The case of Hien Puoc involved an armed robbery incidence dated on 14th March 2003. The robbery took place in a convenience store, and the incidence that took place was captured by an installed surveillance device that videotaped all that occurred. Tang was convicted of the crime since there was lack of enough evidence to confirm that he did commit the said crime. Though there was the tape recovered from the surveillance device, it did not offer sufficient information to be able to identify the offenders. In the video, three people were captured, but the quality of the tape was of poor quality that they could not be identified. However, eight months after, the police turned their attention specifically to Tang as forensic analysis of the stolen goods indicated his fingerprints on them. Also, Dr. Meiya Sutisno played a prominent role in the identification of Tang’s image from the surveillance video through facial and body mapping techniques. The case took another direction of the opinion evidence where it received a certain degree of significance after Dr. Sutisno pointed out specific focal points of Tang’s resemblance between his photographs and the images of the third person in the surveillance video. Dr. Sutisno came to her conclusion as she showed a similar depiction of the images on the tape and Tang’s photograph. It, therefore, meant that those two similar photograph bodies were of the same person. Also, through the usage of a six-point scale technique, there was a high degree of support regarding the same matter.
The High Court in Smith decided that the police were not to be involved in the identification process. As a result, the police were left out, and many felt this caused case analysis to be skewed. For instance, the psychologists believed that it’s only the police that was the most reliable group in carrying out the identification process and thereby give out a reliable identification evidence. Every case in a court requires the judges or jury involved to be convinced behold reasonable doubt that the matter being presented occurred.
For the Tang’s case, this was not so as the footage lacked clarity. Therefore, this called for the expert opinion such as opinions of Dr. Sutisno who described the man in the photos to be Tang. Regardless, this was also not convincing enough as Dr. Sutisno did not see Tang in person and, therefore, regarded as a stranger as no deal could be traced between the two. Although she was an expert in measuring and determining human remains and human beings and also help a Ph.D. in anatomy, the court still discredited the evidence. The central question was whether facial mapping technique could be accepted as a reliable method of presenting opinion-based evidence especially under Section 79.
The forensic evidence presented was based on the fingerprints obtained from the three packs of cigarette that were recovered after they were stolen. The fingerprint matched those of Tang. After the presentation to the court, they were not convincing enough as the question of fingerprint residue arose as well as the number of people who could have handled those cigarette packs still was in doubts. Usually, people’s fingerprint differs from one another. Therefore, it is possible to differentiate between the suspects and get the culprit through a statistical model that has been established for fingerprint analysis. Through forensic fingerprint analysis, it is possible to determine the offender by taking their DNA that was left on the stolen goods such as those packets of cigarettes.
Other forensic methods employed by Dr. Sutisno were facial mapping technique, body mapping technique, photo-anthropometry, photograph superimposition, and morphological analysis. These techniques were based on the footage obtained from the surveillance cameras. The field of forensic science has received much attention recently due to the development of surveillance devices that offers continuous monitoring of a place. Therefore, the recorded footage can be analyzed by a forensic practitioner who will help identify the offender. However, the value of the information recorded determines the strength of the evidence and hence its acceptability. In this case, the footage was not clear and, therefore, the reason why the jury rejected the results. Facial mapping uses a morphological and anthropometric examination of the face of the person of interest. It involves both qualitative and quantitative comparisons of the surveillance images between the unknown individual image with several images which are already known. In the same way, body mapping is done in a similar manner where the focus is on the body, movement, and posture. Dr. Sutisno, therefore, reported a greater degree of anatomical similarity between the obtained images and Tang.
Evidence that was presented by Dr. Sutisno received a lot of criticism from the jury and the judges. At the initial trial, Dr. Sutisno’s evidence was accepted by the presiding District Court Judge known as Finnane. However, Spigelman CJ in the transcript judgment, did not agree with her evidence as well as other Forensic Practitioners evidence. The dismissal was based on the fact that Dr. Sutisno did not give out the terms or explain them to the jury regarding the strict protocol that she used. Also, she did not determine the origin of the protocol used as well as how it was developed. Her basis was due to patenting of her innovations and, hence, she termed the obtained information confidential. The fact that these results could not be shared freely with the judges nor was the protocol and its basis identified, then they could not be accepted. As such, the three appeal judges (Justice Adams, Justice Simpson, and Chief Justice Spigelman) made a unanimous decision in granting an appeal and, thereby, a retrial was ordered. What the court required was findings presented scientifically by a Forensic Practitioner and also based on scientific rigor. Dr. Sutisno findings, therefore, lacked this basic points and the reason why they were dismissed.
