Sold a lemon: using a partisan expert may cost you more than just their fees

In this article, Bridgette Neill-White, Manager from our Brisbane office discusses a case which highlights the importance of an expert witnesses to act independently and objectively, and how failing to due so cost them their credibility.

7 November 2018

Fulmer v Thompson [2017] QSC 119

Introduction

Expert witnesses have an obligation to act independently and objectively. This case provides an example of an expert witness who actively strategised with the defendants’ solicitor to shape the defence of the case, which ultimately cost him his credibility.

There were also problems with the reliability and basis of the evidence provided by the expert, including that the accounting documents relied upon by the expert had not been separately accepted as evidence.

Background

The plaintiff, Peter Fulmer, an experienced car salesman, commenced working for Australian Motors, a used vehicle sales business, in 2003. Australian Motors was owned by the third defendant, Caysand No 24 Pty Ltd (‘Caysand 24’).

Mr Fulmer entered into an oral agreement in 2005 whereby he acquired an interest in Australian Motors for $550,000. It was agreed he would pay $150,000 in cash, and his interest would then crystallise once a profit target (the ‘target sum’) had been reached to cover the remaining $400,000. Mr Fulmer entered into a Heads of Agreement on 16 June 2008 to execute the agreement.

At a meeting on 20 January 2010, the owners of the business admitted the target sum had been met. They thereafter failed to honour their end of the bargain and issue him shares in Caysand 24. The defendants argued at trial that the target sum had not been met, contrary to their admission in 2010.

The expert evidence

Lack of independence and objectivity
Mr H, an accountant, was responsible for the provision of accounting services to Caysand 24 on an ongoing basis. Mr H was appointed as the expert accounting witness for Caysand 24 for the purposes of these proceedings. Mr Fulmer appointed Mr C as an expert accounting witness.

Justice Henry acknowledged that there “may be benefits and disadvantages in enlisting a professional person with pre-existing involvement as a witness to relevant matters in a case to testify as an expert witness in the case about more broad ranging matters.” He then noted that “the most obvious disadvantage is the risk that a pre-existing professional allegiance to a party may compromise the degree of independence and objectivity with which the expert approaches the task, resulting in evidence so tainted by partisanship as to lack credibility and reliability.”

It emerged at trial that Mr H had actively strategised with the defendants’ solicitor, including on how to shape financial calculations to avoid liability. He also sought feedback about what approach to take to give the opinion desired by the defendants. An email from Mr H to the defendants’ solicitor set out retrospective adjustments which reduced the reported profit of Caysand 24.

Justice Henry stated, “the defendants’ use of an expert they knew would give them the ‘evidence’ they wanted presumably had the secondary benefit of saving money but it came at a different price for their case – a lack of credibility.”

His Honour went on to say that “I stress there is no impropriety in the solicitors of a business liaising with the accountants of the business to ascertain whether there are reasonable prospects of defending a potential or actual claim … Indeed, such a process may be well essential to informing a solicitor what instructions ought to be given to an expert accountant.”

However, where an expert has been actively involved in shaping the case, Justice Henry adds they “will not have the starting advantage of credible objectivity ordinarily associated with professionals.”

As Mr H was the accountant of the defendant when it admitted the target sum had been met on 20 January 2010, Mr H did not have the starting advantage of credibility.

Proof and reliability of information relied upon by Mr H
Justice Henry found there were several issues with the quality of the expert report prepared by Mr H, including that:

• There was no narrative style discussion or analysis of the process undertaken.
• The supporting source material was not clearly identified.
• The report referred to various information and calculations provided by individuals who did not give evidence.
• There was no evidence from Caysand 24 as to whether such information and calculations were the original source and whether the information was maintained in the normal course of business by Caysand 24.

Moreover, the financial statements appended to Mr H’s report included compilation reports indicating the directors of Caysand 24 were responsible for the information. The compilation report indicated there had been no verification or validation procedures carried out by their accountant and that the financial statements should not be relied upon without audit or review. Justice Henry concluded that
“[Mr H’s] report appeared to be founded on a mirage of hearsay figures unaccompanied by any meaningful attempt to identify and provide the relevant source documents of Caysand 24.”

A significant issue regarding the credibility of the information relied upon by Mr H was that no one from Caysand 24 was called as a witness to prove the source documents, not even the financial controller who was responsible for monitoring financial information relevant to the Heads of Agreement.

