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Admissibility of expert evidence under the Uniform Evidence Act. Justice Peter McClellan

Admissibility of Expert Testimony in Federal Courts It is no

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of expert evidence under the Uniform Evidence Act Introduction Justice Peter McClellan The Evidence Act ...

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Admissibility of expert evidence under the Uniform Evidence Act Justice Peter McClellan † Introduction

The Evidence Act 2008 (Vic) will bring into operation in Victoria the reforms to the law of evidence in both civil and criminal trials originally proposed by the Australian Law Reform Commission (ALRC) in 1987.

New South Wales and Tasmania as jurisdictions which have adopted the uniform law.

Although in some respects the Act codifies the common law rules of evidence there are some aspects where the provisions of the Act diverge,

Expert witnesses play a critical role in the resolution of many civil and criminal trials.

Their opinions are sought in relation to an increasing variety of issues.

The rapid expansion of knowledge in various areas has meant that new scientific disciplines have emerged on the fringes of recognised science,

creating difficulties in the reception of expert evidence and its ultimate utility in resolving a dispute.

At the same time there has been an increasing concern as to whether courts are receiving evidence from the “best experts” or rather whether the evidence is coming from the best “expert witnesses.” I have written extensively about these issues.

Some of the concerns which have been expressed are:

The perceived lack of objectivity amongst expert witnesses retained by a party to a dispute – often referred to as “guns for hire”

The danger in expert witnesses exerting too great an influence over the fact finding process rather than that role remaining with the tribunal of fact

The greater cost burden on litigants as a result of the use of expert witnesses in an increasing variety of fields

A tendency to call multiple experts with the same expertise.

Chief Judge at Common Law,

Supreme Court of New South Wales.

I acknowledge the assistance of Mr Mathew Shelley,

Common Law Division Researcher in the preparation of this paper.

Evidence,

ALRC 38 Vol.1 (1987).

Access to Justice: Final Report,

Chapter 13 p.137.

Judicial College of Victoria Emerging Issues in Expert Evidence Workshop Melbourne,

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“Truth” is the 21st century imperative of the justice system.

confidence in the legal system is undermined and (whether actual or perceived) confidence in the courts as the natural body to resolve disputes may be lost.

I have been asked by the organisers of this seminar to address issues relating to admissibility of expert evidence under the uniform Evidence Act.

That discussion commences with consideration of the structure of the relevant provisions.

The legislative scheme

The threshold enquiry when considering the admissibility of expert opinion evidence,

Sections 55 – 56 provide:

Relevant evidence

could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

evidence is not taken to be irrelevant only because it relates only to – (a) the credibility of a witness

or (b) the admissibility of other evidence

or (c) a failure to adduce evidence.

Relevant evidence to be admissible

evidence that is relevant in a proceeding is admissible in the proceeding.

Section 76 provides the general rule that operates to exclude evidence of an opinion and reflects the general common law approach: 3

See further,

McClellan (2008) “The Australian Justice System in 2020”,

presented to the National Judicial College of Australia,

available online: http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwFiles/mcclellan251008.pdf/$file/ mcclellan251008.pdf.

Judicial College of Victoria Emerging Issues in Expert Evidence Workshop Melbourne,

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The opinion rule

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Section 79 provides an exception to s'76 and is relevantly in the following terms:

Exception – opinions based on specialised knowledge

the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

The general discretionary exclusions that apply to all otherwise admissible evidence must also be considered when determining the admissibility of an expert opinion.

Sections 135 – 137 provide:

General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might – (a) be unfairly prejudicial to a party

or (b) be misleading or confusing

or (c) cause or result in undue waste of time.

General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might— (a) be unfairly prejudicial to a party

or (b) be misleading or confusing.

Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding,

the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

It is convenient “shorthand” to describe s'79 as an exception allowing the reception of “expert opinion evidence.” However the uniform legislation has effectively removed the Judicial College of Victoria Emerging Issues in Expert Evidence Workshop Melbourne,

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traditional consideration of “expertise” from that particular discourse.

Whether a witness is an “expert” in terms,

and determining the source of their “expertise”,

is no longer part of the judicial enquiry.

Instead s'79 raises three discrete questions to be resolved when considering the admissibility of opinion evidence

does the witness have specialised knowledge,

is that knowledge based on the person’s training,

study or experience and is the opinion of the witness wholly or substantially based on that knowledge.

Section 79 requires a nexus first between the knowledge of the expert (“specialised knowledge”) and their training,

study or experience and then between the expert’s opinion and that knowledge.

Gleeson CJ considered the relationship between the opinion and the knowledge on which it is based in HG v Queen.

