The Queen v Meade

2 Whoever her assailant was wore size 12 'Redback' work boots. That is apparent from the fact that footprints made by that brand of shoe were found in Ms Brooks' laundry, and in the general vicinity of her body, by crime scene examiners who attended the scene.

3 The Crown wishes to call Mr Mark Cloros, a senior employee of the firm that manufactures 'Redback' work boots, to give evidence in support of the Crown case. Mr Morrissey SC, who appears for the accused, submits that significant portions of Mr Cloros' evidence should be excluded. In my opinion, the evidence is admissible, and should be received.

4 Mr Cloros is the Marketing and Product Manager of Redback Boot Company Pty Ltd. He has occupied that position since the company started up in 1990. In his time with the company, he has dealt with all products in its range, and has been responsible for the design and 'commercialisation into manufacture'[1] of all of its footwear.

5 Indeed, Mr Cloros' experience in the footwear industry goes back considerably further than 1990. He has been involved in that industry since 1979. He has developed an intimate knowledge not just of his own company's products, but also of those of its competitors.

6 Mr Cloros was provided with a DVD containing CCTV surveillance footage taken at a petrol station in regional Victoria, near Mansfield, on 30 June 2011. It is common ground that the CCTV footage shows the accused filling his car with petrol. It is clear, from even a cursory viewing of this footage, that the accused is wearing work boots. The Crown would wish to have the jury infer that these were the very work boots that left the footprints in the blood of the accused's former wife on the following morning. In other words, the Crown seek to have the jury find that the work boots seen in the footage were 'Redbacks'. That would be an important piece of evidence in what is essentially a circumstantial case against the accused.

7 The potential significance of this evidence is heightened by the fact that when the South Australian police went to the accused's home in Adelaide on the night of 1 July 2011, they noticed a pair of large work boots near the entrance to the house. Soon after midnight on 2 July 2011, they executed a search warrant at the premises and seized a pair of size 11 'Redback' work boots. Those boots were subsequently forensically examined. It is entirely clear that they were not the boots that left the footprints in Ms Brooks' blood. They are one size too small, and there was no forensic evidence of any kind linking them to the crime scene.

8 The question posited by the Crown is, what happened to the work boots that the accused was seen wearing at the petrol station? Those boots were never recovered. The Crown would have it that he disposed of them after having attacked his former wife.

9 In his statement to police, Mr Cloros said that he had viewed the DVD, which runs for about five minutes, a number of times. He noted that he had been asked by Detective Senior Constable Kyle Simpson, the informant in this matter, whether he could identify the footwear that the accused was wearing while he was filling his car with petrol.

I can state the following in relation to the footwear that the male was wearing:

• The male was wearing dark coloured elastic side work boots;
• These boots had a leather upper and a synthetic sole;
• The upper design is of the elastic sided nature with a derby cut vamp;
• The design incorporated four leather pieces to the upper;
• The upper design is consistent with Redback 'Bobcat' design boots which [are] made out of an oil hide leather;
• The angle of seams and curves incorporated in the upper, particularly around the elastic gusset are consistent with the Redback 'Bobcat' design boots;
• The sole of the boots appeared to be a dual density polyurethane sole;
• The heel and wedge shape of the shoe are consistent with the unique Redback 'Bobcat' sole profile;
• The sole colour combination is also consistent with the Redback 'Bobcat' sole.

Based on these identified features, it would not be unreasonable to conclude that the boots worn by the male in the CCTV footage I was supplied by Detective Senior Constable SIMPSON are Redback 'Bobcat' boots. A number of these features are unique to Redback Boots, and the sum of all these features, in my opinion, narrow the boot down to in all likely hood [sic] being a Redback 'Bobcat' boot. These boots are part of the Redback 'Classic Range' of boots.

On the 30th of May 2012 I was showed [sic] a series of twelve images of boot prints on a white tile floor. I have looked at each of these images and can identify that the boot that made the prints is of the Redback 'Classics Range', of which the 'Bobcat' is the most popular model. This is based on:

• The 'Redback'logo;
• The cleat pattern and sole design;
• The 'Redback' heel plug.

13 Mr Morrissey submitted that there were three reasons why Mr Cloros should be confined to giving only this last piece of evidence regarding the images of boot prints.

14 Mr Morrissey argued that Mr Cloros' evidence regarding what he saw on the DVD was (a) irrelevant; (b) did not meet the requirements of s 79 of the Evidence Act 2008 regarding opinion evidence; and (c) should, in any event, be excluded in the exercise of discretion pursuant to s 137 of that Act.

15 A voir dire was held before me. Mr Cloros was extensively cross-examined. I was able to form a clear opinion as to his knowledge and understanding of his own company's products, and as to his credibility as a witness. He presented as truthful, and gave his evidence in a forthright and careful manner. A jury would be perfectly entitled to accept him as an honest and reliable witness.

