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August 2014

Cases

• The care necessary when allowing expert evidence into a jury trial – Honeysett v The Queen (2014) 88 ALJR 786; [2014] HCA 29 and Fitzgerald v The Queen (2014) 88 ALJR 779; [2014] HCA 28

CASES

Updated 29 August 2014

The care necessary when allowing expert evidence into a jury trial

Honeysett v The Queen (2014) 88 ALJR 786; [2014] HCA 29 – 13 August 2014 High Court – French CJ, Kiefel, Bell, Gageler and Keane JJ and

Fitzgerald v The Queen (2014) 88 ALJR 779; [2014] HCA 28 – 13 August 2014 High Court – Hayne, Crennan, Kiefel, Bell and Gageler JJ

Opinion evidence s 79 of the Evidence Act – evidence of an expert on anatomy describing the characteristics of a person depicted in a photograph being similar to the anatomical appearance of the accused (Honeysett) – DNA evidence admitted in a circumstantial case against an accused – reasonable possibility of transference of DNA leaving open a reasonable possibility that DNA found at the scene of a crime was not associated with the accused' s presence at that scene (Fitzgerald)

Issues: In Honeysett, the issue was whether the evidence of the expert was admissible as an exception to the hearsay rule. In Fitzgerald, the issue was whether the finding of DNA at the scene of a crime excluded other reasonable possibilities of innocence such that a jury could properly conclude guilt beyond reasonable doubt.

Facts: Honeysett v The Queen: The Crown called evidence from a professor whose area of expertise was said to be anthropological and comparative anatomy. The professor also claimed expertise in "forensic identification". The method of identification utilized by the professor was described by the Court to be based on examining an image of a person and forming an opinion of the person's physical characteristics. His examination of the image does not differ from that undertaken by a lay observer except that the professor is an experienced anatomist and proclaimed a good understanding of the shape and proportion of the human body.

The admission of the professor's opinion was subject to strenuous objection. There was evidence from two other experts that allegedly called into question the methodology and conclusions that the professor opined.

Fitzgerald v The Queen: It was alleged that the accused was part of group of men who attacked a deceased victim. There was no direct evidence available in the Crown case that the accused formed part of the group. However, at the scene of the attack was a didgeridoo upon which was found DNA of the accused. The Crown relied on the finding of the DNA to circumstantially link the accused to the scene. It was accepted in the trial that it was a necessary link in Crown case that the accused's DNA was transferred to the didgeridoo during the attack.

Held: Honeysett: The expert evidence was not admissible because the opinion was not based on anatomical evidence but was based on no more than the subjective impression of what the professor saw when he looked at the images. Importantly, the Court continued, “Professor Henneberg's evidence gave the unwarranted appearance of science to the prosecution case that the appellant and Offender One share a number of physical characteristics. Among other things, the use of technical terms to describe those characteristics – Offender One and the appellant are both ectomorphic – was apt to suggest the existence of more telling similarity than to observe that each appeared to be skinny.” It was held to be an error of law to admit the expert evidence.

Fitzgerald: Whilst it was accepted that the accused's DNA was found at the scene of the attack, a number of the contentions made by the Crown about that evidence were not made out. The contention that the DNA derived from the accused's blood was not made out beyond reasonable doubt. There might have been other sources for that DNA. Further, there was evidence in the case of other innocent circumstances that could have accounted for the accused's DNA being found on the didgeridoo. The finding of the DNA did not in itself say anything about when it might have been deposited on the didgeridoo.  As a result, there were alternative hypotheses consistent with the innocence of the accused and it was consequently unreasonable for the jury to find the accused guilty on available evidence.

Result: In each case, the appeal was upheld. In the case of Honeysett, a new trial was ordered. In the case of Fitzgerald, as the only evidence linking the accused to the crime scene was the DNA evidence, the allowance of the appeal resulted in an acquittal being entered.

Comments: These cases highlight two different aspects of expert evidence. In the case of Honeysett, the comments made by the High Court about the appearance of expert evidence lending weight to the evidence led in the case are significant. It provides guidance as to the care that must be exercised before admitting such evidence. Careful analysis must be undertaken of the nature of the evidence to ensure that the evidence is truly "expert evidence" allowing for its admission.

In the case of Fitzgerald, the Court has highlighted the potential weaknesses of DNA evidence. In many cases the existence of DNA evidence will present an almost overwhelming obstacle to an accused. However, as is made clear in Fitzgerald, there may well be rational explanations for the existence of the accused's DNA which do not point to his or her guilt.

What both cases emphasise is the necessity for preparation. It is always necessary to understand what is the actual probative value of the evidence and what are the weaknesses of that evidence. What the cases also highlight is that persistence in pursing a particular point will often be necessary, even sometimes as far as appealing to the High Court.

Some content sourced from FirstPoint powered by Australian Digest.

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