Gleeson CJ said at [39]:

“An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based,

and the opinion in question … [T]he provisions of s'79 will often have the practical effect of emphasising the need for attention to requirements of form.

By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training,

the section requires that the opinion is presented in a form which makes it possible to answer that question.” It hardly needs to be said that the burden of proving that the opinion is based on specialised knowledge,

which is grounded in training,

rests upon the party seeking to adduce that evidence.

Failure to do so will result in rejection of the evidence.

“Field of expertise” v “Specialised knowledge”

The traditional “field of expertise” test applied by the common law has the consequence that a purported expert cannot give evidence in relation to areas of knowledge that do not form part of a “formal sphere of knowledge.” 6 The precise formulation of that requirement in

NMFM Property Pty Ltd v Citibank Ltd (No 7) [1999] FCA 252.

Practice,

Procedure and Advocacy (4th Edition) Lawbook Co: Sydney,

Judicial College of Victoria Emerging Issues in Expert Evidence Workshop Melbourne,

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Australia has not been resolved although many attempts have been made.

There is a line of authority which suggests that the evidence must derive from a body of knowledge or experience that is accepted as being reliable.

Dixon CJ,

citing with approval the notes of J.W.

Smith to Carter v Boehm,

"On the one hand it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance,

when it so far partakes of the nature of a science as to require a course of previous habit,

in order to the attainment of a knowledge of it ...

While on the other hand,

it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it." Three key points can be derived from Clark v Ryan.

First,

that the test for admissibility at common law is a functional one: expert evidence is only admissible if it can assist the trier of fact in reaching its decision.

Second,

that the assistance that is offered by the expert must be by virtue of the knowledge and experience that the expert possesses but the tribunal of fact does not.

Third,

it is not sufficient that the expert opinion is merely relevant

it must assist the tribunal of fact in such a way as to enable it to draw more accurately the inferences that are necessary to determine the case.

The judgement of King CJ in Bonython v R 11 is often cited both in Australia and the UK when considering the “field of expertise” test.

His Honour said: 12

“Before admitting the opinion of a witness into evidence as expert testimony,

the judge must consider and decide two questions.

The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible.

This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of 7

7th ed.

(1876) p.

Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111

Weal v Bottom (1966) 40 ALJR 436 and Murphy v R (1989) 167 CLR 94 at 131.

LexisNexis Butterworths at 7.44.

Judicial College of Victoria Emerging Issues in Expert Evidence Workshop Melbourne,

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knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area,

and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience,

a special acquaintance with which by the witness would render his opinion of assistance to the court.

The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.

(emphasis added) Both Clark and Bonython confirm that the “field of expertise” requirement is concerned with the need for the opinion to derive from a “body of knowledge” which is both “organised” and “accepted.” The purpose of the test is to ensure the trustworthiness and reliability of the science or technique that is to be relied upon.

There is a line of common law authority in New South Wales 13 which imposes a threshold requirement of evidentiary reliability before a field of knowledge upon which an opinion is based can be left to a jury.

A similar approach has been taken in other states of Australia.

This threshold question of evidentiary reliability at common law has often been determined by reference to the approach advocated by the United States Supreme Court in Frye v United States.

“Just when a principle crosses the line between the experimental and the demonstrable stages is difficult to define.

Somewhere in this twilight zone,

the evidential force of the principle must be recognised,

and while the courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery,

the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” 16 (emphasis added) 13

R v Gilmore [1977] 2 NSWLR 935 where it was held that a comparison between the voice of the accused and a voice on a tape recording was not admissible because spectrographic voice analysis was not a field of knowledge sufficiently reliable to be the basis of expert opinion.

McKay v Page and Sobloski (1972) 2 SASR 117

Eagles v Orth [1976] Qd R 313 and Lewis v R (1987) 88 FLR 104.

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The Frye test,

or a variant of that approach,

which considers whether there is “general acceptance” of a particular discipline for determining the question of reliability as part of the field of expertise rule has come to form part of the common law in Australia.

there is no single approach to the question of whether there is a demonstrable “field of expertise”.

Stephen Odgers notes that there are authorities which adopt a test of general acceptance within the scientific discipline,

the application of tests drawing on Frye which assess general acceptance as a means of assessing the evidentiary reliability of a purported expert opinion represent a more stringent view toward the reception of expert evidence than the liberal approach taken in early cases such as Weal v Bottom 21 and Transport Publishing Co Pty Ltd v Literature Board of Review.

Frye is not without its detractors.

The major criticism of the decision is that the general acceptance requirement fails to accommodate novel and controversial areas of science,

which now come commonly to the attention of courts.

