R v Smith (No 5) [2011] NSWSC 1459 (28 November 2011)

Last Updated: 2 December 2011

Supreme Court New South Wales

Case Title:	R v Smith (No 5)
Medium Neutral Citation:	[2011] NSWSC 1459
Hearing Date(s):	17 June 2011
Decision Date:	28 November 2011
Jurisdiction:	Common Law - Criminal
Before:	BUDDIN J
Decision:	Evidence admitted
Catchwords:	Criminal law - murder - evidence of expert witness - comparison of footwear patterns on crime scene shoes and footwear of accused
Legislation Cited:	Evidence Act
Cases Cited:	Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Louizos v The Queen [2009] NSWCCA 71; (2009) 194 A Crim R 223 Mainwaring v R [2009] NSWCCA 207 Parish v The State of Western Australia [2008] WASCA 90 R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 R v Le [2000] NSWCCA 49 R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 R v N, GF and N, SG (No 2) [2010] SASC 8 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 R v SJRC [2007] NSWCCA 142 R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 R v Tang [2006] NSWCCA 167; (2006) 161 A Crim R 377 Rose v R [1993] SASC 4249; (1993) 69 A Crim R 1 Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Texts Cited:
Category:	Interlocutory applications
Parties:	Regina Darren Paul Smith
Representation
- Counsel:	Counsel: C Everson (Crown) D Yehia SC (Accused)
- Solicitors:	Solicitors: S Kavanagh (Solicitor) Director of Public Prosecutions Legal Aid Commission
File number(s):	2009/50517
Publication Restriction:

JUDGMENT

Introduction

1. The 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.

2. The 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.

3. The 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

4. On 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.

5. Counsel 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]

6. Dr 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.

7. Dr 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.

8. As 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.

9. Dr 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.

10. Dr 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.

11. Dr 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.

12. As 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:

• There is no database from which any statistical analysis can be calculated as to the percentage of males in the general population that create a particular wear pattern. When Dr Bennett expressed the opinion that the accused cannot be excluded as the wearer of the shoes there is no statistical certainty that attaches to that statement.

• The comparison of the Adidas shoes and the various footwear and samples taken from the accused were made 14 years apart. Dr Bennett acknowledged that a number of variables might impact upon lower limb functioning over a period of time. The variables that may impact upon lower limb functioning and thereby wear patterns are age, disease, changes in body mass index, trauma and surgery. Dr Bennett agreed that it is preferable to conduct a comparison between a crime scene sample of shoes and a reference sample of the same age.

• Dr Bennett did not have information about any change in the accused's body weight between 1995 and 2009. He was given a number of black and white photographs, none of which depicted the weight of the accused in 1995. Dr Bennett agreed that changes in the weight of an individual could impact upon the wear patterns of shoes because the more a person weighs the greater the amount of frictional forces between the outsole and the ground.

• Dr Bennett conceded that trauma and surgery could potentially impact upon lower limb function, gait and distribution of peak pressure thereby affecting wear patterns. He also conceded that osteoarthritis could result from a fracture to the knee, thereby impacting on wear pattern. (I interpolate that there was no evidence that the accused had ever actually suffered from osteoarthritis).

• Dr Bennett apparently did not have access, at the time of preparing his report, to the accused's medical records which reveal that he had sustained a comminuted fracture to the right patella following an accident in 1997. Having looked at the records, Dr Bennett agreed that the fracture "potentially" affected lower limb function.

• Dr Bennett agreed that it is impossible to assess the impact on the accused's lower limb functioning over the years caused by one, let alone a combination, of any of the variables to which reference was made earlier.

• It was submitted that the probative value of the comparison made by Dr Bennett is further weakened by virtue of the fact that he compared the Adidas shoes with footwear belonging to the accused which was of a different type. Dr Bennett conceded that it is desirable to compare "like with like" so as to make the results of the comparison as to wear patterns more reliable.

• It was submitted that the probative value of the evidence is also weakened by the fact that while a number of similarities were noted, Dr Bennett identified a number of dissimilarities between wear patterns on the Adidas shoes and some of the items of footwear seized from the accused, including an apparent difference in size between the Adidas shoes and those items which were seized from the accused.

