Andrew Roberts, ‘Expert Evidence and Unreliability in the High Court: Honeysett v The Queen‘ (3 September 2014).

The High Court has unanimously allowed an appeal against the decision of the NSW Court of Criminal Appeal in R v Honeysett, and has quashed the appellant’s conviction and ordered a new trial. Honeysett was convicted of armed robbery, but sought to challenge the forensic expert evidence of Professor Henneberg, an anatomy professor, who had studied the CCTV footage of the robbery and Honeysett’s appearance and concluded that there were eight common features between the offender and Honeysett. The NSWCCA unanimously dismissed Honeysett’s appeal, holding that Henneberg’s evidence was admissible on the basis of his knowledge of anatomy, his close study of the videos, and the fact that the jury could not reasonably have interpreted that evidence as implying there were ‘no points of difference’ between the individuals (as the appellant had argued).

The High Court unanimously held Henneberg’s evidence was inadmissible as opinion evidence adduced to prove the existence of the fact about which the opinion was expressed: [21]. The ‘specialised knowledge’ exception to this rule did not apply. While specialised knowledge does not necessarily require formal qualifications, a person’s training, study or experience must result in the acquisition of knowledge ([23]), and the opinion must be at least substantially based on that knowledge ([24]). The Court held that Henneberg’s evidence was not based on his ‘undoubted knowledge of anatomy’, but rather his subjective impression from looking at the images ([43]), and gave an ‘unwarranted appearance’ of being scientific ([45]). Consequently it was not based wholly or substantially on his specialised knowledge, and should not have been admitted.