Shepherd v R

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 21 December 2011
• Neutral Citation: [2011] NZCA 666
• Docket Number: CA842/2010
• Court: Court of Appeal
• Date: 21 December 2011

Between

Darren Douglas Shepherd

Appellant

and

The Queen

Respondent

[2011] NZCA 666

Court:

Randerson, MacKenzie and Asher JJ

CA842/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction for aggravated robbery and theft — admissibility of expert opinion evidence on facial mapping — CCTV footage of crime scene not sufficiently clear to reveal identity of offender — circumstantial evidence and facial mapping evidence provided by expert, without formal qualifications, relied on to prove accused as offender — whether the expert was a properly qualified expert and evidence provided by him could be admitted — whether the evidence met the “substantially helpful” test in s25 Evidence Act 2006 (“EA”) (admissibility of expert opinion evidence).

Counsel:

N G Cooke and V J Feyen for Appellant

A M Toohey for Respondent

The appeal against conviction is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

	Para No
Introduction	[1]
The Crown case	[6]
The expert evidence	[8]
Mr McCourt's evidence	[10]
Dr Calhaem	[21]
Grounds of appeal	[23]
Was Mr McCourt properly qualified as an expert?	[26]
Was the evidence not substantially helpful because it was unreliable?	[35]
Absence of database	[37]
English authorities	[37]
Australian cases	[50]
New Zealand authority	[55]
Conclusions on the issue of the absence of a database	[59]
The technical grounds relied upon by Dr Calhaem	[63]
JPEG format	[65]
Image rotation	[73]
Frame size discrepancies	[75]
Minimum number of pixels	[76]
Audit trail	[77]
Should Mr McCourt have expressed his view on the ultimate issue and, in particular, by reference to the Bromby Scale?	[80]
Conclusion on the admissibility of Mr McCourt's evidence	[88]
The Judge's direction	[89]
Did any miscarriage arise?	[94]
Summary and conclusions	[100]
Result	[113]

Introduction

1 The appellant appeals against his conviction after jury trial before Judge Hinton on one count of aggravated robbery of a bar in Kingsland in the early hours of the morning of 22 November 2009. 1 He was also convicted, after pleading guilty, to seven other counts relating to other crimes committed over the period 16 to 19 November 2009. Only one of these has any direct relevance to the present appeal. Mr Shepherd had admitted the theft of a Subaru motor vehicle three days prior to the aggravated robbery. There was evidence that the stolen motor vehicle was used as the getaway vehicle in the aggravated robbery.

2 The appellant was subsequently sentenced to a total of six years and two months imprisonment.

3 The sole issue at trial was whether the Crown had proved beyond reasonable doubt that the appellant was the robber. The Crown relied on circumstantial evidence (which we shortly discuss) but also on an expert witness in the field known as facial mapping. The Crown expert (a Mr R D McCourt) compared images taken from CCTV footage at the bar premises with still photographs of the appellant taken while in custody. Mr McCourt gave evidence of similarities he detected between the relevant images which he said provided strong support for the proposition that the appellant was the offender.

4 Mr McCourt's evidence was severely criticised by a defence expert (Dr I M Calhaem) who concluded that the quality of the data available for analysis was so poor that no proper comparison could be made of the images of the offender and the appellant.

5 The principal submission by Mr Cooke on behalf of the appellant is that the evidence of Mr McCourt was wrongly admitted and has resulted in a miscarriage of justice. He also challenges Mr McCourt's qualifications to give expert evidence.

The Crown case

6 Leaving aside the expert evidence for the present, the circumstantial evidence relied upon by the Crown to support the identification of the appellant as the offender may be summarised as follows:

• (a) The appellant admitted he had been driving the stolen Subaru on 19 November 2009. One of the bar staff noted that the number plate of the Subaru used as the getaway vehicle at the time of the robbery had a number plate which was almost identical to the number plate of the stolen Subaru. 2 In the face of this evidence, it was not seriously disputed that the getaway vehicle was the same vehicle which the appellant admitted stealing and driving three days before.

• (b) The appellant had previously been employed at the bar on a casual basis as a doorman, although none of the bar staff recognised him that evening.

