted of the offence charged. He appeals against his conviction on the following grounds:

"Ground 1

His Honour erred in admitting the evidence of Professor Henneberg to the effect that the appellant was similar in appearance to one of the offenders

Ground 2

The verdict of the jury was unreasonable and unsupported by the evidence".

3 Before considering these grounds of appeal, it is necessary to give the following summary of the presently relevant evidence at the trial.

EVIDENCE AT THE TRIAL

The hotel employees

4 Ms Sarah Copperwheat, the manager of the hotel, described the First Offender as follows:

"He was quite thin, tall, probably about 6' or so, thinnish guy, brown eyes, was kind of brown around the eyes as well so I wouldn't say he's not like a white looking guy but yeah".

5 She thought that he was the offender who "had the jumper around his head" and that he "wasn't an old, old looking guy".

6 Mr Matthew Sim, a barman at the hotel, described the First Offender as having "some sort of accent that wasn't solely Australian" ("maybe Middle-Eastern"), "with a white pillow case or a T-shirt wrapped around his head" and "dark skin, dark eyebrows" ("he looked Indian or ... "). He saw the offenders leave after the robbery in a dark silver car that he recognised by the sound of its engine to be an Audi RS 4. He had had experience with motor vehicles that he said enabled him to do this.

7 Mr Silionel Nadureira, head of security at the hotel, said that the First offender had "like a white T-shirt over his hair" and that his skin colouring was "dark". He said that he "wasn't like a big guy. He was, you know, I reckon five two - he was like just normal size". Mr Nadureira is six foot four inches tall and said that the first offender was "shorter, a lot shorter". He said that the offenders fled in a dark coloured sedan.

The get-away car

8 Senior Constable Christopher Papallo, after being given notice by radio of the robbery, engaged for a period in a high speed chase of an Audi sedan, thought to be the get-away vehicle. It bore the number plate AZF16B. Constable Brendan Allen also gave chase to the same vehicle, as did Senior Constable Michael Haley. They were in separate vehicles.

9 On 25 November 2008 police officers recovered a grey Audi RS 4 vehicle. It had an engine number that identified it as a vehicle stolen from Mr Michael Curtin's home on 14 September 2008. Mr Curtin's number plates for the vehicle, XXX77Z, were found inside it.

10 The number plates displayed on the vehicle chased by police on the night of 17 September 2008 were proved to have been stolen from a vehicle owned by Mr Barry Knight on the night of 16 September 2008, the night before the robbery, but were not recovered on 25 November 2008 or otherwise.

11 During the chase of the Audi sedan by Senior Constable Haley, a speed camera took a photo of it (Exhibit F), revealing that a person was sitting in the passenger seat with white material wrapped around his or her head.

12 Evidence was also given that only one Audi RS 4 sedan had been stolen in New South Wales during 2008.

DNA on the pink-handled hammer

13 The pink-handled hammer carried by the First Offender during the robbery was later located at the crime scene. On analysis, DNA of the same profile as that of the appellant was found on it, with a trace amount of another person's DNA. Ms Vivienne Bielby, a forensic biologist, gave evidence that the appellant's DNA profile could only be expected to occur in fewer than one in 10 billion individuals in the general population.

14 The appellant contended that the significance of this evidence was considerably diminished by the fact, evident from CCTV footage taken during the robbery, that the First Offender wore gloves.

The T-shirt DNA

15 A white T-shirt was found in the Audi RS 4 recovered on 25 November 2008. DNA of the same profile as the appellant's DNA was found on the inside back of the neck of the T-shirt. Mr Clinton Cochrane, a forensic biologist, said that the amount of DNA recovered from the T-shirt was inconsistent with secondary transfer and that the same profile of DNA could be expected to occur in fewer than one in 10 billion individuals in the general population.

Professor Henneberg's evidence

16 Prior to the trial, the trial judge ruled on a voir dire that evidence proposed to be called from Professor Henneberg, Professor of Anatomy at the University of Adelaide, would be admissible. The proposed evidence related to his comparisons between the offenders shown on CCTV footage taken during the robbery and videos and photographs of the appellant taken subsequently at the Surry Hills Police Station. The evidence in fact led from Professor Henneberg at the trial was narrower than that foreshadowed by the Crown on the voir dire.