Justice Henry stated “there might be cases where the source of data annexed to expert reports has not itself been proved or admitted but which may nonetheless be inferred to be admitted from the conduct of the case. Such an inference might, for example, arise from an apparently common ground treatment of documents in evidence on one basis as also admissible pursuant to s 92 Evidence Act 1977 (QLD).”
His Honour went on to say, “In any event the mere successful tender without objection of an expert report containing annexed documents cannot of itself possibly sustain the inference that the source of the data in those documents is thereby proved or admitted.” Accordingly, Justice Henry formed the view that the annexures did not become evidence of the truth merely by their presence in an expert report and only served as evidence of the information the expert assumed to be fact.

In a joint expert report, the expert accounting witnesses agreed on the accuracy of the calculations, but not on the source data used in calculations, as Mr C had reservations about the reliability and correct selection of source data.

Justice Henry concluded that the financial statements and calculations prepared by the defendants of Caysand 24 were unreliable and gave them no weight as evidence. Justice Henry added, “the information they contain involved significant adjustments, explained by a partisan accountant, without proper proof of the source material from Caysand 24, in a case where it was long ago admitted by Caysand 24, when being aided by the same accountant, that the target sum was met.”

Justice Henry dismissed the counterclaim and concluded that the target sum had been met by 20 January 2010 as Mr Fulmer claimed.

Significance

This case provides an interesting example of an expert witness who was actively involved in shaping the defence of the case. The paramount duty of an expert witness is to the court and they must not be an advocate for a party, as required by the Uniform Civil Procedures Rules 1999 – Reg 428 Requirements for report, paragraph 3(e). This is also a requirement of APES 215 Forensic Accounting Services, a professional standard that applies to all Chartered Accountants giving evidence.

It is also apparent from Justice Henry’s judgment in this case that the source of information in documents annexed to an expert report should be capable of being proved during proceedings, and that annexures are not representations of the truth of the information they contain merely because of their presence in an expert’s report.

This case review is an extract from Expert Evidence: Recent Cases Edition 2.

About KordaMentha Forensic

At KordaMentha Forensic, we uncover, analyse and clarify facts at the centre of disputes, investigations and other sensitive matters. We have one of the largest teams of forensic investigators, forensic accountants and forensic technology specialists in Asia-Pacific. Our experts are regularly called on to provide evidence in high-profile disputes and investigations.

Author:

Bridgette Neill-White from KordaMentha Forensic
https://www.kordamentha.com/forensic

Errors and Forensic Science

Errors in forensic science are not new. We can all cite miscarriages of justice in which forensic science has been involved to a greater or lesser extent. Error rates, validity and reliability are subject to much current discussion. But is forensic science particularly error prone? How does it stack up with other fields of endeavor? What do we actually mean when we speak of ‘error’? And what can be done to minimize error?

The word ‘error’ has a number of meanings which can be broadly classified as:

• • Measurement error. This term is better described as measurement variation as error implies a mistake and this form of error is not a mistake. Measurement error is the difference between a measured quantity and its true value. Every time a measurement is repeated there will be a measurable variation in the result generated. The size of these variations depend in part in the sensitivity and precision of the form of measurement involved. The degree of variation for a measurement can be determined during validation studies and acceptable values determined for each form of measurement.
  • Inadvertent errors, which are mistakes, in that they are due to a deviation from the expected. These errors can be sporadic one-off events or systematic (for example errors caused by a mis-calibrated instrument that affects all measurements or from an operator misunderstanding an instruction and routinely performing the operation incorrectly).
  • Type one error or false positive. For example, concluding that a substance is present when it is not present.
  • Type two error or false negative. For example, concluding that a substance is not present when it is present.
  • Deliberate errors or dishonestly.

Note: an observed result may involve one or more of these errors – they are not mutually exclusive.

The descriptions above are not restricted to forensic science, they are common to all fields of human endeavor. For example:

• • • a 2016 report of the Victorian Auditor-General’s Office discusses concerns regarding ‘Patient Safety in Victorian Public Hospitals’;
    • the 2015/16 Annual Report of the Victorian Director of Public Prosecutions discusses their involvement in appeals lodged with respect to both sentence and conviction. The outcomes of the appellate process included finding where the original decision was overturned or amended.

