R v Perez

JurisdictionCayman Islands
Judge(Anderson, Ag. J.)
Judgment Date17 September 2009
CourtGrand Court (Cayman Islands)
Date17 September 2009
Grand Court

(Anderson, Ag. J.)


T.N. Ward, Senior Crown Counsel, and Mrs. J. Borasingh-Simpson for the Crown;

A. Akiwumi for the accused.

Cases cited:

(1) Culpepper v. StateUNK(2000), 58 W.I.R. 420, referred to.

(2) Daubert v. Merrell Dow Pharmaceuticals Inc.UNK(1993), 509 U.S. 579; 113 S.Ct. 2786; 125 L. Ed. 2d 469, referred to.

(3) Frye v. US(1923), 293 F. 1013, referred to.

(4) Langan v. H.M. Advocate, 1989 J.C. 132; 1989 S.C.C.R. 379, referred to.

(5) Mallard v. R.UNK(2003), 28 W.A.R. 1; [2003] WASCA 296, considered.

(6) Mayfield v. USUNK(2007), 504 F. Supp. 2d 1023, referred to.

(7) People v. Hyatt, Supreme Ct. of New York State, October 10th, 2001, unreported, considered.

(8) R. v. Bonython(1984), 38 SASR 45; 15 A Crim R 364, dicta of King, C.J. followed.

(9) R. v. BuckleyUNK(1999), 163 J.P. 561; [1999] EWCA Crim 1191, dicta of Rose, L.J. followed.

(10) R. v. Dallagher, [2003] 1 Cr. App. R. 12; [2002] Crim. L.R. 821; [2002] EWCA Crim 1903, considered.

(11) R. v. Harris, [2006] 1 Cr. App. R. 5; [2008] 2 FLR 412; [2008] Fam. Law 842; [2005] EWCA Crim 1980, dicta of Gage, L.J. followed.

(12) R. v. Luttrell, [2004] 2 Cr. App. R. 31; [2004] EWCA Crim 1344, dicta of Rose, L.J. followed.

(13) R. v. Parenzee, [2007] SASC 143, considered.

(14) R. v. RobbUNK(1991), 93 Cr. App. R. 161; [1991] Crim. L.R. 539, dicta of Bingham, L.J. followed.

(15) R. v. Rose(1993), 69 A Crim R 1; [1993] SASC 4249, followed.

(16) R. v. Trochym, [2007] 1 S.C.R. 239; 2007 SCC 6, considered.

(17) R. v. Turner, [1975] Q.B. 834; [1975] 2 W.L.R. 56; [1975] 1 All E.R. 70; (1974), 60 Cr. App. R. 80; [1975] Crim. L.R. 98, referred to.

(18) State v. Langill, Rockingham County Sup. Ct., New Hampshire, January 19th, 2007, unreported, considered.

(19) State v. Rose, Circuit Ct., Baltimore County, Maryland, October 19th, 2007, unreported; further proceedings, sub nom. US v. RoseUNK(2009), 672 F. Supp. 2d 723, considered.

(20) US v. DowningECAS(1985), 753 F. 2d 1224, referred to.

(21) US v. Llera Plaza, US District Ct., E.D. Pennsylvania, January 7th, 2002 (179 F. Supp. 2d 492, vacated); reconsidered, (2002), 188 F. Supp. 2d 549, considered.

(22) US v. Mitchell(2004), 365 F. 3d 215, referred to.

Evidence-expert evidence-expert witnesses-admissibility-court to be satisfied that (i) subject-matter such that non-expert unable to form sound judgment without assistance; and (ii) area within sufficiently recognized field of knowledge-witness to be sufficiently qualified to give opinion of value-evidence only admitted if relevant to some matter requiring proof-same approach in criminal and civil matters

Evidence-expert evidence-fingerprint evidence-no basis to exclude fingerprint evidence in principle-unlikely to be admitted if fewer than 8 similar ridge characteristics-if more than 8 similarities, court to consider (i) experience of witness; (ii) number of similarities and any dissimilarities; (iii) size and quality of print-increasing tendency to use non-numeric standards

The accused was charged with murder.

As part of the prosecution case, the Crown sought to adduce evidence of latent fingerprints which were allegedly those of the accused. The accused sought to exclude this evidence and to prevent the calling of expert witnesses to attribute the prints to him at his forthcoming trial.

