Nov 13

Does body mapping and ‘ad hoc’ evidence qualify as expert evidence within section 79 of the Evidence Act 1995?

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Does body mapping and ‘ad hoc’ evidence qualify as expert evidence within section 79 of the Evidence Act 1995?

This is the question that lies at the heart of the appeal to the High Court of Australia in Honeysett v The Queen.

On 12 June 2014 I attended the High Court to observe the hearing.

There were five justices sitting on the bench: Justices’ Gageler; Kiefel; Bell; Keane; and Chief Justice French.

One night in 2008 three armed men robbed a closed pub and it was recorded on CCTV. The footage revealed one offender had what might have been a T-shirt or a pillow case wrapped around his head. A hammer was also seen to be carried.

Mr Honeysett was later charged with armed robbery. The case against him was circumstantial.

At the trial evidence was admitted:

*Indicating Mr Honeysett’s DNA was on a hammer found at the crime scene and a T-shirt found in what was said to be the get-away car.

*By Professor H, an experienced forensic anatomist.

What Professor H did was:

*Compare images of the Offender taken from the CCTV footage with police photographs of Mr Honeysett taken at Surry Hills Police Station in full profile and excellent lighting. In cross examination Professor H conceded that the CCTV footage was ‘jerky’.

*Professor H provided an anatomical description of the Offender, based on eight features. These included :

A slim body build;
A well-bent small of the back;
Short hair; and
A head that was somewhat elongated rather than round.
Professor H opined that:

*Mr Honeysett shared those eight features with the Offender.

*He was unable to discern any differences between the Offender and Mr Honeysett.

Professor H’s opinion was contradicted by another forensic anatomist, Dr S, who opined that 7of the 8 features in Professor H’s description of the Offender could not be established from the CCTV footage.

A jury found Mr Honeysett guilty, and he was sentenced to imprisonment for 8 years with a non-parole period of 3 years and 10 months.

Mr Honeysett appealed the conviction.

The NSW Court of Criminal Appeal comprising of : Macfarlan JA; Campbell J; & Barr AJ dismissed the appeal and in so doing concluded that:

*Professor H’s evidence was admissible, as it was an opinion based on specialised knowledge in accordance with s 79(1) of the Evidence Act 1995 (NSW); finding that Professor H identified physical characteristics that Mr Honeysett had in common with the Offender, without stating any conclusions to be drawn from those characteristics. That is, Professor H’s evidence was not to the effect that the Offender and Mr Honeysett were similar in appearance.

*Professor H’s detailed examination of the CCTV footage had rendered him an “ad hoc” expert so that his evidence went beyond obvious matters the jury could have determined itself.

Mr Honeysett’s grounds of appeal to the High Court include:

The NSW Court of Criminal Appeal erred in holding the evidence of Professor H involved an area of specialised knowledge based on training, study or experience, and that his opinion was wholly or substantially based on that area of specialized knowledge. [section 79]
The NSW Court of Criminal Appeal erred in holding the evidence of Professor H in terms of his review and comparison of the CCTV footage rendered him an “ad hoc” expert.
The High Court has reserved its judgment.

If Mr Honeysett is successful in his appeal it is likely there will be a re-trial of his case.