Waiver of privilege over communications between solicitor and expert

In Traderight (NSW) Pty Ltd v Bank of Queensland Limited (No 14) [2013] NSWSC 211, Ball J observed that solicitors have a ‘duty’ to ensure that expert reports are in admissible form. This contrasts with the (unduly) conservative view that privilege in every piece of communication is necessarily waived by the service of the expert report.

See also New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258.


Reliability of ‘scientific’ evidence

From SAI Global Litigation Newsfeed 30/05/14:

Upcoming High Court Decisions to Determine Limits on Questionable Scientific Evidence

The Australian reports that the High Court will be ruling on the use of questionable scientific evidence in courtrooms in two upcoming cases.

In Honeysett v The Queen, the Court will reportedly consider “whether ‘face mapping’ or ‘body mapping’ from CCTV footage constitutes ‘specialised knowledge’ within the meaning of the Evidence Act 1995 (NSW)”. University of NSW legal professor Gary Edmond reportedly questioned the validity of body mapping as an identification technique, particularly in relation to “low-quality CCTV images where the person’s wearing a disguise”. Professor Edmond reportedly noted that research on unfamiliar face-matching has shown that those with experience performed no better than ordinary people, and opined that the NSW courts need to include a requirement for reliability in specialised knowledge.

In Fitzgerald v The Queen, the Court will reportedly consider the strength of DNA matches as scientific evidence. Reportedly, Charles Sturt University professor Jane Goodman-Delahunty expressed concern that jurors may be “blinded by science”, stating that juries do not tend to show the same degree of caution in relation to DNA evidence as they do in regards to other circumstantial evidence. Professor Goodman-Delahunty reportedly said that even strong scientific evidence of a DNA match is not proof that the accused was at a crime scene, while DNA consultant Brian McDonald opined that courts should not use DNA to convict someone with a total lack of corroborating evidence.

This could have significant implications for the practice of manufacturing ‘scientific’ evidence and presenting it as unchallengeable.  While the criminal cases appear to be in a slightly different context, there should be significant concerns about the increasing practice of commissioning ‘junk science’ to muddy the waters over the pleaded case and defence.