17 At the trial, Professor Henneberg described his extensive academic experience over many decades at universities in Poland, the United States, South Africa and Australia. His written curriculum vitae (Exhibit L) referred to his authorship, or co-authorship, of some seven books and 240 papers. It also referred to his experience as a forensic expert including, from 1996 to the present, in "identification from security camera photographs". He gave oral evidence of having practised "in forensic identification, that's specifically identifying anatomical characteristics, since 1976 in various countries" and in anatomical comparison "in relation to various kind[s] of images, mostly from closed circuit television". He said that he began to prepare expert reports "in relation to closed circuit whole body comparisons" in 2000, his first court appearance being in 2003.

18 Professor Henneberg deposed that he had been given, for comparison, discs containing CCTV footage relating to the robbery at the Narrabeen Sands Hotel and film and still photos taken of the appellant at the police station.

19 He said that he attempted to identify any anatomical features common to the First Offender and the appellant. He said that he was able to identify the eight common features referred to below but said, speaking generally, that the anatomical features that are known to be variable between individuals are numerous, a list of them being "many pages long, I think 14 pages".

20 He described experience he had had in photography as part of his work activities and referred in detail to the nature and extent of image distortions that can occur in CCTV footage. He described how he sought to take account of such distortions in performing his work.

21 Professor Henneberg said that he went through the images in this case repeatedly, over several hours, and that he formed an anatomical description of the First Offender using his experience in the study of anatomy and in "measuring or describing body shapes and face pictures".

22 For reasons that he gave, he first concluded that the First Offender was an adult male.

23 Next, he concluded that that offender had a "skinny body build", that is, that he was ectomorphic. He explained how he was able to discern this notwithstanding that the offender was clothed.

24 Thirdly, he concluded that the offender was of medium body height and, fourthly, that:

"[H]e carries himself very straight so that his hips are standing forward while his back is very clearly visible and here's an anatomical term, lumbar lordosis, which means well-bent small of his back, and this is overhung by the shoulder area".

25 Fifthly, Professor Henneberg concluded that the offender's hair was short and, sixthly, that he had a head shape that was more like a football than a soccer ball. He described the latter distinction as one of "the best studied variable features in the human population". He gave reasons for being able to identify these features notwithstanding the existence of the cloth wrapped around the offender's head.

26 Next he described the offender as being right-handed. To support his ability to discern this he said that he had undertaken his Masters thesis in 1973 on the topic of handedness and had published papers on it in 1999 and 2007.

27 Finally, he said that he was able to discern that the offender had skin that was a dark colour. He described how he took account of colour distortions in the images and why he reached the conclusion that he did.

28 He said that his examination of the footage and images taken at the police station indicated that the appellant shared these eight features and that he was not able to discern any differences between the offender and the appellant.

29 Professor Henneberg's evidence was attacked in cross-examination, largely on the basis of the views of Dr Meiya Sutisno and Mr Glenn Porter which were later given in evidence in the course of the appellant's case at the trial.

30 Dr Sutisno is a forensic anatomist and senior lecturer in forensic biology at the University of Technology, Sydney. She said that it was not possible to tell from the CCTV footage that the First Offender was an adult male, that the body shape was ectomorphic or that lumbar lordosis was exhibited. Nor could she discern the shape of the offender's head, hair length or skin colour, or whether the offender was right-handed.

31 Mr Porter is a senior lecture in forensic science at the University of Western Sydney. He said that he was unable to detect the colour of the hammer held by the offender nor any anatomical features of the offender.

The appellant's evidence

32 The appellant denied any involvement in the robbery at the Narrabeen Sands Hotel or in the theft of Mr Curtin's Audi RS 4.

33 He said that he is an Aboriginal person who shares his personal possessions with "friends, family, whoever needed it". He denied any knowledge of the pink-handled hammer and could not explain how his DNA was found on it. He agreed that the white T-shirt found in the Audi RS 4 was medium sized, which would have fitted him, but denied that it was his.

