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[2011] NSWSC 1459
Supreme Court of NSW
2011-06-17
Buddin J
Original judgment source is linked above.
Judgment Introduction 1The accused, Darren Paul Smith, is charged with having murdered Russell Lyons at Fairfield on 3 June 1995. Ms Yehia SC, who appears for the accused, made application that the evidence of Dr Paul Bennett, whom the Crown intends to call, be excluded. On 28 June 2011 I overruled the objection. What follows were my reasons for doing so. 2The deceased's body was located in a carpark at the end of a laneway which runs off Smart Street in Fairfield at about 8.40 am on 3 June 1995. According to Dr Ellis, who conducted the post-mortem, his death was caused by head injuries with alcohol toxicity said to have been a contributing factor. The deceased was fully clothed but his shoes and wallet were missing. Despite a lengthy police investigation, it was not until 7 June 2009 that the accused was arrested. Indeed, he only came to the attention of investigating police when a DNA profile matching his profile connected him to the crime scene. His DNA profile was not entered onto the national database until 2008 following his apprehension in Queensland in relation to an offence of stealing a bicycle. Following analysis, a match was made between his profile and DNA material that was located inside each shoe of a pair of Adidas running shoes. The shoes themselves were located on 5 June 1995 a short distance from where the deceased's body was found. Also found on the shoes was blood staining which matched the deceased's DNA profile. A DNA profile matching that of the accused was also located in the area of the rear right pocket of the jeans which the deceased was wearing when his body was discovered. The Crown case is that the accused killed the deceased during the course of robbing him of his shoes and wallet. The Crown also asserts that the Adidas shoes had been worn by the accused but had then been discarded when he realised that the deceased's blood had found its way onto them during the course of the fatal attack. 3The Crown alleges that some hours prior to the discovery of the deceased's body, the accused had attempted to steal the deceased's wallet during an altercation which had occurred on The Crescent, Fairfield at about 3.30 am. That incident was witnessed by the deceased's friends and drinking companions, John Byrne and Ian Cross. Their evidence was to the effect that they had been out drinking at various establishments in the company of the deceased that evening and that they were making their way home at the time that the incident occurred. It is apparent that each of them was, by that stage, extremely intoxicated. Each of them gave evidence that the deceased had crossed the street when they heard him call out words to the effect of "he's got my wallet". The effect of their evidence is that they then ran across the road in order to assist the deceased. They described his assailant as being an Australian with a goatee beard. Shortly thereafter three males, described as being of "Islander" appearance, joined in the altercation. The Crown case is that the deceased eventually ran from the scene of the altercation and turned into Smart Street. He then ended up in the carpark to which I referred earlier. It was at that location, the Crown asserts, that the deceased received the fatal injury or injuries, having been pursued there by the accused. The evidence to which objection is taken 4On 10 September 2009 Dr Bennett, who is a podiatrist, received the Adidas shoes for the purpose of conducting an examination of them. He was also provided with a number of items of footwear belonging to the accused which were seized from him upon his arrest. The footwear consisted of two pairs of work boots, which were described as Blundstone and Redback respectively, and three pairs of thongs. He also had available to him foam and inked impressions and plaster casts of the accused's feet as well as video footage of the accused which displayed his gait whilst he was walking. Dr Bennett provided a report dated 27 October 2009 to which were attached a number of photographs of the items to which I have just referred. In his report Dr Bennett recorded the results of his examination and his opinions arising therefrom. 5Counsel for the accused initially sought the exclusion of the evidence "pursuant to ss 79, 135 and 137 of the Evidence Act ". A voir dire was then conducted in relation to the admissibility of Dr Bennett's evidence. Shortly after that procedure had commenced, the Crown Prosecutor indicated that he did not intend to rely upon certain parts of the report. That had the effect of significantly reducing the scope of the challenge to his evidence as the following exchange makes clear: CROWN PROSECUTOR ...And for the record, I'm making this statement pursuant to s191 of the Evidence Act 1995. The statement re facts is in four parts. 1: The opinion evidence of Dr Paul John Bennett is proposed to be led by the Crown to show that the accused cannot be excluded as the wearer of the Adidas brand shoes, seized by police on 5 June 1995, from the awning at 113 The Crescent, Fairfield. 2: Podiatry is an area of specialised knowledge requiring study, training or experience. 3: Dr Bennett has specialised knowledge in the field of podiatry. 