In R v Crupi (Ruling No 1) [2020] VSC 654 the Victorian Supreme Court has considered the problematic gait biometric.
The Court states
This is a ruling about the admissibility of evidence of forensic gait analysis (FGA). Such evidence has been admitted in the UK and Canada but, to my knowledge, this is the first time its admissibility has been the subject of a ruling in Australia.
In this instance the evidence failed the test of relevance under the Criminal Procedure Act 2009 (Vic) s 55 and is inadmissible under s 56 of that Act.
The Court notes
The leading case in the UK is Otway v R [2011] EWCA Crim 3. In Otway, a murder case, a podiatrist (Blake) was permitted to give FGA evidence. Forensic podiatry and CCTV analysis were key aspects of his practice. He gave evidence of the similarities between the gait of the offender, recorded on CCTV at a petrol station, and Otway’s gait, recorded on CCTV at a police station and a cell block. The gait features referred to did not include step length, step frequency or walking speed, as in the present case. See also Hashi v R [2014] EWCA Crim 1243, another murder case, where a podiatric surgeon (Francis), experienced in FGA comparative analysis, gave evidence based on CCTV footage of the similarities between the gait of the offender and Hashi’s gait. I note that the FGA expert in Hashi v R, looked for dissimilarities as well as similarities in undertaking his comparative analysis. The importance of such an approach is stressed in the recently published textbook by Haydn D Kelly, Forensic Gait Analysis (CRC Press, 2020) eg, 186. For an overview of FGA, see also The Royal Society and The Royal Society of Edinburgh ‘Forensic gait analysis: a primer for courts’ (2017).
The leading case in Canada is R v Aitken [2012] BCCA 134. A UK podiatric surgeon (Haydn D Kelly), who since 2006 had been a researcher in FGA identification and who has given FGA evidence in the UK courts on many occasions, was permitted to give evidence that there was “a very strong likeness” between certain features of the offender’s gait and Aitken’s gait in the relevant CCTV footage. The similar features were the degree of abduction (toe-out gait) and eversion (inward foot rolling). Professor Gary Edmond, of the School of Law at the University of New South Wales, discusses Aitken v R, Otway v R , and Haydn D Kelly in an article highly critical of the lack of scientific rigour of FGA: see Edmond & Cunliffe, 'Cinderella Story: The Social Production of a Forensic Science' 106 J Crim. L. & Criminology 219 (2016).
