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EXPERT EVIDENCE

expert evidence

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It is no secret amongst those working within the Australian Criminal Justice System that there is a flaw in the system when it comes to expert evidence.  Australian courts routinely admit weak, speculative and unreliable expert evidence (1), thus resulting in the incarceration of innocent people because of fundamental procedural errors within the system that have and continue to occur.  

 

Combine this with a 'one appeal only process system' which is currently occurring within many of the states, and the result of incarcerating an innocent person based on this weak and unreliable evidence, increases dramatically.

 

The system is extremely hard and cumbersome when it comes to proving and overcoming a miscarriage of justice, and for the layman or common man who does not understand the justice system let alone how to manoeuvre through it, the result can be time behind bars.  

 

Criminal trials in Australia do not have strong safeguards against miscarriages of justice resulting from poor or weak expert evidence and it is time this system was reviewed and changed for all parties involved within the justice system and criminal trials. 

Given that so many criminal cases now heavily rely on expert evidence the MOJO project is dedicated to highlighting these fundamental flaws within the system for the common man so.

So what is expert evidence?

‘Expert’ means a person who is required to give or prepare expert evidence for the purposes of:
a.    A criminal trial; or
b.    Part 2 or Part 4 of the Crimes (mental Impairment and Unfitness to be Tried) Act 1997.
(County Court of Victoria, Practice notes page 2)


‘Evidence’
1. Any object or information, other than legal submissions, which tends to prove or disprove the existence of a fact in issue. There are three primary forms of evidence, testimony, documents and real evidence. Evidence is also subject to other classifications, for example: direct, circumstantial, oral, documentary, real, indirect, original, derivative, primary, secondary, prima facie, expert, opinion, confessional, sworn, and unsworn.
2. The body of law regulating the ascertainment of facts in litigation. Evidence law operates to apply rules of proof as a constraint upon the proof of facts in civil and criminal trials. It lays down rules and procedures governing: the adduction of evidence; the exclusion and admissibility of certain types of evidence, such as hearsay; the use of particular kinds of evidence; and the ultimate question of proof. 
(Encyclopaedic Australian Legal Dictionary, 2016)


Expert evidence could therefore be defined as a report of verbal or written format, which tends to prove or disprove the existence of a fact in issue, based on the experts unbiased, objective opinion of which the expert has specialised knowledge in relation to.
 

Things you need to know about expert evidence in the state of Victoria first and foremost....

Lets take the scenario that you have been involved in a car accident and are now charged with Culpable Driving.  The details of the car accident and how the reconstruction of the accident are undertaken by the police.  The police in every state of Australia have a Crash Investigation Unit that 'specializes' in accident reconstruction.

It is the investigative officers of these units that are deemed experts by the court system.

But are they really experts??  Are they qualified to write reports for submitting as evidence within a trial?

CURRENT RULES OF ADMISSIBILITY OF EXPERT EVIDENCE WITHIN THE STATE OF VICTORIA.


The current procedure in the state of Victoria for expert evidence submitted into the County or Supreme Court within a criminal trial is guided by the implementation of the Practice note;  


Practice Note SC CR 3 Expert Evidence in Criminal Trials.  
This Practice Note was issued on 30 January 2017 and commenced on 30 January 2017. It applies to criminal trials in both the Supreme and County Courts of Victoria. 


Practice Notes provide information about particular aspects of the Court's practice, procedure and organisation. They sit alongside the Rules of Court to provide guidance in relation to the conduct of proceedings. Lawyers with the conduct of proceedings are expected to be familiar with their content and act in accordance with that guidance unless directed otherwise.  
(http://www.supremecourt.vic.gov.au/home/law+and+practice/practice+notes/ )


Particulars of the practice note;

The practice note also details the procedure of which responding expert reports can be submitted a
5.2    Where a forensic report has been prepared and served on the accused, the accused may request the prosecution to obtain an expert report in relation to a matter (or matters) that will be contested at the trial of the accused.
5.3    If the prosecution rejects that request, or fails to respond to it within a reasonable time, the accused may apply to the Court before which the trial will be held for a direction that an expert report be obtained.
5.4    The accused must give the prosecution at least 14 days’ notice of such an application.  
(http://www.supremecourt.vic.gov.au/home/law+and+practice/practice+notes/ )

The current practice note also details the content of expert’s reports;
All expert reports to which this Practice Note applies (including primary expert reports and responding expert reports) shall state the opinion or opinions of the expert and shall state, specify or provide—
(a)    the expert’s name and place of employment;  
(b)    an acknowledgement that the expert has read this Practice Note and agrees to be bound by it;
(c)    whether and to what extent the opinion(s) in the report are based on the expert’s specialised knowledge, and the training, study experience on which that specialised knowledge is based;  
(d)    the material, observed facts, reported facts, assumed facts and other assumptions on which each opinion expressed in the report is based (a letter of instructions may be annexed); 
(e)    (i)    the reasons for,
(ii)    any literature, research or other materials or processes relied on in support of,
(iii)    a summary of—
each such opinion;  
(f)    (if applicable) that a particular question, issue or matter falls outside the expert's specialised knowledge; 
(g)    any examinations, tests or other investigations on which the expert has relied, identifying the responsible laboratory by which, and the relevant accreditation standard under which, the examination, test or other investigation was performed; 
(h)    a declaration that the expert has made all the inquiries and considered all the issues which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld;
(i)    any qualification of an opinion expressed in the report, without which the report would or might be incomplete or misleading; 
(j)    any limitation or uncertainty affecting the reliability of
    (i)    the methods or techniques used; or
    (ii)    the data relied on—
    to arrive at the opinion(s) in the report; and  
(k)    any limitation or uncertainty affecting the reliability of the opinion(s) in the report as a result of—
    (i)    insufficient research;  or
    (ii)    insufficient data.  

