TEN RULES FOR EXPERT EVIDENCE
HIS HONOUR DAVID KENT QC
JUDGE OF THE DISTRICT COURT OF QUEENSLAND
SECTION 78 OF THE EVIDENCE ACT 1995 (CTH)
S 78
Exception
lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter
or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the
person’s perception of the matter or event.
SECTION 79 OF THE EVIDENCE ACT 1995 (CTH)
S 79
Exception:
opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does
not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2) To avoid doubt, and without limiting subsection (1):
(a)
(b)
a reference in that subsection to specialised knowledge includes a reference to specialised knowledge
of child development and child behaviour (including specialised knowledge of the impact of sexual
abuse on children and their development and behaviour during and following the abuse); and
a reference in that subsection to an opinion of a person includes, if the person has specialised
knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both
of the following:
(i) the development and behaviour of children generally;
(ii) the development and behaviour of children who have been victims of sexual offences, or
offences similar to sexual offences.
CLARK V RYAN (1960) 103 CLR 486) P. 491
‘…the kind driven by the defendant Clark do in practice behave, perhaps a witness or
witnesses experienced in their actual use might have given admissible evidence, not of
opinion, but of the fact. But Mr. Foster Joy did not possess that experience. If it had
been desired to give technical evidence of the physics involved and of any relevant
opinions deduced therefrom, possibly that might have been done by a qualified witness
although one may doubt how intelligible to the jury the evidence would have been and
what useful purpose it would have served. But it certainly does not appear that Mr.
Foster Joy was qualified to give such testimony and in fact he did not essay to do so.
What in truth occurred was to use the witness to argue the plaintiff's case and present
it more vividly and cogently before the jury.’
CLARK V RYAN (1960) 103 CLR 486) P. 491
‘(cont) The rule of evidence relating to the admissibility of expert testimony as it affects
the case cannot be put better than it was by J. W. Smith in the notes to Carter v. Boehm,
1 Smith L.C., 7th ed. (1876) p. 577. "On the one hand" that author wrote, "it appears to
be admitted that the opinion of witnesses possessing peculiar skill is admissible
whenever the subject-matter of inquiry is such that inexperienced persons are unlikely
to prove capable of forming a correct judgment upon it without such assistance, in
other words, when it so far partakes of the nature of a science as to require a course of
previous habit, or study, in order to the attainment of a knowledge of it." Then after the
citation of authority the author proceeds: "While on the other hand, it does not seem
to be contended that the opinions of witnesses can be received when the inquiry is
into a subject-matter the nature of which is not such as to require any peculiar habits
or study in order to qualify a man to understand it." Adopted by Harding A.C.J. in Reg. v.
Camm.’
CLARK V RYAN (1960) 103 CLR 486) P. 491
‘(cont) In R. v. Parker, one of the cases establishing the evidentiary use of
finger prints to prove identity, Cussen J. in that connexion said that expert
witnesses may give in evidence statements based on their own experience
or study but that they cannot be permitted to attempt to point out to the
jury matters which the jury could determine for themselves or to
formulate their empirical knowledge as a universal law.’
DASREEF PTY LTD V HAWCHAR (2011) 243 CLR 588
‘[90] Function of the proof of assumption rule. The function of the proof of assumption
rule is to highlight the irrelevance of expert opinion evidence resting on assumptions
not backed by primary evidence. It is irrelevant because it stands in a void, unconnected
with the issues thrown up by the evidence and the reasoning processes which the trier
of fact may employ to resolve them. If the expert’s conclusion does not have some
rational relationship with the facts proved, it is irrelevant. That is because in not tending
to establish the conclusion asserted, it lacks probative capacity. Opinion evidence is a
bridge between data in the form of primary evidence and a conclusion which cannot be
reached without the application of expertise. The bridge cannot stand if the primary
evidence end of it does not exist. The expert opinion is then only a misleading jumble,
uselessly cluttering up the evidentiary scene.’
MAKITA (AUSTRALIA) PTY LTD V SPROWLES (2001) 52 NSWLR 705, [85]
‘[85] In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or
demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that
field in which the witness demonstrates that by reason of specified training, study or experience, the
witness has become an expert; the opinion proffered must be "wholly or substantially based on the
witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must
be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or
"accepted" facts, they must be identified and proved in some other way; it must be established that the
facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires
demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that
is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is
expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially
based", applies to the facts assumed or observed so as to produce the opinion propounded.’