• (c) At about 2 am, a bar employee (Mr Ford) saw a male walk in through the rear door of the premises which had been propped open for ease of access. The robber said “I have just come to get paid”. The man moved down the corridor to the office, at which point Mr Ford saw him holding a firearm at the hip.

• (d) The robber walked into the office and said to another employee (Mr Dennison) “gimme any money”. Mr Dennison did not recognise the person. He handed over approximately $2,000 in cash. The robber

  turned around and walked out, tucking the firearm into his jacket as he did so.

• (e) Another staff member, a Ms Thomas, had a slightly better opportunity to look at the robber but did not recognise him on the night. However, approximately 15 days later, she was shown a photo montage and immediately identified the appellant as the offender.

• (f) The offender appeared to have prior knowledge of the layout of the premises as he went directly to the place where the cash was held and arrived at a time when the bar had closed and the staff were dealing with the cash.

• (g) The CCTV video footage taken at the premises showed the offender carrying out the robbery but the footage was not of sufficient quality to enable the robber to be clearly identified, particularly as he was wearing a cap, low on his head.

7 The defence challenged aspects of the Crown evidence on various grounds: the failure by the bar staff to identify the appellant as the offender on the night; discrepancies in the description of the height of the offender when compared with the appellant (who was over six feet); evidence that some of the witnesses had identified a scar or facial blemish on the offender which was said not to compare with the appellant's appearance; and evidence that it may have been suggested to Ms Thomas before she identified the appellant from the photomontage that he may have been the offender.

The expert evidence

8 Both Mr McCourt and Dr Calhaem provided expert reports prior to trial but these were not introduced into evidence. Rather, each witness gave oral evidence. Mr McCourt produced a booklet of photographs and other materials as an exhibit. The CCTV footage was replayed including 12 still images from that footage. Some of these were multiple images (one from each of four cameras) while others were full screen shots.

9 Dr Calhaem gave his evidence assisted by a powerpoint presentation and also produced material illustrating the effects of one of his criticisms of Mr McCourt's method of analysis.

Mr McCourt's evidence

10 Mr McCourt confirmed he had received from a police officer a compact disc containing relevant CCTV footage from the bar on the night in question. This was in a format known as JPEG. The footage was converted straight away to another format known as BITMAP. Mr McCourt accepted there were some disadvantages with CCTV systems using the JPEG format since every process carried out on a JPEG image may result in the loss of some data. Quality may also be affected. However, by converting the image to the BITMAP format, subsequent processes could occur without loss of data or definition.

11 Steps were then taken to improve the quality of the CCTV images. This included cropping the images, rotating some of them slightly and “upsampling” the image to 300 pixels per inch. 3 Mr McCourt explained that hard copy photographs taken of the appellant in custody were also provided to him by the police. These were relatively large images of good quality. They were downsampled to 300 pixels per inch for comparative purposes.

12 A further process undertaken was described by Mr McCourt as converting the images to “grey scale”. This is a process used when dealing with colour images to adjust for different lighting conditions which might otherwise distract from the comparison process. The CCTV images were brightened and the contrast increased between dark and light tones to bring out the facial features of the man whose image was captured (described in the evidence as Man A).

13 Mr McCourt's evidence was that none of these processes had any adverse or distorting effects on the images. Rather, they were designed to enable a proper comparison to be made. While he accepted that the photographs of the appellant were of significantly better quality than the images from the CCTV footage, he was

confident, based on his past experience over nine years of working with CCTV images, that those in the present case were of good quality and were sufficient to enable a comparison to be made with the photographs of the appellant

14 The analysis phase of Mr McCourt's work then commenced. He explained he first looked for differences in the images since even one significant difference would eliminate the appellant as the offender. Mr McCourt's methodology involved the use of three tests:

• • Photogrammetry (in which the proportions of the face are measured and examined to search for any differences).

• • Morphological analysis (a feature-by-feature analysis to evaluate faces and heads).

• • Photographic superimposition (a process of overlaying two comparably sized images to demonstrate alignments of matched morphological features or areas of marked...