16 The basis upon which it is said that his evidence should be excluded is essentially this: the quality of the CCTV footage, although reasonable, is not sufficient to enable anyone to state with confidence the precise make of the work boots that the accused was wearing on the day. In testing Mr Cloros' opinions, Mr Morrissey took him painstakingly through the footage, at various times on a frame-by-frame basis. He elicited from Mr Cloros a number of concessions.

17 First, Mr Cloros accepted that he could not state positively that the work boots displayed on the CCTV footage were 'Redbacks'. He was shown photographs by Mr Morrissey of a number of other work boots sold in Australia. He readily acknowledged that there were at least two other manufacturers of work boots in this country which produced models that were similar to those made by his company.

18 On the other hand, Mr Cloros was able to exclude, with a fair amount of confidence, a number of brands of work boots that he considered to be different from those shown on the DVD.

19 In summary, Mr Cloros' evidence was that the work boots worn by the accused, as shown on the DVD, were consistent with 'Redback Bobcat' boots. They could, however, have been work boots manufactured by some other company.

20 Mr Cloros based his opinion that the work boots that he saw were consistent with having been 'Redbacks' on a number of factors, most of which were set out in his statement. In cross-examination, he adhered to his view that the boots shown on the CCTV footage were dark coloured elastic side work boots with what he termed a 'gusset' inserted into the leather. They had a leather upper, and a synthetic sole. He described them as having a 'derby cut vamp', and explained that this differed from other ways of manufacturing an elastic-sided boot. He agreed that at least two other manufacturers used the same 'derby cut vamp'.

21 Mr Cloros went on to say that the angle of seams and curves incorporated in the upper, particularly around the elastic gusset, was consistent with 'Redback Bobcat' design boots. He also did not resile from his statement that that the sole of the boots appeared to be made of dual density polyurethane, and that the heel and wedge shape of the shoe, along with the sole/colour combination, were consistent with the products in the 'Redback Bobcat' range.

22 To some marginal degree, Mr Cloros qualified what he had earlier said in his statement. At one point, he acknowledged that he had earlier noticed something about the 'stitching' associated with the work boots, but conceded, on being taken through the CCTV footage frame-by-frame, that it was impossible to make out, in any appropriate detail, any of the stitching on the boots.

23 Mr Cloros stated that the freeze frame technique produced a less satisfactory image of the shoes in question than viewing the DVD at normal speed. I can understand that statement, and I have no hesitation in accepting his explanation of the difficulties he encountered.

24 Having viewed the DVD myself, I can say that it would be difficult for anyone unfamiliar with the work boot market to say any more than that the accused was wearing slip-on work boots. I say slip-on because, had they been lace-ups, that would have been obvious. Mr Cloros said that there were only two forms of short work boot sold in this country, those with elastic sides, or gussets, and those that were lace-ups. He, too, excluded lace-ups.

25 Mr Morrissey's submission that Mr Cloros' evidence was irrelevant was, as I described it during argument, 'heroic'. It was clearly untenable. The fact that he can go no further than to say that the work boots shown on the screen were consistent with 'Redback Bobcat' boots, and is unable to state positively that they were, does not render his evidence irrelevant.

26 Mr Morrissey's submission as to irrelevance was based upon the High Court's judgment in Smith v The Queen,[2] although he readily conceded that the case was not directly on point.

27 In Smith, the accused appealed against his conviction for having robbed a bank, in company with others. The issue at trial was whether the accused was one of the persons depicted in photographs taken by the bank's security cameras. Evidence had been led at trial from two police officers who had previously dealt with the accused on a number of occasions. They identified the accused as the person depicted in the photographs. A majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ; Kirby J dissenting on this point) held that the evidence was irrelevant, and, for that reason should not have been admitted.

Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision-maker permitting substitution of the view of another, for the decision-maker's own conclusion.[3]

This is not to say that it will never be relevant for a witness to give evidence that the witness recognises who is depicted in a photograph ...

Sometimes the facts in issue will extend beyond the narrow question whether the accused is the person depicted in the photograph. In R v Goodall, the questions included whether the accused owned a jacket of the kind that the offender depicted in security photographs of a robbery was shown to be wearing. A jacket, which was tendered in evidence, had been found with other incriminating items. Two police officers gave evidence that they had seen the accused wearing this kind of jacket before the robbery. They gave further evidence that the man who was depicted in the security photograph was the accused, and that he was wearing a jacket of the kind they had seen him wearing before the robbery. The evidence was, therefore, relevant to link the accused to the jacket. It went beyond the bare assertion of recognition of the person on trial as the person shown in the photograph.