4: The subject matter of Dr Bennett's opinion evidence is not being led as identification evidence, or anything akin to fingerprint identification; rather, it is being led as evidence of the characteristics and points of comparison to be seen on the Adidas shoes; other footwear seized from the accused by police in 2009 and images and impressions of the feet of the accused taken or caused to be taken by the police in 2009. If your Honour pleases. HIS HONOUR: Do I take it that that means that there are certain parts of the report that you actually won't be relying upon, or certain parts of the opinion? CROWN PROSECUTOR: Yes, your Honour. If I can come to that: There are particular phrases or terminology that Dr Bennett has used in his report. Dr Bennett used the expression "significant correlation". He also uses the expression, "Relative uniqueness." Those two phrases are not being relied upon by the Crown, for this reason: I can forecast, I can see that kind of language is liable to be received by a jury as being somewhat ambiguous, with more weight being attached on the noun than the adjective, in the expression "relative uniqueness." For that reason the Crown doesn't press that part of the report; rather, we rely upon, simply, to use a more clearer word, the points of similarity that Dr Bennett says existed in the various comparisons he made. YEHIA: Your Honour, firstly, to clarify when the Crown refers to agreed statements of facts, it is in relation to an agreed statement of facts in terms of what I understand the Crown seeks to adduce and rely upon from the evidence of Dr Bennett. HIS HONOUR: It is really use of material, agreed position in relation to use of material? YEHIA: That's right. In terms of that, I can indicate that in relation to the bases of the objection to the material that I related to the Court this morning, in view of the change of position of the Crown and in view of the fact that the Crown does not rely on terms such as "relative uniqueness" and "significant correlation", our objection to what is now sought to be adduced from Dr Bennett, is pursuant to sections 137 and 135. Our position is, and has been, that Dr Bennett has the training as a podiatrist. In view of that, he can give evidence of incidents, points of similarity. It was really a s79 point, directed towards the attempt to individualise or identify, by phrases such as "significant correlation" and "uniqueness". [at T643-44] 6Dr Bennett gave the following evidence in chief: Q. Is the punch line of your opinion that the man you have referred to as the suspect, the accused, can't be excluded as being the wearer of the shoes, the Adidas joggers, which you have referred to in your report as the crime scene shoes? A. Correct. Q. Have you at the time set out in your report things that you have referred to as being significant or points of significant correlation? A. Correct. Q. Could you tell his Honour in summary then why it is you say that the accused man cannot be excluded as being the wearer of those Adidas joggers, the crime scene shoes, matter A? A. In summary version, there are a number of characteristics in the footwear recovered from the crime scene which can be identified in the additional evidence which was provided to me so there are a number of corrals (sic) that can be identified. When they are considered in totality they present a particular picture of the user's mechanical function to have created those characteristics. Q. What allowance if any, have you taken into account about the fact that the crime scene shoes, the shoes referred to as the matter A shoes, were seized in 1995 and the shoes that were taken from the suspect, the accused man were received some 14 years later? A. I have given consideration to how an individual's posture may or may not be affected over a course of a period of time. So, for example, considering the effects age may or may not play, awareness of variables like body mass how that may or may not change, awareness of how procedures, surgical procedures may or may not influence patterns and so forth. So, there is a wide range of matters that are considered, and variations related to that. Q. Do human beings reach at any particular age a particular gait, that is the way they walk? A. Yes. Q. What age is that? A. It can vary but it is usually with skeletal maturity which can be mid to late teens. Q. What impact would, for example, surgery to a limb, the lower limbs, the legs have on that? A. It is very dependent on the extensiveness of the surgery, the outcomes from the surgery. So it is not possible to give a singular answer to that, it can vary. From my experience, gait patterns tend to remain largely unchanged as the goal of surgery is successful to return to function as it was. 7Dr Bennett's conclusion as to the wear pattern of the Adidas shoes was expressed in the following terms in his report: [The] shoes demonstrated a clear asymmetry in wear...meaning the left and right lower limbs are functioning differently from a bio-mechanical standpoint. This is subtle, but nonetheless produces a meaningful wear pattern. The right limb is transmitting higher ground reaction forces through the footwear and these forces are also more laterally located. The right foot is striking the ground in a more 'supinated' position than compared with the left foot. The right foot is consequently functioning in a slightly more torsional (and compensatory) manner, resulting in greater plantar flexion of the hallux (big toe) and 1 st metatarsal head. These structures also have less dorsiflexion range of movement, resulting in greater compressive forces in the corresponding insole locations. 8As I have said, Dr Bennett also examined the footwear seized from the accused after his arrest in 2009 and identified various points of similarity in the wear patterns of each of those boots and two of the three pairs of thongs. (The third pair displayed minimal wear and appear not to have been relied upon for the purposes of the examination). For example, Dr Bennett noted significant plantar flexion of the right hallux when compared to the left hallux and opined that this will produce asymmetrical wear patterns in both the insoles and outsoles of the shoes. 