Page 5344 - Week 17 - Tuesday, 3 December 1991
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
forensic service which would ensure that expert forensic witnesses are paid by the court, perhaps with cost recovery on the event? I brought tentative moves in that direction to the attention of the committee.
However, the need to ensure that the injustices of the Lindy Chamberlain trial, the Tim Anderson matter and the Birmingham Six case are not repeated, and my unease with the recent Kerry-Anne Browning trial in the ACT, surely call for urgent uniform reform in this country. How many juries, for instance, are even aware of the use by forensic scientists of the inference chart? It has been described as a jargon-free guide to assist the jury to weigh scientific signals and patterns. This can provide a way out of the bamboozling maze I have seen juries presented with. In appropriate cases the jury needs to be acquainted with the basics of scientific inference.
Claims of miscarriage of justice often stem from forensic evidence which has allegedly tended towards being in the prosecution stable. Whilst it has not been established that stable experts may subconsciously lean towards the party employing them, of greater concern is the fact that forensic experts themselves rarely get the chance to speak to the evidence. Their evidence is selected by counsel conducting the examination, and cross-examination is usually conducted by a non-expert who is often no competitor. The resolution of this issue may prevent the confusing battle between experts which has lengthened trials, produces jury fatigue, and has resulted in demonstrable miscarriages of justice in the United Kingdom and Australia.
I want to speak now about the jury as an instrument of reform. The traditional restriction of expert evidence to that given by scientists belongs to the late nineteenth century, when science was seen as an unquestionable arbiter of issues like biological determinism. Recently, expert evidence supporting the notion that battered women may have behavioural changes such as to affect their cognitive conduct was denied to a jury by a judge at first instance.
A reformist South Australian Court of Criminal Appeal has recently put an Australian stamp of approval on the admissibility of expert evidence on what is known as the battered wife syndrome by overturning the judge's direction. The patronising manner in which juries are artificially constrained on judicial direction from absorbing good theory to match their own good sense was well illustrated in this case. Similarly, the conservative and misogynous reluctance to plead the premenstrual syndrome where apparent and dominant in conduct. Unlike developments in North America and Europe, Australian courts rarely entertain arguments about the correlation between serious PMS problems and uncharacteristic conduct.
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .