R v Hien Puoc TANG

R v Hien Puoc TANG - [2006] NSWCCA 167 - NSWCCA 2006 case summary — Zoe

[73]

43 His Honour said (SU 11-12): "… [I]n determining her evidence you should take into account a number of factors. Firstly, she has given evidence not merely about the Accused, but about two other men. Two other men were apprehended in a car about an hour after the robbery and were found with goods that links them to the robbery. Amongst those goods were three packets of cigarettes which has the Accused's fingerprints on them; fingerprints from his left hand. She has given evidence identifying, using the same process, each of those persons as being the persons in the shop, and has given evidence as to which one is wearing what sort of clothing. There is DNA evidence that links one of the caps to one of them and one of the caps to the other one, and it just so happens that those persons who are linked by DNA evidence to the wearing of those caps are the persons that she says were wearing those caps and wearing those clothes. So her evidence in relation to those two is supported to some extent by other evidence, DNA evidence, supporting what she says. Coming then to the Accused, there is no DNA evidence as such supporting what she says. It is purely a question of her expert opinion. She is giving this opinion not as a person used to looking at photographs or comparing faces, but as someone who certainly does those things, but does it from the point of view of a person who is skilled in anatomy. That is, she understands the bony structures underneath the skin. She uses magnification and various processes to come to her conclusion. She cannot and did not purport to bring a laboratory along here and show you precisely how she did it and with all the equipment that she had. She had a magnifying glass which I think you asked for at one point. I doubt that it would have assisted terribly much unless your eyes are much better than mine, but she did not say she used that magnifying glass. She had some other sort of equipment, and she described the process of doing it. She says that that enabled her to reach this opinion that it was the Accused who was the man in black. As with the other two men, it was not just his face. It was his body type, his racial origin, the way he held himself and other aspects that she considered important. You heard from both counsel the number of points of identification she made. You consider that. You also must consider, as Ms McSpedden put to you, the fact that she had earlier expressed an opinion, earlier this year, which is much more doubtful about this identification than currently is her opinion. She has given evidence to you as to how she expressed this earlier view and why she expressed the later view. Basically she has said earlier she made a mistake. Her later view is the correct view. In fact she said it is just the way she expressed it rather than a difference of view."

[78]

48 He then said (T 13/12/04 SU 11-12): "The Crown then puts before you evidence to show that the other two men were in fact the robbers, two of the robbers. Now if the Crown establishes beyond reasonable doubt that the other two were the robbers then their possession of the bag with the cigarettes in it obviously is a very closely linked circumstance isn't it. If the Crown establishes they are the robbers and within an hour they are found with items that were taken from the shop, well there is something that is more than just a coincidence, on the Crown case. Now the Crown seeks to prove they are robbers by relying on a number of things. First of all there is the direct evidence of Mr Maqapleh as to their general descriptions. Secondly there is the video evidence of how they stood and looked and walked and so on. And thirdly there is the evidence of Dr Sutisno. Because she says that each of them was in fact one of the people in that store. And she nominates which one is which, which one is wearing this cap and which one is wearing that cap. And in that case her evidence is supported as to the wearing of caps by DNA evidence, which is not disputed, there is no query about it. There is DNA evidence linking each of those two men separately to wearing a particular cap. So obviously they took the cap off and they left traces of themselves inside the cap, as I am sure my DNA is inside this wig. They tested it and they said "right, that man wore that cap - that man wore that cap". Her evidence using visual comparisons, the way they stood, you may remember her evidence as to one stands with a concave sort of a look about him and one stands in a slightly different way, their physical stature and their faces. She said that man was wearing that clothing in the video and that cap and that man was wearing that clothing, and that man was at the scene and so was that man. That is expert evidence and of course it is based on a number of things. First of all photographs were taken of both of them. You have seen the photographs. She describes what the photographs mean to her, as to how they were standing and looking and so on. Well you take into account what she has said. If she has in fact established to your satisfaction beyond reasonable doubt that those two men were two of the robbers then that evidence supports the circumstantial evidence pointing to that and the circumstantial evidence pointing to that is the evidence of them being found with the cigarettes in the bag and the other things in that bag within an hour and wearing these particular clothing. Throwing the baseball caps in the back of the car, everything they did at the time. All that circumstantial evidence points to their involvement. If you accept Dr Sutisno's evidence, that involvement which is pointed to by the circumstances, is established by her evidence. Now if her evidence does establish that they were, to your satisfaction and beyond reasonable doubt that they were two of the people at the scene, then those two people at the scene had in their possession a bag with cigarettes in it that were stolen at the scene and on which there were the fingerprints of the Accused, he has left fingerprints. The Crown then says, look at the video. How was the man with the gun, the man wearing the dark clothes, putting cigarettes in the bag. He was putting them in with his left hand. That is the explanation about how his left fingerprints got onto those packets. If you were satisfied beyond reasonable doubt that those two men were shown to be the robbers and they have in their possession with some of the stolen objects in it and his left fingerprints on those packets, there is circumstantial evidence linking him to the robber as the third man."

