Evidence: Two Interesting Grants of Special Leave

Tuesday 6 May 2014 @ 10.14 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

The High Court has granted Special Leave to Appeal in two cases relating to matters of evidence which are quite interesting. Interesting because the evidence in contention was sourced from two areas of developing forensic technology; the first being DNA identification and the other being Closed Circuit TV (CCTV) identification - see Fitzgerald v The Queen; Sumner v The Queen [2014] HCATrans 48 (14 March 2014) and Honeysett v The Queen [2014] HCATrans 57 (14 March 2014).

Whether DNA Evidence can Establish Presence and Participation?

In the Fitzgerald case, the High Court agreed to hear an appeal against the decision of the South Australian Supreme Court Full Court in R v Sumner; R v Fitzgerald [2013] SASCFC 82 (16 August 2013).

In that case, Fitzgerald (the Applicant) was convicted of murder and causing serious injury as part of a group of six involved in a home invasion. The Applicant denied involvement and claimed that DNA evidence linking him to the offence was transferred to his co-accused during an earlier handshake that evening.

The Full Court of the South Australian Supreme Court agreed that it was open to the jury to conclude beyond reasonable doubt that the DNA was deposited directly by Fitzgerald, and unanimously dismissed the appeal.

In the High Court the issues considered by Justices Bell and Gageler were:

  • Whether the DNA evidence alone was sufficient to establish both the presence and participation of the Applicant for the purpose of the joint enterprise liability alleged in the case, where no eye witnesses to the crimes identified Appellant's presence?
  • Whether it was reasonable to convict Appellant of murder in circumstances where an expert had given evidence that "secondary transfer" of DNA was possible but that scientific understanding of "secondary transfer" was limited?

The High Court refused to hear an appeal from the Applicant's co-accused, Sumner, on the basis that there were insufficient prospects of success, but granted the Applicant special leave to appeal to the Full Court of the High Court. The matter is listed for 19 June 2014.

CCTV "face mapping" and "body mapping" - whether "specialised knowledge"?

In the Honeysett case the High Court agreed to hear an appeal against the decision of the NSW Court of Criminal Appeal (NSWCCA) in R v Honeysett [2013] NSWCCA 135 (5 June 2013).

In that case, Honeysett (the Applicant) had been convicted of armed robbery and sought to challenge the conviction by way of disputing the forensic expert evidence of an expert witness (Professor Henneberg - a professor of anatomy). The professor had studied the CCTV footage of the robbery against the Applicant's physical appearance and concluded that there were eight features that were "in common" between the offender in the CCTV footage and the Applicant. In unanimously dismissing the Applicant's appeal, the NSWCCA, held that Professor's expert evidence was admissible on the based on:

  • his knowledge of anatomy,
  • his close study of the videos, and
  • the fact that the jury could not reasonably have interpreted that evidence as implying there were "no points of difference" between the individuals (as the appellant had argued).

In the High Court the issues raised before Chief Justice French Justice and Keane were:

  • Whether "face mapping" and "body mapping" constituted "specialised knowledge" within meaning of the Evidence Act 1995 (NSW) (the Act)  s 79?
  • Whether s 79 of the Act requires that an expert to discloses their assumptions and methodology?
  • Whether s 79 of the Act requires methodology to be demonstrated as reliable?
  • Whether the expert witness relied qualified as an ad hoc expert?

The Full Court of the High Court is scheduled to hear the appeal in this matter on 12 June 2014.

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