So, if error to common to all fields of human endeavor, what can be done about it?  These are my suggestions:

• • • understand and recognize the difference between a measurement error and a mistake;
    • understand and recognize that mistakes occur in all fields of human endeavor;
    • understand and recognize that mistakes cannot be totally eliminated in any system;
    • understand and recognize how mistakes can be minimized and implement appropriate systems;
    • understand and recognize how to detect error and how to mitigate or rectify the consequences; and
    • use error detection as a tool for further improvement of the system.

Many of you will have recognized many aspect of quality management in the above list. This is not a coincidence!

If you are interested in further information about Error Management and Forensic Science, the National Institute of Standards and Technology (NIST) has conducted a number of International Symposia on Forensic Science Error Management. Details of the 2017 Symposium including all the presentations can be accessed here.

Remember: To err is human; to forgive, divine. Alexander Pope (1688 – 1744).

Forensic Foundations’ Quality System

Forensic Foundations has established a robust quality management program to ensure that we consistently deliver flexible fit-for-purpose forensic programs to our clients aligned to our Quality Policy.

Forensic Foundations’ Quality Policy

The Management and Staff of Forensic Foundations are committed to and focused on supporting the justice system as a whole and the individuals involved within the system, through the provision of flexible and fit-for-purpose forensic training, quality management, proficiency testing (complying with ISO 17043) and consultancy services.

The Management and Staff are committed to satisfying all applicable requirements and to continually improving the Risk Management and Quality Management Systems.

Driving and the Expert Witness – Skilled and Dangerous Tasks

Do you remember when you were learning to drive?  Or teaching someone else to drive?  I remember bunny-hopping around a deserted car park, much to the frustration of my father, who was trying to teach me to change gears by double declutching!  Thankfully I soon learnt that unless I was driving a two-ton truck (which was what my father learnt on) I didn’t need to double declutch.

Once we have learnt to drive and become practiced, we forget about the mechanics of driving, they become automatic. But of course you never stop having to watch out for everyone else on the road and the need to react and respond. Then, just as I thought it was safe to go out on the road, I found myself teaching my son to drive.  This I think was even harder than learning to drive myself, trying to think about all the things we are doing automatically, like observing and thinking.

Explaining this in a patient and cohesive manner is not easy.  But he now has his licence so I can relax again. Giving evidence in court is very similar to driving. When we are training and going to court to give evidence, initially there is just so much to think about.  Obviously there is the subject matter on which our evidence is based, and that is usually enough to keep our minds fully occupied, but on top of that there are the mechanics of giving evidence. What are my obligations?  Which court?  What do I need to take?  Who’s who?  Where do I stand/sit?  Oath or affirmation?  Where do I look?  Who do I give my answers to?  What if I don’t understand a question?  What if I need a break?  What if I need to refer to my notes?  What if I need time to think about a suggestion put to me?  What if I make a mistake?  The list goes on and on.

There is just so much to think about and it can become overwhelming. But just like driving, through training and practice much of the mechanics of giving evidence become automatic, even comfortable.  You can react and respond appropriately whilst never losing concentration and being fully aware of what is happening around you. Just as you should not be expected to simply ‘drive’ (in fact the state mandates how much practice you should have and how you should be tested before you are given a licence to drive unaccompanied), you should not be expected to just go to court and give evidence.

Giving evidence, especially expert evidence, is a skilled task.  It is no more straightforward than getting in a car and driving, and is equally as dangerous. I am passionate about providing witnesses with the knowledge and skills to become effective witnesses. Please feel free to contact us if you wish to discuss your training needs or those of members of your organisation.

Ten Tips When Testifying

This is an abbreviated version of a presentation made at a SANS Training Event in May 2015. Many professionals are apprehensive when they are required to conduct an examination or analysis for a legal purpose, to write a legal report or, most concerning of all, to appear in court as a witness. The legal system is foreign territory to most and the structures, procedures and protocols involve some navigation. In simplistic terms (and with my tongue firmly in my cheek) you may find the following tips useful:

1. Preparation.
2. Preparation.
3. Preparation.
4. Preparation.
5. Preparation.
6. Preparation.
7. Preparation.
8. Preparation.
9. Preparation.
10. Preparation.

The reason for this apparent flippancy is that the actual work conducted at any stage must be firmly grounded in an understanding of what is required and what can or cannot be undertaken. As Benjamin Franklin stated ‘By failing to prepare, you are preparing to fail.” So on a more serious note, here are the real ten tips.

