R v Tang

R v Tang [2006] NsWCCA 167 R v BLM (Blanch, CJ. unreported 14 September 2005) R v Gilmore (1977) 2 NSWLR 935 Makita (Australia) Pty. Limited v. Sprowles (2001) 52 NSWLR 705 R v Murdoch (No. 4) [2005] NTSC 78 R v McHardie & Danielson (1983) 2 NSWLR 733 Harrington-Smith v Western Australia (No. 7) (2003) 130 FCR 424 R v Smith (2001) 206 CLR 650 McNeil v. Commissioner of Taxation (2003) 202 ALR 35 Murphy v The Queen (1994) 62 SASR 121 Festa v The Queen (2001) 208 CLR 593 Idoport Pty Limited v National Australia Bank Limited [1999] NSWSC 828 CASES CITED : Adler v Australian Securities & Investments Commission [2003] NSWCA 131 Davie v Lord Provost, Magistrates and Counsellors of the City of Edinburgh (1953) SC 34 Bell v FC & U Industrial Benefit Society Limited (McLelland, J., unreported 9 September 1987) Lewis v The Queen (1987) 88 FLR 105 Trade Practices Commission v. Arnott's Limited (No. 5) (1990) 21 FCR 324 Pollock v. Wellington (1996) 15 WAR 1 HG v The Queen (1999) 197 CLR 415 Brodie v Singleton Shire Council (2001) 75 ALJR 992 R v Cook [2004] NSWCCA 52 R v Shamouil [2006] NSWCCA 112 R v Blick (2002) 111 A. Crim. R. 326 R v Yates [2002] NSWCCA 520 R v Lissoff [1999] NSWCCA 364

PARTIES : REGINA v. JUNG, Myoung Il

COUNSEL : Crown: M. Barr Accused: W. Terracini, SC./B. Murray

SOLICITORS : Crown: S. Kavanagh Accused: Marsdens Law Group

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT (On admissibility of expert opinion evidence)

1 HIS HONOUR: Myoung Il Jung has pleaded not guilty on the presentation of an indictment charging him with the murder of Duck Huan Kim and Dok Su Kim on 30 January 1997. The trial is to proceed before me sitting with a jury that was empanelled on Monday 26 June. 2 The trial of these proceedings was listed to commence on 19 June 2006. Junior counsel for the accused had foreshadowed on 2 June 2006 that a voir dire examination would be required in relation to material obtained by police through forensic procedures purportedly conducted pursuant to the Crimes (Forensic Procedures) Act 2000. 3 Senior counsel for the accused, Mr. Terracini, in due course also challenged the admissibility of expert evidence which the Crown had indicated it proposed to rely upon to establish the identity of the accused as the alleged offender. The Crown had served upon the accused's solicitors two reports of Dr. Meiya Sutisno, consultant forensic anatomist, dated 17 September 2005 and 6 June 2006 (respectively, Exhibits K and L on the voir dire). Dr. Sutisno had undertaken a technique that has become known as "face and body mapping". That technique involved, in particular, a "morphological analysis" by Dr. Sutisno which was said to be directed to determining visual similarities or differences in facial features on photographic images taken from a CCTV camera located at an ATM in Queensland in 1997 and still photographic images of the accused derived from forensic photographs taken by police on 8 November 2004. The issue in this respect was whether the opinion evidence of Dr. Sutisno was admissible under s.79 of the Evidence Act 1995 (NSW).

THE EVIDENCE ON THE VOIR DIRE 4 The evidence has proceeded over a number of days concluding on Tuesday last. The Crown called a number of police officers who were involved in or concerned with the investigation and in the carrying out of forensic procedures. The Crown also called Dr. Sutisno. All of those witnesses were cross-examined at some length. Senior counsel for the accused also called and tendered evidence including the expert evidence of Dr. Glenn Porter, forensic photographer, who was formerly employed by the Australian Federal Police in the Services Forensic Services Division and by video link, Dr. G.A. Doren, dental surgeon and consultant forensic anatomist. 5 Before turning to the evidence adduced in relation to the forensic procedures conducted on 8 November 2004 and the analysis undertaken by Dr. Sutisno, it is convenient to identify the principal issues which arose during the course of the voir dire examination in relation to the two areas of challenge.

The issues in relation to the evidence of Dr. Sutisno 6 The principal issues examined in relation to Dr. Sutisno's analysis and evidence were as follows:-

(a) the quality, deficiencies and information related to the 1997 CCTV images and the use of still images and computerised images derived from the CCTV material;

(b) the photographs obtained by police of the accused (Exhibit J on the voir dire) on 8 November 2004 and the conditions under which they were taken.;

(c) the process employed by Dr. Sutisno in utilising the photographic material referred to in (a) and (b);

