The mere mention of Firearms and Weapons in a news report conjures up images of the stereotypical ‘bad guy’ up to ‘no-good’. The fact that Clare Werbeloff managed to gain significant publicity with a fictitious and politically incorrect eye-witness version of a ‘fat wog’ shooting a ‘skinny wog’ perhaps highlights how eager the press are to report these types of matters. The prevalence of drive-by shootings in Sydney may also have something to do with it.
In mid-May 2009, a shooting occurred at Kings Cross on Darlinghurst Road. Fortunately, the wounds were not life threatening. A Colt revolver was found under a car in a nearby street. DNA was recovered from that weapon; however the DNA was from more than one person. The DNA samples were not on the National Data Base of DNA – meaning that the shooter had not previously supplied a sample to police and had not committed any type of offence where identical DNA had previously been recovered.
Police conducted a thorough investigation and managed to locate approximately 40 CCTV footage clips covering the movements of the suspect – dressed in what appears to be dark pants, a white shirt and white shoes; the movements of the shooter prior to the shooting and afterwards who appeared to be wearing a closed dark sloppy-joe with a hoodie, dark pants and light coloured shoes; and the movements of a another man wearing a chequered shirt.
The CCTV footage was far from conclusive. It was a matter of speculation as to whether the suspect and the shooter were one and the same. In Smith v the Queen [2001 HCA 50, the High Court of Australia held that “police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors, or for that matter, some members of the public who had been sitting in court observing the proceedings…”
Police requested a DNA sample from the suspect, who consented to that Forensic Procedure application in the Downing Centre Local Court. One might think that the suspect consented to his DNA being provided as he was totally confident that he did not shoot anyone. As indicated above, the client’s DNA and other person’s DNA was found on the gun.
Despite the crowded street at the time of the shooting, there were few witnesses with any significant information. Two witnesses claimed independently to have seen the shooting. One gave a description of the shooter’s hair – which was impossible since the CCTV footage showed the hood being worn and the hair unable to be seen. The other witness described the shooter’s shirt as white – despite the top being worn totally covering whatever clothing, if any, was underneath. Quite clearly both witnesses were mistaken.
Body mapping evidence
In what may be an acknowledgement of the weakness of the circumstantial case, and given the decision of Smith (supra), police sought an ‘expert’ witness to compile what has been referred to as Body Mapping Evidence. The expert, Professor Marcej Henneberg provided an Expert Report comparing the anatomical features of persons depicted in photos to persons appearing in CCTV footage.
There are broadly two classification methods used by ‘experts’: photoanthropometry – analysis of dimensions and angles from photographs to determine visual similarities; and morphological analysis or comparison which typically involves comparing images from a photo of a suspect and another from the crime scene to assess similarities or differences.
The suspect was informed through his solicitor and accredited criminal law specialist, that the DNA results revealed his DNA was found on parts of the gun and that police intended to arrest him. By arrangement, the client attended Kings Cross police station on 19 November 2010 – 15 months after the incident, to be charged. He was charged with the following offences:
1. Discharge Firearm with Intent to Cause Grievous Bodily Harm pursuant to Section 33A Crimes Act – which has a maximum penalty of 25 years imprisonment;
2.Possess Loaded Firearm in a Public Place pursuant to Section 93G(1) Crimes Act which carries 10 years imprisonment, and
3. Possess Unregistered Firearm in a Public Place pursuant to Section 93 I(1) Crimes Act which also carries 10 years imprisonment.
Bail application refused
Notwithstanding that the client had no prior convictions, had voluntarily submitted to his DNA being taken, the length of time between the incident and the charging process and his strong community ties, bail was refused.
In the police facts sheet, it was asserted as a fact that it was the accused depicted in the CCTV footage carrying out the shooting. This fact sheet was used by police and the solicitor from the Director of Public Prosecutions office to successfully argue against bail being granted in the Supreme Court. Despite the police being in possession of the CCTV footage, they had not served it.
It was only after the CCTV footage was served, that the criminal defence lawyer and accredited specialist in criminal law was able to isolate images from the various clips to demonstrate that what was claimed on the facts was wrong in many respects.
One of the claims made by police was that “at all times the accused associate [male in a chequered shirt] was walking with, near or behind the accused.” One of the videos showed that someone looking like the accused was walking down a street by himself. The same footage showed 19 seconds later, the male in the chequered shirt walking with a man in dark trousers, dark top and white shoes in the same direction in the same street.
The police assertion that it was the accused who could be seen in the CCTV footage was also wrong, or at the very least, grossly exaggerated. Some of the footage was of the client at a nightclub. Claims that the accused could be seen running down Kellet Way, for example, were unsubstantiated when one viewed the CCTV footage. In fact, it was difficult to tell whether the person running was male or female, black, white or brindle – the quality of the footage was poor in that clip and in some others.
Supreme Court bail application no. 2
Relying on the CCTV footage and the exaggerations and inadmissible police identification (see Smith, supra) in the police facts sheet, a further application was made for bail. His Honour Justice Rothman granted bail and noted the weaknesses in the Crown case – namely that DNA on a firearm did not prove when that DNA was placed on the firearm; and the man in the chequered shirt was seen walking with a man who could have been the shooter (looking at clothing) 19 seconds behind what appeared to be the accused – despite what was said in the police facts sheet.
