Anderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS INDICTMENT NO. 89/08 THE QUEEN -V- JOSUE ALEXANDER CARRILLO PEREZ CORAM: ANDERSON J. (Acting) Appearances: Mr. Trevor Ward and Mrs. Jenesha Borasingh-Simpson (A.G's Department) for the Crown; Mr. Anthony Akiwumi for the Accused Heard: September 16, 2009 APPLICATION TO EXCLUDE FINGERPRINT EVIDENCE
On Wednesday September 16, I heard submissions from counsel for the accused and for the Crown in respect of an application by the defence that the fingerprint evidence which the Crown proposes to adduce in the instant matter should be excluded. Having considered the submissions overnight on the 16th September, on Thursday 17th September I denied the application and promised to put my reasons in writing. In fulfillment of that promise, I now do so.
The defendant Josue Alexander Carrillo Perez ("the defendant") is on trial for murder. The indictment charges him with murder of Martin Gareau, a Canadian national contrary to section 8 of the Penal Law of the Cayman Islands. By this application, the defendant asks the court to exclude the fingerprint evidence with respect to latent prints, (Exhibits RP 22 and RP 23) which prints the Crown says are, by a process of comparison with Exhibit OM/1 JACP, attributable to the defendant, and which it is seeking to adduce in this trial. Defendant's counsel submits that despite the almost universal acceptance of the infallibility of fingerprint for a hundred years, recent scholarly writings and some decisions of eminent courts in World-wide jurisdictions, have raised the question of whether fingerprint identification is in fact a science and whether it really is as reliable as presumed. The defendant relies upon four propositions in support of the submission that the court should exercise its discretion to exclude the evidence in question. These are as follows: (i) Fingerprint evidence is an unreliable technique for determining, to the criminal standard the Defendant's guilt; (ii) Furthermore, by reason of its proved fallibility, its unscientific foundation and its lack of objective review, evidence purporting to identify a defendant by the examination of latent prints is inherently unreliabile and prejudicial such as it should not be admitted; and, (iii) By reason of (i) and (ii) neither William McKay nor Claire Elizabeth Hasart are credible as experts upon whom reliance can be placed to the requisite criminal standard in order to establish the Defendant's guilt; (iv) In the event that the Court disagrees with either of the propositions advanced in sub-paragraphs (i) and (ii) heretofore, then, neither William McKay nor Claire Elizabeth Hasart should be entitled to express an opinion on the ultimate issue, namely whether the latent fingerprints allegedly found at [insert address] are attributable to the Defendant.
With respect to the qualification of the witnesses being called by the Crown, counsel for the defendant questions whether they qualify to give expert evidence and relies largely upon a decision of the Supreme Court of the United States of America *Daubert v Merrell Dow Pharmaceutical Inc. 509 U.S. 579 (1993)*. On the limb of the reliability of such evidence, he also calls in aid decisions of United States courts in *United States v Llera Plaza; United States v Mitchell* and *State of Maryland v Rose*.
The evidence in respect of the prints is to be derived from the evidence of Claire Hasart and William McKay and the defendant says that the court in its role as "gatekeeper" ought to exclude the evidence. He submits that Ms. Hasart (who was not called at the Preliminary Enquiry) has not indicated the basis upon which she has concluded, as she does, that the prints at exhibits RP 22 and RP 23 are, in fact, the right middle and right forefinger respectively, of the defendant. He also submitted that the evidence of William McKay that he was also able on a verifying examination, using what is known as the ACE-V technique, to reach a similar determination, ought similarly to be excluded. The defendant challenges the reliability of the ACE-V methodology. Further, based on McKay's finding in relation to one exhibit, he had demonstrated at least a 25% error rate. There was accordingly, no reliable basis for determining how McKay had arrived at his opinion.
The arguments on behalf of the defendant are directed to satisfying the proposition that fingerprint evidence is not only inherently unreliable based upon the methodologies used, but is, in any case, so unreliable that this court should not hesitate to exercise its discretion to exclude it from the evidence to be led in the instant case. In fact, according to the defendant's counsel, it may be that based upon the test in *R v Bonython 38 SASR 45*, fingerprint identification may not even properly be a science.
It is clear that in giving fingerprint evidence, a witness purports to be giving the opinion of an expert. It stands to reason that such evidence must first pass the threshold of being "expert evidence" as that term is understood in law. The defendant's counsel first submits that there are questions as to whether the evidence is to be admitted as expert evidence at all.
In *R v Bonython*, King C.J. stated: *The general rule is that a witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognized exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects which are not, or are not wholly, within the knowledge and experience of ordinary persons. On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court. Before allowing a witness to express such opinions, the judge must be satisfied that the witness possesses the necessary qualifications, whether those qualifications be acquired by study or experience or both. But when it is established that the witness is an expert in the relevant field of knowledge, he will be permitted to express his opinion, however unconvincing it might appear to be, subject always, of course, in a criminal trial to the discretion to exclude evidence whose prejudicial effect is disproportionate to its probative value. The weight to be attached to his opinion is a question for the jury.* The judgment of King C.J. in Bonython continues in the following terms: "Before admitting the opinion of a witness into evidence as expert testimony, the Judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subject upon which expert evidence is permissible. This first question may be divided into two parts, (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which of the witness would render his opinion of assistance to the Court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issue before the Court".
It should be noted that in R v Bonython both Matheson J and Bollen J who held that the appeal of the defendant should be dismissed, held that what counsel for the accused was seeking to do, was not to attack the expert witness' methodology but rather to criticize his opinions about the number of specimen signatures he should have used to enable him to offer an opinion. Here, counsel for this defendant is critical of the expert witness McKay not only on the basis of whether the ACE-V methodology is sound, but also on the basis that he seemed unsure about the number of matching ridges that are required under Cayman practice to establish a match.
Mr. Akiwumi also submitted that two cases, both decisions of the Supreme Court of the United States of America, were instructive in seeking to ascertain whether particular expert evidence should be admitted. Those cases are Frye v The United States of America (1923) 293 F 1013 and Daubert v Merrell Dow Pharmaceuticals Inc. (1993) 509 U.S. 579. Frye initiated the test of "general acceptance" which was adopted by most United States courts thereafter until it was over-ruled by the Federal Rules of Evidence (1975) which seek to liberalize the rules on admissibility of evidence. It is defendant's counsel's submission that the test laid down by King CJ in Bonython as to whether there is a "specialized body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience", so as to qualify the subject matter of the evidence being given to be "expert evidence" has been "amplified and modified" by the United States cases, and has been impliedly accepted by courts in several jurisdictions across the World..