MAKITA (AUSTRALIA) PTY LTD V SPROWLES (2001) 52 NSWLR 705, [85]
‘(cont) If all these matters are not made explicit, it is not possible to be sure whether
the opinion is based wholly or substantially on the expert's specialised knowledge. If the
court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far
as it is admissible, of diminished weight. And an attempt to make the basis of the
opinion explicit may reveal that it is not based on specialised expert knowledge, but, to
use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a
combination of speculation, inference, personal and second-hand views as to the
credibility of the complainant, and a process of reasoning which went well beyond the
field of expertise" (at [41]).’
HG V R (1999) 197 CLR 414, [41]
‘[41] If all that Mr McCombie had said was that, based on his study, training and
experience, he considered that the behaviour of the complainant during 1992 and 1993,
as recounted to him by others, appeared to be inconsistent with her having been
sexually abused during that time, (the plausibility of such a proposition is not now in
issue), then that might have been one thing. It would have required identification of the
facts he was assuming to be true, so that they could be measured against the evidence;
and it would have required or invited demonstration or examination of the scientific
basis of the conclusion. However, that was not what the defence wanted from him; if it
were, no question of s409B would have arisen. What defence counsel wanted was
evidence of his opinion that, although the complainant had been abused, the abuse had
occurred back in 1987 when, for a period of a month, she was in the custody of her
father, and that it was the father who was the abuser.’
HG V R (1999) 197 CLR 414, [41]
‘(cont) That opinion was not shown to have been based, either wholly or substantially,
on Mr McCombie's specialised knowledge as a psychologist. On the contrary, a reading
of his report, and his evidence at the committal, reveals that it was based on a
combination of speculation, inference, personal and second-hand views as to the
credibility of the complainant, and a process of reasoning which went well beyond the
field of expertise of a psychologist. He did not put to the complainant, for her
comment, the suggestion that she had been abused by her father; the complainant told
him she could not remember her father. He does not appear to have considered or
investigated the possibility of abuse by some third party. He appears to have inferred,
for no apparent reason, that the words "stop it daddy", attributed to the complainant by
her mother, referred to sexual as distinct from some other form of abuse.’
HONEYSETT V THE QUEEN [2014] HCA 29, [45]
‘[45] Professor Henneberg’s evidence gave the unwarranted appearance of
science to the prosecution case that the appellant and Offender One share
a number of physical characteristics.Among other things, the use of
technical terms to describe those characteristics — Offender One and the
appellant are both ectomorphic — was apt to suggest the existence of
more telling similarity than to observe that each appeared to be skinny.’
R 426, UNIFORM CIVIL PROCEDURE RULES 1999 (QLD)
Duty of expert
(1) A witness giving evidence in a proceeding as an expert has a
duty to assist the court.
(2) The duty overrides any obligation the witness may have to any
party to the proceeding or to any person who is liable for the
expert’s fee or expenses.
R 427, UNIFORM CIVIL PROCEDURE RULES 1999 (QLD)
Expert evidence
(1)
Subject to subrule (4), an expert may give evidence-in-chief in a proceeding only by a report.
(2)
The report may be tendered as evidence only if—
(a) the report has been disclosed as required under rule 429; or
(b) the court gives leave.
(3)
Any party to the proceeding may tender as evidence at the trial any expert’s report disclosed by any party, subject to producing the
expert for cross-examination if required.
(4)
Oral evidence-in-chief may be given by an expert only—
(a) in response to the report of another expert; or
(b) if directed to issues that first emerged in the course of the trial; or
(c) if the court gives leave.
R 428, UNIFORM CIVIL PROCEDURE RULES 1999 (QLD)
Requirements for report
(1) An expert’s report must be addressed to the court and signed
by the expert.