(d) the basis upon which the morphological analysis undertaken by Dr. Sutisno was constructed. 7 During the course of the voir dire, I requested counsel for the accused to produce an outline of the matters relied upon in relation to the issues for determination. That request was responded to the next day. I reproduce below the terms of a document which set out six propositions in the form of an outline submission:- "Outline of Submissions R. v. Jung 1. The jury are entitled to make a comparison for themselves as the experts are in no better position. (Smith v. Queen 206 CLR 650). 2. There is no data, measurable protocol or procedure in relation to the camera distances that have been provided to the defence. (Makita v. Sprowles at 201 52 NSWLR 705 and judgment of BLM, Judgment of Justice Blanch DC, NSW, 14.9.05). 3. The qualifications and experience of a police photographer, whose photographs and video have been used for comparison, provide no data measurement for distances that can be quantified for comparison by any defence expert. 4. The poor quality of the ATM photos. 5. Dr. Sutisno's claims are not supported in full or at certain points at all by the scholars whose papers she relied upon and quotes in her source material. 6. As far as it can be ascertained, no NSW Court - let alone a murder Trial - has accepted identification evidence in the form purported by Dr. Sutisno based upon morphological analysis alone. See R v Hien Puoc TANG [2006] NSWCCA 167." 8 In relation to Dr. Sutisno's analysis, the Crown observed (on 2 June 2006):- "… her evidence in Tang was excluded to a large extent, although part of her evidence wasn't challenged, and there was no criticism of that, being that which related to comparisons as opposed to conclusions. Her evidence, which was challenged, was her conclusion that he accused was the same person as she saw in the photographs."

Dr. Sutisno's evidence on the voir dire 9 Dr. Sutisno gave evidence as to the following matters:-

• Selecting images of a similar angle and perspective is relevant.

• The ATM photographs were of sufficient quality to do her analysis.

• The unique identifiers specifically referred to by her were the right and left ears. The right ear "projection" could be deduced - it was a "medium projection" .

• She could not, however, make out any other unique identifying features.

• Specifically, there were no unique features on the person in the ATM photograph such as a scar, a facial mark, mole or other blemish or deformity. There were none in the photographs of the accused provided by the police.

• She was not aware of anyone in Australia who has validated her methods.

• She agreed that Iscan's statement that one of the problems with this type of analysis was that facial features can be altered by photographic angles.

• She had not taken part in any studies of camera angles, or the operation of cameras to do with motion blur, lighting and the translation of data format.

• She did not have knowledge of the actual angle that the lens was at to see the face of the man at the ATM.

• She said she could see the position of the iris in the man in the ATM photograph.

• She was not prepared to admit that she could make a mistake with using these techniques.

• The detail in the ATM photographs were sufficient for her to conduct her analysis. She would describe the quality of such photographs as "good" .

• She did not measure the angle of the head of the person depicted in the ATM photograph, although that can be done. There is a need to mimic the angle with photo anthropometry but it is not necessary with morphological analysis., eg., Professor Hashimoto and Caroline Wilkinson, Dr. Sutisno stated, had said one should not calculate the angle when doing a morphological analysis.

• She did not undertake a measurement of the width of the skull or the length of the skull of the person in the ATM photograph - only "proportional values" .

• She did not keep the notes of measurements that she carried out, conceding it would be useful to be able to have the dimensions of, say, a person's left ear, and when comparing another human ear.

• Professor Hashimoto stated that it is possible to do a comparison of morphological features without physical measures (this was conveyed in a telephone conversation). 10 Mr. Porter stated that he had had experience in two other cases on 1994/1996 in relation to facial identification, one based on ATM photographs and the other a passport photograph. In the former case, he considered the quality of the ATM photographs to be better than those in these proceedings. 11 Mr. Porter expressed reservations as to whether one could establish identity from the ATM photographs utilised by Dr. Sutisno. On examination of them, he considered that there were a number of, what he described as, image artefacts, being aberrations or faults in the images. In brief, they included the following:-

(a) Barrel distortion, a distortion of the image, with a barrelling effect from centre to edges (fish eye perspective).

(b) Poor dynamic range - a narrow dynamic range on the monochromatic photographs showing various levels of grey. This has the effect of reducing the level of detail and contours.

(c) Poor exposure in critical areas, especially in the areas of faces of people depicted.

(f) Motion blur where the subjects are moving to obtain money from the ATM.

(g) Some subjects are out of focus (depth of field).

(i) High level of "noise" - which effects digital images - reduces the level of resolution.

