UQ Expert Evidence Colloquium (Aug 30, 2018)
On August 30th 2018, the UQ Law, Science and Technology Program convened a series of talks on expert evidence at the Supreme Court Library (find the program here).
For those who could not make it, and for those wishing to follow up on the talks, we have compiled brief summaries and lists of the authorities the speakers relied on.
Essential Reading
1. A user-friendly guide to cross-examining forensic experts:
Gary Edmond et al, ‘How to cross-examine forensic scientists: A guide for lawyers’ (2016) 39 Australian Bar Review. [PDF]
2. A short and easy-to-read review of the forensic sciences from a leading scientific body:
President’s Council of Advisors on Science and Technology, ‘Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods’ (2016). [link]
3. A slightly longer review of the forensic sciences from a leading scientific body:
National Research Council, ‘Strengthening Forensic Science in the United States: A Path Forward’ (2009). [link]
Rachel Searston & David Hamer
Dr Rachel Searston – ‘Expert Evidence and Evidence on Expertise: Are Forensic Experts’ Decisions a Blackbox?’
Summary: Rachel discussed the psychological processes by which people gain expertise, and why it is typically impossible for them to explain how they are making their decisions. She focused on fingerprint experts.
Jason M Tangen, Matthew B Thompson & Duncan J McCarthy D, ‘Identifying fingerprint expertise’ (2011) 22:8 Psychological Science 995. [PDF]
Alice Towler et al, ‘Are Forensic Scientists Experts?‘ (2018) 7:2 Journal of Applied Research in Memory and Cognition 199-208. [link]
David Hamer
Professor David Hamer – ‘Expert Evidence and Wrongful Convictions in the Adversarial Process’
Summary: David examined the many cases in which expert evidence has contributed to a wrongful conviction. He suggested that the adversarial system is not particularly well-suited to controlling unreliable and misleading expert evidence.
R v Keogh (No 2) [2014] SASCFC 136
R v Taufahema (2007) 228 CLR 232
R v Van Beelen [2016] SASCFC 71
Mickelberg v R (1989) 167 CLR 259
Lawless v R (1979) 142 CLR 659
Meachen [2009] All ER (D) 45 (EWCA Crim 1701)
Expert Code of Conduct (Uniform Civil Procedure Rules) (NSW)
Judicial Commission of NSW, Conviction Appeals in NSW (2011)
Simon Cole, ‘Forensic Science and Wrongful Convictions: From exposer to contributor to corrector’ (2012) 46 New England Law Review 711. [link]
Stewart Field & Dennis Eady, ‘Truth-finding and the adversarial tradition: the experience of the Cardiff Law School Innocence Project’ (2017) Criminal Law Review 292. [link]
Stephanie Roberts, ‘Fresh Evidence and Factual Innocence in the Criminal Division of the Court of Appeal’ (2017) 81 Journal of Criminal Law 303. [PDF]
Bibi Sangha & Robert Moles, ‘MacCormick’s Theory of Law, Miscarriages of Justice and the Statutory Basis for Appeals in Australian Criminal Cases’ (2014) 37 University of New South Wales Law Journal 243. [link]
Benjamin Dighton
Benjamin Dighton – The language of expert evidence and the law
Summary: Ben discussed the challenges of translating expert evidence to lay factfinders.
Lewis v The Queen (1987) 88 FLR 104
Briginshaw v Briginshaw (1938) 60 CLR 336
Clark v Ryan (1960) 103 CLR 486
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
FBI Laboratory Announces Discontinuation of Bullet Lead Examinations (2005)
David H Kaye, The Double Helix and the Law of Evidence (June 26, 2009) Penn State Legal Studies Research Paper No. 9-2010. [link]
Mehera San Roque
Mehera San Roque – ‘After Admissibility: Expertise and Imaginary Law’
Summary: Mehera, focusing on Uniform Evidence Law jurisdictions, found courts have not adequately kept unreliable expert evidence from impacting decisions. For example, expert codes of conduct are not always enforced, courts do not engage with leading reports demonstrating that proffered evidence is unreliable, and notionally expert evidence is sometimes admitted under obscure common law exceptions.
The Queen v Dickman [2017] HCA 24
Smith v The Queen (2001) 206 CLR 650
Evidence Act (No 25) 1995 (NSW) ss 76, 78, 79, 137
National Institute of Standards and Technology, ‘Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach’ (2012). [link]
Mehera San Roque & Kaye Ballantyne
Kaye Ballantyne – ‘To Err is Human’
Summary: Kaye discussed the validity of several fields of forensic science. The reality is that, for many of these fields, the method’s accuracy is completely unknown and examiners cannot say how likely it is that they made an error.
See the PCAST and National Academy of Sciences Reports above.
Kathryn McMillan QC
Kathryn McMillan QC - ' Beyond Common Knowledge: Reviewing the use of Social Science Evidence in Australian Courts'
Summary: Kathryn considered the (considerable) challenge of developing a rational and practical system for bringing social scientific knowledge into the courtroom.
JJB v The Queen [2006] NSWCCA 126
Longman v The Queen (1989) 168 CLR 79
Osland v The Queen [1998] HCA 75
Runjanjic v The Queen (1991) 56 SASR 114
Farrell v The Queen [1998] HCA 50
National Domestic and Family Violence Benchbook
Annie Cossins, ‘Time Out for Longman: Myths, Science and the Common Law’ (2010) 34:1 Melbourne University Law Review 69. [PDF]
Justice Peter Applegarth
Justice Peter Applegarth
Summary: Justice Applegarth reflected on the talks before him and discussed the challenges in introducing reliable social framework evidence into court.
Photo credits go to Nadine Davidson-Wall.
For the full photo album, go here.