13. At one stage counsel went so far, in written submissions, to contend that "it is arguable that the evidence of Dr Bennett does not even meet the requirements of s 55". Counsel further submitted that "[h]is evidence only has minimal probative value insofar as it identifies similarities between the Adidas shoes and the accused's footwear and feet in 2009. That evidence, even if accepted, cannot rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, namely, the accused's wear patterns and the condition of his feet in 1995."

14. It may be observed that Dr Bennett also said in his report that, notwithstanding the factors to which I have referred, "gait patterns tend to remain relatively unchanged over time unless some or all of the above change to a major extent."

15. Finally, it may be noted that the accused did not give or call evidence during the course of the application.

The relevant legislative provisions

16. S 55 is in the following terms:

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

17. "Probative value" is defined in the Dictionary to the Act and means "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue".

18. Section 135 is in the following terms:

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.

19. Section 137 is in the following terms :

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.

The relevant authorities

20. A convenient starting point is Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 in which Gleeson CJ, Gaudron, Gummow and Hayne JJ in a joint judgment observed:

As is always the case with any issue about the reception of evidence, identification evidence being no exception, the first question is whether the evidence is relevant. No attention was given to this question in the arguments advanced at trial, or on appeal to the Court of Criminal Appeal, but that question must always be asked and answered. Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore.

"None but facts having rational probative value are admissible",

and

"All facts having rational probative value are admissible, unless some specific rule forbids."

In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding. [at 653-54] (footnotes omitted)

21. In R v Le [2000] NSWCCA 49, Sully J, with whom other members of the court agreed, observed that:

[I]n considering whether [the] evidence was admissible in terms of s.55 of the Evidence Act , it is in my opinion important to keep clearly in mind a distinction between the question whether a particular piece of evidence is probative, and therefore admissible at all; and the very different question of the weight fairly to be given to that evidence after it has been admitted properly.

It is to be observed that s.55 speaks of a rational effect that is brought about "directly or indirectly" . This is very broad language, and it suggests, in my opinion, a wide rather than a narrow focus to the inquiry whether a proffered piece of evidence has the rational potential which s.55 requires. [at paras 18-19]

22. In considering s 137 of the Act, I must have regard to what the Court of Criminal Appeal has said about its operation. In R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 Spigelman CJ, with whom the other members of the court agreed, said:

After the enactment of s137, the same approach was taken in R v Singh-Bal (1997) 92 A Crim R 397 at 403 and R v Yates [2002] NSWCCA 520 at [255]- [256], in both of which the formulation from R v Carusi was expressly adopted, i.e. the evidence must be "taken at its highest" in order to determine its probative value. ...

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 direct 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.

This conclusion is reinforced by the test that evidence must "rationally affect" the assessment. As Gaudron J emphasised in Adam supra, a "test" of 'rationality' also directs attention to capability rather than weight.

There will be circumstances, as envisaged by Simpson J in Cook supra, 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. In that limited sense McHugh J's observations in Papakosmas that "considerations of reliability are necessarily involved" have application.

To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 275, this is not a permissible "basis for enlarging the powers of a trial judge at the expense of the traditional jury function". In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s137. ...

There is now a considerable body of case law in this Court which emphasises the fact that the assessment of this element requires any prejudice to be unfair . There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give. (See e.g. R v BD (1997) 94 A Crim R 131 at 151.) (I do not need to refer to the reasoning in some cases that procedural prejudice may be sufficient.)

To use the test of McHugh J in Festa v The Queen (2001) 208 CLR 593 at [51]:

"It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may influence the jury or divert the jurors from their task."

(See also R v Lisoff [1999] NSWCCA 364 and R v Yates [2002] NSWCCA 520 at [252].) [at paras 51, 60-64, 72-73]

23. In R v SJRC [2007] NSWCCA 142, James J, with the concurrence of other members of the court, observed:

It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference (sic) contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice.

It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn. [at paras 38-9]

24. See also Louizos v The Queen [2009] NSWCCA 71; (2009) 194 A Crim R 223 [at paras 30-36].

25. Although it is not a case that is directly concerned with s 135 or s 137, it is instructive to make further reference to the decision in Festa (supra) upon which Spigelman CJ relied in Shamouil . That case was concerned, inter alia, with evidence of identification made by four witnesses to an armed robbery. Gleeson CJ observed:

In [ Murphy v The Queen [1994] SASC 4674; (1994) 62 SASR 121], the number of witnesses who selected the same photograph was significant. But the case shows how evidence falling short of positive identification may nevertheless be of significance, having regard to the whole of the evidence.