(j) Lack of highlight or shadow detail. 12 Mr. Porter referred to the lack of information concerning the forensic photographs taken by Detective Senior Constable Noble, in particular, an absence of information as to view, distance and lighting. The absence of information makes an accurate comparison difficult. He emphasised that similarity of image perceptive and similar distances between lens and subject in relation to the ATM photographs and the forensic photographs were important to obtain accuracy. Mr. Porter also gave evidence in relation to the information provided by Detective Sergeant Griffin and stated that measurements between the accused and the camera utilised for forensic photographs was in excess of that which would have applied to the distance between ATM camera and the subjects of the ATM images. 13 Dr. Doran, in his evidence, stated that with facial mapping, one looks at a number of features or regular well-known anatomical identifying features. By ascertaining the size, dimension and general morphology in shape, size and form, one can then establish parameters that can be used for comparison. 14 He stated that conclusions as to comparisons are very dependent on the actual physical photographic techniques and methods and angles of photography. A horizontal plane is usually quite accurate, whereas a vertical plane can be difficult. If a face is tilted in any way, that can affect accuracy. 15 In relation to the ATM photographs in these proceedings, he considered that many of them were at various angles and quite blurred and out of focus. Dr. Doran identified difficulties with the photographs used as a basis for comparison in these proceedings. Having only seen the ATM photographs, he said the problem in assessing them would be the angle of the camera, the blurriness or the degree of focus and quality of the photographs as well as the various angles which the individual's head has been turned in the various photographs. He considered it was very difficult in assessing portions or parts of the human face in terms of large, medium and small. That was one of the difficulties he had in reading Dr. Sutisno's reports. He stated that not using anthropometric measurements, one had removed the one quantifiable parameter used in facial identification and comparison. Without such measurements, he said it was "very difficult to say what is large or what is medium". Such descriptions were very qualitative and very subjective. He did not consider that they would be reliable. The descriptions would be valid and correct if they were used in conjunction with quantitative methods. 16 In essence, without a basis of measurements or measuring data, he considered that an analysis would be very unreliable and he would want more "measurable parameters". He did not consider that the ATM photographs themselves would permit measurements sufficient for him to reach any conclusion. 17 Dr. Doran, in his evidence, stated that with facial mapping, one looks at a number of features or regular well-known anatomical identifying features. By ascertaining the size, dimension and general morphology in shape, size and form, one can then establish parameters that can be used for comparison. 18 He stated that conclusions as to comparisons are very dependent on the actual physical photographic techniques and methods and angles of photography. A horizontal plane is usually quite accurate, whereas a vertical plane can be difficult. If a face is tilted in any way, that can affect accuracy. 19 In relation to the ATM photographs in these proceedings, he considered that many of them were at various angles and quite blurred and out of focus. Dr. Doran identified difficulties with the photographs used as a basis for comparison in these proceedings. Having only seen the ATM photographs, he said the problem in assessing them would be the angle of the camera, the blurriness or the degree of focus and quality of the photographs as well as the various angles which the individual's head has been turned in the various photographs. He considered it was very difficult in assessing portions or parts of the human face in terms of Dr. Sutisno's descriptions, large, medium and small. That was one of the difficulties he had in reading Dr. Sutisno's reports. He stated that not using anthropometric measurements, one had removed the one quantifiable parameter used in facial identification and comparison. Without such measurements, he said it was "very difficult to say what is large or what is medium". Such descriptions were very qualitative and very subjective. He did not consider that they would be reliable. The descriptions would be valid and correct if they were used in conjunction with quantitative methods. 20 In essence, without a basis in measurement or measuring data, he considered that an analysis would be very unreliable and he would want more "measurable parameters". He did not consider that the ATM photographs themselves would permit measurements sufficient for him to reach any conclusion.

The opinion evidence of Dr. Sutisno 21 Dr. Sutisno two reports have been identified in paragraph [3] above as Exhibits K and L on the voir dire. Both reports have been closely examined for the purposes of determining the admissibility of Dr. Sutisno's proposed evidenced. 22 Exhibit K is based on an examination of eight forensic photographs taken on 11 April 2005, a forensic video dated 11 April 2005, the ATM video recorded on 2 February 1997, printed still images taken from the ATM video and seven forensic photographs taken on 8 November 2004. 23 Exhibit L relates to a further analysis based on a comparison on an identification card of the accused and images previously extracted from the ATM security video. 24 Dr. Sutisno's analysis is, as previously stated, one based upon what is referred to as "morphological analysis" to determine visual similarities or differences. Her opinion as to "similarities" between the person of interest on the ATM photographs and the forensic photographs is based upon such an analysis. Dr. Sutisno describes her methodology as avoiding statistical matching or population samples and issues of probability. "It is purely a qualitative assessment of relative similarities and differences between images". (p.6, Exhibit K). 25 Although the reports refer to the systematic matching of morphological features, "distinguishing features or unique identifiers" the analysis essentially rests upon a comparison of certain facial features, not the latter. Unique identifiers such as moles, scars, etc. are not present in the photographs. Where such identifiers do exist, they assist in the level of accuracy of comparative analysis. 26 The results of Dr. Sutino's examination are set out in the reports. They include the stated numbers of claimed matching features based on the five perspectives referred to in Exhibit K and include what are referred to as "definitive resemblance" or "morphological features" (eg., nose, mandible/jaw, chin, etc.). 27 Specific comparative comments are set out in five tables with respect to "comparison of morphological features". They indicate that "unmatched features" include differences in body build - the POI was "large or overweight" whereas the accused appeared to be of medium build and there were differences in buccal fat in the cheeks. 28 The Crown stated that it would only be relying upon Dr. Sutisno's evidence as to similarities and would not rely upon any opinions which she had expressed in her reports as to identity. This position reflected and acknowledged the judgment of the Court of Criminal Appeal in Regina v. Tang [2006] NSWCCA 167. 29 Dr. Sutisno has given evidence in other proceedings in recent times. In Regina v. BLM (unreported,14 September 2005), Blanch, CJ. (an appeal against a conviction in the Children's Court for aggravated robbery) held that, for reasons therein expressed, her evidence was inadmissible as it did not satisfy the tests in Regina v. Gilmore (1977) 2 NSWLR 935 or in Makita (Australia) Pty. Limited v. Sprowles (2001) 52 NSWLR 705 and should not have been received (see discussion below). I have already adverted to Tang which is also discussed below. In Regina v. Murdoch (No. 4) [2005] NTSC 78, Martin, CJ. held that Dr. Sutisno's evidence was admissible in that case wherein the accused had been charged with murder. It appears that in Murdoch, there had been no challenged to the expertise of Dr. Sutisno or to the scientific bases utilised by her in respect of both facial and body mapping. 30 In Tang, Dr. Sutisno's evidence was not challenged as being relevant and admissible on the basis that it was evidence of similarity. See the judgment of Spigelman, CJ. at [85]. The issue of admissibility in that case turned largely on the question of its admissibility as evidence of identity. 31 In BML (supra), Dr. Sutisno gave evidence that the CCTV footage could be compared to similar features in the face of the appellant and that she concluded that the person depicted was the appellant. A number of matters were noted by Blanch, CJ. including:-