Specialized knowledge is crucial in understanding and comprehending the process involved in photographic evidence analysis. So the issue of failure of understanding arose among the jury as they all lacked specialized knowledge. Australian Law Reform Commission recognizes the issue of specialized knowledge that calls for a specific skill in a particular field of expertise. Study, training, and experience, therefore, forms the basis of the specialized knowledge. Also, the jurors do not only require unmediated photograph but more than that before they could find guilt in someone due to the lengthy prison term. Additionally, the technique used left a lot of questions and gaps in the process of fact-finding. The results as well could not be replicated in the court, and so this caused a lot of questions. The body and facial techniques also used they could somehow generate a variety of results rather than a specific outcome and, therefore, they were regarded unreliable. Similarly, the expert was considered as a stranger to the suspect and so, recognizing of the offender was not convincing. Also, the culture science and technology keeps on changing from time-to-time. The law is generally about facts while science keeps on changing drastically. Therefore, this raises the issue whether the forensic evidence presented was reliable and could be counted on by the court. For instance, DNA use such as DNA profiling has changed over the years. For that matter, some cases are being reassessed finding some people to be innocent and those acquitted some are found guilty.
The Hien Puoc Tang case received a lot of attention all over Australia and became a case to be referenced due to the various issues that arose during the case analysis. Two among the three offenders were found few days after the offense occurred while Hien Puoc Tang was linked to the robbery by use of the fingerprints analysis eight months later. The expert as well used the surveillance footage to be able to identify the culprits through facial and body mapping. However, this brought a lot of controversies since the footage was of poor quality and hence its credibility could not be guaranteed.
The case of Hien Puoc Tang received an appeal based on the admissibility of the evidence presented from the facial and body mapping techniques. The Makita jurisprudence played a key role in Tang’s case especially on the Court of Criminal Appeal, and it has been of significant influence throughout the courts in the region of New South Wales in Australia. Through the analysis of Dr. Sutisno, she revealed that the person of interest that was on the surveillance images was Hien Puoc Tang. But the images were of such a poor quality that their reliability could not be guaranteed. When she presented her findings, Chief Justice Spigelman rejected them on the basis that they were not credible and he did not allow them to be left for the jury. What was would make greater sense is high-quality images especially from the police, but police evidence was also not allowed in this case. According to Dr. Sutisno, she was convinced in herself that the analysis was reliable and the two persons were the same person. Due to the diverse ideas arising from this evidence, a lot of objections arose and its admissibility since that time became the main ground of appeal. The three judges (Spigelman CJ, Adams, and Simpson), reviewed the evidence admissibility based on Section 79 which they explained it’s two limbs of operations. Identification of specialized knowledge is crucial under the first limb. It covers the areas of study, training, and experience. On the second limb, the opinion given should be based on the specialized knowledge wholly or substantially. Therefore, the court came to the conclusion that facial mapping that Dr. Sutisno used was not based on specialized knowledge. As such, her findings were not accepted as the determination of the identity of the unknown person could not be guaranteed to be effective. Her emphasis on the unique identifiers factor was described by the Court as ipse dixit. The jury rejected the results because the reasoning process was inadequately explained. The final conclusion of the matter was that there was incapability of the facial and body mapping techniques to provide supportive opinions on the identity of the unknown person.
The issue escalated further when Dr. Sutisno explained that she combined her evidence with police photographs. Therefore, she was described to be an ad hoc expert and hence given a chance to testify only on the similarities that could be seen between the two images on a future trial but not identify the accused as she did during the first trial. The decision by the court was influenced by the Daubert v Merrell Dow Pharmaceutical Inc case. Here, the United States Supreme Court gave out a detailed explanation regarding the admissibility of opinions as it is given in the Federal Rules of Evidence (1975) approach. The opinions had to be derived from a specialized knowledge, technical, and scientific ideas. The term knowledge applies to the known facts that can be proven beyond reasonable doubts as well as based on good grounds. Additionally, there has to be more than unsupported speculation or mere subjective belief.
The same issue was seen in the Honeysett v The Queen case where evidence given by Professor H, who is an expert in anthropology and anatomy was based purely on body mapping. The court made a unanimous decision that the use of complicated language in evidence presentation usually misleads rather than assist. On the legal grounds, his evidence was rejected based on the Evidence Act 1995 (NSW). Other two experts as well questioned the validity of his evidence as they thought that the methods he used were too subjective. His forensic identification also, where he identified the offender by comparing the images on the CCTV cameras was under scrutiny to determine whether he employed specialized knowledge or it was a mere subjective opinion.