9Dr Bennett noted that the foam impression of the right hallux is 4mm wider than the left hallux and that both this feature, and the greater plantar flexion of the right hallux, are consistent with the greater outsole wear and compression characteristics of the right hallux insole of the Adidas shoes. 10Dr Bennett concluded that the foam impressions, the plaster casts and the inked impressions of the accused's feet all demonstrated features that are consistent with the wear characteristics seen in the accused's footwear and in the Adidas shoes. 11Dr Bennett was then cross-examined at some length by Ms Yehia. She had previously cross-examined him at the committal hearing and the transcript of those proceedings was before the Court. It is unnecessary to set out the details of that cross-examination because Dr Bennett was prepared to concede much of what was put to him. 12As a consequence, counsel for the accused submitted that the probative value of the evidence of Dr Bennett must be assessed as being "weak" in the light of the following matters:
Consideration 37It is axiomatic that the Crown must establish the guilt of the accused beyond reasonable doubt. In the present case, the critical question which the jury must determine is whether the Crown can establish that the accused caused the death of Russell Lyons. The accused denies that he did so and does not accept any responsibility for having done so. The identification of that issue is the "first step in the evaluation of the probative value of any item of evidence": R v Mundine (2008) 182 A Crim R 302 [at 34]. If the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, then it must be rejected: R v Blick (2000) 111 A Crim R 326. See also R v Suteski (2002) 56 NSWLR 182 at 199. 38As I have said, the ultimate fact in issue is whether the Crown can establish that the accused is the person who killed the deceased. Highly relevant to the proof of that matter is what amounts to a subsidiary fact in issue, namely whether the Crown can establish that the accused was wearing the Adidas shoes on the evening in question. Clearly any connection which could be established between the accused and those shoes (which of course had the deceased's blood upon them), could constitute an important piece of evidence in the case which the Crown seeks to establish. 39As I have observed, the Crown is not relying upon the opinion of Dr Bennett as providing evidence that the accused is the wearer of the Adidas shoes. The evidence, at its highest, is capable of establishing only that he may have been the wearer of those shoes. Indeed in his report Dr Bennett said that "wear patterns per se are not identifiable with any particular individual". Nevertheless, Dr Bennett's opinion has the capacity to establish a connection between the accused and the shoes, and as such constitutes a piece of circumstantial evidence, which along with other evidence, is capable of establishing the fact in issue to which I referred earlier. It follows that his evidence meets the requirements of s 55 of the Act. 40I readily accept that Dr Bennett's opinion is open to challenge. Indeed, it may very well be that the jury would be disposed, on the strength of the matters identified by counsel for the accused, not to accept it. However, as the authorities make clear, that determination remains the province of the tribunal of fact even if, as counsel for the accused contended, it has "only minimal probative value". 41In relation to the argument adduced pursuant to s 137, counsel for the accused submitted that the danger of unfair prejudice arose in a number of respects. First, it was submitted that there was a real risk that the jury would place "undue weight on the evidence of Dr Bennett by virtue of the fact that he is put forward as an expert witness." Secondly, it was submitted that there was a real risk that the jury would impermissibly treat Dr Bennett's opinion that the accused could not be excluded as the probable wearer of the shoes as "equat[ing] to inclusion." 42I do not accept those submissions. On the contrary, I have little doubt that with the assistance of counsel, I will be able to fashion directions to the effect that the jury is not to embark upon a process of reasoning of the kind which counsel has identified. Moreover, I would be prepared to give those directions both at the time when Dr Bennett gives his evidence and also during the course of the summing up. Furthermore, I intend to give further directions and/or warnings concerning the perceived weaknesses in Dr Bennett's evidence in a fashion which conforms with what the High Court said in Domican v The Queen (1992) 173 CLR 555 at 561-2. 43It was also submitted that the accused has been prejudiced by the fact that he cannot establish what wear pattern his feet created in 1995 because he is unable to produce evidence of his footwear or the condition of his feet or his gait as at that time. Once again, in my view that is a matter which can be pointed out to the jury. That said, the fact that the accused cannot produce evidence of that kind does not necessarily mean that he has actually suffered prejudice. It cannot simply be assumed, as counsel for the accused appears to have done, that had he been able to adduce evidence as to his wear pattern in 1995 that it would have necessarily assisted his case. 44It follows, in my view, that the challenge to the evidence pursuant to s 137 of the Act, must fail. 45In conclusion, I note that although s 135 was also relied upon, no separate argument was advanced in relation to its application. For similar reasons to those which have already been provided, I reject the submission that that provision is engaged in the present case.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2011
R
Smith
[2008] WASCA 90
[2010] SASC 8
[2011] SASCFC 36
(1992) 173 CLR 555
(2006) 66 NSWLR 228
(2002) 56 NSWLR 182
(2001) 206 CLR 650
(1990) 171 CLR 207
(2001) 208 CLR 593
(1994) 62 SASR 121