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12 pages, Kindle Edition
First published January 1, 2006
In the 2005 study, Langdon and Wilson found that ‘experts as advocates’ (or partisan expert testimony) was deemed partly responsible for a MoJ in nearly 22% of cases, whilst ‘inconclusive expert evidence’ (quality of evidence, procedures used, inconclusive results and interpretation thereof, and contamination) was identified in over 31% of the cases studied (Ref. 33, p. 9).
In nearly 44% of all cases researched, the basis for the conviction rested on circumstantial evidence.
Langdon and Wilson stated in their conclusion (Ref. 33, p. 18)
"Another major concern relating to the findings of the present analysis is the use of DNA results, particularly regarding their interpretation and the handling of samples in the laboratories. The science of DNA should not counter the integrity of the testing process, nor be considered a substitute for a thorough police investigation into a particular crime".
... ‘the high-profile miscarriages of justice were in the main the result of human factors, such as police officers who fabricated evidence, scientists who made mistakes or suppressed evidence'....'The causes of miscarriage of justice are many and varied and include inefficient or misguided investigations, fabricated or suppressed evidence, misconceived expert evidence and confessions obtained through duress' …
...there may be a much greater role here for the Australia New Zealand Policing Advisory Agency (ANZPAA) and the associated National Institute of Forensic Science (NIFS) in relation to identifying international best practice in police investigation (similar to the UK Murder investigation manual [40]), the development of police forensic strategies and the broader practice of forensic science.....Proper accountability for inappropriate actions or misconduct by police, lawyers, DPP’s, forensic scientists and others, also needs to be a high priority so that there is a strong deterrent in future matters and an ability for personal and organisational learning. We need to ensure the highest ethical and professional standards both within policing, the forensic science community and the legal profession and ensure appropriate and ongoing training and education in order to prevent miscarriages of justice. Dr Bob Moles is of the view that there should be MoJ training as part of any law degree. ... Perhaps such training should also form the basis of any forensic science education? In addition, members of the Australian and New Zealand Forensic Science Society (ANZFSS) should be continually reminded of their ethical and professional obligations which arise from their acceptance of the Code of Ethics as a requirement of membership...
'This particular decision [Commonwealth of Australia v Griffiths and Anor [2007] NSWCA 370.] appears to further damage an already weakened system, by confirming that there is no immediate process whereby either a forensic scientist, or those who employ them, can be held liable in damages to anyone wrongfully convicted of any offence as the result of a specialist report that proves to be inaccurate.'...
...the scientific investigator who has been asked to test a hypothesis (e.g. that the substance is a particular form of illegal drug) by conducting a laboratory process, and who has yet to decide what their evidence will be. It is at this precise moment that our courts – and those who resort to them for a reliable justice process – are entitled to absolute, unfettered, impartiality and rigorous scientific enquiry. If this is not forthcoming, and if any bias, for whatever reason, and from whatever cause, creeps into what the witness knows will ultimately be their evidence to the court, why should it be disinfected by a long-established legal rule designed to protect witnesses from telling what they perceive to be the truth, and to forestall a multiplicity of actions?
...the existence of a vital distinction between collecting the evidence, and subsequently preparing one's findings for the court process, whether in the form of a report or a ‘proof’ taken by one's counsel prior to trial. One must then ask whether the carrying out of scientific testing belongs in the ‘collection’ category or the ‘proofing’ category, if one may use these convenient shorthand terms to describe the two distinct processes....
If the true purpose of the witness immunity rule is to protect witnesses from the consequences of actually giving evidence (or, on the extended definition, preparing to do so), how may it be said to be better preserved by applying it to events and processes which do not, at that time, involve witnesses? Is an expert likely to be deterred from declaring the true outcome of tests by the prospect of giving evidence, if, once they become listed as a witness for trial, they are granted the umbrella of witness immunity? Or are such experts more likely to be encouraged in unprofessional and unscientific practices, particularly if time pressures are placed on them to complete the testing process? And if the immunity is effective in securing the witness's evidence by the application of the rule at that point in time in which they are called upon to testify, why does it need to be extended backwards in time to the moment of testing?
In a well-meaning effort to regulate the reliability of expert evidence generally, our justice system already possesses a considerable number of quality assurance mechanisms. With respect, and bearing in mind the number of palpable miscarriages of justice that have occurred despite them, they have proved as effective as a wire fence against a flood.....More recently, we have begun to introduce practice rules38 for the governance of the expert testimony process. However, their purpose would seem to be more intimately connected with the smooth running of the trial process and the avoidance of costs and delay than any attempt to improve the scientific reliability of any evidence given.
Does public policy not require that expert witnesses be required, under pain of financial penalty, to answer for mistakes they make which have severe consequences in terms of justice outcomes? If the law chooses to limit the liability in negligence of an expert to that in respect of a party who has chosen them to represent their interests, is it at the same time entitled to impose the same limit on their liability to someone who had no say in their appointment, but is the innocent victim of someone whose flawed opinions were imposed upon them by the justice system? Or is the justice system itself to be held accountable?....How rapidly would Government forensic services improve if judges in criminal matters that become miscarriages of justice could impose costs orders on DPP offices?
But I think it’s really on the judges to recognize this. Like that is the judge’s job to assess the evidence and decide whether it is legitimate enough to admit. And I think if the courtroom is a place of performance or if it’s a theater, like the judge is supposed to be, sorry to use kind of a corny analogy that we’ve been using, but if the courtroom is a theater, the judge is supposed to be the director and the judge has power to reject that and maybe that sets a precedent. Maybe it doesn’t. But I think it’s really on the judges to actually take that step because the defense attorney can raise it but they might not get anywhere.
The Court [in Griffiths] was afforded a golden opportunity to strike a blow for forensic quality assurance State-wide and – given the relative paucity of legal authority on the point – Australia-wide, by ruling that witness immunity is based, not so much on finality of litigation, as on the importance of encouraging fearless truth from witnesses. It chose instead to opt for the former, and to hold that witness immunity extends even to the personal liability of an employer whose poor supervisory systems enable a witness to give inaccurate evidence at trial..
Experts in NSW, and other states, in civil litigation must state that they have read and agree to be bound by the various Codes of Conduct for Expert Witnesses. In NSW this is explicated in detail.56 Essentially, this decision makes a mockery of this requirement. What possible purpose can there be in requiring expert witnesses to agree to be bound by an essentially unenforceable Code of Conduct, as least as far as financial imperatives apply, when they can hide their egregious errors behind the shield of witness immunity for acts of errors of commission or omission committed in the formulation of their ideas?.