Tip # 1 – Your role You need to understand your role in the process. You will be engaged by one party to the legal action but you are not an expert or advocate for that party. Your overriding duty is to assist the Court impartially. Details of your obligations can be found in the Court Rules and Practice Directions relevant to the jurisdiction you are working in. These can all be found at our links page.

Tip # 2 – Working with the court in mind Evidence must be admissible to be considered during the trial process. Thus, you need to understand the admissibility criteria for your type of evidence. There is nothing more frustrating than conducting examinations/analyses/reviews if it is then found to be inadmissible. Equally, you must understand the levels of proof required. In a criminal trial, the fact finder (jury, judge sitting alone or magistrate) must find the facts proven ‘beyond reasonable doubt’. In a civil matter, the level of proof required is ‘on the balance of probabilities’.

Tip # 3 – Record keeping – your lifeline There may be a significant time lag between you conducting the work and the trial. You may not be able to remember the details, your notes may contain complex calculations and/or the reasons for your decision making. Thus, your notes or records need to be:

• Contemporaneous;
• Comprehensive;
• Accurate;
• Traceable; and
• Permanent.

Tip # 4 – Your report – your second lifeline Firstly, what should you be writing? A Statement, a Report, an Affidavit or an Expert’s Certificate? Regardless of the form of the document it needs to be:

• Comprehensive;
• Clear
  • Use headings and paragraph numbers;
• Logical
  • This can be chronological, item or examination based;
  • Consistent with the requirements found in Court Rules and Practice Directions relevant to the jurisdiction, which were mentioned previously.

Tip # 5 – Pre-trial conferences The importance of pre-trial conferences between the advocates (for both sides!) and the witness cannot be overstated. And remember that as a witness you do not need to wait for the lawyer who is calling you to organise the conference, you can request one. The conference can be used to assist the lawyer understand the topic, the witness understand how the evidence will be presented in court, what visual aids may be of use, discuss any weaknesses or concerns, etc etc etc.

Tip # 6 – What, where and when In what form of legal proceeding will you be giving evidence:

• Criminal / Civil / Coronial?
• Committal / Trial?

Where will you be giving evidence:

• In which court building?
• In which court room?

When will you be required?

• How much notice will the court give you before your appearance?
• How long will it take for you to get there?

Tip # 7 – Preparation As if all the previous tips were not about preparation! You now know when and where you will be giving evidence so allow time to think about the evidence you will be giving.

• To what professional codes of conduct / professional practices /ethics are you bound or do you subscribe – how do these relate to the presentation of evidence?

• Critically examine your report, read it as if you had been asked to critique it.
• Refresh your memory. What did you do? Why did you do it? How did you do it?
• How are you going to explain what you did and why without losing your audience in technical terminology – and don’t think you don’t use technical terminology – every profession does.

Tip # 8 – In the courtroom If possible, visit the courtroom (or a courtroom) before you give evidence and become familiar with the layout. Identify who is who – there are a number of very good references on the web (usually the court sites) which can help you with this information.

Tip # 9 – Nonverbal communication According to trusty Wikipedia, it takes just one-tenth of a second for someone to judge and make their first impression. So think about your nonverbal communication as well as your spoken and written communication. Consider your posture, your clothing and your gestures, and remember to make eye contact. With respect to your oral evidence – consider your tone, the speed with which you speak (we all speed up when we are nervous) and the clarity with which you communicate.

Tip # 10 – In the witness box Well you have made it to the witness box. And without tripping up! Are you going to take the Oath or an affirmation? If you need to refer to your notes, don’t forget to ask for permission. If you don’t understand a question, ask for it to be repeated. Don’t be fazed by the cross-examination process – the court has an obligation to test your evidence (wouldn’t you want it tested if you were the accused?). If you have conducted your work appropriately and you are sufficiently prepared, then you should have no problem with the questions. Answer openly and honestly – you are there to assist the court. I would normally say ‘good luck’ at this stage but it has nothing to do with luck – it has to do with knowing your stuff and good preparation. If you need assistance with the preparation, don’t forget Forensic Foundations is here to assist you.

Forensic Sciences or Forensic Science

Confession time I am a late convert to the idea that Forensic Science is a discipline in its own right. There have been a number of practitioners and academics promoting this view for a number of years and I have included a number of references to their work at the end of this article. However, I was not convinced and for many years I have argued that ‘forensic’ is an adjective – meaning ‘pertaining to or used in courts of law, fit for legal argument’. So for example the Australian and New Zealand Forensic Science Society should be the Australian and New Zealand Forensic Sciences’ Society, reflecting the numerous sciences which can be applied to legal argument.