The other major concern with Frye is that,

through the concept of general acceptance,

the question of whether a particular field of learning is sufficiently reliable is one that is vested in the various scientific professions,

These concerns were addressed in the United States by the introduction of the Federal Rules of Evidence and the subsequent decision in Daubert,

which is considered further below.

Clark v Ryan (supra)

R v Gallagher [2001] NSWSC 462

Idoport v National Australia Bank [1999] NSWSC 828 at [239]

R v Harris (No 3) [1990] VR 310 at 318

Carroll v The Queen (1985) 19 A Crim R 410 and R v Runjanjic (1991) 53 A Crim R 362.

Carroll v R (1985) 19 A Crim R 410

R v Runjanjic (1991) 56 SASR 114

R v Lucas [1992] 2 VR 109

R v Jamieson (1992) 60 A Crim R 68 and R v C (1993) 60 SASR 47.

Shoshana Pty Ltd v 10th Cantanae Pty Ltd (1987) 18 FCR 285

Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158.

R v Lewis (1987) 29 A Crim R 267

R v Bonython (1984) 38 SASR 45,

applied by Gaudron and Gummow JJ in Osland v The Queen (1998) 197 CLR 316.

Judicial College of Victoria Emerging Issues in Expert Evidence Workshop Melbourne,

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Freckleton and Selby 23 observe of the common law position that in “formulating the criteria to determine the substance of the area of expertise test,

judges will utilise Frye language and focus upon the degree of dissension about any new technique within the scientific community.

At the same time it may well be that the inquiry is in terms of the scientific community’s views as to the technique’s reliability.”

“Specialised knowledge” Under the Act the “field of expertise” requirement no longer exists in those terms.

The uniform Evidence Act does not incorporate an “area [field] of expertise” rule.

although he did not reach a conclusion on this point.27 In this regard his Honour noted the role of the general discretions to exclude evidence because of its potential prejudice (ss 135 – 137) which,

depending on the nature of the proceedings,

allows or requires a judge to exclude evidence if its prejudicial effect outweighs its probative value and provides an effective mechanism for excluding expert opinion that is lacking in veracity or is fundamentally unreliable.

Einstein J cited the interim report of the ALRC,

There is a separate question as to whether it must be separately proved that the person purporting to have specialised knowledge about a particular field does in fact 30 possess that

Freckleton and Selby,

R v Tang [2006] NSWCCA 167

Supreme Court of NSW,

Einstein J,

delivered approximately three months after Idoport,

where his Honour observed that “it is appropriate then that a trial judge examine evidentiary reliability under s'79…” 28 Australian Law Reform Commission,

Evidence,

ALRC 26 (Interim) Vol.1 (AGPS,

Canberra,

1985).

Judicial College of Victoria Emerging Issues in Expert Evidence Workshop Melbourne,

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study and experience” section of this paper.

There must be an aspect of the field in which the witness is expert,

which the witness must identify.

and how it has made the witness an expert in some aspect of the field of their “specialised knowledge.” Mason P in R v G 33 stated that the witness must identify their expertise “with precision.”

The “specialised knowledge” requirement in s'79 presents a more liberal threshold than that provided by the “field of expertise test” at common law.

the ALRC report that produced the uniform evidence legislation expressly recommended against an exclusionary rule based either on the Frye criteria of general acceptance,

or on the basis of reliability.

Quite what constitutes such a field remains a matter for speculation.

There are major difficulties in implementing such a test.

In the United States,

the test known as the Frye test was adopted in many States.

More recently,

it has been assailed from many quarters as being ‘arbitrary’ and ‘impossible to implement’ because of the difficulties of defining the actual ‘field’ in each instance and then of determining the existence of accepted theories and techniques.

It also can exclude evidence which the courts should have before them.

It is proposed,

not to introduce the ‘field of expertise’ test.

There will be available the general discretion to exclude evidence when it might be more prejudicial than probative,

or tend to mislead or confuse the tribunal of fact.

This could be used to exclude evidence that has not sufficiently emerged from the experimental to the demonstrable.”

Henschke & Co v Rosemount Estates Pty Ltd [1999] FCA 1561 at [69] per Finn J

Australian Cement Holdings Pty Ltd v Adelaide Brighton Ltd [2001] NSWSC 645 at [7] per Barrett J.

requiring that the witness “has specialised knowledge”.

As to the common law position,

see Murphy v R (1989) 167 CLR 94 at 111.

Cross on Evidence,

LexisNexis,

the recommendations of the report preceded the decision in Daubert,

See also Eintstein J in Idoport at [244] – [246].

Judicial College of Victoria Emerging Issues in Expert Evidence Workshop Melbourne,

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In place of the field of expertise test,

the test is whether the purported expert has “specialised knowledge.” The term is not defined by the Act.