In any case, it should be noted that the Frye standard of "general acceptance" had been explicitly rejected as early as 1985 in the case of United States v Downing 753 F 2nd 1224 (3rd Circ 1985). In that case the court made reliability of the expert evidence its criterion for admissibility. The court also stated: "Subsequent developments of the Frye test eventually resulted in a conclusion that the admissibility of expert evidence upon the application of a new scientific technique involves a two step process – first, the reliability of the method must be established usually by expert testimony and secondly the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. Furthermore the proponent of the evidence must demonstrate that correct academic procedures were used in the particular case. "Reliability" was still to be shown in terms of Frye "general acceptance". {People v Kelly Cal 3rd 24 (1976)} The question whether the Frye test was the proper criterion for the admissibility of "novel scientific evidence" was said to have been finally resolved by the United States in Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579. It is noteworthy that the test was not rejected by the United States Supreme Court for any lack of legal principle: the judgment in Daubert turned entirely on the recognition that it had been superseded by the Federal Rules of Evidence 1975.
In the English Court of Appeal in R v Dallagher [2002] EWCA Crim 1903, Kennedy L.J., having discussed Frye, Daubert and the US Federal Rules of Evidence, stated As to the English approach, we have found it necessary to refer, not only to Strudwick and Merry, but also to a number of other decisions, especially Clarke, from which, as it seems to us, the analogy with Rule 702 is clear. As is said in the current Ninth Edition of Cross and Tapper on Evidence at page 523 after a reference to Frye – "The better and now more widely accepted view is that so long as the field is sufficiently well-established to pass the ordinary tests of relevance and reliability, then no enhanced test of admissibility should be applied, but the weight of the evidence should be established by the same adversarial forensic techniques applicable elsewhere. (My emphasis)
Counsel for the defendant accepts the dicta of Rose L.J in the English Court of Appeal in R v Buckley [1999] EWCA Crim 1191 "Fingerprint evidence, like any other evidence, is admissible as a matter of law if it tends to prove the guilt of the accused. It may so tend, even if there are only a few similar ridge characteristics but it may, in such a case, have little weight. It may be excluded in the exercise of judicial discretion, if its prejudicial effect outweighs its probative value. When the prosecution seek to rely on fingerprint evidence, it will usually be necessary to consider two questions: the first, a question of fact, is whether the control print from the accused has ridge characteristics, and if so how many, similar to those of the print on the item relied on. The second, a question of expert opinions, is whether the print on the item relied on was made by the accused. This opinion will usually be based on the number of similar ridge characteristics in the context of other findings made on comparison of the two prints." That is as matters presently stand. It may be that in the future, when sufficient new protocols have been established to maintain the integrity of fingerprint evidence, it will be properly receivable as a matter of discretion, without reference to any particular number of similar ridge characteristics. But, in the present state of knowledge of and expertise in relation to fingerprints, we venture to proffer the following guidance, which we hope will be of assistance to judges and to those involved in criminal prosecutions. If there are fewer than eight similar ridge characteristics, it is highly unlikely that a judge will exercise his discretion to admit such evidence and, save in wholly exceptional circumstances, the prosecution should not seek to adduce such evidence. If there are eight or more similar ridge characters, a judge may or may not exercise his or her discretion in favour of admitting the evidence. How the discretion is exercised will depend on all the circumstances of the case, including in particular: (i) The experience and expertise of the witness; (ii) The number of similar ridge characteristics; (iii) Whether there are dissimilar characteristics; (iv) The size of the print relied on, in that the same number of similar ridge characteristics may be more compelling in a fragment of print than in an entire print; and (v) The quality and clarity of the print on the item relied on, which may involve, for example, consideration of possible injury to the person who left the print, as well as factors such as smearing or in every case where fingerprint evidence is admitted, it will generally be necessary, as in relation to all expert evidence, for the judge to warn the jury that it is evidence opinion only, that the expert's opinion is not conclusive and that it is for the jury to determine whether guilt is proved in the light of all the evidence."
It should be noted that in Mallard v Regina [2003] WASCA 296 in the Western Australia Court of Appeal, cited by the defendant in which Frye was considered, the court stated: The question whether the Frye test was the proper criterion for the admissibility "novel scientific evidence" was finally resolved by the United States Supreme Court in Daubert....' There the Supreme Court held that the Frye test (the "general acceptance test") had not survived the institution of the Federal Rules of evidence (1978) which had focused on whether scientific evidence would assist a trier of fact to understand the evidence or determine a fact in issue. The court found unanimously found that "a rigid general acceptance" requirement would be in conflict with the "liberal thrust" of Federal Rules and their general approach in relaxing the traditional barriers to expert opinion evidence. The Court of Appeal in Mallard also described the more recent Daubert decision as being like Frye "highly controversial in the United States". It seems to me that whatever the value of Frye, it relates to the question of whether "novel scientific evidence" should be admitted. It is a fact that whatever else it may be, fingerprint with over a hundred years of being used in the courts is not "novel".
As I understand the submissions of Mr. Akiwumi for the defendant, there is considerable doubt that the ability to compare fingerprints so as to be able to provide an opinion of a court on the ultimate issue of whether a particular fingerprint ought to be considered as coming from a particular individual, has risen to a "science" upon which the court can rely. Put another way, the Daubert test of reliability is to be seen in the context of recent high profile cases which have demonstrated that it is not infallible. Thus the defendant refers to the case of Brandon Mayfield. In that case, latent prints lifted from the scene of a train bombing in Madrid were wrongly attributed to Mr. Mayfield by three eminent forensic experts and an independent expert. It was later confirmed that the prints were those of an Algerian national and Mayfield was exonerated. The purported identification was a misattribution. This case was the subject of a scholarly article by Thompson and Cole entitled "Lessons from the Brandon Mayfield Case". The criticism of the purported infallibility of fingerprint identification was further developed by Cole, an assistant professor of Criminology at University of California at Irvine, in another article, "More than Zero: Accounting for Error in Latent Fingerprint Identification". In the article, the learned professor questions whether fingerprint identification, far from being infallible, is even a science. In that regard, he is particularly critical of the fact that latent fingerprint examiners are by the rules of their profession ethically prevented from attributing any probabilities as to the "likelihood" of the matching fingerprints. Rather, it is only "confirmed" that a particular person is "the source" of the prints. The only determinations which the fingerprint expert may make are individualization, inconclusive or exclusion.
Defence counsel points out that the questioning of the reliability and fallibility of fingerprint evidence has been the subject of numerous learned articles in which the authors cite cases of misattribution and question the methodology and scientific basis for ACE-V. Support for these criticism has been derived from cases such as those cited below which were referred to by the defendant's counsel in his submissions.
Based on the scholarship and the misattribution in high profile cases, counsel concludes that it is open to the court to determine that fingerprint examiners do not "possess the specialized knowledge that would enable a court applying the criteria identified hitherto, to conclude that the proposed evidence is admissible to prove identification", and to exercise its discretion to exclude it. In other words: It is open to the court to exclude the evidence on the basis of essential unreliability pursuant to *Daubert*.