(a) in some areas, there could be no doubt that Dr. Sutisno was an expert.

(b) The failure by Dr. Sutisno to disclose and identify the protocols she used made it difficult to make a proper assessment as to whether photo anthropometric examination was a proper field for expert evidence or not.

(c) It was difficult by reason of the failure referred to in (b) above to determine how she applied this "new area" for the purpose of expressing an opinion as to identity.

(d) The failure to disclose her protocols raised a significant problem in terms of Makita (supra).

(e) It was arguable that when examining a chin or a nose or some feature on the face of the appellant in that case and the offender, she is giving evidence in accordance with her expertise provided that did not depend upon the "secret protocols" . 32 In addition to the above matters, Blanch, CJ. raised the following:-

(a) The CCTV footage gave rise to very poor images which did not have a high resolution.

(b) It was doubtful whether Dr. Sutisno is an expert in photography. Indeed, he was prepared to assume that she was not.

(c) When the image was magnified, they lost definition and features on the face can be distorted. 33 There had been little examination of such issues before the magistrate in that case. In the present proceedings there has been considerable evidence on such issues. 34 Issues concerning photographic technique have been addressed in the voir dire examination. The accused relied upon evidence of Mr. Porter in this regard. In a paper entitled "An anatomical and photographic technique for forensic facial identification" (Exhibit 5 on the voir dire), the problems of distortion potentially arising from a number of matters are addressed. 35 It is clear that the analysis that has been undertaken by Dr. Sutisno draws on material from two areas. The first is the area of photographic reproduction and related processes. The second is the area of forensic anatomy. 36 The photographic images and the integrity of them are plainly fundamental to Dr. Sutisno's analysis. Although she has some skills in the use of photographic materials, the evidence establishes that she has comparatively limited expertise in the field in which Mr. Porter is expert. The significance of that conclusion is dealt with below. 37 A not dissimilar issue arose in relation to voice recognition evidence in Regina v. McHardie & Danielson (1983) 2 NSWLR 733. The expert in that case stated that he, inter alia, employed a method of mathematical analysis involving computers, that is, the application of computers to the analysis of acoustic signals. The Court stated at 756:- 'In our view, if the fact that the method of mathematical analysis employed (including the use of the computer) in some way went outside the field of specialist knowledge which Mr Jones had, and gave out results upon which he acted in coming to his final conclusion, so that it could be said that that conclusion did not arise from his expertise, then his evidence should not have been admitted. But that is far from being the position disclosed by the evidence. A proper understanding of the evidence in our view, shows that the computer was used merely as one uses a calculator, for the purpose of making calculations which if done personally would take a considerable amount of time, and that the introduction of mathematics into the matter of voice identification was but a logical advance upon the visual conclusions derived from an examination of the sonagraphs."

Expert opinion evidence - Evidence Act provisions 38 The general rule is that "evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed": Evidence Act, s.76(1). This "opinion rule" assumes that the evidence of the opinion is relevant. Section 78 of the Evidence Act excepts from the opinion rule evidence of certain lay opinions, while s.79 excepts from that rule evidence of certain opinions of experts: Harrington-Smith v. Western Australia (No. 7) (2003) 130 FCR 424 at [16]). 39 By providing for an exception to the inadmissibility created by the opinion rule, s.79 goes to admissibility. The section poses an objective test. No discretion is involved. A party raising an objection to admissibility on the ground that the section is not satisfied is entitled to a ruling on the objection: Harrington-Smith (supra) at [17] per Lindgren, J. 40 In that case, Lindgren, J. summarised the conditions to be fulfilled in order to establish the admissibility of the evidence of expert opinion as follows:-

(a) That the opinion is relevant (including that the field of knowledge is one in which expert opinion can properly be called).

(b) That the person put forward as an expert possesses specialised knowledge in that field.

(c) That the specialised knowledge is based on the person's training, study or experience.

(d) That the particular opinion tendered is based on the specialised knowledge. 41 Aside from the issues of relevance, relevant expert specialised knowledge and what is referred to as the "basis rule", significant issues have arisen in a number of cases concerning admissibility of experts' reports in relation to two issues:-

(a) The failure of the report to clearly expose the reasoning leading to the opinion arrived at.