34 The appellant also called Mr Lyle Munro, an expert in Aboriginal affairs, to give evidence. He said that the appellant's father's home, where the appellant stayed from time to time, was in the area of Redfern known as "The Block". He described the culture in this area as "an extended family situation" and said that "Aboriginal people look after one another, their homes are available and most of their possessions are also available for the extended family".

GROUND 1: THE EVIDENCE OF PROFESSOR HENNEBERG

35 This ground of appeal complains of the admission of evidence of Professor Henneberg "to the effect that the appellant was similar in appearance to one of the offenders". However Professor Henneberg did not, at least expressly, give evidence to this effect. Rather he identified eight features that the First Offender had in common with the appellant and said that he was not able to identify any differing features. He did not express a conclusion as to the common identity of the persons or, in any general sense, any similarity between them.

36 Before addressing this Ground, I shall refer to relevant legislation and authorities.

Section 79 of the Evidence Act 1995

37 The appellant contended that Professor Henneberg's evidence was opinion evidence which was inadmissible because it did not conform with s 79(1) of the Evidence Act. The appellant did not submit that the evidence was not relevant, or that it should have been excluded under either s 135 or s 137. Section 79 is in the following terms:

"Exception: opinions based on specialised knowledge

(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

... "

Relevant case authority

38 The first proposition to note is that evidence of similarities between persons, falling short of identification of the persons as the same, is admissible (Festa v The Queen [2001] HCA 72; 208 CLR 593). As observed by McHugh J in that case:

"[56] Unfortunately, another class of evidence is sometimes called 'circumstantial identification evidence'. It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence" (citations omitted).

39 A jury may draw conclusions about similarities between an accused on the one hand and on the other hand an offender depicted in, for example, security camera photographs (see Smith v The Queen [2001] HCA 50; 206 CLR 650). It may be assisted in its interpretation of such footage by expert evidence but, as Smith demonstrates, the evidence of a witness, such as a police officer who is no more qualified to undertake a comparison than members of the jury is not admissible (at [9] - [11]).

40 In R v Tang [2006] NSWCCA 167; 65 NSWLR 681, Dr Sutisno (who also gave evidence in the present case) gave evidence for the Crown that after studying CCTV footage of the offence and subsequent photographs of the appellant, she could identify the appellant as the offender. Spigelman CJ (with whom Simpson and Adams JJ agreed) concluded in relation to the first limb of s 79(1) of the Evidence Act, that whilst there was a body of expertise which supported Dr Sutisno's evidence of common facial characteristics, the evidence did not indicate that that expertise was of such a character that it could support an opinion of identity such as that given by Dr Sutisno ([135] and [146]). His Honour thus drew a distinction between evidence of points of similarity in facial anatomy and evidence of identity. His Honour observed:

"120 As indicated above, in the circumstances of this case, the evidence of particular similarities between the two categories of photographs of the accused and the third offender was admissible. The process of identification and magnification of stills from the videotape was a process that had to be conducted by Dr Sutisno out of court. Furthermore, the quality of the photographs derived from the videotape was such that the comparison of those stills with the photographs of the appellant could not be left for the jury to undertake for itself. The identification of points of similarity by Dr Sutisno was based on her skill and training, particularly with respect to facial anatomy. It was also based on her experience with conducting such comparisons on a number of other occasions. Indeed, it could be supported by the experience gained with respect to the videotape itself through the course of multiple viewing[s], detailed selection, identification and magnification of images. By this process she had become what is sometimes referred to as an 'ad hoc expert'. (See Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 195; R v Leung (1999) 47 NSWLR 405 at 413 [37]-[68]; Li v The Queen (2003) 139 A Crim R 281 at 286 [39]-[44].) In any event, as noted above, no complaint is made of this evidence."

41 In Butera, to which Spigelman CJ referred, Dawson J observed:

" ... The production and playing of an original tape recording remains the best means of proof of its contents, at least where it is audible, intelligible and the words used are in the English language. Where it is inaudible or unintelligible, expert evidence of its contents may be required and it has been held that an ad hoc expertise may be acquired by a witness by playing and replaying a tape so as to become more familiar with its contents than could be done by playing it only once or twice ... " (at 195 citations omitted).