The same issues arose in the Morgan v The Queen case, whereby the same Professor H, gave evidence that was not reliable and under controversial circumstance similar to the Honeysett v The Queen case. Since the accuracy on how he carried out the research as well as the poor explanation of the methodology, the Criminal Court of Appeal of NSW dismissed the evidence. Such instances in these cases, affected the outcome of the decision by the judges and in most of the times it formed the basis of the appeal by the accused, and in several times, the appeal was allowed. The Australian courts in recent years have put more emphasize on scrutinizing expert evidence especially regarding the admissibility, presentation, and its use in future trials. Facial photograph comparison techniques as much as they have been accepted in courts, many of the times there is no database confirming the statistical basis of the evidence nor scientific basis.
Other similar cases to Tang’s case include; Makita Pty Ltd v Sprowles, Murdoch v The Queen, R v Jung, R v Kaliyanda, R v Pera, and R v Alrekabi. They were all based on the facial and body mapping of evidence which was presented to the courts by various forensic analysts. In both, there was also lack of credible sources based on the techniques used. The methods as well required proper validation to ensure accurate and reliable results were obtained. Due to lack of validation, the expert opinions were as well not reliable, and this affected the decision of the judges significantly.
The Hien Puoc Tang case resulted into various repercussions as well as several reforms came in effects. First, the methods that she used had not received validation in Australia. In most instances, the use of morphological analysis to determine facial features leads to alterations due to changes in photographic angles. Due to such issues, in the first trial, the judges agreed to grant an appeal and, therefore, a retrial was ordered. There was a second and third trial where finally Tang was found guilty on 27th Wednesday, August 2007. However, the basis of making the decision was not the facial mapping evidence of Dr. Sutisno but rather the fingerprint evidence. The case brought forth several points such as the importance of specialized knowledge and how it affects the opinions of the experts. Reliability is also crucial and, therefore, the experts ought to use reliable and validated techniques that prove beyond reasonable doubts their evidence.
The issue of changing nature of science as well came out during the analysis of this case vigorously. The courts usually expect the Forensic Practitioner involved in the case to present their findings and evidence in a scientific manner and with scientific rigor. The methodology used as well as the research methods should be understood clearly and then communicated in simple terms for every individual to understand. Such aspect lacked in Dr. Sutisno and the reason why its validity and accuracy of her results raised a lot of questions. Science needs to be understood to do away with any possible limitations that might affect your results. Scientific skills in the techniques employed is also essential in producing reliable results. The Forensic Practitioners should also be willing to accept criticisms when his ideas are being challenged. As much as many people tend to think that science is stable with minimal changes, it is still being tested, and some areas are found wanting by the colleagues in the field of science mainly due to technology advancement.
The Hien Puoc Tang case played a significant role in changing the world of the forensic science. There was a lot that a Forensic Practitioner can learn from this case. First, the forensic science has to satisfy two needs; the legal profession and scientific community. The scientific and legal outcomes need to be based on a similar thing and both aims at establishing a reliable basis of fact. The issues that were raised regarding Dr. Sutisno techniques on facial and body mapping can act as a learning ground for other Forensic Practitioners to learn from and hence avoid making similar mistakes. For instance, they ought to understand clearly the methodology, jurisprudence, and possible technicalities regarding their expertise. By doing so, they can make accurate decisions and obtain reliable results that can be presented to the courts and convince them beyond a reasonable doubt.
Tang was finally apprehended due to the evidence obtained by identifying his fingerprints on the cigarette packs. The case, therefore, impacted and changed the field of forensic science through the introduction and use of DNA as a useful evidential tool in determining the offender. Use of DNA techniques such as DNA Fingerprinting also known as (RFLP)- Restriction Fragment Length Polymorphism, allows forensic scientists to be able to distinguish between individuals and identify the person of interest.
Conclusion
The Tang case played a significant role in changing the perception and bringing more insight in the field of forensic science. From the case, we can obtain important ideas such as; it calls for more than photographic evidence to convince the judges beyond a reasonable doubt that the accused is guilty. The jurors need to know scientific matters. On the other hand, the Forensic Practitioners need to be aware of technological changes occurring and understand how to present evidence in courts without confusing the jury. A deeper understanding is crucial for any Forensic Practitioner especially regarding their area of expertise. Science, law, and forensic science work hand in hand in helping solve complex legal issues. In the last years, the Forensic Practitioners have influenced only a minimal number of cases in their outcomes. However, with the advancement in technology and science, they have now a big say in determining the outcome of a trial. Finally, more attention needs to be offered to the field of forensic science.