In relation to the issue of reliability and fallibility, the defendant’s counsel refers to three cases in particular, of which two were cases decided in the United States District Courts. The US cases are *United States v Llera Plaza 1 Nos CR 98-362-10 E.D. PA Jan 7, 2002; United States v Llera Plaza 11 188 F Supp 2nd , 549 E.D. PA 2002*, *The State of Maryland v Bryan Rose*.
In the first case, (*US v Plaza*) the judge at first decided to exclude the fingerprint from giving opinion evidence on the “ultimate issue”, that of whether the particular latent prints were those of the particular person, this on the basis that he was not satisfied that the ACE-V test used by the experts satisfied the “scientific” tests laid out in *Daubert*. In the first decision the judge stated as follows: • *However, as discussed above, the court finds that ACE-V does not adequately satisfy the "scientific" criterion of testing (the first Daubert factor) or the "scientific" criterion of peer review (the second Daubert factor). Further, the court finds that the information of record is unpersuasive, one way or another, as to ACE-V's "scientific" rate or error (the first aspect of Daubert’s third factor), and that, at the critical evaluation stage, ACE-V does not operate under uniformly accepted "scientific" standards (the second aspect of Daubert’s third factor).* • *Since the court finds that ACE-V does not meet Daubert’s testing, peer review, and standards criteria, and that information as to ACE-V's rate of error is in limbo, the expected conclusion would be that the government should be precluded from presenting any fingerprint testimony. But that conclusion –apparently putting at naught a century of judicial acquiescence in fingerprint identification processes-would be unwarrantably heavy-handed.* • Accordingly, this court will permit the government to present testimony by fingerprint examiners who, suitably qualified as "expert" examiners by virtue of training and experience, may (1) describe how the rolled and latent fingerprints at issue in this case were obtained, (2) identify and place before the jury the fingerprints and such magnifications thereof as may be required to show minute details, and (3) point out observed similarities (and differences) between any latent print and any rolled print the government contends are attributable to the same person. What such expert witnesses will not be permitted to do is to present "evaluation" testimony as to their "opinion" (Rule 702) that a particular latent print is in fact the print of a particular person. The judge in that case, at first held that: "Despite the longevity of the practice, the validity of the tests had not been verified by scientific testing".
In another case, State of Maryland v Bryan Rose Case No; K06-545 (Balt Co 2008), the trial judge, Judge Souder, at first instance determined that based upon the findings in United States v Mitchell 365 F. 3rd 215 and the Plaza case the fingerprint methodology based on the ACE-V methodology was unscientific and unreliable and should be excluded. It is noted that this is a case that came on for trial after the Mayfield incident referred to supra. In that case, upon excluding the fingerprint identification evidence the court stated that "The lack of critical testing might not be so disturbing were it not for the ACE-V methodology's use of entirely subjective judgments". It was also stated that "The State did not establish that there are any objective or universal standards that govern the application of the ACE-V technique that would establish its reliability." The court also opined: • The trend away from a minimum-point requirement may not be unreasonable because the requirement is not based on scientific study. Epstein (quoting a fingerprint expert as saying that the point system is based on "educated conjecture"). The criteria for absolute identification are ill-defined and little more than "the product of probabilistic intuitions widely shared among fingerprint examiners, not of scientific research". Stoney; see also Cole. • The safety check in ACE-V is supposed to be the Verification phase. Any verification which does take place is not truly independent, since the reviewer is usually colleague or supervisor in the same Forensic lab who is told of the first examiner's identification. Moreover, the reviewer is provided only the latent and the exemplar, that is the "match" to consider. Mr. Meagher's testimony that this procedure is adequate to avoid erroneous identification was neither credible nor persuasive.
Reference was also made to the case of Scottish police Officer Shirley McKie who was convicted of perjury after her latent prints were allegedly found at the scene of a murder. It was later found to have been a case of misattribution.
In response to the submissions made on behalf of the defendant, Mr. Ward for the Crown urged the Court to deny the application to exclude.
The Crown urges the Court to the view that as a general proposition the test for the admissibility of expert evidence is properly set out in Archbold's Ninth Edition citing the decision in R v Turner (T) [1975] Q.B. 834 in the following terms: In matters of science, or trade, the opinion of an expert or person intimately acquainted with it is admissible to furnish the court with information which is likely to be outside the experience and knowledge of a judge or jury. If, on the proven facts, a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary.
With respect to the question of a witnesses' qualification to give expert testimony, the Crown also relied upon the dicta of King CJ in the Bonython case cited by the defendant The submission by the Crown was that the limitations contemplated by the Bonython dicta were applicable to a situation where the witness makes use of "new or unfamiliar techniques or technology". Evidence in respect of fingerprint identification is not "new or unfamiliar" and in that regard, the case of R v Buckley [1999] EWCA Crim 1191 pronounced what the Crown urges this Court to hold is the "authoritative word on the subject". The Court of Appeal in that case accepted that fingerprint identification is a proper matter for opinion and expertise of fingerprint experts. The following guidelines were issued by the English Court of Appeal: "If there are fewer than eight similar ridge characteristics, it is highly unlikely that a judge will exercise his discretion to admit such evidence and, save in wholly exceptional cases, the prosecution should not seek to adduce such evidence. If there are eight or more similar ridge characteristics, a judge may or may not exercise his or her discretion in favour of admitting the evidence. How the discretion is exercised will depend on all the circumstances of the case, including in particular: (i) the experience and expertise of the witness; (ii) the number of similar ridge characteristics; (iii) whether there are dissimilar characteristics; (iv) the size of the print relied on; (v) the quality and clarity of the print on the item relied on, which may involve, for example, consideration of possible injury to the person who left the print, as well as factors such as smearing or contamination". 23. Counsel for the Crown adverts to the cases of United States v Plaza, United States v Mitchell and the State of Maryland v Rose cited by the defendant's counsel as being supportive of the first of the propositions advanced in support of exclusion. He submits that these cases upon which the defendant would have the court take account, do not in fact support the defendant's position. In Plaza, the learned judge who had at first refused to allow opinion evidence on the "ultimate issue" of whether the latent prints were attributable to the particular accused in that case, on a hearing to reconsider reversed himself when the English case of Buckley was brought to his attention. Counsel also points out that even on the first ruling, the judge had indicated that he would allow the witness to describe (1) how the rolled and latent fingerprints were obtained; (ii) identify and place before fingerprints and such magnifications required to show minute details; (iii) point out observed similarities (and differences) between any latent prints and prints attributable to the defendant.