42 Butera was applied in R v Leung [1999] NSWCCA 287; 47 NSWLR 405 to evidence of a qualified interpreter who, in translating tape recorded conversations, had become familiar with the accents and use of language of the voices on the tapes. This ad hoc expertise entitled him to give evidence of voice comparison ([48]).

43 The same approach was adopted in Li v The Queen [2003] NSWCCA 290; 139 A Crim R 281 towards the evidence of an experienced interpreter and translator who had become familiar with the voices on tapes which he had analysed "for many hours over many days" (at [32]).

44 In Murdoch v The Queen [2007] NTCCA 1; 167 A Crim R 329, Dr Sutisno again gave evidence of comparisons between CCTV footage of a suspect and images of the appellant. She explained to the jury what she perceived to be the similarities and differences between the persons depicted and concluded:

"The multiple number of features matched, which includes the most noticeable or most recognisable features, the distinctive, unique identifiers, the habitual characteristics and racial traits indicate the level of identification is the same person" (at [263]).

45 The Court held that Dr Sutisno's evidence of similarities between the persons depicted was admissible, but not that of positive identification (at [300]). It said that her training and experience enabled her to give evidence of the points of similarity in the facial features of the persons. In addition, her detailed study of the images qualified her as an ad hoc expert entitled to give evidence of similarities of body and movement (at [296] - [300]).

46 In addition to Tang, the Court in Murdoch relied upon United Kingdom decisions, including R v Gardner [2004] EWCA Crim 1639, establishing that whilst evidence of similarities in the face and body characteristics between an offender and an accused is admissible, facial imaging or mapping evidence of identification is not.

47 In Morgan v R [2011] NSWCCA 257; 215 A Crim R 33, Professor Henneberg gave evidence of comparisons he made between images of an offender shown in CCTV footage taken during robberies at two hotels and photos and moving images of the appellant. Having identified similarities between the persons depicted, he concluded:

"Based wholly or substantially on the above knowledge, I am of the opinion that there is a high level of anatomical similarity between the Offender and the Suspect (Mr MORGAN). My opinion is strengthened by the fact that I could not observe on the Suspect any anatomical detail different from those I could discern from the CCTV images of the Offender" (see [76]).

In response to a question posed in a note from the jury, Professor Henneberg calculated that the combination of features that he identified in the offender would be present in 1.6 per cent of the male population.

48 Having referred to relevant authorities, Hidden J (with whom Beazley JA and Harrison J agreed in relation to the relevant grounds of appeal) said:

"140 [Professor Henneberg's] task was to make an anatomical comparison between relatively poor quality CCTV images of a person covered by clothing from head to foot with images of the appellant. Applying his specialised knowledge, Professor Henneberg claimed, he was able to detect not just a measure of similarity but 'a high level of anatomical similarity' between the two persons. How he was able to do that when no part of the body of the offender in the CCTV images was exposed was, in my view, never satisfactorily explained.

141 It may be that his experience enabled him to make appropriate adjustments for photographic distortion in the CCTV images. However, it is not apparent on the evidence how his undoubted anatomical expertise equipped him to take account of the clothing. Notably, he said that he could make observations of the 'head shape, nose and face profile' of the offender, notwithstanding that his head was covered by a balaclava. True it is that that garment appeared to him to be 'well adhering to the surface of the skin' and, as noted at [56] above, Mr Brooks at the Willoughby Hotel described the balaclava worn by the relevant offender as 'close fitting'. Nevertheless, this is no answer to the cogent criticisms of this part of the evidence by the other experts."

49 His Honour then referred to evidence of Dr Sutisno, Dr Kemp and Mr Porter disputing Professor Henneberg's evidence and concluded:

"144 Whatever might be made of the professor's observations of the offender's body shape through his clothing, his observations about the shape of his head and face were clearly vital to his conclusion that there was a high degree of anatomical similarity between that person and the appellant. It does not appear to me that those observations could be said to be based upon his specialised knowledge of anatomy. Generally, I am persuaded by Mr Stratton's submission that his description of the offender was 'simplistic'. It may well be that the jury would have required expert evidence explaining the effect of photographic distortion in the CCTV images. Subject to that, I am not persuaded that the comparison of the images of the offender with those of the appellant was a task which the jury would not have been able to undertake for themselves: cf Smith v The Queen [2001] HCA 50, 206 CLR 650.