(b) The distinction between assumed facts on which an opinion is based and the opinion itself and the proof of the facts stated or assumed. 42 The principles in relation to these matters are discussed below. In Harrington-Smith (supra), Lindgren, J. stated at [25] that expert opinion will not be relevant if there is an insufficient correspondence between all the facts assumed by an expert as the basis for his or her opinion, and those proved or admitted. Absent that sufficient correspondence, it cannot be known whether the opinion proffered applies to the facts proved or admitted.

Admissibility of evidence as to the identity of persons photographed 43 In the Queen v. Smith (2001) 206 CLR 650, in relation to the question of evidence going to identification and whether two police officers, who had previously dealt with the accused, could give evidence at the trial that one of the robbers depicted in security camera photographs was the accused, it was held that such evidence was inadmissible (by Gleeson, CJ., Gaudron, Gummow and Hayne, JJ.) on the ground that it was irrelevant. The issue then was whether such evidence could be relevant in terms of s.55 of the Evidence Act, that is, whether the evidence, if accepted, could rationally affect the assessment by the jury of the probability that the person standing trial was depicted in the photographs? 44 In the joint judgment, it was stated that evidence of identification may, however, be relevant where it goes to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and the photograph which is said to depict the accused. Thus, if it were suggested there were some distinctive feature revealed by the photographs which would not be apparent to the jury in court, evidence of that fact and the witness' conclusion of identity would not be irrelevant (at p.656). 45 In the present case, the ATM photographs are said to be not self-evident and are such that the jury would require the assistance of an expert such as Dr. Sutisno and on that basis it would meet the test of relevance and would not, on that ground, be excluded by Smith v. The Queen (supra). I accept the submission that the High Court's decision in Smith does not preclude the evidence as relevant as there is, having regard to the ATM photographs, a need for assistance in understanding what they are said to reveal or depict in terms of the person of interest. As to how they are said to be relevant, see the discussion that follows.

Application of the principles of admissibility 46 It is clear from the above stated principles that evidence of Dr. Sutisno will otherwise be admissible in the event that it is established that:-

(a) her morphological analysis and opinion as to similarities is relevant;

(b) Dr. Sutisno has specialised knowledge based on her training, study or experience;

(c) the opinion expressed by her as to similarities is wholly or substantially based on that specialised knowledge.

(a) Relevance 47 The opinion evidence of Dr. Sutisno as to similarities must meet the test of relevance in the sense that the claimed similarities of various facial features must be able to rationally affect, directly or indirectly, an assessment of the probability or otherwise of the existence of a fact in issue in the proceedings. The fact in issue in the present proceedings in that respect is the issue of identity of the accused as the offender. 48 Admissible evidence need not render a fact in issue probable or sufficiently probable, and it is enough if the evidence merely makes a fact more probable or less probable than otherwise would be the case without that evidence: McNeil v. Commissioner of Taxation (2003) 202 ALR 35 per Conti, J. at [23]. 49 Evidence of similarities, based on photographic evidence of the alleged offender and an accused may constitute circumstantial evidence which, taken with other evidence, may be sufficient to establish the issue of identity. Evidence as to similarity may possess evidentiary value: Murphy v. The Queen (1994) 62 SASR 121 per King, CJ. at 123-124. Evidence sometimes referred to as "circumstantial identification evidence" (eg., evidence that asserts the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime) is admissible evidence: Festa v. The Queen (2001) 208 CLR 593, 611 per McHugh, J. It is, as his Honour there observed, proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime. 50 The evidence of Dr. Sutisno based on morphological analysis involving opinion evidence as to similarities as described above, if otherwise compliant with the principles as to the admissibility of expert evidence, passes the test of relevance to which I have referred.

