On the Case: Issue 10

High Court confirms that expert opinion requires specialised knowledge and body mapping is not that.

In this tenth edition of On the Case, student of the School of Law, Sydney Antonela Josipovic, discusses the recent decision Honeysett v The Queen¹.

In Brief

This decision confirms the decision of the NSW Criminal Court of Appeal in R v Tang² in which a narrow approach to s 79 of the Evidence Act 1995 (NSW) (the Act) was adopted.

Background

On 13 August 2014, the High Court heard an appeal from an armed robbery conviction. The question for the Court was whether the trial judge had erred in admitting expert opinion evidence pursuant to ss 76 and 79 of the Act. The High Court unanimously allowed the appeal, opining that the expert evidence was not based wholly or substantially on specialised knowledge within s79(1) and that it was an error of law to admit the evidence³.

The Facts

The appellant was one of three disguised offenders involved in a robbery that took place on 17 September 2008. CCTV footage depicted Offender One (the appellant) holding a pink-handled hammer, wearing dark clothing and a white t-shirt that covered his face. Witnesses provided vague descriptions of the appellant’s appearance, but were able to confirm that the offenders fled in an Audi RS4. The pink- handled hammer was left at the scene. On 25 November 2008, the Audi RS4 was recovered by police; inside they found a sports bag containing a white t-shirt similar to that worn by the appellant. Samples taken from the pink-handled hammer and the appellant demonstrated matching DNA profiles. A sample taken from the inside neck of the t-shirt also contained the appellant’s DNA. The appellant denied any involvement in the robbery.

At trial, the prosecution adduced evidence from Professor Henneberg, an anatomist who specialised in forensic identification. Having been asked to compare the offender depicted in the CCTV footage to recordings and still images of the appellant, Professor Henneberg concluded that there was a high degree of similarity between the two.

The Legislation

The High Court considered ss 76(1) and 79(1) of the Act. Section 76(1) provides that ‘evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.’ Section 79(1) operates as an exception to the opinion rule, stipulating that ‘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.’ The Court referred to two earlier cases in which experts were asked to compare CCTV footage with images of the offenders in question: Tang and Morgan.⁴

The Decision

The Court considered the relevant provisions in the Act: ss 76(1) and 79(1). In defining ‘specialised knowledge’ under s 79(1), the Court held that it is:

Knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge.⁵

With regard to the latter aspect of s 79(1), the Court found that an opinion which was substantially based on knowledge, is sufficient but that it must be presented in a manner which allows a court to determine whether it is in fact substantially based.⁶ The Court referred to Tang and Morgan. In Tang, Chief Justice Spigelman held that body mapping, which is the field of comparing physical attributes, did not constitute an area of specialised knowledge, and so the expert opinion in that case was inadmissible.⁷ Similarly, the opinion evidence in the latter case (also provided by Professor Henneberg) was found to be inadmissible.⁸ In essence, the Court was critical of the degree of specialised knowledge involved in the field of body mapping and so 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.⁹

The High Court also addressed the assessment of Professor Henneberg’s evidence at trial. In the District Court, he applied his knowledge in body mapping to conclude that the person depicted in the CCTV footage was the appellant. Judge Bozic held that this evidence was admissible because evidence of similarity between Offender One and the appellant was "of potentially significant probative value".¹⁰ A direction was given to the jury that the Professor’s evidence was to be one of the circumstances upon which they were open to draw a conclusion of guilt.

In the Court of Criminal Appeal, Justice MacFarlan accepted the trial judge’s analysis with regards to the preconditions for admissibility under s 79(1). Yet he advanced the following proposition:

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.¹¹

Before the High Court, the appellant challenged the assertion that a subjective opinion not amenable to measurement and calculation was based wholly or substantially on specialised knowledge. The Court maintained that the legitimacy of ‘body mapping’ as a specialised field of knowledge was not at issue on appeal.¹² Rather, the issue was whether Professor Henneberg’s conclusions were based on his knowledge of anatomy. This was answered in the negative.¹³ The High Court held that the conclusions were not based on the specialised field of anatomy, but rather the subjective impression of what the Professor saw when comparing the footage to the recordings and still images of the appellant.¹⁴ This subjectivity was said to apply to all the observations made by the Professor. For example, his assertion that Offender One and the appellant were both right handed was based on Offender One’s use of his right hand to remove cash from the till and the appellant’s right handed method writing his name.

It was not wholly or substantially based on specialised knowledge. The Court validly pointed out that the Professor’s use of technical terms had the effect of giving the appearance of scientific grounding to an otherwise basic task of observation.¹⁵Arguably, the jury was capable of making their own observations and coming to the same conclusions without the need for expert evidence. As such, the High Court held that Professor Henneberg's opinion was not based wholly or substantially on his specialised knowledge within s 79(1) and that it was an error of law to admit the evidence.

Implications of this Case

The High Court’s ruling clarifies the position in relation to specialised knowledge under s 79 of the Act. The narrow construction that was postulated in Tang is the correct approach. It is now clear that expert evidence needs to demonstrate that conclusions made by an expert are based on a field of specialised knowledge rather than expressions of generality before they can be admitted in court.¹⁶

¹Honeysett v The Queen [2014] HCA 29 (Honeysett)
²R v Tang 65 NSWLR 681(Tang)
³Honeysett [46]
⁴Morgan v The Queen (2011) 215 A Crim R 33 (Morgan)
⁵Honeysett [23]
⁶Honeysett [24]
⁷Tang [136]
⁸Morgan [144] 
⁹ ibid
¹⁰Honeysett [32]
¹¹Honeysett [63]
¹²Honeysett [42]
¹³Honeysett [43]
¹⁴ibid
¹⁵Honeysett [45]
¹⁶Honeysett [46]