145 Indeed, with every respect to Professor Henneberg, I am of the view that his evidence raised the very problem about expert evidence in this area described by Dr Kemp [that juries are heavily influenced by expert opinions]. It tended to cloak evidence of similarity in a mantle of expertise, described by Mr Stratton as a 'white coat effect', which it did not deserve."

50 In R v Dastagir [2013] SASC 26, Nicholson J considered the admissibility of evidence of Professor Henneberg of similarities between the appellant and a person depicted on CCTV footage. His Honour had earlier ruled that proposed evidence of Professor Henneberg that the persons were the same was inadmissible.

51 His Honour said:

"I was satisfied that Professor Henneberg had acquired, over many years, substantial practical expertise in the understanding and examination of digitally produced images. I was satisfied that he had acquired a level of expertise sufficient for the task at hand which was to bring his undoubted expertise as a human anatomist to bear to observe and describe anatomical features of the person of interest shown in the ... service station's CCTV footage" (at [46]).

52 He rejected criticism that Professor Henneberg did not employ a satisfactory or acceptable methodology, concluding that Professor Henneberg's task was "essentially observational and descriptive" (at [46]).

53 His Honour distinguished the decision in Morgan on the basis that in Morgan the person of interest was fully clothed and wearing a balaclava and in that case Professor Henneberg had expressed the view that there was "a high level of anatomical similarity between the offender and the suspect", a view which bordered on expressing a view on the ultimate issue. In addition, his Honour pointed out that the evidentiary base before the Court in Morgan was different from that in the case before him. Furthermore, his Honour expressed the view that Professor Henneberg had in the case before him acquired an ad hoc expertise of the type to which Spigelman CJ referred in Tang (at [54]).

54 His Honour agreed with the analysis and observations of the Northern Territory Court of Appeal in Murdoch and concluded that the limited evidence given by Professor Henneberg, of similarities between the persons depicted, was admissible (at [61]).

Conclusions on Ground 1

55 The appellant submitted that the decision in Morgan required this Ground of appeal to be upheld. For the following reasons, I do not agree.

56 First, of central importance to the decision in Morgan was Professor Henneberg's evidence that there was "a high level of anatomical similarity" between the offender and the appellant. Although this was not evidence identifying the appellant as the offender, it was conclusory in character and went a long way towards constituting identification. As such, it was strongly arguable that its admission would have conflicted with the decisions in Tang and Murdoch, in addition to those in the United Kingdom to which I have referred. The principal difficulty with it was that it was not founded upon any established criteria for determining how many and what type of similarities between people result in "a high level of anatomical similarity" between them when considered as a whole. As Professor Henneberg pointed out in the present case, the respects in which persons may differ are numerous. Indeed, he referred to a list some 14 pages long (see [19] above).

57 Contrary to the appellant's submissions (Reply [4]), the evidence of Professor Henneberg in the present case and in Morgan was not "essentially identical". Critically, in the present case Professor Henneberg did not give evidence of any conclusions to be drawn from his observations of identified common characteristics.

58 Secondly, I do not regard as determinative of the present case the Court's conclusion in Morgan that the evidence in that case did not establish that Professor Henneberg's expertise equipped him to express views about the shape of the offender's head and face, notwithstanding that his head was covered by a balaclava. This was a conclusion based on the evidence in that case.

59 The relevant part of Professor Henneberg's evidence-in-chief in the present case was as follows:

"Q. What was your next feature, that is his feature?

A. Oh, it was part of the face. I said in my report, although the offender covers his head and face with a cloth, with what looks like a T-shirt, the knitted fabric is elastic and adheres closely to the vault of the head, meaning to the brain case. And this shows that his hair is short because the shape that is revealed by the adhering fabric is consistent with a very characteristic shape of the human brain case. And I then proceeded to assess the shape of his brain case as elongated which has Greek term, Dolichocephalic, as opposed to brachycephalic, which is simply round. And after this I went straight to my comparisons of football to a soccer ball. These are extremes but that is the difference. A Dolichocephalic head is more similar in its shape to a football whereas a brachycephalic head is similar to a soccer ball. And this is one of the best studied variable features in the human population and it is also used in clinical diagnosis.