[79]

49 His Honour then went on to say (SU 14-17): "We have established to your satisfaction, says the Crown, that those two men were the robbers. We now wish to establish to your satisfaction that he also was the third man, the man in black and the man with the gun. Now, the photographs of him that were used to compare were obviously taken nine months afterwards, not on the night, because he was not arrested on the night. There was no DNA evidence to link him to any item of clothing because no-one could suggest that when he was arrested he was wearing the same clothing as the person in the shop on the night. So it then gets down to, really, Dr Sutisno's science. Has she proved to you beyond reasonable doubt, or rather, has the Crown. She does not have to prove anything she is only a witness. Has the Crown proved to you beyond reasonable doubt that her evidence to you that that man in black is the Accused is correct? Because if the Crown has proved that, then the Crown has proved its case beyond reasonable doubt. It does not rely just on the circumstances, it does not rely just on the other two men were there and his fingerprints were in the bag. It relies on something more- direct, scientific evidence, scientific evidence that says: 'I have measured his face. I have looked at it, using equipment that I have access to but which you the jury do not have access to. I am a trained anatomist, I know all the bone structures underneath the skin, I reconstructed faces from skulls, I often identify people who are dead, using this process and I say that the man in black, shown in that video, is the same man as the man in these photographs. That man is the Accused.' Now if the Crown establishes that, beyond reasonable doubt, then the Crown has proved its case. If you have some doubts about that particular aspect, you still have to consider if you are satisfied she has already established the identity of the other two men, you still have to consider whether, because of the circumstantial evidence in the case, and the proof that the other two men were there, taking into account his explanation, you are satisfied beyond reasonable doubt the Crown has proved the case anyway. So there are different levels in a sense in which you are asked to look at the case. You have to decide yourself whether you accept Dr Sutisno's evidence or you reject it or you are not certain about it. If you are certain about it in relation to the identification of the other two men you can of course then look at that fact when assessing how certain are you of it in relation to the Accused. You may want to look at it globally, that is, all three at once. You may say that is not a process that appeals to you just looking at this bit and then that bit, you want to look at the whole thing. Now if you are satisfied, it comes down to this. If you are satisfied beyond reasonable doubt that what she has said accurately identifies the accused as the man in black with the gun then you should find him guilty. If you have doubts about that then you must consider whether the Crown has proved its case beyond a reasonable doubt. If the Crown has not proved its case beyond a reasonable doubt, even if you are highly suspicious about the matter, you must find the Accused not guilty. If you totally reject Dr Sutisno's evidence, you think it is unreliable, you do not like it, then of course you must find the Accused not guilty because there would be nothing to show the other two men were there, beyond reasonable doubt and the circumstances of a fingerprint in a bag would not be sufficient on its own, without more to prove the Accused was there and a robber. So a great deal depends on Dr Sutisno but all the other circumstances come into play. Her science operates on what she has given. She was not there, she is not giving direct evidence of what she saw. She is saying I am asked to compare what I can tell of a person's body shape, size, face, lips, prominent features, with something seen in a video. I look at this and I look at this and I do my comparisons. I consider the anatomy of it and I come to this conclusion. Now you are not required to accept her conclusion. There is no requirement that a jury must accept an expert's conclusion. An expert is like any other witness, the evidence has to be evaluated by you the jury. If you consider she has sufficiently established the identity of each of these three men then it must follow, I would have thought, that you would be satisfied beyond reasonable doubt. If you are satisfied she has established the identity of two of them, you have then got to look at the circumstances of how the fingerprints got into that bag, onto those cigarette packets. Do the circumstances point inevitably to guilt or could they point to some innocent explanation. If you think they point inevitably to guilt - you are satisfied beyond reasonable doubt of that, well again you are entitled to convict him whether or not you then want to go on and consider whether Dr Sutisno accurately identified him."

