Trust me – I'm an expert: forensic evidence and witness immunity

Abstract

The implications of the NSW Court of Criminal Appeal's ruling in Commonwealth of Australia v Griffiths and Anor, to the effect that an expert who gives incorrect evidence against a party is protected from civil suit by the ‘witness immunity’ rule are reviewed. It is argued that there is an urgent need to reconsider the sanctions that may be imposed on those whose forensic evidence falls short of the high standard expected in this increasingly important area of justice.

Keywords:

• expert evidence
• forensic analysis
• witness immunity
• miscarriage of justice

Notes

 1. [2007] NSWCA 370.

 2. Langdon J, Wilson P When justice fails: A follow up examination of serious criminal cases since 1985. Current Issues in Criminal Justice, 2005; 17(2): 179–202.

 3. Griffiths, at [17].

 4. Per Beazley JA at [11].

 5. (2001) 52 NSWLR 705.

 6. See [2005] NSWSC 1350 at [67].

 7. (1772) 98 ER 529, per Lord Mansfield at 530.

 8. At [42].

 9. There is an obvious parallel here with the distinction made between the use of so-called criminal profiling in the investigative stages of a criminal enquiry (permissible), and its admissibility as an item of evidence at trial (not admissible – see, for example, Gilfoyle [2001] 2 Cr App R 57 at 68.

10. At [54].

11. (2005) 223 CLR 1, per Gleeson CJ, Gummow, Hayne and Heydon JJ at 18.

12. At 36.

13. Watson v M'Ewan [1905] AC 480. See also Marrinan v Vibart and Anor (1963) 1 QB 528.

14. At 487.

15. (1981) 1 All E R 715.

16. At 721. This was during the course of interlocutory proceedings brought in order to have the action ‘struck out’ because it disclosed no probable cause of action, which is essentially what was happening in the Griffiths case.

17. In X (Minors) v Bedfordshire County Council (1995) 2 AC 633.

18. At 755, per Lord Browne-Wilkinson (the remaining judges agreeing).

19. (1996) 67 SASR 490.

20. At 504.

21. (2001) 1 AC 435.

22. This immunity would therefore seem to cover deliberate criminal actions on the part of a witness who, while they might be prosecuted for perjury, conspiracy to pervert the course of justice and other ‘administration of justice’ offences, may not apparently be sued civilly. It is difficult to see why behaviour so heinous, and so damaging to the rights of the individual, that it attracts criminal penalties should not also afford rights to financial compensation on the part of those most directly and immediately injured by them.

23. At 448.

24. At 448–9.

25. Ibid.

26. At 454.

27. At 469.

28. At [91].

29. At [92]–[94].

30. This was presumably a reference to B.

31. At [44].

32. At 46.

33. (2005) 223 CLR 1, per Gleeson CJ, Gummow, Hayne and Heydon JJ at 18. They cited, as their authority, the landmark case of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 565.

34. Of which R v Button (2001) QCA 133, Chamberlain v The Queen (No 2) (1984) 153 CLR 521 and R v Faulkiner (1987) 2 Qd R 263 will serve as a small sample.

35. R v Parker (1912) VLR 152; Clark v Ryan (1960) 103 CLR 486.

36. Murphy v The Queen (1989) 167 CLR 94; R v Darrington [1980] VR 353; J v The Queen (1994) 75 A Crim R 522.

37. Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828; R v Paranzee [2007] SASC 143.

38. One example of such a set of rules is to be found in r 427- r 429 of the Uniform Civil Procedure Rules (Qld), while s 590H of the Criminal Code (Qld) requires full disclosure by the Crown in a criminal case of the outcomes of all scientific tests which may have been conducted in the course of investigating the case.

39. (1992) 2 WLR 407.

40. Tuckey QC, in his capacity as a Deputy High Court Judge.

41. At 412.

42. As noted earlier, this would of course also bring his report into the ambit of ‘legal professional privilege’.

43. See note 16.

44. [1964] AC 465.

45. For example, doctors, solicitors, stockbrokers and accountants.

46. See, for example, M.L.C. v Evatt [1971] A.C. 793.

47. At 38.

48. Per Beazley AJ at [115] and [116], citing Parker v The Commonwealth (1965) 112 CLR 295.

49. Per Beazley J.

50. At [127].

51. (2001) 207 CLR 562 at 582.

52. As a ‘specified class of persons’.

53. At [129].

54. Although in the event it would have granted little relief to Mr Griffiths.

55. [144] – [155].

56. Rule 31.23 of the Uniform Civil Procedure Rules.

57. Swanson, E.A. (2002). Who framed Robert Devereaux? Devereaux v Perez. A deliberate indifference standard, and a right not to be framed in the context of child sexual abuse investigations. Chicago-Kent Law Review, 77, 901–936, at 934.