Q. That was able to be determined by you through the fabric of what he had over his head?

A. Yes, the fabric showed, closely adhered to his head around it and showed the shape of the skull vault. If I may make a direct comparison, excuse me, but if we put elastic fabric onto a your head with the wig obviously it would be clear that there is a wig under the fabric because it wouldn't look like the normal shape of the brain case" (Transcript p 117).

60 In addition to his specialised knowledge based upon his training, study or experience occurring prior to the present case, Professor Henneberg's detailed consideration over a lengthy period of the CCTV footage in the present case rendered him an ad hoc expert of the type described in Tang and other decisions to which I have referred. His individual and detailed examination of the footage could be expected to have put him in a superior position to that of the jury which would have had a collective viewing over what would, in practical terms, be likely to have been a far shorter time. Professor Henneberg's prior training, study and experience would of course have added to that advantage. The potential assistance of Professor Henneberg's evidence to the jury is highlighted by Dr Sutisno's evidence that it was not possible to discern even the gender of the First Offender. It could not in these circumstances be said that Professor Henneberg's evidence was simply of obvious matters that the jury could have necessarily have discerned for itself.

61 In summary, I agree generally with the approach of Nicholson J in Dastagir and in particular with the following conclusion which is worthy of repetition:

"64. Evidence of similarity is relevant and admissible as part of a circumstantial case. In short, Professor Henneberg offered an expertly trained eye for observation of anatomical features, an expert capacity to compare a feature in one set of images with the cognate feature in another set of images and to describe them, insofar as anatomical considerations permit, as similar or dissimilar, an expert capacity to position anatomical features on a categorical scale accepted in the profession as a useful means of categorising like as opposed to unlike anatomical presentations of a particular feature and a common language for the descriptions".

Whilst in Dastagir, in contrast to the present case, the offender's head was not covered, I have concluded in [58] to [60] above that Professor Henneberg's evidence concerning the First Offender's hair length and head shape was admissible. As a result, I regard Nicholson J's remarks as applicable to the present case.

62 Dr Sutisno gave evidence that she had given evidence in other cases about the shape of an offender's head where the offender had been wearing clothing including a baseball cap which covered the top of the head. She said that those cases were different from the present because "[t]he cap was tightly fitted to the skull unlike in this case it's loose covering of the head" (Transcript p 187).

63 It was open to the jury to prefer Dr Sutisno's view on this issue to that of Professor Henneberg but it cannot in my view be said that the latter's evidence was clearly groundless and not fit to be left to the trier of fact for consideration. In addition to his formal qualifications in anatomy, Professor Henneberg is a person of extensive practical experience in examining CCTV footage, with all its deficiencies, and attempting to identify characteristics of persons depicted in it. The view he expressed on this topic is necessarily subjective and not amenable to elaboration beyond the reasons he gave, or to measurement and calculation. The present case differs from Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 where the evidence did not enable the Court to understand how the witness' training, study or experience permitted him to provide the numerical estimates that he proffered.

64 Thirdly, I note that the Court in Morgan was not persuaded "that the comparison of the images of the offender with those of the appellant was a task which the jury would not have been able to undertake for themselves" ([144]). It referred in this respect to the decision in Smith (see [39] above). This point concerned the relevance of the evidence in that case. However, relevance is not in issue in the present case. The appellant's express disavowal of an argument that Professor Henneberg's evidence would not, if supported by appropriate expertise, have been relevant carries with it the implicit acceptance that, unlike the position in Smith, the witness' evidence would have assisted the jury in attempting to determine whether the appellant was depicted in the security images taken during the commission of the offence.

65 Fourthly, I note that in adverting to the "white coat effect" of expert evidence, the Court in Morgan appeared to be referring to discretionary considerations that would arise under s 135 or s 137 of the Evidence Act if those sections were relied on. The appellant in the present case however expressly disavowed reliance on either of those sections.

66 In these circumstances, I conclude that the challenged evidence of Professor Henneberg was admissible and that this ground of appeal should be rejected. For the reasons I have given, he has specialist knowledge based on his training, study and experience and his evidence was based on that specialised knowledge (see s 79(1) Evidence Act - [37] above).