[101]

70 Appendix B to the Report was entitled "Morphological Analysis", which is described in the following way: "Morphological analysis is the feature-by-feature approach to evaluate faces as used by the 19th and 20th Century anthropologists. The technique is better known today as Visual Biometric Analysis or Facial Mapping (Bromby 2003). It involves the 'comparison of two images - one from the crime scene, and one obtained of the suspect' (Bromby 2003: 302). In the past decade, the method has enabled experts in the United States (Iscan 1993; Halberstein 2001), United Kingdom (Bromby 2003), Japan, Malaysia (Hashimoto 2000), and Australia (Porter and Doran 2000; Sutisno PhD Thesis 2003) to produce reports to provide identification evidence, principally in criminal cases. The philosophy behind the method is to 'subdivide the face into components to obtain a thorough analysis' (Iscan 1993: 58) and determine absolute visual similarities. This qualitative assessment prevents 'complications arising from perspective and the distance from the camera to the subject' and/or 'the need for complicated statistical matching of population samples and thorny issues of probability' (Bromby 2003: 302). Generally for the images to be of comparative use, the 'heads of the subjects must be of the same angle' (Bromby 2003: 302). Furthermore, 'the images can be cropped or scaled to allow the comparisons to be made' ( ibid ). To assist with the analysis is a set of standards covering an entire range of examinable morphological characteristics of the head and facial features (eg Table 1). These standards have been 'designed to make individual variation and population differences emerge from a seemingly unremarkable visage' and thus guide 'the expert in making a decision about the viability of the match' (Iscan 1993: 58). … It is crucial to include the most noticeable features when selecting the standards. The addition of any deviations from the 'norm' such as disproportionately large nose or protruding ears can prove very useful as it creates distinctive appearances. Furthermore, the analysis commonly involves multiple comparisons of images taken from different angles. It is important to note relative similarities and/or differences between the images as well as the presence of any distinguishing ' unique identifiers ' that would strongly support that the two people are likely to be one and the same."

[103]

72 Appendix C was entitled "Photographic Superimposition". It stated: " Photographic Superimposition Photographic Superimposition is a process of overlaying 'two comparably enlarged' images to 'determine if facial features and dimensions can be correctly superimposed on each other' (Iscan 1993: 67). It can be achieved through the use of either video or computer technology. The 'video or computer system allows the expert to develop and demonstrate a series of visual effects and to focus on morphological details and [dimensions]' and enable the viewers to 'see the entire procedure and visualize exactly how the expert came to his or her conclusions' (Iscan 1993: 68). Using a computer system photo-to-photo superimposition is possible using Adobe Photoshop software. The first step would be to select the surveillance image and forensic photograph or similar tilt, roll and yaw of the head, and digitally transfer them to one canvas. Position the image and photograph side-by-side, crop and scale to achieve a size of one to one proportion. Using the opacity tool, reduce the transparency of the forensic photograph in the range of 30-50%. Using the move tool, move the forensic photograph and place it over the surveillance image to see if the facial features and dimensions are different or of a perfect match. The superimposition can be visually displayed on hard copies by printing the surveillance image on high quality photo paper and the forensic photograph on a transparency film. The would allow the viewers to see the alignment of morphological features in form and dimensions by flipping the forensic photograph over the surveillance image. Photo-to-photo superimposition is only possible with images of identical pose (Bromby 2003; Iscan 1993; Maat 1989). To maintain scientific objectivity the images are required to be of one to one proportion. Identification should not be based on this method alone. The method is most useful when coupled with the results of Morphological Analysis or Photo-Anthropometric Assessment to highlight and demonstrate important areas where there are marked differences or perfect matches. References Bromby, MC (2003) At face value? New Law Journal Expert Witness Supplement , 153(7069): 302-304. Iscan, MY (1993) Introduction of techniques for photographic comparison: Potential and problems. In Iscan, MY and Helmer, RP (eds) Forensic analysis of the skull , pages 57-70. USA: Wiley-Liss, New York. Maat, GLR (1989) The positioning and magnification of faces and skulls for photographic superimposition. Forensic Science International , 41: 225-235."

[106]

75 This led to the following evidence being given, over objection, in the presence of the jury (T 138-139): "CROWN PROSECUTOR: Q. Dr Sutisno just in relation to one of the questions asked by the jury about the number of matches required, is there any set number of comparable feature matches that you require before you make a conclusion that you're identifying the same person in two different photos? A. Not in that sense because it's not a match of quantity, it's a match of quality. Whether you have a lot of points but yet none of them uniquely or distinctly characterises that person it would weigh less than if you only have a small number of points but yet those are strong points, they are unique identifiers. Q. And is that something that you do in looking at the product, you look at the quality of the product and the quality of the comparative features? A. Yes. … HIS HONOUR: … [H]ow accurate is morphology analysis as a technique, are you able to answer that? A. Yes. From my experience and from what I've studied I believe it can be fairly accurate in narrowing it down to whether or not they are one and the same person. Mainly because as I said, unlike just looking at the dimensions or proportion which some people may be similar but looking at the characteristics and habits, things that are generated individually as a person then more or less it tends to be more accurate than the previous one and as-- Q. What was the previous one? A. The photo anthropometry. Q. Which is, just explain that again? A. Which is just comparing the dimensions, measurements and proportions. Q. Of two photos? A. Yes, of two faces. Q. Two faces? A. Yeah. Usually that's only of faces, not the rest of the body. In terms of morphology and the way I conduct it it's more accurate in the sense that it gives you a more broader field of features to look at and not only just the features of the face, the body, that everyone can see such as the eyes, the nose and the mouth and so forth which you think well everybody has those, what's so different about that person to another, but it's the addition of those unique identifiers or distinctive characteristics which if you're trained to look at - okay, this is because of the way they walk or the way they hold themselves, for whatever reason, whether they have a paralysis, whether they have deformities, you know, things that narrows it down and individualise the person and something that a lay person would then use as a point of recognition. Q. Now have there been any studies to indicate the percentage of cases where the matches are correct as opposed to incorrect? A. From the literature that I have read in terms of looking at morphology they've always been more correct than - to identify a person than just looking at the measurements. Q. That's as far as you can go with that question, would that be right? A. Yes and from-- Q. You say it's more likely to be correct than merely looking at somebody's features and measuring? A. Mm mm - I don't understand, what do you mean? Q. Well the anthropometry is looking at somebody's facial features and measuring it-- A. Yes. Q. --and comparing it with another photograph and measuring the facial features there? A. Yes. Q. What you're saying is morphology produces more correct answers in your opinion from that method? A. Yes and that is supported in the literature as well."