(b) The witness has specialised knowledge based on his or her training, study or experience 51 Dr. Sutisno holds the degrees of Bachelor of Science, Honours in Forensic Anatomy and Doctor of Philosophy in Medicine from the University of Sydney. She has practiced in recent years as a forensic anatomist and holds some expertise in and has had some practical experience in facial identification. 52 Dr. Sutisno has also had some experience in identification analysis using video surveillance materials, including CCTV footage and image analysis employing software programmes including, in particular, Adobe Photoshop and other software. 53 In the area of expert opinion evidence, the test is whether the court is satisfied on the balance of probabilities that the opinion is based wholly or substantially on such knowledge: s.142 of the Evidence Act. 54 The evidence indicates, as earlier mentioned, that morphological analysis draws on aspects of forensic photography and the field of anatomy. In determining whether Dr. Sutisno holds the requisite specialised knowledge, an expert witness should not be allowed to stray outside the witness' area of expertise. It is for this reason that the opinion expressed by the witness must be based wholly or substantially on the witness' specialised knowledge, the specialised knowledge in turn being based on training, study or experience: Idoport Pty. Limited v. National Australia Bank Limited [1999] NSWSC 828 at [242] per Einstein, J. 55 The evidence does establish that Dr. Sutisno does have specialised knowledge based on study and experience in relation to facial characteristics in the context of issues concerned with establishing identification both of deceased persons and otherwise. Such has become a recognised field for expert analysis, albeit of fairly recent origin. The opinion she has expressed as to similarities is an opinion within that field of specialised knowledge. The fact that she has utilised photographic images whilst not professing to hold the skill and specialised knowledge of a forensic photographer does not, in my opinion, render the opinion she has expressed beyond her field of specialised knowledge, nor does it result in the opinion being otherwise than wholly or substantially based on that knowledge within the meaning of s.79. 56 Dr. Sutisno does not profess to have the qualifications of a forensic photographer in relation to what might be referred to as the production side of photography, including forensic photography. She did give evidence that she has had experience with utilising CCTV and other photographic materials for the purposes of conducting morphological and other analyses relevant to the subject of identification. In applying her specialised knowledge as an anatomist in the context of forensic investigations, she has employed photographic materials (including CCTV photographs and forensic photographs) and utilised electronic tools in the form of software imaging programmes to assist her in undertaking the analysis. 57 It is not uncommon for professional persons or experts in various fields to utilise materials produced by third party specialists for the purpose of assisting them apply their specialised knowledge. That does not mean that the opinion of the former is not based wholly or substantially upon his or her specialised knowledge (the making or production of such materials being proved independently or admitted in legal proceedings). An example s the radiologist who produces an MRI scan which, in due course, is utilised by a medical specialist for the purposes of forming an opinion concerning causation, diagnosis and/or treatment. The specialist utilises such materials (and equipment) for the purposes of exercising his specialised knowledge in order to arrive at an opinion for the purposes of treatment or otherwise. It is apparent from the evidence that Dr. Sutisno has, from her experience, an appreciation that photographic images can be affected by issues such as distance between subject and lens, angle, perspective and other issues. Whether or not the ATM photographs and forensic procedures are affected by circumstances that impact upon their quality or utility are matters that go to the soundness or value or integrity of the factual material utilised by her as an expert. 58 The quality, suitability and reliability of the photographic images are no doubt important questions going to the reliability of the factual material Dr. Sutisno has relied upon in the course of and for the purposes of her anthropological analysis. Those are issues upon which the jury will be required to make findings and in relation to which detailed directions and warnings will need to be given including, in particular, those applicable to the class of evidence earlier referred to as "circumstantial identification evidence".

(c) The opinion expressed by her as to similarities as wholly or substantially based on that knowledge 59 On this aspect, it has been observed that whether an opinion has been shown to be based on the specialised knowledge is a question of fact and s.79 provides that it is sufficient that it is substantially based on that knowledge: Adler v. Australian Securities and Investments Commission [2003] NSWCA 131 at [631]. The opinion as to anatomical similarities expressed by Dr. Sutisno in her reports is, in my opinion, substantially based on the specialised knowledge to which I have earlier referred and the application of such knowledge to the photographic images in question.

Specific principles determining admissibility of expert opinion evidence 60 The analysis undertaken by Heydon, JA. (as he then was) in Makita (supra) contains reference to a number of authorities in relation to the common law principles applicable to expert opinion evidence. The following propositions, as stated by Heydon, JA. and found in those authorities, state the principles that apply and govern the admissibility of expert opinion evidence:-

(a) The duty of an expert is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of his or her conclusions, so as to enable the judge or jury to form their own independent judgment by the application of such criteria to the facts proved in evidence: Davie v. Lord Provost, Magistrates and Counsellors of the City of Edinburgh (1953) SC 34 at 39-40 per Lord President Cooper.

(b) The bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised: Davie (supra).

(c) The basal principle is that what an expert gives an opinion based on facts. Because of that, the expert must either prove by admissible evidence the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based: per Heydon, JA. at 731.

(d) The admissible evidence must establish the matters assumed. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.

(e) Examining the substance of an opinion cannot be carried out without knowing the essential integers underlying it: per Heydon, JA. at 735. The absence of evidence as to proving the underlying facts deprives "the court of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence" : Bell v. F.C. & U. Industrial Benefit Society Limited (McLelland, J., unreported 9 September 1987).

(f) The prosecutor has a clear duty, not just to his client, the Crown, but to the trial judge and jury to acquaint them, in ordinary language, through the evidence he leads, with those aspects of the expert's discipline and methods necessary to put them in a position to make some sort of evaluation of the opinions he expresses. Where the evidence is of a comparatively novel kind, the duty resting on the Crown is even higher: it should demonstrate its scientific reliability: Lewis v. The Queen (1987) 88 FLR 105 at 123-124 per Maurice, J.

(g) It is the role of a prosecutor to strip forensic evidence of its mystery so far as is possible; trial by expert must never be allowed to take the place of trial by jury: Heydon, JA. at 735.

(h) The premises of fact, a consideration of which is essential to the formation of the conclusion or opinion, must somehow be supplied to the jury by testimony. The same witness may supply both premises or conclusion; or one witness may supply the premises and another the conclusion. The two are not necessarily connected: Trade Practices Commission v. Arnott's Limited (No. 5) (1990) 21 FCR 324 at 327 per Beaumont, J.

(i) An expert witness' paramount duty is to assist the court impartially. That duty over-rides the expert witness' obligation to the engaging party: PN No. 104 (1988) 44 NSWLR 725 at 728.

(j) Not only must the appropriate information be supplied, but the expert must reveal the whole of the manner in which it was dealt with in arriving at the formation of the expert's conclusions: Heydon, JA. at 740.