67 Professor Henneberg's evidence was limited to identifying similarities between the depictions of the offender and the appellant. Contrary to the appellant's contention in Ground 1, this evidence was not to the effect that the offender and the appellant were similar in appearance. Professor Henneberg stated that they had limited, identified characteristics in common, a statement that falls well short of asserting that "the appellant was similar in appearance to one of the offenders"; particularly when he had pointed out to the jury the common sense proposition that there are multifarious respects in which individuals may differ.

68 Professor Henneberg's evidence that he did not identify any differing characteristics did not mean that his evidence, taken as a whole, was to the effect that the offender and the appellant were similar in appearance. His evidence, and the CCTV footage itself, would have made it clear to the jury that the clothing of the offender made it very difficult to do more than identify a very limited number of characteristics. Contrary to the appellant's submission (Reply [17]), the jury could not reasonably have interpreted Professor Henneberg's evidence as being that there were "no points of difference" between the individuals. It was obvious from his evidence that he was in no position to express such a view.

GROUND 2: WHETHER THE VERDICT WAS UNREASONABLE AND UNSUPPORTED BY THE EVIDENCE

69 Consideration of this Ground requires the Court to undertake its own independent assessment of the evidence and determine whether it has a reasonable doubt about the appellant's guilt which cannot be resolved by attributing the verdict of guilty to the jury's advantage in seeing and hearing the evidence of the witnesses (SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11] - [14]).

70 As there was no witness who was able to identify the appellant as the First Offender, (the person who carried the pink-handled hammer during the robbery) the case against him is a circumstantial one. In such a case, the Court must have regard to the whole of the evidence to determine whether the accused's guilt was established beyond reasonable doubt. As was stated in The Queen v Hillier [2007] HCA 13; 228 CLR 618:

"49. In the present case, there was evidence (such as the evidence of unidentified DNA on the pyjama top) which was consistent with Mr Hillier's innocence. But the question for the Court of Appeal was whether, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt that he was guilty.

50. In that regard it is important to recognise that Mr Hillier gave evidence at his trial. The Court of Appeal made no reference to this evidence when considering whether the jury's verdict should be set aside. One question which the jury was bound to consider was what they made of Mr Hillier's evidence. Did they believe that Mr Hillier may have been telling the truth when he denied responsibility for Ms Hardwick's death? Or were they, as the verdict revealed, positively persuaded on a consideration of all of the evidence (including his) that he was not?"

See also The Queen v Keenan [2009] HCA 1; 236 CLR 397 at [128].

71 The principal evidence against the appellant was in summary as follows. Most of this evidence has been referred to earlier in [4] to [34].

72 Of primary significance was the evidence of what can be taken as the appellant's DNA on the pink-handled hammer held by the First Offender during the robbery and found afterwards at its scene. It is deprived of conclusiveness by the fact that that offender wore gloves during the robbery but it remains as strong evidence linking the appellant with the robbery.

73 The hotel employees' descriptions of the First Offender, although referring only to characteristics of a most general nature, were consistent with the appellant's involvement, as was Professor Henneberg's evidence, referred to earlier, and the CCTV footage which the Court viewed. The jury may have been able to discern from the latter some of the characteristics of the First Offender to which Professor Henneberg pointed.

74 Of considerable significance also was the evidence linking the appellant to what was clearly the get-away vehicle used in the robbery. As noted earlier, DNA which can be taken to have been that of the appellant was found on the inside back of the neck of a white T-shirt found in the car, the T-shirt being of a type consistent with the description given by the hotel employees of the item wrapped around the head of the First Offender and with the clothing seen in the speed camera photograph wrapped around the head of the front seat passenger in the get-away vehicle.

75 My assessment of the evidence leads me to the conclusion that the Crown has proved beyond reasonable doubt that the appellant was the person shown in the CCTV footage holding the pink-handled hammer and was therefore guilty of the offence charged. In these circumstances, Ground 2 should be rejected.

ORDERS

76 For these reasons, I consider that the appeal should be dismissed.

77 CAMPBELL J: I agree with Macfarlan JA.

78 BARR AJ: I agree with Macfarlan JA.

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Decision last updated: 05 June 2013