[163]

132 Martin CJ, after having admitted the evidence, in his judgment added the following, which supported the admissibility of the evidence including evidence capable of satisfying the tests outlined in HG V The Queen (1999) 197 CLR 414 and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (discussed below): "[114] My decision with respect to the admission of the evidence of Dr Sutisno was based upon both her report and evidence given in the absence of the jury. In evidence before the jury, Dr Sutisno provided greater detail of the work she undertook in arriving at her opinion. In particular, the evidence demonstrated the significance of Dr Sutisno's expertise and experience in assessing the existence and significance of various characteristics both individually and in their combination. Having heard Dr Sutisno give evidence before the jury, I remained of the view that her evidence was admissible and should not be excluded in the exercise of my discretion. [115] Subsequently the accused called Professor Henneberg who is a particularly experienced scientist in the field of anthropological and comparative anatomy. Professor Henneberg commenced learning how to identify individuals from the analysis of their anatomical features in the 1970s. Since the mid 1980s on many occasions he has undertaken analyses of the images of persons depicted in security CCTV systems or photographs for the purposes of anatomical comparison with suspects. [116] Professor Henneberg referred to the process as photo comparison. He agreed that although Dr Sutisno spoke of facial and body mapping, she was undertaking the same process which he had been doing for close to 30 years. Asked if Dr Sutisno undertook the process in the same way, Professor Henneberg gave the following answer: 'She, in her description - I haven't seen her performing analysis - in her description, she uses the same basic principle approach of comparing images, feature by feature, the images from some CCTV footage and images of suspects. To that extent, it's the same procedure'. [117] In my opinion, the evidence of Professor Henneberg confirmed that the evidence of Dr Sutisno is admissible."

[187]

155 The evidence in this case, supports the conclusion the Court of Appeal, Criminal Division, expressed in England in R v Gray [2003] EWCA Crim 1001, admittedly in the context of an expert who had been significantly discredited. The Court said: "[16] … Mr Harrow, like some other facial imaging and mapping experts, said that comparison of the facial characteristics provided 'strong support for the identification of the robber as the appellant'. No evidence was led of the number of occasions on which any of the six facial characteristics identified by him as 'the more unusual and thus individual' were present in the general population, nor as to the frequency of the occurrence in the general population, of combinations of these or any other facial characteristics. Mr Harrow did not suggest that there was any national database of facial characteristics or any accepted mathematical formula, as in the case of fingerprint comparison, from which conclusions as to the probability or occurrence of particular facial characteristics or combinations of facial characteristics could safely be drawn. This court is not aware of the existence of any such database or agreed formula. In their absence any estimate of probabilities and any expression of the degree of support provided by particular facial characteristics or combinations of facial characteristics must be only the subjective opinion of the facial imaging or mapping witness. There is no means of determining objectively whether or not such an opinion is justified. Consequently, unless and until a national database or agreed formula or some other such objective measure is established, this court doubts whether such opinions should ever be expressed by facial imaging or mapping witnesses. The evidence of such witnesses, including opinion evidence, is of course both admissible and frequently of value to demonstrate to a jury with, if necessary, enhancement techniques afforded by specialist equipment, particular facial characteristics or combinations of such characteristics so as to permit the jury to reach its own conclusion - see Attorney General's Reference No 2 of 2002 [2002] EWCA Crim 2373 ; but on the state of the evidence in this case, and if this court's understanding of the current position is correct in other cases too, such evidence should stop there." The Unsafe and Unsatisfactory Ground

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