In the subsequent ruling on the application to reconsider his earlier ruling, the judge allowed the expert to give opinion evidence, and after having had the benefit of consideration of Buckley (supra) the learned judge said: "Conclusion Motions for reconsideration are not favorities of the law. It is an important feature of a judge's job to arrive at a decision and then move on to the next issue to be decided, whether in the pending case or the case next to be addressed on the judicial convention has special force for trial judges, for if a trial judge's ruling is mistaken it can, and if need arises will, be corrected on appeal. But there are occasions when a motion for reconsideration has its uses. This is such an occasion. By agreeing to reconsider my prior ruling, I had the opportunity to acquire information not previously presented, or that I had not fully digested, on the record made in another courtroom more than two years ago. Through the efforts of government counsel, Stephen Meagher, heretofore a name in a transcript, became a real person, and through his live testimony I was able to get a substantially more rounded picture of the procedure-the FBI's ACE-v process of fingerprint identification-whose degree of reliability for expert evidentiary purposes it is my responsibility to determine. And, through the efforts of defense counsel, I had the opportunity to learn from Allan Bayle, a senior English fingerprint specialist, that one aspect of the FBI's system-the annual proficiency testing of FBI fingerprint examiners-may have shortcomings. But I also learned from Allan Bayle's testimony two more important truths: namely, that the ACE-V process employed by New Scotland Yard is essentially indistinguishable from the FBI's ACE-V process, and that this formidably knowledgeable and experienced veteran of the Yard-the legendary and actual source of the systematic and comprehensive utilization of fingerprint identification as an instrument of law enforcement-believes in ACER-v without reservation. Reopening the record also led me to educate myself about the legal framework with respect to the receipt in evidence of expert fingerprint identification testimony that has just been put into effect in England by Her Majesty's Government. That new legal framework—which departs very significantly from the regime I had read about in the Mitchell record—turns out to be substantially the same as the legal framework that our government, in the case at bar, has contended is appropriate for FBI fingerprint identification evidence. Based on the foregoing considerations, I have concluded that arrangements which, subject to careful trial court oversight, are felt to be sufficiently reliable in England, ought likewise to be found sufficiently reliable in the federal courts of the United States, subject to similar measures of trial court oversight. In short, I have changed my mind. "Wisdom too often never comes, and so" — as Justice Frankfurter admonished himself and every judge — "one ought not to reject it merely because it comes late." Henslee v. Union Planters Ban/c 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed 259 (1949) (Frankfurter, J., dissenting); cf, Wolf v. Colorado, 338 U.S. 25, 47, 69 S.Ct. 1359, 93 Led. 1782 (1949) (Rutledge, J., dissenting). Accordingly, in an order filed today accompanying this opinion, this court GRANTS the government's motion for reconsideration of the January 7 order; VACATES the January 7 order; DENIES the defendants' Motion to Preclude the United States from Introducing Latent Fingerprint Evidence; and GRANTS the government's Motion in Limine to Admit Latent Prints. At the upcoming trial, the presentation of expert fingerprint testimony by the government, and the presentation of countering expert fingerprint testimony by any of the defendants (see United States v. Velasquez, 64 F.3d 844, 848-852 (3d Cir. 1995)) will be subject to the court's oversight prior to presentation of such testimony before the jury, with a view to insuring that any proposed expert witness possesses the appropriate expert qualifications and that fingerprints offered in evidence will be of a quality arguably susceptible of responsible analysis, comparison and evaluation. ORDER For the reasons stated in the accompanying opinion dated today, this court GRANTS the government's motion for reconsideration of the January 7 order; VACATES the January 7 order; DENIES the defendants' Motion to Preclude the United States from Introducing Latent Fingerprint Evidence; and GRANTS the government's Motion n Limine to Admit Latent Prints." Counsel for the Crown submits that this case clearly does not assist the defendant.
In the State of Maryland v Rose, characterized by the defendant as being significant for being "post Mayfield", Crown Counsel was of the view that there the Maryland District Court had applied the Frye Test which is acknowledged to be more stringent than the later Daubert Test preventing the expert witness from expressing an opinion on latent fingerprints. Those cases had purported to be based heavily upon the proposition that the ACE-V methodology was "unreliable". Crown Counsel also submits that despite the fact that Plaza had been finally decided on the reconsideration before Rose, that case was apparently not cited before the Rose Court in Maryland.
Counsel also cited another United States case, State v Rockingham , Docket No 05-5-1129 Sup. Court N.H. January 19, 2007. There a New Hampshire Court held, in considering the reliability of the ACE-V methodology, that it was a reliable method of fingerprint identification although its accuracy is dependent on accurate application by the witness. In that case, the New Hampshire trial court held that there was an insufficient basis for the court to find that ACE-V principles were reliably applied. Consequently, the court refused to allow the State's expert to testify to her opinion regarding a single latent print recovered because she had not documented her examination and there had been no "blind" verification.
Counsel also pointed out to the Court that, in any event, the decision in Rose had recently been reversed by a Federal Court, effectively over-ruling the decision made in Baltimore Circuit County Court by Judge Souder. It has been reported in various elements of the media that Federal Judge Catherine Blake in Federal Court refused to exclude the same evidence which Judge Susan Souder had excluded in State court, and while a written memorandum of reasons has as yet not been given by the learned Judge Blake, this reversal severely weakened the defendant's reliance on the proposition of unreliability of the ACE-V methodology.