However, last year at the Symposium in Adelaide, having listened to many stimulating plenaries and talks, having had numerous discussions, I have done an about face. And I think the current ‘context effects in forensic science’ arguments can be used here. How we view ‘forensic’ depends on our starting position. In this image you can either see an old hag or a beautiful young woman. Forensic science can be described in two ways depending on your viewpoint. It can be validly described at the application of a specific discipline to answer a question, with the focus on the specific traditional discipline i.e. biology, chemistry etc.

However this becomes problematic when we come to some of the traditional police disciplines such as crime scene examination, fingerprint examination, document examination, firearm examination. Each of these latter fields involves the application of a number of ‘sciences’ and application of the scientific principles but are they ‘sciences’ in their own right? Or we can define forensic science, not in the knowledge and techniques, but by the philosophy underpinning it – i.e. with the focus on the question. What all forensic science has in common is the application of knowledge and techniques to answer a question – most commonly who, what, why, how, when, where – and we require all the traditional sciences, in combination, to answer these questions. Our problem is that we now have so much knowledge that we have had to silo it and we use these silos for our identity.

To use a cooking analogy: forensic science is not a meal of meat and three veg, but a casserole. Just of out curiosity I googled ‘archaeology’. The Wikipedia definition (so it must be correct!) for archaeology as ´… the study of human activity in the past, primarily through the recovery and analysis of the material culture and environmental data that has been left behind by past human populations.’ Archaeology is not defined by biology (including botany), chemistry (including geology) etc.

Forensic science could equally be defined as ´… the study of human activity in the past, primarily through the recovery and analysis of physical data that has been left behind by this human activity.’

Further reading: CRISPINO, F., RIBAUX, O., HOUCK, M. & MARGOT, P. 2011. Forensic Science – A true science? Australian Journal of Forensic Sciences, 43, 157-176. MARGOT, P. 2011. Forensic Science on trial – what is the law of the land? Australian Journal of Forensic Sciences, 43, 89 – 103. ROUX, C., CRISPINO, F. & RIBAUX, O. 2012. From Forensics to Forensic Science. Current Issues in Criminal Justice, 24, 10 – 24 RIBAUX, O., CRISPINO, F. & ROUX, C. 2014. Forensic Intelligence: deregulation or return to the roots of forensic science. Australian Journal of Forensic Sciences, 47, 61-71.

Reflections

This is an article from our December 2014 newsletter: Last week saw the last trip of the year, so I am leaving the skies to reindeer, sleighs and men in red suits. However, when I reflect on how easy it is to move around this country, I realise how fortunate I am to live in this century and not when it would have taken weeks, if not months, to ‘pop up to Sydney’. And I wouldn’t have been going up for the day! It is often said that Christmas is about children, and indeed the story of one child whose birth, the traditional ‘reason for the season’, changed the world.

But for many children (and indeed families), Christmas is not a time of joy. We can think about the individuals affected by the tragedies of the last week here in Australia and overseas, and realise that for them this will not be a particularly joyful Christmas. And forensic science is doing its part to alleviate some of this suffering. Many of you would know that Forensic Foundations is a strong supporter of DNA-Prokids. The mission of DNA-Prokids is “To identify the victims and return them to their families (reunification); to hamper traffic in human beings thanks to identification of victims, and to gather information on the origins, the routes and the means of this crime (police intelligence), key elements for the work of police forces and judicial systems.” For more information visit the DNA Prokids website orFacebook site.

Reflecting on the events of last week Our thoughts and prayers go out to those affected by the tragic events which occurred in Sydney and Brisbane last week, and also to those suffering from equally tragic but unpublicised events. And our thanks go to all the first responders and support personnel. Turning to all knowledgeable Wikipedia, we read: “In criminal law, Blackstone’s formulation (also known as Blackstone’s ratio or the Blackstone ratio) is the principle that: “It is better that ten guilty persons escape than that one innocent suffer”, …as expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s. Historically, the details of the ratio change, but the message that government and the courts must err on the side of innocence is constant.

In an ideal world, our justice system would always get it right. However, we are all aware of miscarriages of justice – cases where an innocent person is found guilty or a true offender escapes conviction. In science we call these false positives and false negatives (or Type I and Type II errors), and we recognise that we will never be able to eliminate them completely. What we do is implement a quality management system to a) minimise the chance of mistakes or errors occurring and b) detect them when they do occur, recognising that no system is infallible.

