EXPERT EVIDENCE IN THE LAND AND ENVIRONMENT COURT OF NSW: A SYNOPSIS
The Hon. Justice Malcolm Craig Judge of the Land and Environment Court of NSW
Australasian Conference of Planning and Environment Courts and Tribunals
Perth, 28 August – 2 September 2012
Expressed at a level of generality, it can be accepted that the
intended role of an expert has been to provide the court or tribunal with impartial and objective assistance in drawing inferences and conclusions from primary facts in respect of which the court is not able to do so without the assistance of a person possessing expert knowledge.
The obligations of an expert witness have recently been stated by the New South Wales Court of Criminal Appeal2 in a series of propositions, summarised in the following way:
(i) Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.
(ii) An expert witness should provide independent assistance to the court by way of an objective, unbiased opinion in relation to matters within his or her expertise. An expert witness should never assume the role of an advocate.
(iii) An expert witness should state the facts or assumptions upon which his or her opinion is based. That witness should not omit to consider the material facts which could detract from his or her concluded opinion.
(iv) An expert witness should make it clear when a particular question or issue falls outside the expertise of that witness.
(v) If an expert’s opinion is not properly researched because that expert considers there to be an insufficiency of available data, this must be stated, with an indication that the opinion is no more than a provisional one. In cases where an expert who has prepared a report cannot assert that the report contains the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
(vi) If, after exchange of reports, an expert witness changes his or her opinion on a material matter, having regard to the other side’s expert reports, or for any other reason, such change of opinion should be communicated (through legal representatives) to the other side without delay and, when appropriate, to the court.
(vii) Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.
These obligations upon expert witnesses are of longstanding. It was the perceived failure of experts in many cases to observe these obligations which identified the need for reform, directed to the manner in which evidence should be prepared and presented to a court or tribunal vested with jurisdiction to resolve a dispute.
The manner in which courts and tribunals in various jurisdictions have grappled with the need to preserve the integrity of expert evidence has differed in its detail.
However, at a level of generality there can be no doubt that achievement of the obligations upon expert witnesses that I have identified has informed the measures taken in many jurisdictions.