The argument that the evidence of the four witnesses should have been excluded turned upon what were said to be deficiencies in its quality.

The strength or weakness of evidence may depend in part upon the use that might be made of it. Mr Hill's selection of three photographs, including one of the appellant, of itself could not support a positive conclusion that the woman he saw was the appellant. But the evidence did not stand alone. And even if it only showed that the woman he saw was consistent in appearance with the appellant, that was a material fact. Similarly, the cogency of the evidence of the acts of identification at the Southport courthouse depended in part upon what was sought to be made of it. As positive identification of the appellant, it was weak. In fact, the evidence of Ms Ogilvie and Mr James did not amount to positive identification. But as evidence that the appearance of the appellant was consistent with that of the wigged female seen near the bank at the time of the Biggera Waters robbery, it was of some probative value.

Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is "weak", and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence. [at paras 11-14]

26. McHugh J said:

Unfortunately, another class of evidence is sometimes called "circumstantial identification evidence". It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is 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. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.

When circumstantial identification evidence has no element of positive identification, it usually does not have the potential unreliability of positive-identification evidence. A judge is not automatically required to warn the jury concerning the dangers of circumstantial identification evidence. But the circumstances of a particular case may require a warning. When a witness claims that the facial features of the accused are similar to those of the perpetrator, it would usually be appropriate to give the standard warnings given in cases of positive-identification evidence. But the warnings that must be given to juries concerning positive-identification evidence do not apply to most forms of circumstantial identification evidence . ...

The judicial discretion to exclude evidence in criminal cases applies to circumstantial identification evidence as much as it does to positive-identification evidence. When a trial judge is asked to exclude circumstantial identification evidence on the ground of unfairness, the judge must examine its probative value and its prejudicial effect (if any). In Alexander v The Queen - a case of positive-identification evidence from photographs - Gibbs CJ said:

"[A] trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused."

...

In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. Because circumstantial identification evidence is usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasions for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positive-identification evidence. [at paras 56-7, 63, 65]

27. There are a number of instances in which courts have admitted evidence of the kind presently under consideration. The Crown placed considerable reliance upon Rose v R [1993] SASC 4249; (1993) 69 A Crim R 1 in which evidence was given by two podiatrists who had made casts of the suspect's feet. They found that they had some unusual features. They also examined the shoes that the suspect was wearing at the time of the examination and two pair of shoes which had been found at the crime scene. The podiatrists concluded that the shoes left at the crime scene had certain characteristics which meant that the suspect could have worn those shoes. A challenge to the admissibility of the evidence was rejected by the Court of Criminal Appeal of South Australia. The Court observed that "[p]odiatry is something in the nature of a science which requires a course of study in order to obtain knowledge of it. Each witness had embarked on and completed a course in podiatry" (at 10).

28. The trial judge in Rose instructed the jury about the evidence in the following fashion:

It is important to remember what the podiatrists purported to say. The Crown sought to adduce Crown evidence from podiatrists, not on the subject matter of whether by reference to a comparison of the accused's feet and wear marks in the shoes allegedly found apparently dumped in a drain near the scene of these crimes, these were shoes that had been worn by the accused, but on the limited subject matter of whether, by reference to such a comparison, those shoes could have been worn by the accused.

The subject matter of the opinion evidence in question is not to be viewed as identification evidence, or anything akin to fingerprint identification, but rather as evidence of the characteristics and points of comparison said to be seen on both the feet and the shoes from which circumstantial evidence and inferences may ultimately be sought to be drawn that there was a connection or a correspondence. [at 10-11]

29. Bollen J, with whom the other members of the Court agreed, approved of those directions. His Honour said:

This is certainly in no way an overstatement. I think that the learned trial judge could have left it to the jury as evidence much more strongly than he suggested. I think it was some evidence connecting the accused with the crime. But it was left as a factor or one point in the mass of circumstantial evidence capable of implicating the appellant. [at 11]

30. There are several other decisions concerning evidence of the kind presently under consideration to which the Court was not referred. In Parish v The State of Western Australia [2008] WASCA 90 a pair of boots which the suspect was wearing were seized by police. A podiatrist concluded that they had a tread pattern that was 'very very similar' to the boot print left in the premises that had been robbed. He also gave evidence that the foot impression left in the boots matched the foot impression taken from the suspect. His evidence was that there were no other wear marks of any other wearer on the inner sole. A police forensic officer gave evidence that the boot print from the appellant's boots "shared the same class characteristics as to the size, shape, style and pattern, although he accepted that it could not be excluded that the boot print could have been made by another pair of boots of the same size and displaying the same class characteristics". The Court observed that "the evidence about the similarity of the boot prints was therefore important circumstantial evidence to be taken into account by the jury" [at para 33].