The accused submitted that the court should exercise its discretion to exclude the evidence because (a) of the proved unreliability of the methodology behind fingerprint evidence which had been questioned by academics and courts worldwide; (b) it would be prejudicial to the accused if it were admitted; and (c) the Crown”s experts were neither credible as expert witnesses nor themselves sufficiently qualified to express an expert opinion on whether the fingerprints were attributable to the accused in order to establish his guilt.

The Crown submitted in reply that the court should deny the application to exclude the evidence because (a) fingerprinting was not a novel technique and the methodology used had been accepted by the court for many years; and (b) there was no reason to depart from it since the application was not supported by the authorities and the academic theories were unscientific and should be given little credence.

Held, denying the application to exclude the fingerprint evidence:

(1) There was no basis upon which fingerprint evidence would be excluded in principle in the Cayman Islands. When considering the

admissibility of expert evidence (such as that of witnesses specializing in fingerprinting), two conditions had to be met. First, the court would need to be satisfied that the subject-matter of the opinion was such that a person without expertise in that area would not be able to form a sound judgment on the matter without the assistance of an expert and that the area of expertise was in a sufficiently recognized field of knowledge. Secondly, the particular witness must be qualified to express an opinion on the subject-matter and should have sufficient knowledge to render his/her opinion valuable to the court. Since the established techniques of fingerprinting and the particular experts in question fulfilled these requirements, the application to exclude the evidence would be refused. Nevertheless, the court would not always automatically accept the admissibility of evidence of practices-such as fingerprinting-simply because it had done so for a considerable period of time. Moreover, expert evidence would only be admitted when relevant to some matter that required proof and any evidence admitted would not be conclusive since it would be for the trier of fact to attach appropriate weight to the expert testimony. The approach to the admissibility of expert evidence was the same in criminal and civil matters (para. 41; para. 45; paras. 53–55; para. 57).

(2) Fingerprint evidence would be unlikely to be admitted if there were fewer than eight similar ridge characteristics and evidence showing so little similarity should not be adduced by the prosecution save in exceptional circumstances. Where there were more than eight similarities, the court would need to consider when deciding whether to admit the evidence: (i) the experience and expertise of the witness; (ii) the number of similarities; (iii) any dissimilarities; (iv) the size of the print; and (v) the quality of the print, including any contamination or smearing. However, the court noted there was an increasing tendency towards the more logical non-numeric standards used in other jurisdictions (para. 27; para. 56).

(3) Expert evidence would still be admissible even if it relied upon a technique which was accepted as unreliable by others within that field of expertise. The reliability of the evidence would be considered having regard to the weight to be attached to it rather than to its admissibility. Further, developments in scientific techniques should also not be kept from the court, even if at the level of hypothesis, though if admitted to the court, their true state would have to be revealed (para. 45; paras. 50–53).

1 ANDERSON, Ag. J.: On Wednesday, September 16th, 2009, 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 Thursday, September 17th, I denied the application and promised to put my reasons in writing. In fulfilment of that promise, I now do so.

2 The defendant, Josue Alexander Carrillo Perez, is on trial for murder. The indictment charges him with the murder of Martin Gareau, a Canadian national, contrary to s.181 of the Penal Code of the Cayman Islands. By this application, the defendant asks the court to exclude the fingerprint evidence with respect to latent prints, which the Crown says are, by a

process of comparison with the fingerprints taken from the defendant, attributable to him, and which it is seeking to adduce in this trial. Counsel for the defendant submits that despite the almost universal acceptance of the infallibility of fingerprinting for 100 years, recent scholarly writings and some decisions of eminent courts in worldwide jurisdictions have raised the question of whether fingerprint identification is in fact a science and whether it really is as reliable as presumed.

3 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:

(a) Fingerprint evidence is an unreliable technique for determining to the criminal standard the defendant”s guilt;

(b) 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 unreliable and prejudicial such as it should not be admitted;

(c) By reason of (a) and (b) 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; and

(d) In the event that the court disagrees with either of the propositions advanced in sub-paras. (a) and (b) 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 [the address] are attributable to the defendant.

4 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 US Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc. (2). On the limb of the reliability of such evidence, he also calls in support the decisions of the US courts in US...

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