Two questions are raised

as opposed to an understanding or belief

the knowledge must be specialised,

rather than being of a level existing generally in the community.

Under the Act an expert witness is not required to identify the particular field from which they draw their knowledge and demonstrate that that field is reliable by reference to considerations of peer review,

Instead the witness must prove that they possess some particular knowledge (as defined below),

namely that it derives from an area beyond the experience of laypersons.

It was expressly held by Einstein J in Lakatoi that s'79 constitutes “a direct rejection of the American Frye test.” That is to say “general acceptance” of the knowledge under consideration no longer forms a prerequisite for finding that an expert possesses “specialised knowledge” in terms.

The requirement that a person providing an opinion have “specialised knowledge” does retain some aspects of the common law.

The opinion will only be admissible to the extent that the information it provides is of assistance to the tribunal of fact,

provides information that is outside the tribunal’s own knowledge and experience.

The fundamental rationale for such an exception to the general exclusion of opinion evidence remains to assist the trier of fact in making a more informed and reliable decision.

As a consequence,

views have been expressed that “specialised knowledge” should engage some consideration of evidentiary reliability.

This is reflected in some of the early decisions in relation to s'79.

In HG v The Queen,

Gaudron J observed:

“So far as this case is concerned,

the first question that arises with respect to the exception in s'79 of the Evidence Act is whether psychology or some relevant field of psychological study amounts to "specialised knowledge".

The position at common law is that,

expert or opinion evidence is admissible with respect to matters about which ordinary persons are unable "to form a sound judgment ...

without the assistance of [those] possessing special knowledge or experience ...

which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience".

There is no reason to think that the expression "specialised knowledge" gives rise to a test which is in any respect narrower or more restrictive than the position at common law.” (emphasis added) Judicial College of Victoria Emerging Issues in Expert Evidence Workshop Melbourne,

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Her Honour reiterated this view in Velevski v The Queen: 37

“The concept of "specialised knowledge" imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which "is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience." 38 Gaudron J cited a number of common law decisions that apply the “field of expertise” test,

including the formulation applied by King CJ in R v Bonython.

It is arguable that her Honour’s characterisation of s'79 in Velevski 40 and previously in HG v The Queen 41 imports a requirement that expert testimony reach a standard of evidentiary reliability before it will be admissible.

Her Honour was in dissent as to the outcome in both of those cases.

it will be with the benefit of over a decade of the Act’s operation at both a Federal and (at least in NSW) State level.

Heerey J considered the requirement of “specialised knowledge” in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd 43 and offered an arguably more permissive view toward the specialised knowledge requirement at [11]: “…the Turner [1975] QB 834 rule,

adopted in Murphy (1989) 167 CLR 94,

Even if a proffered opinion is that of a person suitably qualified within an organised area of knowledge,

In both HG and Velevski,

Gaudron J cited a series of cases that derive from the common law common knowledge rule: R v Bonython (1984) 38 SASR 45 at 46-47 per King CJ,

cited with approval in HG v The Queen (1999) 197 CLR 414 at [58] per Gaudron J,

and adopted in R v Makoare [2001] 1 NZLR 318 at 324 [23] per Blanchard J.

See also Osland v The Queen [1998] HCA 75

(1998) 197 CLR 316 at [53] per Gaudron and Gummow JJ.

Gummow J agreed with her Honour on that particular expert evidence issue.

Judicial College of Victoria Emerging Issues in Expert Evidence Workshop Melbourne,

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area is not outside the experience of ordinary persons,

the opinion will not be admissible.

The elements which make information “specialised knowledge” have not been finally settled.

However,

subject to the issue of reliability considered below,

the authorities indicate that the concept should not be narrowly applied.

such that it is beyond the scope of ordinary laypersons,

then the test will likely be satisfied.

“Knowledge” Spigelman CJ held in R v Tang 45 that the meaning of “knowledge” for the purpose of s'79 is the same as that attributed by the United States Supreme Court in Daubert v Merrell Dow Pharmaceuticals 46 at 590:

“[T]he word knowledge connotes more than subjective belief or unsupported speculation.

The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on ‘good grounds’...

Proposed testimony must be supported by appropriate validation- i.e.,

“good grounds,” based on what is known.” 47 In Tang the Crown sought to adduce evidence of an expert in the field of “face and body mapping” for the purpose of positively identifying an accused person from recorded footage.

Spigelman CJ held 48 in that case that a purported expert in the discipline of face and body

Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [629] per Giles JA (with whom Mason P and Beazley JA agreed): “But [“specialised knowledge”] is not restrictive

its scope is informed by the available bases of training,