Unfortunately for the client, he was savagely bashed in prison and suffered facial fractures requiring hospitalisation and surgery, prior to being granted bail.
The matter proceeded to a committal hearing at the Downing Centre Local Court in December 2011 and finally in February 2012.
In the meantime, the NSW Court of Criminal Appeal handed down a decision of Raymond George Morgan v R  NSWCCA 257 in which it was held that ‘evidence of an anatomist of similarities between a person depicted in footage and photos of the appellant were inadmissible as expert evidence.’
After listening to the evidence of Professor Henneberg in this matter, it was hardly surprising that the Crown did not rely upon his evidence when it came to submissions. It was not simply the decision of Morgan v R (supra), but also the extraordinary evidence of this expert that led to this concession. The professor presented a 32 page Curriculum Vitae and spoke with confidence. No doubt his evidence before a jury of lay people could be devastating for an accused person.
Part of the cross examination in this case involved questions about his previously offered opinion concerning allegedly nude photographs of politician Pauline Hanson – “the face on the naughty photograph is to 99.2% face of Pauline Hanson” – notwithstanding that the paper publishing such claims apparently later retracted the claims, apologized and paid a monetary settlement. Professor Henneberg would still not concede that his opinion was wrong. – merely that it was untested in court.
Why the body mapping evidence could not be relied upon (apart from the CCA decision)
Here is just some of the examination in chief and cross examination in relation to the Body mapping evidence:
[Note that there was a photo of (1) a man in a white shirt, (2) a photo of a man in a dark hooded jumper with the hood not on, and (3) a photo of a man in a chequered shirt.]
Evidence In Chief
Q: In the Opinion section of your report, professor – that’s paragraph 11 – you say that your “opinion is strengthened by the fact that I could not observe any difference between the three POI [persons of interest]and the suspect.” First of all what are you referring to by “the three POI”?
A: I referred to the persons shown on the consecutive clips we have seen here on the clip showing the person of interest wearing the long-sleeved white shirt, and then the dark hooded jumper, but there is a clip there from service station or a shop where there is a person in a chequered shirt as well. I don’t remember the exact clip number.
Q: You say that the three persons of interest that you’re referring to in the opinion section of your report there are the person of interest wearing the white long-sleeved shirt?
Q: The person of interest wearing the black hooded jumper?
Q: And the chequered shirt?
The difficulty that the DPP solicitor was facing at that time was the fact that the man in the chequered shirt and the man in the white shirt, and the man in the chequered shirt and the man in the hooded jumper, were photographed walking together in different CCTV footage clips. It was therefore logically impossible for them to be the same person if they were walking next to each other!!
Cross examination followed:
Q: I’m putting to you, straight up, that you are dead wrong about the three persons of interest you’ve nominated as being the same person?
A: I disagree with your statement
Q: I’m putting to you on the basis that in one photograph we have two of those persons of interest are walking next to each other. You’re expressing great surprise by your facial movements at the moment?
A: Yes, I am.
Q: You can’t comment on it?
A: No, I can’t
Q: Because you’re dead wrong, right? If that’s the case, you’re dead wrong, aren’t you?
A: I would have to see the picture.
Q: If it’s the case that the man in the chequered shirt is walking next to the man in the hooded jacket who does the shooting, you are dead wrong. Correct?
A: I don’t know.
Q: If the man in the chequered shirt is walking next to the guy in the white shirt, you’re dead wrong as well. Correct?
A: Well, that’s your conclusion
Q: You’re saying they’re the same person, aren’t you?
A: I’m saying there’s a high degree of anatomical similarity.
In fairness to the professor, he does not claim to ‘identify’ people, but rather to express an opinion about anatomical similarity between persons.
The DNA Evidence
DNA evidence of a person’s DNA being on an object is not conclusive proof that the person touched the object. Through the process of ‘transference’, DNA can be transferred from one object to another. For example, shaking hands with a person may result in you having their DNA on your hand. If you then picked up a pen, the other person’s DNA may end up on the pen – even though they never touched that pen.
The strength or amount of DNA on an object does not determine who the last person was to have contact with an object. For example, a person may handle a gun, holding it, touching it in various places such as the trigger, grip, hammer and barrel – thereby leaving plenty of their DNA on the gun. A person taking hold of that gun by the grip and pulling the trigger might leave less DNA – despite the fact they were the last person to handle the weapon.
In some circumstances, the fact that a person had only a limited opportunity to leave their DNA on an object, might link them more strongly to a crime – for example DNA of a person found on a knife belonging to a deceased person in that person’s home, where the accused had never lived and had no reason to visit, would tend to be overwhelming evidence.
In the present case, there was no proof as to when the client’s DNA was placed on the gun. It could have been a month prior to the shooting.
Firearms offences are treated seriously by the courts. The legislation provides for serious penalties. Without vigorous exploration of the evidence, a person could be wrongly convicted.
In the present case, there were eye witnesses, DNA material of the accused on the gun; CCTV footage and expert testimony of anatomical similarity. Close scrutiny of each form of evidence unravelled the case and the client was discharged at committal. The facial mapping evidence was unhelpful and inadmissible; the DNA evidence could not conclude when the DNA was placed on the gun, the CCTV footage was generally of average to poor quality; the civilian witnesses were clearly mistaken.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.