Battaglia, Alexa. 2017. ” Analysis Hien Puoc Tang and the impact of expert opinion.”
Colin, Beavan. 2002. Fingerprints: The Origins of Crime Detection and the Murder Case that Launched Forensic Science. Hyperion Books.
Chief Justice Spigelman’s judgment in R v Hien Puoc Tang [2006] NSWCCA 167 [at 138], citing the US case of Daubert v Merrell Dow Pharmaceuticals, Inc [1993] USSC 99.
Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579, 590 (1993) (‘Daubert’). For some discussion of the US jurisprudence, see Gary Edmond, ‘Supersizing Daubert: Science for Litigation and its Implications for Legal Practice and Scientific Research’ (2007) 52 Villanova Law Review 857.
Gary, Edmond., Biber, Katherine., Kemp, Richard., and Porter, Glenn. 2008. “Law’s Looking Glass: Expert Identification Evidence Derived from Photogenic and Video Images.” Current Issues Crim. Just. 20: 337.
Gary, Edmond. 2008. “Specialized knowledge, the exclusionary discretions and reliability: Reassessing incriminating expert opinion evidence.” UNSWLJ 31:1.
Ken, Fowle. 2010. “The science, the technology, the law.”
E, Gaensslen, Robert., Ramotowski, Robert., and Lee, Henry, C. 2001 Advances in fingerprint technology. CRC press.
High Court case of Fitzgerald v The Queen [2014] HCA 28, where upon close scrutiny an expert’s opinion on DNA evidence was thrown out because of subtleties in the evidence.
Honeysett v The Queen [2013] NSWCCA 135 at [63].
Ibid [140]– [141].
Ibid [146].
In the context of jurisprudence associated with expert evidence the term has a long and pejorative pedigree. A useful illustration is the US Supreme Court’s decision in General Electric Co v Joiner, 522 US 136, 146 (1997).
F, Kleinberg, Krista., Vanezis, Peter, and Burton, A. Mike. 2007. “Failure of anthropometry as a facial identification technique using high?quality photographs.” Journal of forensic sciences 52.4: 779-783.
Regina v Gardner CACD ([2004] EWCA Crim 1639, Bailii)
The court affirmed the general admissibility of expert facial comparison evidence.
Regina v Hien Puoc Tang (Austlii, [2006] NSWCCA 167)
Austlii (Supreme Court of New South Wales – Court of Criminal Appeal) CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether opinion evidence of identity based on facial mapping.
Regina v Hookway CACD (Bailii, [1999] EWCA Crim 212)
The defendant appealed against his conviction based on expert facial mapping evidence.
Regina v Stockwell CA (Ind Summary 05-Apr-93, [1993] 97 Cr App R 260)
Expert evidence of facial comparison was admissible if the information and assessment are not otherwise available to the jury.
J, Saks, Michael. 2002. “The legal and scientific evaluation of forensic science (especially fingerprint expert testimony).” Seton Hall. L. Rev. 33: 1167.
Damian, Schofield, and Fowle, Ken. 2013. “Technology corner visualising forensic data: evidence guidelines (part 2).” The Journal of Digital Forensics, Security and Law: JDFSL 8.2: 93.
Dilan, Seckiner., Mallett, Xanthé., Roux, Claude., Meuwly, Didier., and Maynard, Philip. 2008. “Forensic image analysis-CCTV distortion and artefacts.” Forensic science international.
Sydney Law Review Journal Volume 36 No 2 ‘Before the High Court – Honeysett v The Queen: Forensic Science, ‘Specialised Knowledge’ and the Uniform Evidence Law’ by Gary Edmond and Mehera San Roque
Sydney Law Review Journal Volume 36 No 2 ‘Before the High Court – Honeysett v The Queen: Forensic Science, ‘Specialised Knowledge’ and the Uniform Evidence Law’ by Gary Edmond and Mehera San Roque
Tang (2006) 65 NSWLR 681, [120]. (Poor image quality)
Tang (2006) 65 NSWLR 681, [134].
Tang (2006) 65 NSWLR 681, [137].
Tang (2006) 65 NSWLR 681, [138]
To its credit, the prosecution did not adduce facial mapping evidence at the subsequent re-trial.
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