(k) An expert opinion, such as a medical opinion, can only be of value when the facts upon which it is founded are proved by admissible evidence and the opinion must actually be founded upon such facts: Pollock v. Wellington (1996) 15 WAR 1 at 3.

(l) In HG v. The Queen (1999) 197 CLR 415 at 427, [39] to [40], Gleeson, CJ. examined the provisions of s.76 to s.80 of the Evidence Act 1995 as enacting some of the central elements of the common law. There, Gleeson, CJ. stated:- "1. An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. 2. The provisions of s.79 will often have the practical effect of emphasising the need for attention to requirements of form. 3. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question."

(m) It is not possible to conclude, simply because a person expresses an opinion on a particular subject, referring to particular technology, that that person had any specialised knowledge in relation to that subject. There must be specific evidence as to specialised knowledge of the person in relation to that subject and as to the training, study or experience upon which that specialised knowledge is based: Heydon, JA. at 744.

(n) A trial judge is not bound to accept an opinion expressed by an expert particularly where it was on ultimate issues: Brodie v. Singleton Shire Council (2001) 75 ALJR 992 at 1060 [355] and Heydon, JA. at 748.

(o) It is possible for one expert to adopt statements in scientific works as part of his or her own testimony, but bear references to particular propositions carrying no weight unless their basis is explained: per Heydon, JA. at 745. 61 It is apparent from what has been stated above that the principal attack made upon Dr. Sutisno is that she has applied one particular form of analysis, the morphological analysis, being one which is essentially a qualitative or subjective one and which is based upon photographic materials that are affected by a range of deficiencies and defects. It was further put that the standards or criteria by which Dr. Sutisno purported to match facial features was vague and did not permit her opinion to be tested. 62 However adequate or inadequate the photographic materials utilised by Sutisno for the purpose of her analysis, the evidence on the voir dire does not establish that she has failed to disclose the factual material she has utilised (the photographic images), the nature of the methodology that she has employed and the type of analysis described in her reports (morphological analysis). I have carefully reviewed the reports and her evidence in order to determine whether it may properly be said that, having regard to the specific principles governing admissibility of expert evidence as identified by Heydon, JA. in Makita (supra) and as summarised above, Dr. Sutisno's evidence complies with the requirements for admissibility. 63 Insofar as she has identified the relevant factual matters that she has taken into account (the particular photographic images) the particular facial features which she maintains are examinable by reference to such images and the nature of the methodology employed by her, the tests of admissibility in those respects are satisfied. 64 The question of the weight, including the reliability, of the opinion is, of course, a quite different matter and it is anticipated at trial that attention will be given to the quality of the photographic images, their alleged deficiencies and the significance that arises from those matters. In many, but not all circumstances, expert opinion may be based on and evaluated by objective scientific means or criteria. In some circumstances, involving specialised knowledge, some professional or expert evaluations may be largely based upon impression as a matter of judgment based on specialist or professional experience in relation to observable facts (eg., medical diagnosis of clinical signs) Other conditions may be assessed by objective and measurable testing. Whether an expert opinion is qualitative (or subjective) in nature or quantitative and measurable, its validity is capable of being tested by an examination of the facts or date identified and/or its interpretation. The evidence of Mr. Porter and Dr. Doran on the voir dire was directed at the factual materials (photographic images) on which Dr. Sutisno based her opinion. 65 Dr. Sutisno's opinion has been challenged, inter alia, upon the basis that she has not applied or sought measurable data for the purposes of her comparative analysis. Dr. Sutisno, in her reports, proffers an explanation as to why this has not been done. Whether that explanation is sound is, of course, a matter of fact. The fact that she has elected to adopt a qualitative form of analysis does not, per se, render it inadmissible, provided that the provisions of s.79 and what I might refer to as the Makita principles, have otherwise been satisfied. 66 Expert opinion that is based upon factual material that is deficient or unreliable is not, per se, inadmissible. The weakness of relevant material is not a ground for its exclusion: Festa (supra) at 609 per McHugh, J.