Once they are detected, mechanisms are in place to investigate and learn from this incident. Knee jerk reactions and ascribing blame do nothing to help the situation and often prevent effective remediation. The offender in the ‘Sydney Siege’ had been released on bail, but this does not mean that the whole bail system has failed. Yes, we must ask questions, but we must wait for the facts and judge these facts rationally.

Forensic Science and Expert Evidence in the Justice Systems

This is an article from our November 2014 newsletter: The National (USA) Commission on Forensic Science have released a number of draft ‘work products’ including: Draft Policy Recommendation on Universal Accreditation; and Draft Policy Recommendation on Expert Testimony. On the 14th October, The Right Hon. The Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales, presented the 2014 Criminal Bar Association Kalisher Lecture.

The Lord Chief Justice made a number of salient points, but one sentence leapt out at me: “With increasingly complex or novel science there comes a risk of testing the science, rather than the evidence, in front of the jury”. And 20 November, Dixon J handed down his judgement in the case of Linda Hadspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (No 8) [2014] VCS 567. This particular judgement related to the obligations and duties of both lawyers and expert witnesses to the court. Dixon J found the solicitor, the barrister, and the expert to have breached their obligations. And in his conclusion he stated that “…expert witnesses are encouraged to fearlessly accept that their fundamental role when giving evidence, and in preparation for doing so, is that described by their overarching obligations under the Act [Civil Procedure Act 2010 (Vic)] as complemented by the Expert Code of Conduct.

Expert witnesses should discharge their duties to the court in that fashion, cognisant of the right and obligation and thus the protection afforded to them by s 12 of the Act.” Three different jurisdictions and three different fora but all singing off the same song sheet: the increasing importance of forensic science and expert evidence in the (civil and criminal) justice system; the need for the evidence to be reliable; the need for the evidence to be used correctly; and last but by no means least, that funding needs to be adequate for the task.

DNA Discoveries

This is an article from our September 2014 newsletter: This month, 30 years ago (1984), Alec Jeffreys (now Sir Alec Jeffreys) identified differences in the DNA between members of his technician’s family. This unplanned-for discovery changed the forensic science and criminal law worlds. The first use of ‘DNA fingerprinting’, as it was known then, was in immigration cases. The first use in a criminal matter was the exclusion of the main suspect in a double rape/murder investigation and the subsequent identification of Colin Pitchfork as the offender. I was fortunate enough to be involved in the early days of DNA profiling in Victoria; Victoria Police offering DNA profiling as a routine examination from  1 July 1989. It was an incredibly exciting time – those were the days – bloodstains needed to be the size of a 20 cent coin, and the test took 6 weeks to conduct. This discovery clearly demonstrates two important issues:

1. That many important scientific discoveries occur by chance – when the scientist involved is looking for something else. Sir Alec Jeffrey was not looking for a method to distinguish between individuals, but he found one. Alexander Fleming was not looking for Penicillium notatum when he found it. This discovery has saved the lives of millions. The point – funding only applied & targeted to scientific research is very short sighted.
2. The power of DNA profiling is in the exclusion – not inclusion – of suspected persons. These exclusions are not as visible as the inclusions; thus, this power of DNA profiling is hidden from view. But over the last 25 years, how many hundreds of persons of interest have been excluded???

The Good, the Bad and the Ugly of Forensic Science

This is an article from our August 2014 newsletter:

August has been a great month for the good, the bad, and the ugly of Forensic Science and pseudo science in the media.

Firstly, the High Court handed down two judgments (both on the same day).

*  Honeysett v The Queen [2014} HCA 29 deals with when an expert is not an expert – what constitutes expert or opinion evidence.

*  Fitzgerald v The Queen [2014] HCA 28 discusses the question of how DNA may have been deposited. The judgement bears strong similarities to the findings of His Honour Frank Vincent in his Report into the Circumstances that Led to the Conviction of Mr Farah Abdulkadir Jama.

As I discuss in the ‘DNA for Legal Practitioners’ workshops – DNA is but a tool, albeit a powerful tool. But whilst any tool can be used effectively, it can also be used incorrectly, leading to dire consequences.

On the 22nd of August, the full bench of the ACT Supreme Court quashed Mr Eastman’s conviction of the murder of AFP Assistant Commissioner Winchester, following the finding of the Eastman Inquiry.