31. In Mainwaring v R [2009] NSWCCA 207 both Dr Bennett and another podiatrist gave evidence that they had compared the wear patterns on shoes seized from the appellant and another pair of shoes which were relevant to the charge which he was facing. The effect of his evidence was that he could not exclude the possibility that the appellant had been the wearer of those other shoes. There was no challenge to the admissibility of that evidence.

32. In R v N, GF and N, SG (No 2) [2010] SASC 8, two pairs of shoes which were said to have been discarded by the two accused, who were charged with murder, were subjected to forensic examination by a podiatry expert. The podiatrist concluded that one pair of shoes could not be excluded as having been worn by one of the accused whilst the other pair of shoes could not be excluded as having been worn by the other accused. The trial judge, over objection, admitted the evidence. N, GF was convicted while N, SG was acquitted. N, GF's appeal against conviction was dismissed: R v Newman [2011] SASCFC 36. It does not appear that there was any challenge to the trial judge's ruling.

33. The Crown also placed reliance upon R v Tang [2006] NSWCCA 167; (2006) 161 A Crim R 377, a case in which the appellant was convicted of an armed robbery. The Crown led evidence from an expert who purported to identify points of similarity from images of one of the suspects and the appellant, based on facial and body mapping techniques. The case turned largely upon a consideration of whether the evidence fell within the scope of s 79 of the Evidence Act. It was held that whilst there appeared to be an area of "specialised knowledge" based on facial identification, the same could not be said of body mapping.

34. Spigelman CJ, with whom the other members of the court agreed, observed:

At common law there is a distinction between evidence of resemblance and evidence of identification. (See Murphy v The Queen [1994] SASC 4674; (1994) 62 SASR 121 at 123-124; Festa v The Queen (2001) 208 CLR 593 at [10] - [11]; Pitkin v The Queen [1995] HCA 30; (1995) 80 A Crim R 302 at 304-305.) Evidence of similarity may be relevant and admissible as part of a circumstantial case. There was no suggestion on this appeal that evidence of this character was not admissible. ...

In the present case, as his Honour held in his judgment on the voir dire features displayed on the videotape or on the stills taken from the videotape were not such as the jury could themselves make a comparison. The process of computer enhancement and magnification of the images and the detailed comparison with undisputed photographic images of the Appellant, was evidence of similarity that was, in my opinion, relevant and admissible. [at paras 83, 85]

35. Counsel for the accused sought to distinguish Rose upon the basis that there were "prominent and unusual features" of that offender's feet, that the examination of the offender's feet took place within 6 months of the offence, and that no application had been made that the evidence should be the subject of discretionary exclusion. It was sought to distinguish Tang upon the basis that no application to exclude the evidence had been made pursuant to ss 135 and 137 of the Evidence Act and because the relevant comparison had taken place within 8 months of the offence. In relation to Festa it was submitted that once again the relevant comparison was conducted within months.

36. Whilst those contentions are undeniably correct as a matter of fact they do not serve, in my view, to diminish the significance of the general propositions which emerge from those authorities. Nor would I accept the submission that Shamouil should be distinguished upon the basis that there was no challenge in the present case to the credibility or reliability of Dr Bennett. In my view the central challenge to Dr Bennett's conclusion was very much based upon its asserted unreliability.

Consideration

37. It 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] NSWCCA 55; (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] NSWCCA 61; (2000) 111 A Crim R 326. See also R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at 199.

38. As 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.

39. As 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.

40. I 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".

41. In 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."

42. I 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] HCA 13; (1992) 173 CLR 555 at 561-2.

43. It 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.

44. It follows, in my view, that the challenge to the evidence pursuant to s 137 of the Act, must fail.

45. In 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.

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