In other cases, the evidence of identification will be relevant because 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 is suggested that the appearance of the accused, at trial, differs in some significant way from the accused's appearance at the time of the offence, evidence from someone who knew how the accused looked at the time of the offence, that the picture depicted the accused as he or she appeared at that time, would not be irrelevant. Or if it is suggested that there is some distinctive feature revealed by the photographs (as, for example, a manner of walking) which would not be apparent to the jury in court, evidence both of that fact and the witness's conclusion of identity would not be irrelevant. Similarly, if, as was the case in R v Tipene, there is an issue whether photographs of different incidents depict the same person, evidence given about the identity of the person depicted may not be irrelevant.[4]

30 The evidence of Mr Cloros is readily distinguishable from that given by the two police officers in Smith. The evidence is, to adapt the language of the High Court in Smith, 'relevant to link the accused to the [work boots]'. Further, Mr Cloros is able to point to certain distinctive features of the boot which would not be apparent to the jury in court. Indeed, the jury may, without the benefit of Mr Cloros' evidence, be unaware that certain features of the boots depicted are unusual, or are otherwise not common in boot design. It need hardly be said that jurors are, ordinarily, unfamiliar with the intricacies of boot design and the terminology associated with it.

31 As recognised by Mr Morrissey, the police officers in Smith asserted a mere familiarity with the appearance of the accused. Mr Cloros, however, is an expert in the design features of work boots. His level of expertise takes this case well beyond the facts of Smith.

32 Mr Morrissey recognised the weakness of his submission regarding relevance, and soon sensibly moved on to his two main points.

33 Section 79(1) of the Evidence Act 2008 provides as follows:

79 Exception - opinions based on specialised knowledge

(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

34 It may be helpful to refer to the comments of the Court of Appeal in Dupas v The Queen[5] as to opinion evidence. Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JA, contrasting the position at common law regarding exceptions to the opinion rule from that which obtains under the Evidence Act 2008, said:

At common law there was a requirement that the expertise rested upon a 'body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience'. The expert must provide the criteria enabling evaluation of the validity of the expert conclusions. There continues to be a focus on the extent to which the expert's assumptions, methodology and conclusions are disclosed as part of the expert's reasoning.[6]

35 As the High Court noted in Dasreef Pty Ltd v Hawchar:[7]

To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge.[8]

36 The fact that Mr Cloros has not undergone any formal training in shoe, or work boot, identification seems to me not to matter in the slightest. He is obviously 'expert' in the area, and Mr Morrissey did not suggest otherwise. Rather, he submitted that the jury would be in as good a position as Mr Cloros to view the DVD, and to form their own judgment as to what the accused was wearing. I reject that submission. Mr Cloros approaches his task with a vastly better understanding of what to look for in considering whether the work boots in question may have been 'Redbacks'. He sees more, and is better able to interpret the CCTV footage, in relation to the classification of these work boots, than any potential juror. He is, after all, being asked to form an opinion as to the identity of a product that he himself designed. Who better to do so?

37 That takes me to Mr Morrissey's s 137 submission. In essence, he contended that there was a danger that the jury might be 'blinded by science' in relation to Mr Cloros' evidence. I see no such danger. All that Mr Cloros is saying is that, in his opinion, there is a realistic chance that these boots were 'Redback Bobcats' within the 'Redback Classic' range. The jury will understand full well that the evidence does not go beyond that. There is no risk of their being seduced into anything like the 'prosecutor's fallacy' which has bedevilled DNA evidence over recent years.

38 In short, the probative value of Mr Cloros' opinion is potentially significant. The jury will, of course, be aware that the accused was wearing slip-on work boots of the general type that were worn by the person who attacked the deceased the following morning. They will be aware that the accused, when questioned by the South Australian police about the 'Redback' work boots found at his house, said either that he had not taken them with him to Victoria, or perhaps more tellingly, to Melbourne. If he was telling the truth about that matter, there are a pair of slip-on work boots that have never been found. That is the sting in a lot of the evidence to which objection cannot be taken. The additional evidence to be given by Mr Cloros to the effect that the work boots shown on the CCTV footage may have been 'Redbacks' adds something to that evidence, but not in any prejudicial way. In fact, there is little danger of prejudice, in the true sense of that term. It goes without saying that the mere fact that the defence would prefer not to have this evidence led in no way equates to prejudice.

[1] Statement of Mr Mark Cloros, 30 May 2012, at page 723 of the depositions.

[2] [2001] HCA 50; (2001) 206 CLR 650 ('Smith').

[4] Ibid 656-7 (emphasis added) (citations omitted).

[5] [2012] VSCA 328.

[7] [2011] HCA 21; (2011) 243 CLR 588.