Legal Pathology: Evaluating the High Court on Expert Evidence

Abstract

This article explains why the application of admissibility rules to the opinion of a forensic pathologist in Lang v The Queen (‘Lang’) (and forensic pathologists in Velevski v The Queen, and indirectly an anatomist in Honeysett v The Queen) seems insufficiently attentive to the expressed need for specialised knowledge and, inextricably, the actual abilities of those recognised as expert witnesses. The article explains why legal practitioners and judges should carefully attend to ‘specialised knowledge’, and treat independent evidence supporting specific abilities (in Lang, being able to discriminate between self-inflicted stab wounds and stab wounds inflicted by others) as a form of ‘specialised knowledge’. Notwithstanding obiter in Dasreef Pty Ltd v Hawchar, it cautions against placing too much reliance on training, formal qualifications, general experience, and past legal practice. Courts, in particular, should be more sceptical about opinion evidence adduced by parties (especially prosecutors in criminal proceedings), the abilities of trial lawyers, judges and other fact-finders, as well as the effectiveness of trial safeguards and appeals.