(2) The report must include the following information—
(a) the expert’s qualifications;
(b) all material facts, whether written or oral, on which the report is
based;
(c) references to any literature or other material relied on by
the expert to prepare the report;
R 428 (CONT), UNIFORM CIVIL PROCEDURE RULES 1999 (QLD)
(2) [cont]
(d)
(e)
For any inspection, examination or experiment conducted, initiated, or
relied on by the expert to prepare the report—
(i)
a description of what was done; and
(ii)
whether the inspection, examination or experiment was done by
the expert or under the expert’s supervision; and
(iii)
the name and qualifications of any other person involved; and
(iv)
the result;
if there is a range of opinion on matters dealt with in the report, a
summary of the range of opinion, and the reasons why the expert adopted a
particular opinion;
R 428 (CONT), UNIFORM CIVIL PROCEDURE RULES 1999 (QLD)
(2) [cont]:
(f)
a summary of the conclusions reached by the expert;
(g)
a statement about whether access to any readily
ascertainable additional facts would assist the expert
in reaching a more reliable conclusion.
R 428 (CONT), UNIFORM CIVIL PROCEDURE RULES 1999 (QLD)
(3) The expert must confirm, at the end of the report—
(a)
the factual matters stated in the report are, as far as the expert knows, true;
and
(b)
the expert has made all enquiries considered appropriate; and
(c)
the opinions stated in the report are genuinely held by the expert; and
(d)
the report contains reference to all matters the expert considers significant;
and
(e)
the expert understands the expert’s duty to the court and has complied
with the duty.
R 429, UNIFORM CIVIL PROCEDURE RULES 1999 (QLD)
Disclosure of report
A party intending to rely on a report must, unless the court otherwise orders, disclose
the report—
(a) if the party is a plaintiff—within 90 days after the close of pleading; or
(b) if the party is a defendant—within 120 days after the close of pleading; or
(c) if the party is not a plaintiff or defendant—within 90 days after the close of
pleading for the party.
R 429B, UNIFORM CIVIL PROCEDURE RULES 1999 (QLD)
Court may direct experts to meet
(1) The court may, at any stage of a proceeding, direct experts to
meet and—
(a) identify the matters on which they agree; and
(b) identify the matters on which they disagree and the
reasons why; and
(c) attempt to resolve any disagreement.
R 429B (CONT), UNIFORM CIVIL PROCEDURE RULES 1999 (QLD)
(2) The court may, for the meeting—
(a) set the agenda; and
(b) specify the matters the experts must discuss; and
(c) direct whether or not legal representatives may be present; and
(d) give directions about the form of any report to be made to the court about the meeting; and
(e) give any other directions the court considers appropriate.
(3) Evidence of anything done or said, or an admission made, at the meeting is admissible at a trial of the proceeding
only if all parties to the proceeding agree.
(4) However, subrule (3) does not apply to a report made to the court about the meeting identifying the matters
mentioned in subrule (1)(a) or (1)(b).
S 590AH(2) OF THE CRIMINAL CODE
Disclosure that must always be made
(2) For a relevant proceeding, the prosecution must give the accused person
each of the following—
(g) a copy of any report of any test or forensic procedure relevant to the
proceeding in the possession of the prosecution;
(a) a copy of the bench charge sheet, complaint or indictment
containing the charge against the person;
(h) a written notice describing any test or forensic procedure, including a
test or forensic procedure that is not yet completed, on which the
prosecution intends to rely at the proceeding;
(b) a copy of the accused person’s criminal history in the
possession of the prosecution;
(i) a written notice describing any original evidence on which the
prosecution intends to rely at the proceeding;
(c) a copy of any statement of the accused person in the
possession of the prosecution;
(d) for each proposed witness for the prosecution who is, or may be,
an affected child—a written notice naming the witness and
describing why the proposed witness is, or may be, an affected child;
(e) for each proposed witness for the prosecution other than a
proposed witness mentioned in paragraph (d)—
(i) a copy of any statement of the witness in the
possession of the prosecution; or
(ii) if there is no statement of the witness in the
possession of the prosecution—a written notice naming the
witness;
(f) if the prosecution intends to adduce evidence of a representation
under the Evidence Act 1977, section 93B, a written notice stating that
intention and the matters mentioned in section 590C(2)(b) to (d);
(j) a copy of anything else on which the prosecution intends to rely at the
proceeding;
(k) a written notice or copy of anything else in possession of the prosecution
prescribed under a regulation.