Crown Counsel also noted out that the defendant's counsel had placed heavy reliance upon the opinions of an academic, Professor Cole, whose articles had been critical of the ACE-V methodology and who questioned whether fingerprint identification was in fact properly to be regarded as "scientific". However, the Crown cited the New York case of The People of the State of New York v James Hyatt Ind # 8852/200 where the court before whom Cole was called to testify as an expert witness for the defence, rejected his testimony in the most dismissive terms by the court, his views being characterized as "junk science". In describing the evidence of Professor Cole, the learned judge said: "Under cross-examination Dr. Cole conceded he is not a scientist in the traditional sense of the word but a historian and social scientist. He also indicated he had not examined the actual fingerprints in this case and was aware a latent print examiner hired by the defense had examined such prints and found a match. Dr. Cole testified that he is not qualified to give an opinion on fingerprint comparison and that his knowledge as to how latent fingerprints are examined and compared is minimal and obtained from professional literature. Dr. Cole conceded that his theories haven't been sufficiently tested to know whether they could be considered science but rather his opinion is based on scholarly research. Finally, Dr. Cole admitted he has never been accepted as an expert in this area in either the State or Federal Courts and that his views were not generally accepted in the mainstream scientific community. After Dr. Cole's testimony the court took judicial notice that fingerprint identification has long been recognized and accepted by all courts in the United States and that expert testimony concerning its use is always admissible provided the proffered witness is indeed qualified as an expert in the field... Applying the Federal Courts Daubert Standard what Dr. Cole has offered here is "junk science" Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786. To take the crown away from the heavyweight champ you must decisively outscore or knock him out. Going twelve (12) rounds will just not do. What Dr. Cole has offered here is interesting but too lacking in scientific method to even bloody the field of fingerprint analysis as a generally accepted scientific discipline. For these reasons the court precludes Dr. Cole from testifying as an expert in this case." It was his submission that in light of the criticism by a court of the specific arguments which Professor Cole had been advancing, this court should be unwilling to give any credence to his theories in this application. Counsel for the Crown also adverted to the case of R v Trochym [2007] 1 S.C.R. 239, a decision of the Supreme Court of Canada, this case also cited by the defence. There the court held at paragraphs 31-34: "Not all scientific evidence, or evidence that results from the use of a scientific technique, must be screened before being introduced into evidence. In some cases, the science in question is so well established that judges can rely on the fact that the admissibility of evidence based on it has been clearly recognized by the courts in the past. Other cases may not be so clear. Like the legal community, the scientific community continues to challenge and improve upon its existing base of knowledge. As a result, the admissibility of scientific evidence is not frozen in time. While some forms of scientific evidence become more reliable over time, others may become less so as further studies reveal concerns. Thus, a technique that was once admissible may subsequently be found to be inadmissible. An example of the first situation, where, upon further refinement and study, a scientific technique becomes sufficiently reliable to be used in criminal trials, is DNA matching evidence, which this Court recognized in R. v. Terceira, 1999 (CanLII) 645 (S.C.C.) [1993] 3 S.C.R. 866. An example of the second situation, where a technique that has been employed for some time comes to be questioned, is so-called "dock", or in-court, identification evidence: In R. v. Hibbert, 2002 SCC 39 (CanLII). [2002] 2 S.C.R. 445, 2002 SCC 39, at para. 50, Arbour J., writing for the majority, stated that despite its long-standing use, dock identification is almost totally unreliable. Therefore, even if it has received judicial recognition in the past, a technique or science whose underlying assumptions are challenged should not be admitted in evidence without first confirming the validity of those assumptions." Counsel for the Crown also cited the case of R. v. Luttrell [2004] 2 Cr. App. Reports 520, involving lip-reading evidence.
In Luttrell, the Court of Appeal of England and Wales rejected a submission that lip-reading evidence should not be admitted unless it could be seen to be reliable on the basis that the methods used were sufficiently explained to be tested in cross-examination and so to be verifiable or falsifiable. The court stated: "...In some cases, the reliability of the evidence might be relevant to whether the conditions of admissibility are satisfied. Thus in R. v. Gilfoyle [2001] 2 Cr. App. R. 57 at para. 25, it was observed that English Law will not consider expert evidence properly admissible if it is 'based on a developing new brand of science or medicine... until it is accepted by the scientific community as being able to provide accurate and reliable opinion'. In R. v. Robb (1993) 93 Cr, App. R. 161, a case concerning the admissibility of evidence of voice identification, which was acknowledged to be an "expert field", the court had to decide whether the particular witness's techniques were insufficiently recognized within his profession for him to be properly qualified to give expert evidence. Similarly evidence may be so lacking in "prima facie reliability" that it has no probative force or its probative force is too slight to influence a decision: R. v. Clarke [1995] 2 Cr. App. R. 425, 432. However, while reliability of evidence can be relevant to whether the conditions of admissibility are met, in itself reliability goes to its weight."
Not only is the reliability of fingerprint evidence well established and is therefore admissible, but it has been treated as sufficiently reliable to support convictions in cases of murder *Culpepper v The State* [2000] W.I.R. 421, a decision by the Privy Council in a case out of Trinidad and Tobago, where there was only a single print.
Similarly in the Scottish case of *Langan v. HM Advocate* 1989 J.C. 132, a single print was held admissible to support a conviction for murder.
It was accordingly submitted by the Crown that the tests which are applicable are those delimited by *Buckley* and *Bonython*, and these are met in this case. Fingerprint identification is not a novel technique or technology and to exclude evidence of fingerprint identification would be wrong. Neither the authors of Archbold or Blackstone have suggested any authority which casts any doubt on the reliability of that evidence.
By the same token counsel says neither the authorities cited by the defendant nor the academic writings have provided support for the defence's second proposition about the fallibility and unscientific foundation of fingerprint identification. It was further submitted this having failed to establish either the first or second proposition on which the application for exclusion was based, proposition three must itself fail.
Crown counsel also submits that the fourth proposition must also fail and the court should reject any suggestion that the expert witnesses should be precluded from expressing an opinion on the ultimate issue for determination, i.e. whether the latent fingerprints allegedly found are attributable to the defendant.
It is contention of the Crown that the better view is that an expert may be allowed to offer his opinion on such an issue.
In that regard counsel stated: It is well settled that an expert is permitted to express an opinion on the ultimate issue. At para. 10.66 of Archbold the learned authors state the following: 7.1 "An expert is now permitted to give his opinion on what has been called 'the ultimate issue', but the judge should make it clear to the jury that they are not bound by the expert's opinion, and that the issue is for them to decide: R. v. Stockwell (declining to follow the former common law rule)." 7.2 Clearly, there is no legal basis upon which this court could be properly invited to preclude the fingerprint experts from expressing an opinion on the ultimate issue. This has been the invariable practice over the years in this and other commonwealth jurisdictions. No good or sufficient legal basis has been supplied for inviting this court to depart therefrom.
As noted when I gave my ruling. I am satisfied in light of the authorities cited by learned Crown Counsel that in this jurisdiction there is no basis on which fingerprint evidence should be excluded a priori.
I accept the authorities cited by the counsel for the crown. Indeed it ought not to be overlooked that even in Daubert which is the fons et origo of the application to exclude, was directed at evidence which was "novel" and which the court must, ex hypothesi, look at with a very jaundiced eye.
In so ruling it ought not to be concluded that court will always continue to accept uncritically all practices or technologies only because they have always done so for a considerable period of time.