These cases demonstrate three things.

We must be continually vigilant – neither experts nor lawyers should ever become complacent.

Experts and lawyers must work together to ensure that any tool, whether it be DNA analysis, body mapping, gunshot residue examination, or any other form of testing or analysis and its use in the legal context, is fully understood by all of the players.

This will not happen whilst budgets are being cut and everyone is playing catch up – working reactively rather than proactively.

This article offers three tips for lawyers working with experts.

The Hon Mrs Justice Heather Hallett DBE, when addressing the Australian Bar Association in Florence in 2004 [‘Expert witnesses in the courts of England and Wales’ (2005) 79 ALJ 288 – 295], stated:

 “examining and cross examining expert witnesses is something that as advocates many of us dread or dreaded.”

Her topic was problems with expert evidence and, while hers might not be the view of all legal professionals, a certain degree of apprehension is understandable. This article aims to provide you with three tips which should make the process less formidable.

TIP ONE – CHOOSE YOUR EXPERT(S) CAREFULLY

You may be looking for an expert in science, medicine, accounting, engineering or transport. Each of these disciplines is made up of many sub-disciplines and even sub-sub-disciplines, as more knowledge leads to further specialisation. So, how do you know who to choose?

You may be familiar with the cases relating to the conviction and subsequent successful appeal of Gordon Wood (R v Wood [2008] NSWSC 817; R v Wood [2008] NSWSC 1273 & Wood v R [2012] NSWCCA 21).  One of the “experts” in this case was an expert in plasma physics but not biomechanics, yet he gave evidence regarding the mechanisms which could have resulted in the specific landing place of the victim’s body. Although the use of this expert was not the sole ground for the successful appeal, McClellan CJ commented on the issue of the expert giving evidence outside his area of expertise [Wood v R [2012] NSWCCA 21 at para 467]:

“To my mind A/Prof Cross was allowed, without objection, to express opinions outside his field of specialized knowledge”

If in doubt regarding the expertise of your potential expert witness, ask them if they have ever undertaken work in relation to similar matters and ask to see some form of documentation to this effect. If you have no idea where to start, ask around—colleagues, professional associations, university or government departments (or even the author of this article)—for recommendations.

Beware of overconfidence in your potential expert. Unless the person is very experienced and very well known, your potential expert should be apprehensive regarding the work you are asking them to undertake. Which now leads me to tip two.

TIP TWO – AN EXPERT IS NOT AN EXPERT

You have chosen your expert because of their expertise in a particular field. With few exceptions, they are unlikely to be experts in the legal system, in writing legal reports or in giving evidence. Concepts, terms and procedures which are familiar to you may be totally bewildering to your expert. It is your responsibility to equip your expert witness with the information and resources to understand their role and meet the court’s expectations of experts. How much information they require depends on the expert and their previous experience (or lack thereof).  Don’t be afraid to ask them how much court-craft they know.

Even experts who have prepared reports or given evidence on many occasions may still have large gaps in their knowledge and understanding. They may be unaware of new practice directions.  There are experienced experts, for example, who may not be aware of the Harmonized Expert Witness Code of Conduct which came into effect, in many jurisdictions, in 2016.

TIP THREE – TALK TO ALL THE EXPERTS

A pre-trial or proofing conference should involve a sit-down meeting for a decent length of time. Exchanging e-mails or a quick chat outside court, does not a proofing conference make. Get to know the expert witnesses. This principle applies equally to the party calling, and to the party cross-examining, the expert.

Never ask a question you don’t already know the answer to, and don’t assume that, because you have been involved with this type of expert before, you know exactly what to expect. Each case is different and every expert is different. Additionally, having a discussion with an expert might produce further questions or a different interpretation of the issue at hand.

If all the parties involved in the wrongful conviction of Mr Farah Abdulkadir Jama had only spoken to ALL the experts before the trial in 2008, a shocking miscarriage of justice might just have been averted.

Anna Davey, BSc (Hons), MSc, Grad Dip Legal Studies, has spent many happy hour in the witness box as an expert witness. Having worked in the medical and government sectors for twenty eight years she set up Forensic Foundations; a company focusing on practical training and development for experts and legal practitioners. She totally understands the issues facing experts (both experienced and novice) and legal practitioners working with experts. In addition to her specialist field of expertise (DNA) she also has vast experience in the application of quality management to forensic processes and the use of statistics in forensic interpretation.