The discretion to exclude evidence under s.137 67 At the conclusion of submissions made by senior counsel for the accused, I enquired of Mr. Terracini as to whether he relied upon any other provision of the Evidence Act including, in particular, the provisions of s.137. He indicated that he would rely upon the latter provision. 68 Section 137 provides:- " Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 69 The application of s.137 requires a balancing, by the trial judge, of the probative value of the evidence against the danger of unfair prejudice to the defendant. If that balancing process results in a finding that the probative value is outweighed by the danger of unfair prejudice, the Court is constrained to refuse to admit the evidence. No element of discretion arises: Regina v. Cook [2004] NSWCCA 52 per Simpson, J. at [27]. 70 In Festa (supra), McHugh, J. at 614 stated:- "… because circumstantial identification evidence is usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasion for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positive-identification evidence." 71 The Crown in its submissions contended that the opinion evidence of Dr. Sutisno had probative value in establishing similarities relevant to the question of identity. The Crown further submitted that admission of the evidence could not be unfair, having regard to the fact that it related to similarities and is not relied upon as positive identification evidence. The Crown relied upon the judgment of the Court of Criminal Appeal in Regina v. Shamouil [2006] NSWCCA 112. 72 In Shamouil, Spigelman, CJ. examined the provisions of s.137 of the Evidence Act. The words "probative value", as the Chief Justice observed, are defined in the dictionary as follows:- "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue." 73 The Chief Justice also observed that before the Evidence Act the Christie direction to exclude evidence at common law for which s.137 is a replacement, did not involve considerations of reliability of the evidence. The Chief Justice further observed at [56]:- "That there may be some, albeit, limited, circumstances in which credibility and reliability will be taken into account when determining probative value was indicated by Simpson, J. in Regina v. Cook [2004] NSWCCA 52 in which evidence of flight was sought to be excluded under s.137." 74 The Chief Justice further observed at [60] and [61]:- "The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach. In my opinion, the critical word in this regard is the word 'could' in the definition of probative value as set out above, namely, 'the extent to which the evidence could rationally affect the assessment …' the focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not limit attention to what a tribunal of fact is likely to conclude. Evidence has 'probative value', as defined, if it is capable of supporting a verdict of guilty." 75 Spigelman, CJ. noted that there will be circumstances where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue (paragraph [63]). 76 In the present matter, evidence is not evidence as to observation by a lay observer as to identity or similarity. The context in which the present matter is being considered is one in which there is a disputed question of expert opinion evidence in which there is likely to be a divergence of views on the expert analysis of morphological features. The question of reliability or credibility is to be evaluated in that context. 77 Accordingly, in undertaking the balancing exercise required by s.137, it is not appropriate for the purposes of the present application, for a determination to be made as to the quality or reliability of the evidence as those are matters for jury determination. 78 The probative value of the opinion evidence of Dr. Sutisno, if accepted, would be as relevant circumstantial evidence of similarities relevant to the question of identity. If the jury were to accept Dr. Sutisno's analysis and opinion based on it, then it would constitute important evidence in the Crown case. 79 In Cook (supra), Simpson, J. at [38] observed that s.137 calls for the exercise, not of a discretion, but of judgment. Her Honour observed that in that sense it is akin to the exercise of discretion and that whilst there will be cases which the facts are so plain that they admit of only one outcome, there will be many in which minds may properly differ. 80 I have, in considering the application of s.137, also had regard to the judgment of the Court of Criminal Appeal in Regina v. Blick (2002) 111 A. Crim. R. 326, in particular, at 333. 81 In determining the question of unfair prejudice under s.137, the Court of Criminal Appeal in Regina v. Yates [2002] NSWCCA 520 at [252] observed:- "Prejudice argues for the exclusion only if there is a real risk of danger of it being unfair … This may arise in a variety of ways, a typical example being, where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight." 82 The accused led evidence from two expert witnesses to whom I have already referred, namely, Mr. Porter and Dr. Doran. It is not irrelevant in the balancing exercise under s.137 in relation to the issue of unfair prejudice for some account to be taken of the fact that the accused has available to him such expert evidence which bears directly upon the analysis undertaken by Dr. Sutisno. 83 In Regina v. Lisoff [1999] NSWCCA 364 at [60], the Court of Criminal Appeal (Spigelman, CJ., Newman and Sully, JJ.) stated that s.137 requires a real risk of unfair prejudice to the defendant by reason of the admission of the evidence complained of. The court there stated that it was not sufficient to establish that the complexity or nature of the evidence was such that it created a mere possibility that the jury could act in a particular way. The court referred to the test referred to in that case that a jury "might be unduly swayed by the 'scientific' nature of the evidence to make a decision on an improper basis" as having been derived from judgments where the references were concerned with undue weight that may be given to scientific evidence by reason of its very concreteness, adding:- "… they were not concerned with a situation such as that presented to his Honour where there was a real conflict of scientific evidence. That is quintessentially a jury question. It is not, in our opinion, appropriate to infer that a jury even 'might' be affected in a prejudicial way by reason of the 'scientific' nature of the evidence, where such evidence is contradicted by other 'scientific' evidence." 84 The court in that case concluded that there was nothing so extraordinary about the conflict in the evidence presented which would justify the conclusion that a careful and sensible jury, properly directed as to the relevant law and as to the relevant evidence, could not decide in a reasoned and a responsible way whether or not the Crown had demonstrated beyond reasonable doubt that the body of evidence supporting the Crown case should be preferred to the opposed body of evidence. 85 Similarly, in the present case, I do not consider, on balance, that it can be said that there is a real risk of unfair prejudice based upon what was asserted by senior counsel for the accused, namely, that there may be undue reliance by the jury on the expert evidence of Dr. Sutisno and that there may be difficulty in them comprehending and giving effect to the evidence as to the significance of perspectives, angles, distances and other matters relevant to photograph images. 86 I am of the opinion that the probative value of Dr. Sutisno's evidence is not outweighed by the danger of unfair prejudice to the accused and I, accordingly, decline to exclude the evidence pursuant to s.137. 87 I, accordingly, am of the opinion that the opinion evidence of Dr. Sutisno is otherwise admissible as opinion evidence as to similarities under s.79 of the Evidence Act 1995 (NSW) and I so rule. **********

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