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Saturday, 17 December 2011

R v Smith (No 5) [2011] NSWSC 1459: relevant but weak evidence

With the end of the year rapidly approaching I'm yet again caught with a pile of interesting (and possibly important) cases sitting in my inbox, and no time to properly digest them.

An example is R v Smith (No 5) [2011] NSWSC 1459. Like many trial court decisions it's useful as an application of the law (made on what Ipp J described as the 'factory floor' of justice) rather than for containing any particular revelations.

The Crown proposed to lead evidence of a podiatrist at trial. He held the expert opinion that shoes left at the scene of the murder could belong to the accused, because of a series of individual biometric factors.

Importantly to this Cinderella story, the Crown sought to rely upon the evidence as establishing that the accused could have been the wearer of the shoes, not that he was. Does this even pass the threshold test of relevance at s 55 of the Evidence Act? Your answer probably depends on your philosophical understanding of a trial.

Buddin J's ruling traverses the applicable principles of admissibilty, as well as offering a look at an evolving branch of forensic science.

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