S 590B OF THE CRIMINAL CODE
Advance notice of expert evidence
(1) If an accused person intends to adduce expert evidence in relation to an issue in the person’s trial, the person
must—
(a) as soon as practicable—give the other parties to the trial written notice of the name of the expert,
and any finding or opinion he or she proposes to adduce; and
(b) as soon as practicable before the trial date—give the other parties to the proceeding a copy of the
expert report on which the finding or opinion is based.
(2) The directions judge under section 590AA or trial judge may fix times for compliance with subsection (1).
ASIC V DRAKE (NO 2) [2016] FCA 1552
[371] Mr Woolley was called as an expert witness by ASIC. He has degrees in economics and practical experience of more than 31
years in the financial services industry, mostly as an investment manager. He purported to give evidence concerning the approach of a
prudent trustee including in relation to the 7 August 2012 decision to approve the August 2012 Variation. Unfortunately, he had paid
scant attention to the key documents. And when confronted by matters which were inconsistent with ASIC’s case, many of his
answers were preposterous. He displayed the worst characteristics of partisanship and could not, in any respect, be described as an
independent expert.
[372] After considering Mr Woolley’s evidence, ASIC chose not to rely on his evidence in any relevant respect. As a model litigant,
ASIC quite properly accepted that it could not reasonably submit that the Court should accept his evidence except where the
evidence remained essentially unchallenged ([6], [220]). The matters upon which ASIC placed weak reliance were sections of Mr
Woolley’s report where he asserted that an independent feasibility analysis of the anticipated future cash flows from the Maddison
Estate development ought to have been obtained. However, my concerns with Mr Woolley’s evidence are so significant that I do not
consider that it is possible to fillet even those areas of his evidence.The extent of my concerns about his credibility and about his
reliability combine to give the effect that none of his evidence is capable of acceptance. Apart from issues of demeanour and the
general conduct of Mr Woolley’s evidence including his evasiveness and inability or unwillingness to answer simple questions, the
reasons why his evidence was neither credible nor reliable are as follows.
[373] First, Mr Woolley did not properly consider many basic documents or issues which should have been necessary for him to
form an opinion. One example was the RPS or core economics analysis that was referred to in an email with which he was provided
(ts 628–629). He accepted in cross-examination that the report contained important information (ts 629) but said that he did not ask
for it to be provided because he assumed that ASIC would have provided him with everything relevant (ts 631). Another example was
that despite the importance of their roles and their prominence in many of the emails, Mr Woolley did not know who Mr Tickner and
Mr McDonald were (ts 626), and said he “wouldn’t have a clue who LM Investment Management [LMIM] was” (ts 625). He also could
not remember what issues Ernst & Young had identified as being problematic with the development (ts 624). He offered his opinion on
the scope of the auditors’ obligations although he did not know what they had been asked to do (ts 637).
ASIC V DRAKE (NO 2) [2016] FCA 1552
[374] Secondly, Mr Woolley’s conclusions (pertaining, for example, to the risks presented to the MPF from the September
2011 variation and August 2012 Variation) were based upon some very basic misapprehensions about fundamental points. In
relation to the August 2012 Variation, he said that between $240 million and $259 million of capital was at risk. He said that
this was because $100 million would leave the MPF (ts 633). As I have explained, this assumption was incorrect. Only $16.5
million would leave the fund. After numerous questions, Mr Woolley finally conceded that he did not take into account that
only around $16.5 million of capital would leave the fund, and that the difference between $16.5 million and $100 million was
“significant” (ts 634).
[375] Another example of a basic mistake made by Mr Woolley was that he did not appreciate that the joint venture
arrangement for Maddison Estate was structured so that the profit from the development was passed through a special
purpose vehicle as “interest” (ts 584). As I have explained, the loan agreement had an express provision to this effect. Mr
Woolley read an investment memorandum which provided: To simplify investor taxation requirements by ensuring that Fund
returns are passed to investors as income and not capital gains, the property related (joint venture) assets of this Fund are
held as commercial loans.Mr Woolley said that he still didn’t realise that this was not an ordinary commercial loan. He
thought it was “tax planning” (ts 584).
[376] Another example is that Mr Woolley assessed the risk of capital loss on the incorrect premise that in September 2011
and August 2012 there was some value in the land which might be available to repay the Maddison Estate loan (ts 602). As he
was inevitably required to accept, the existence of the Suncorp loan meant that, at least in September 2011, on the “as is”
valuation of the Pimpama Land, there was no value which could have been realised by LMIM if the land were immediately sold
(ts 606).
