Honeysett v The Queen

Facts

The appellant was convicted of armed robbery. At trial, the prosecution called an anatomy professor who gave opinion evidence comparing anatomical features visible in CCTV footage of the offender with photographs of the appellant, concluding they were consistent with being the same person. The appellant argued this evidence did not qualify as expert opinion evidence admissible under s 79 of the Evidence Act 1995 (NSW).

Issues

1. Whether the anatomical comparison opinion evidence was admissible under s 79 of the Evidence Act 1995 (NSW) as wholly or substantially based on specialised knowledge gained from training, study or experience. 2. Whether the witness's opinion was properly distinguished from the jury's own capacity to make the same observations.

Holding

The High Court unanimously held that the anatomical comparison evidence was not admissible under s 79 of the Evidence Act 1995 (NSW) because the opinions expressed were not wholly or substantially based on the witness's specialised knowledge, and the conviction was set aside.

Ratio decidendi

Opinion evidence is admissible under s 79 of the uniform Evidence Acts only if it is wholly or substantially based on the witness's specialised knowledge derived from training, study or experience; where an expert does no more than apply ordinary human observation to material equally available to the jury, the opinion does not satisfy that requirement and is inadmissible.

Obiter dicta

The Court observed that even a person with genuine specialised anatomical knowledge may give inadmissible opinion evidence if, in a particular case, the opinion expressed is not actually derived from or dependent upon that knowledge but instead rests on the same lay comparison any juror could perform unaided.

Significance

Honeysett is the leading High Court authority on the threshold requirement that expert opinion evidence under the uniform Evidence Acts must be wholly or substantially based on specialised knowledge, and it has substantially curtailed the use of anatomical or morphological comparison evidence by experts in criminal proceedings in Australia.

Key authorities

• Dasreef Pty Ltd v Hawchar Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588applied
• HG v The Queen HG v The Queen (1999) 197 CLR 414applied
• Lithgow City Council v Jackson Lithgow City Council v Jackson (2011) 244 CLR 352considered
• R v Leung R v Leung (1999) 47 NSWLR 405distinguished
• R v Tang R v Tang (2006) 65 NSWLR 681distinguished