The dicta of King C.J. in Bonython (supra) which is properly the starting point of this discussion was the subject of critical examination in a later South Australian case, R v Parenzee [2007] SASC 143 (April 27, 2007). There the learned judge, Sulan J. compared the King dicta with another formulation of the same principles by Freckleton and Selby in "Expert Evidence: Law, Practice, Procedure and Advocacy (2nd Edition, 2002)". The judge stated: The five principles governing the admission of expert evidence have been expressed slightly differently by Freckleton and Selby in the text "Expert Evidence: Law, Practice, Procedure and Advocacy (2nd Edition, 2002)" 1. The "expertise rule": does the witness have knowledge and experience sufficient to entitle him or her to be held out as an expert who can assist the court? 2. The "common knowledge rule": is the information sought to be elicited from the expert really something upon which the tribunal needs the help of any third party or can the tribunal rely upon its general knowledge and common sense? 3. The "area of expertise rule": is the claimed knowledge and expertise sufficiently recognised as credible by others capable of evaluating its theoretical and experiential foundations? 4. The "ultimate issue rule": is the expert's contribution going to have the effect of supplanting the function of the tribunal to decide the issue before the court? If so, it is likely to be rejected. 5. The "basis rule": to what extent can an expert's opinion be based upon matters not directly within the expert's own observations? Such reliance on material that cannot be directly evaluated by the court falls foul of a fundamental principle of evidence 1 This work is also cited by the Western Australia Supreme Court of Appeal in Mallard v The Queen [2003] WASCA 296, (a case also referred to by counsel for the defendant) where Frye was discussed. The judge continued: Rule 1 corresponds to the second part of King CJ's test and rules 2 and 3 correspond to the first part of King CJ's test. The final two rules are, as Freckleton and Selby imply in rule 5, rules that in substance are applicable to all evidence, expressed in terms relevant to expert evidence. Is the evidence of the applicant's witnesses' opinion evidence? The first step in assessing the admissibility of the evidence of the witnesses heard during the course of the application, therefore, is to consider whether the evidence is the opinion of the witness, or matters of observation to those witnesses. It is only if the evidence sought to be admitted is the witness' opinion that it is necessary to consider the test identified by King CJ in the second passage recounted above. The learned judge continued, in relation to the evidence he was considering in Parenzee: I consider that this is clearly opinion evidence. Consequently, this evidence is inadmissible unless it is admissible as expert evidence. It is therefore necessary to consider the other aspects of the test expounded by King CJ in Bonython to determine whether the evidence can be admitted as an exception to the general rule. Is the subject matter of the opinion within the class of subjects upon which expert testimony is permissible? This part of the test has two aspects, described by Freckleton and Selby as the "common knowledge" and "area of expertise" aspects. I turn first to the question of whether the subject matter is such that the court requires the assistance of an expert in order to form a sound judgment. The issues arising during this application were all of a scientific or technical nature. The issues gave rise to complex questions of immunology, micro virology and epidemiology, to name but three of the relevant disciplines. I consider that the subject matter is of a nature that expert testimony is of assistance to the Court and therefore permissible. The second question that must be asked is whether the evidence sought to be led is credible, in the sense that it is accepted by those who are able to evaluate its basis, or that it is "sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience. (My emphasis) This second aspect has been the subject of differing judicial opinion. One often-cited explanation of the test is that contained in Frye v United States (1923) 293 F 1013. "Just when a principle crosses the line between the experimental and the demonstrable stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognised, and while the courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs". The test proposed in Frye therefore includes the concept that not only must there be an organised body of knowledge, but that it must be reliable. Further, it also necessitates the consideration of whether the particular opinion of the witness whose evidence is sought to be led is sufficiently related to the general body of knowledge in the field. This is in accordance with King CJ's posing of the question in Bonython: "whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience" King CJ further developed this notion in R v Runjanjic and Kontinnen, [1991] SASC 2951; (1991) 56 SASR 114 a case dealing with the admissibility of psychological evidence relating to battered women's syndrome: "An essential prerequisite to the admission of expert evidence as to the battered woman syndrome is that it be accepted by experts competent in the field of psychology or psychiatry as a scientifically established facet of psychology. This must be established by appropriate evidence". King CJ cited in support of his approach several cases from the United States in which the general recognition and acceptance of battered women's syndrome had been a factor in admitting evidence of the syndrome. However, in continuation, as noted by the Sulan J in Parenzee: The Victorian Court of Criminal Appeal in J (1994) 75 A Crim R 522, 535 took a different view to that taken by Frye which was followed by King C.J. in Bonython. There it was held that: "Provided that the judge is satisfied that there is a field of expert knowledge to which recourse may be had, it is no objection to the reception of the evidence of an expert within that field that the views which he puts forward do not command general acceptance by other experts in the field".
As noted in Trochym, as science and technology develops, the practices of the law may change to adapt to the new developments. I am satisfied that the statement by the court in Luttrell (supra) is correct. "For expert evidence to be admissible, two conditions must be satisfied: first, that study or experience will give a witness's opinion an authority which the opinion of one not so qualified will lack; and secondly the witness must be so qualified to express the opinion. The first was elucidated in Bonython (1984) 38 SASR 45, where King CJ (at p.46) said that the question "may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court." If these two conditions are met the evidence of the witness is admissible, although the weight to be attached to his opinion must of course be assessed by the tribunal of fact: Robb (1991) 93 Cr App R 161, 165; Dallagher [2002] EWCA 1903 [2003] 1 Cr App R 12 para 23. (We use the term "opinion" when referring to the evidence of experts, although, as observed in Phipson on Evidence (15th Ed. para 37-01 and emphasised by Mr Guthrie, its use is simply one of convenient terminology, and sometimes, as in this case and as is reflected in s.30(4) of the Criminal Justice Act 1986, the expert's evidence can readily be regarded as evidence of fact.) It might be added that, as with any evidence, expert testimony will not be admitted unless it is relevant in the sense that "it is logically probative or disprobatve of some matter that requires proof": per Lord Simon in Kilbourne, [1973] AC 729, 756D.
I am strengthened in my view that the admission of the evidence is correct by dicta in two other recent cases. I refer to the judgment of the England and Wales Court of Appeal in R v Robert McCheyne Robb (1991) 93 Cr. App R 161. In that case P was kidnapped in March 1989 and telephone demands were made to his wife and all but one of them were tape-recorded by the police. The calls implicated Robb in the kidnapping. A Dr Baldwin was called to give evidence for the prosecution as to the identification of the voice. Dr Baldwin was a very experienced analyst having worked in the field for 30 years and taught at London University. The techniques he used were according to other experts not reliable unless coupled with other more recently developed techniques. The Court of Appeal accepted that Dr Baldwin should be considered an expert, after commenting that: "it might not be surprising if the answers given by Dr Baldwin in cross-examination had led the jury to conclude that they should receive his evidence with caution or that they should place little or no reliance on it" the Court continued: "A defendant cannot fairly be asked to meet evidence of opinion by a quack, a charlatan or enthusiastic amateur. But we do not consider Dr Baldwin as falling anywhere near these categories. He was entitled to be regarded as a phonetician, well qualified by academic training and practical experience to express an opinion on voice identification". In giving the decision of the Court, Bingham L.J stated at page 164 of the judgment: "The cardinal rule in English legal proceedings, whether criminal or civil, is that witnesses may only give oral evidence of what they personally heard, saw, did witnessed. They may not, in general, express opinions as to what happened or may have happened. To this, as to most legal rules, there are exceptions. Relevant for present purposes is the recognized exception which allows evidence of opinion to be given by those whom the law, or the courts, accept as expert. This appeal raises questions touched on but not discussed in depth in the authorities; what characterizes a field as one in which expertise may exist, and what qualities, or disentitles, a witness to give evidence of his opinion as an expert? The old-established, academically-based sciences such as medicine, geology or metallurgy, and the established professions such as architecture, quantity surveying or engineering, present no problem. The field will be regarded as one in which expertise may exist and any properly qualified member will be accepted without question as expert. Expert evidence is not, however, limited to these core areas. Expert evidence of finger-prints, hand-writing and accident reconstruction is regularly given. Opinions may be given of the market value of land, ships, pictures or rights. Expert opinions may be given of the quality of commodities, or on the literary, artistic, scientific or other merit of works alleged to be obscene (Obscene Public Act 1959, s.4(2)). Some of these fields are far removed from anything which could be called a formal scientific discipline. Yet while receiving this evidence the courts would not accept the evidence of an astrologer, a soothsayer, a witch-doctor or an amateur psychologist and might hesitate to receive evidence of attributed authorship based on stylometric analysis (see Dr. Anthony Kenny's illuminating article "The Expert in Court," [1983] 99 L.Q.R. 197). The text which the English common law has developed is characteristically pragmatic. Lord Russell of Killowen C.J. laid down the essential requirements in Silverlock [1894] 2 Q.B. 766, 771: "We now come to the second objection, as to the proof of the handwriting, which affords a good illustration of that class of evidence called evidence of opinion. It is true that the witness who is called upon to give evidence founded on a comparison of handwritings must be peritus; he must be skilled in doing so; but we cannot say that he must have become peritus in the way of his business or in any definite way. The question is, is he peritus? Is he skilled? Has he an adequate knowledge? Looking at the matter practically, if a witness is not skilled the judge will tell the jury to disregard his evidence. There is no decision which requires that the evidence of a man who is skilled in comparing handwriting, and who has formed a reliable opinion from past experience, should be excluded because his experience has not been gained in the way of his business. It is, however, really unnecessary to consider this point; for it seems from the statement in the present case that the witness was not only peritus, but was peritus in the way of his business. When once it is determined that the evidence is admissible, the rest is merely a question of its value or weight, and this is entirely a question for the jury, who will attach more or less weight to it according as they believe the witness to be peritus."