Legislative Basis

Section 79 of the Uniform Evidence Act (Vic) outlines the opinion rule whereby Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Essentially this means opinion-based evidence is generally inadmissable.  However the Act also outlines an exception to this opinion rule, with the permission of opinion from an 'expert' who has specialised knowledge.  

  1. Opinion evidence will satisfy the s79 exception if:

    • it is relevant (s55 and s56); and

    • it is given by a person who has specialised knowledge; and

    • that specialised knowledge is based on his or her training, study or experience; and

    • his or her opinion is wholly or substantially based on that specialised knowledge (this applies to each opinion sought to be given).

  2. Whether a person has specialised knowledge, that knowledge is based on his or her training, study or experience, and his or her opinion is wholly or substantially based on that specialised knowledge, is determined on the balance of probabilities (s142).

  3. The onus is on the party seeking to have the evidence admitted to demonstrate that the person has specialised knowledge based on his or her training, study or experience which enables him or her to opine on a matter that is relevant to an issue in a proceeding. That party must also demonstrate that the opinion is wholly or substantially based on that knowledge (Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 at 603-604 [35] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

This is all very good, however there is a obivous disconnect between the legistaltive basis and the practice note.  The glaringly obvious flaw in this is the failure fo the legistlation to adequately define the criteria for specialised knowledge.  

Like anyone applying for a job, references must be submitted.  And hence who checks those references to ensure that they are valid and current.  
Is an expert a person with a degree, PHD or simply someone that has a vast amount of knowledge and experience in that field?  In the ever-changing face of motor vehicle accidents, and technology the credentials of an expert must be kept current to ensure absolute accuracy of opinion.  
The current law allows for prosecution to submit an expert report, yet in intrinsic cases such as culpable driving, cars are now so far technologically advance – you need additional experts to understand the technological advancements. In current culpable driving cases; reports on collisions are provided by the DPP yet there is no procedure for ensuring that the information submitted is justifiably correct or current and the expert’s credentials are taken at face value.  Perhaps this flaw was most evident in the recent overturning of the conviction of Henry Keogh whereby Mr Keogh was imprisoned for 20 years, due to the flawed evidence submitted by South Australia's former chief forensic pathologist Mr Mannox.   The failure of the system to check the credentials of the expert, review or/and implement the procedure for attainment of evidence resulted in an innocent man spending 20 years of his life in jail.  


Section 6.1.c of the Practice Notes specifies;
6.1    All expert reports to which this Practice Note applies (including primary expert reports and responding expert reports) shall state the opinion or opinions of the expert and shall state, specify or provide—
(c)     whether and to what extent the opinion(s) in the report are based on the expert’s specialised knowledge, and the training, study experience on which that specialised knowledge is based;  
This section of the practice note however raises the question; who is checking these credentials of the expert, and does this training, study or experience qualify them as an expert?   Where is the governing protocol for expert credentials and selection criteria?  
In Justice Kirbys paper the Judicial Review Expert Evidence; Causation, Proof and Presentation – law in the world of Science and Technology 2009 Justice Kirby highlights the fact that; 
‘it will probably soon be necessary for the High Court to examine the precondition to expertise that authorises a person, claiming to be an expert, to state an opinion in formal judicial proceedings’.

 

And if we take it back one step, the question is also raised as to the investigative procedures that are currently being undertaken by the police in various crimes.  Are there procedures current and adequate.  Do there experts meet and undertake the correct traiing requirements when it comes to crimes suchs as culpable driving and dangerous driving.  With the growing demand for examination of cellular phones a need has developed for the development of process guidelines for the examination of these devices (2).  Questions are now only arising as to who is governing these processes and guidelines and ensuring that all procedures are maintained and implemented correctly. 

 

Whilst the justice system alone requires a criminal review commission, the investigative procedures undertaken by experts needs to be documented and constantly maintained with reviews implemented that allow for technological advances.  A system needs to be installed that allows for cred


This paper also outlines the possible implementation of reforms that aim to improve the performance of the courts in deciding cases involving conflicting expert testimony.  It should be noted that some but not all of these propositions have been implemented in the Practice Note SC CR 3 Expert Evidence in Criminal Trials, within the state of Victoria, and some pre-trial operating procedures also.


One of Justice Kirbys proposals is; 
Judicial appointment and service are enough to convert a lay person, inexpert in scientific and technological disciplines, overnight into a highly perceptive and informed decision-maker, able in every case to determine accurately the true or preferable expert opinion from one that is more suspect.  On the contrary, as a result of the survey, it is clear that improvements are needed in relation to expert evidence and its evaluation in courts of law.  Such improvements would include:
•    Training of judicial officers in approaches to such problems and in the rudiments affecting commonly recurring scientific and technological issues;
•    Improvements in the skills of advocates, including greater time in preparation for, and improved capacity in the presentation of, the evidence-in-chief of experts and in cross-examining them on their testimony;
•    Education for the experts themselves, so that they will express their opinions in ways that avoid unintelligible technicalities, jargon or partisan rhetoric;
•    Use of improved technologies of presentation of data for explaining and illustrating scientific and technological evidence; and
•    Introduction of improved means of ensuring, so far as possible, the equality of arms in access to expertise that will ensure that the parties and the court will be able to render expert opinions, adduced in a trial, truly accountable to the law so that areas of expertise will be clarified and proffered expert opinion put under real scrutiny, and not simply accepted as gospel.

References

(1) - Stephen Cordner, "Expert Opinions and Evidence: A perspective from forensic pathology", 17 Flinders Law Journal, (2015), 1.

(2) - Detective Cynthia A Murphy, Developing Process for Mobile Device Forensics.