I wrote a blog previously about the recent High Court hearing in Honeysett’s case, a case concerning circumstantial identification and expert opinion evidence.
Judgement has now been delivered and the High Court has ordered:
Mr Honeysett’s conviction quashed; and
A new trial be had.
At the trial, over objection, the prosecution had adduced evidence from an anatomist, Professor H, of anatomical characteristics that were common to Mr Honeysett and to one of the robbers.
Professor H’s opinion was based on viewing grainy, black and white CCTV images of the robbery with colour images of Mr Honeysett taken whilst he was in custody at Surry Hills Police Station.
Mr Honeysett contended in the NSW Court of Criminal Appeal that Professor H’s evidence did not fall not within the exception to the “opinion rule”.
The Court of Criminal Appeal rejected that and held that the evidence was rightly admitted because it was evidence of opinion based on specialised knowledge based on the Professor’s training, study and experience; or, because repeated viewing of the images had rendered him an “ad hoc expert”.
The High Court unanimously held that Professor H’s opinion was not based on specialised knowledge and thus the decision to admit the evidence was a wrong decision on a question of law.
In their reasons for judgement their Honours’ indicated that in the determination of this appeal:
1. It did not require settling the issue of whether “body mapping” was shown at the trial to constitute an area of “specialised knowledge”.
2. It did not provide the occasion to consider Mr Honeysett’s larger challenge as to a contended requirement of an independent means of validation prior to an opinion being founded on “specialised knowledge”.
3. It was clear that Professor H’s opinion was not based on his area of expertise which was anatomy. Instead, his opinion was reached following a subjective impression of what he saw when he looked at the images.
4.Thus, the prosecutor in closing, might simply have invited the jury to inspect the images and reach their own conclusion.
5. Not only was Professor H’s opinion not admissible, it was also prejudicial to the accused, Mr Honeysett, as it was couched prejudicially as “expert evidence” thereby giving “the unwarranted appearance of science to the prosecution case that the appellant and Offender One shared a number of physical characteristics”.
6. Presented in technical terms, terms such as, ectomorphic, and as such was “apt to suggest the existence of more telling similarity than to observe that each appeared to be skinny”.
7. Did not require dealing with the issue of ad hoc expert evidence because the Crown in the High Court did ‘not maintain the submission that Professor Henneberg’s opinion was admissible as that of an ad hoc expert’.