The case of Robb is especially important in the context of the propositions as to unreliability made by the defendant's counsel in this case for it shows that the evidence (in that case of voice identification) by an expert well qualified by academic training and experience will still be held to be admissible despite the expert's reliance upon a technique accepted as unreliable by the majority of his colleagues.
It is not insignificant that this case was also referred to in Luttrell cited supra, where again the issue of the reliability of the evidence in the context of expert evidence was also at large.
In the Lutterill case the Court discussed the issue of reliability at paragraph 35 of that judgment cited above, and the succeeding paragraphs: 36. However, while reliability of evidence can be relevant to whether the conditions of admissibility are met, in itself reliability goes to its weight. In the Scottish case of Davie v Magistrates of Edinburgh, (1953) SC 34, to which Mr Guthrie referred, Lord Cooper, President, rejecting a submission that the court was bound to accept the evidence of an expert witness in the absence of contrary evidence, put it as follows (at p.40): "[Expert witnesses'] duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert." 37. Lip-reading evidence from a video, like facial mapping is, in our view, a species of real evidence (see per Steyn LJ in Clarke at 429). Although at one time a more conservative approach had been adopted, the policy of the English courts has been to be flexible in admitting expert evidence and to enjoy "the advantages to be gained from new techniques and new advances in science": Clarke, at p.430. (It appears that there has been a similar trend elsewhere: see Cross and Tapper on Evidence (9th Ed) p.523, but cf Ormerod, "Sounding out Expert Voice Identification", [2002] Crim LR 771 at p.774, about the position in the USA) The preferred view, and in our judgment the proper view, is "that so long as a field is sufficiently well-established to pass the ordinary tests of relevance and reliability, then no enhanced test of admissibility should be applied, but the weight of the evidence should be established by the same adversarial forensic techniques applicable elsewhere": Cross and Tapper (loc cit). (My emphasis)
The issue of reliability has again been canvassed recently by the Courts of the United Kingdom in Harris and Ors v The Queen ([2005] EWCA Crim 1980 – 21 July, 2005). In the appeals in these cases, the evidence called on behalf of the appellants relied on recent research which it is said demonstrated that long held medical opinion of the conventional signs giving rise to inferences of unlawful assaults on infants and very young children was unreliable. The basis of this challenge was a hypothesis based on recent research. The Crown's medical witnesses did not accept that the hypothesis was correct or that it was supported by the new research. The Court of Appeal refused to overturn the convictions. There, the following was stated: "We have been asked by Mr Horwell to give some guidance in respect of expert witnesses in cases such as these. In his final submissions Mr Horwell submitted that these appeals demonstrated that there had been a significant failure within the criminal justice system to control and manage expert evidence. He argued that there must be a change in approach and invited the court to consider giving guidance. Whether or not there has been a failure by the criminal justice system to control and manage expert evidence we are reluctant to give any new guidance on expert evidence arising from the facts of these cases. It may, however, be helpful to reiterate current guidance. As to expert evidence generally, the evidential rules as to admissibility are clear (see for example R v Bonython [1984] 38 SASR 45 and R v Clarke (RL) [1995] 2 Cr. App. R. 425 (facial mapping)). We see no reason for special rules where medical experts are involved. There is no single test which can provide a threshold for admissibility in all cases. As Clarke demonstrates developments in scientific thinking and techniques should not be kept from the Court. Further, in our judgment, developments in scientific thinking should not be kept from the Court, simply because they remain at the stage of a hypothesis. Obviously, it is of the first importance that the true status of the expert's evidence is frankly indicated to the court. It may be helpful for judges, practitioners and experts to be reminded of the obligations of an expert witness summarized by Cresswell J in the Ikarian Reefer [1993] 2 Lloyds Rep. 68 at p 81. Cresswell J pointed out amongst other factors the following, which we summarize as follows: 1. Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. 2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate. 3. An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions. 4. An expert should make it clear when a particular question or issue falls outside his expertise. 5. If an expert's opinion is not properly researched because he considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one. 6. If after exchange of reports, an expert witness changes his view on material matters, such change of view should be communicated to the other side without delay and when appropriate to the court.
It would seem to me that two things are clear from the dicta above. The first is that in the view of the Court of Appeal in Harris, the gate-keeping functions of the Court in relation to expert evidence as in this case have been delimited and ought not to be changed merely because some new ideas have been canvassed by academicians. Secondly, the approach of the courts to the issue the role of the expert is the same whether the matter is civil or criminal. I particularly adopt the views of their lordships from the above citation above in the following terms: There is no single test which can provide a threshold for admissibility in all cases. As Clarke demonstrates developments in scientific thinking and techniques should not be kept from the Court. Further, in our judgment, developments in scientific thinking should not be kept from the Court, simply because they remain at the stage of a hypothesis. Obviously, it is of the first importance that the true status of the expert's evidence is frankly indicated to the court. This illustrates also that the court is not averse to considering developments in scientific thinking even where this is at the level of hypothesis.