[377] Thirdly, Mr Woolley’s report involved some large, and unsupported, leaps of logic. For instance, when assessing the
advantages of an externally generated feasibility analysis he said that it would be “more likely… to result in… the trustee
deciding to exit the investment in Maddison Estate development”. But he did not say what an independent feasibility report
would have said (ts 87). In contrast, ASIC, quite properly, did not contend that an independent feasibility report would
necessarily have been different in content from some of the internally produced feasibilities.
ASIC V DRAKE (NO 2) [2016] FCA 1552
[378] Fourthly, when Mr Woolley was taken to documents which caused difficulty for his conclusions, he took preposterous
positions in relation to them. For instance, Mr Woolley was referred to the February 2011 investment memorandum upon
which he relied in his report. He said that he would have seen from the information memorandum that the mortgage
securities in which LMIM invested were in excess of $200 million, that there were 14 mortgages involved, and that the largest
loan was more than $113 million (ts 571). But he maintained that the commercial loan, of more than half of the portfolio,
involving $113 million, could be low risk. His response was that he would need to consider all 14 loans (ts 571): in this case…
you get a feel for the spread of risk. That’s what it is there for. Now, what if I said that largest loan happens to be to the
Federal Police. I feel pretty comfortable with that loan because I know I’m going to get paid.
[379] In other words, knowing that the MPF’s loan balance with Maddison Estate was around $115 million at that time, Mr
Woolley speculated, without any basis at all, that the $113 million loan referred to in the information memorandum might
have been made to the Federal Police. He later said that he had no information from which he could assess whether the
largest loan was to Maddison Estate. Only after he was pressed did he concede that it was obvious that this loan was the
Maddison Estate loan (ts 572).
[380] His position became even more bizarre when he later suggested that, despite his earlier remarks about spread of risk,
a single loan of $113 million, which comprised more than half the fund, was not necessarily indicative of anything other than a
low risk profile for the fund.
[381] Fifthly, Mr Woolley’s evidence was constantly shifting to try to support the outcome of imprudence that he had
expressed. For instance, Mr Woolley was asked about views he had expressed about the opinions that would have been held
by an “ordinary investor” or “potential investor” reading one of the MPF information memoranda. After being asked different
versions of the question five times, Mr Woolley said that he took that investor to be the “average person” (ts 574). This was
despite him explaining earlier that he was aware that the fund was marketed through investment advisers and only open to
“wholesale” or sophisticated investors who, in his words, “met the threshold of half a million or 2.5 million net assets as
certified by your accountant every six months” (ts 567).
THE 10 RULES
1.
Ensure that the expert opinion is both admissible, for example, in terms of the legislation and authorities referred to, that is it is
based on specialised knowledge in which the witness is expert by reason of specified training, study or expertise;
2.
The appropriate expert is chosen, that is, someone who is truly expert in the appropriate field and preferably has experience in
giving evidence and doing so hopefully with the required degree of intellectual independence rather than being a “hired gun”;
3.
The expert is retained early enough that they can complete their investigations and report in a timely way so that court processes
are not delayed;
4.
The expert is well-informed of the expert witness requirements pursuant to the UCPR;
5.
The expert is properly briefed, that is, with all relevant material, both favourable and unfavourable to the party’s case;
6.
The expert, whether or not the case is a civil one, is aware of their obligations in relation to necessary inspections, examinations
or experiments. These should be undertaken directly by the expert rather than by an employee in order to protect the witness
from any challenge concerning such matters;
7.
The report should be received in time for the solicitors and counsel to consider it, possibly confer with the expert and consider
whether a supplementary report or further investigation or examination is necessary; and
8.
Ensure as far as possible that the expert is thoroughly prepared for the giving of evidence, whether in a normal trial process, or a
conclave;
9.
When cross examining, attempt to challenge the factual underpinning of the opinion including (a) any assumptions made (b) any
investigation or experiment not personally conducted by the expert;
10.
If required to put a contrary opinion to an expert, do your homework and ensure you can delineate the basis of your expert’s
opinion and precisely where it differs from the witness you are challenging.