I am also satisfied that there is no basis for preventing the Crown to call Elizabeth Hasart and Mr. MacKay from giving expert evidence including opinion evidence on the ultimate issue whether the latent fingerprints to be put in evidence are those of the defendant. In coming to that conclusion, I am fortified by the views expressed in an article "The Forensic Scientist and the Law", which views I adopt. There the author Roger Lewis states the following: The Forensic Scientist as Expert Witness The forensic scientist as an expert may not give evidence in every case but only in those situations where his knowledge is beyond the power of the court to understand unaided. In a trial before a jury it is the jury which decides which facts they find proved from the evidence they have heard and upon those facts determine the guilt or innocence of the defendant. An expert may give evidence upon matters which are likely to be outside the experience or knowledge of a jury, but if on the proven facts a jury can form its own conclusions without help then the opinion of an expert is unnecessary. (R v Turner 60 Cr.App.R. 80). Thus an expert will be able to give evidence and express an opinion only where his area of expertise is beyond that of the ordinary man. In Turner, for example, the evidence of a psychologist was inadmissible where its purpose was to show how an ordinary person, not suffering from mental illness, was likely to react to the strains and stresses of life, a matter clearly within the competence of the jury to decide for themselves. Not only must the expert's evidence be outside the knowledge of the lay juryman the area of expertise must be a recognised field of knowledge. In other words it must be part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would assist the court. **R v Bonython (1984) 38 S.A.S.R.45**. Finally, the expert must be truly an expert. He must have acquired by study or experience sufficient knowledge to render his opinion of value in resolving the issues before the court. If this were not so the accused could be faced with the difficulty of rebutting a case based on tenuous qualifications which should never have been before the jury at all. An accused should not, in other words be asked to meet evidence of opinion given by a quack, a charlatan or an enthusiastic amateur.
In a recent case of **R v Norman John Rose**, (1993) 69 A Crim R 1 (1993) SASC 4679 Nov 5, 1993, there was an appeal against the decision of the judge at first instance on the basis that the evidence of two podiatrists should not have been accepted as "expert evidence". The Full Court of the Supreme Court of South Australia, Court of Criminal Appeal, held that the field of podiatry is now recognized as a field in respect of which expert evidence may be given as there is now a recognized body of knowledge by reference to which evidence of feet may be given. In that case the Appellate Court approved the decision and the reasoning of the honourable judge at first instance where he had set out the following, which I cite *in extenso*: "The expert opinion evidence under consideration here is, as I have indicated, to be given by two podiatrists from whom I heard some evidence during a voir dire hearing. The Crown seeks to adduce this evidence, not on the subject-matter of whether, by reference to a comparison of the accused's feet and wear marks in some 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 identification evidence per se, or anything akin to fingerprint identification, or voice print identification, but rather evidence of the characteristics and points of comparison to be seen on both the foot and the shoes from which circumstantial evidence an inference may ultimately be sought to be drawn (in conjunction with other circumstantial evidence) that there was a connection, a 'deductive conclusion', or a correlation, or a correspondence (such as with handwriting comparison, traditional blood testing, speech patterns and the like). The issue here is, therefore, quite different, in terms of how far it was expected that the expert witness would go in expressing an opinion, from that in R v Bonython (1984) 38 SASR 45, where the subject-matter of the opinion evidence was the comparison of handwriting and the actual identification of certain signatures, in **R v Chaudhary (No.1) (1985) 122 LSJS 219** where the subject-matter of the opinion evidence was the provenance identification of carpets, in **R v Carroll (1985) 19 ACR 410**, where the subject-matter of the opinion evidence was the identification of an accused by bruise marks on the victim's thigh said to have been left by the accused's teeth, and in **R v Lewis (1987) 29 ACR 267**, where the subject-matter of the opinion evidence was the identification of an accused by matching of bite-marks to the accused's teeth (These latter two cases were relied upon by Mr. Retalic.) Though the issue here is quite different from that in the cases just referred to, the principles are the same (see **R v Bonython**) (supra) and the cases that have followed and applied it since that important case was decided. The first thing that the Crown needs to do is pass, if it can, 'the threshold test', viz. to prove that the subject-matter of the opinion evidence in question, that is to say (and I emphasize) the characteristics or points of comparison of both the feet and the shoes (as opposed to the identification of the accused himself) are not, or are not wholly, within the knowledge and experience of ordinary persons and are such that a person, without instruction or experience in the specialized area of knowledge or human experience to do with podiatry, would not be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in that area. The subject-matter of enquiry in this voir dire hearing is such that persons, without instruction or experience in this area of knowledge or human experience, are unlikely to prove capable of forming a correct judgment upon it without the assistance of the opinion of witnesses possessing special skill. The Crown, therefore, passes 'the threshold test'. It was not suggested on the accused's behalf that "the threshold test" had not been passed here. The next two things that the Crown must do are to establish, first, the relevant field of expertise, viz. that the subject-matter of the opinion (that is to say, the characteristics of the feet and points of comparison between wear-marks in the shoes) of each of the so-called experts forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render her opinion of assistance to the Court, and, secondly, the qualification of the witness, viz. that each witness has acquired by study or experience sufficient knowledge of the subject-matter to render her opinion of value in resolving the issue before the Court. Both are established here, in my judgment, on the evidence of the two podiatrists which I accept as credible and reliable. There is nothing new or novel about the technique which the podiatrists have purported to use to reach their conclusion that the accused 'could have worn' one or more of the pairs of shoes examined. It may well have been otherwise if the Crown had sought to identify the accused by adducing their opinion (the podiatrists' opinion) to the effect that 'this shoe had been worn by that accused person, whose feet I had examined'. This is not a case in which a scientific principle relating to podiatry had entered 'the twilight zone' referred to in Frye v The United States 293 FR 2nd 1013 at p.1014. The subject-matter of evidence here, it is important to note, is not directly the identification of the accused. It is not put forward as providing, on its own, the foundation for conviction. However, it is a strand of a rope of circumstantial evidence, or "a link in a chain" of circumstantial evidence, of the type contemplated by Muirhead AJ in R v Lewis (supra) at p.288. There is clearly a chain here for the consideration of the jury. There is other evidence in the prosecution case which purports to link the accused with the crimes." I respectfully adopt the statement of the law of the learned judge as endorsed by the Court of Appeal.
Finally, while it is accepted that for the purposes of this type of evidence R v Buckley (supra) represents the appropriate standards for fingerprint evidence in this jurisdiction, it should be noted that there is an increasing acceptance that non-numeric standards are more logical. Thus in England and Wales the numeric standards have been disposed of since 2001 and this was extended to Scotland in 2006. It also now accepted and is used in Canada, America, certain states in Australia, and widely throughout Europe.
Having considered all of the foregoing, I am satisfied that the application to exclude the fingerprint evidence must fail, and I so rule. Dated 17th September 2009 The Hon. Mr. Justice Anderson Judge of the Grand Court (Acting)