Abuse allegations; Expert evidence and the opinion of the Full Court

In an article by Sperling J presented at the Supreme Court of New South Wales Annual Conference in 1999 and published as “Expert Evidence: The Problem of Bias and Other Things” (2000) 4 The Judicial Review 429, his Honour observed at 432:
“The actual role of the expert witness, particularly in major litigation, is that the expert is part of the team. He – it usually is a “he” – contributes to the way the case is framed and indirectly to decisions as to what evidence is to be got in to provide a basis for his opinion. His report is honed in consultation with counsel. Then, when it comes to the trial he is a front line soldier, carrying his side’s argument on the technical issues under the fire of cross-examination.Natural selection ensures that expert witnesses will serve the interests of their clients on this way. If the expert measures up he will be kept on and he will be used again by the same client, the same solicitors and others. If he does not measure up, he will be dropped from the case or never used again by anyone. He then disappears from the forensic scene.An appearance of objectivity is a marketable attribute. Cross-examination or contrary evidence may unmask dissemblance or may not. A judge is ill-equipped to diagnose bias in an expert witness. It is likely, therefore, that the incidence of bias as assessed by surveyed judges in the Freckelton report is an under-estimate.Judges are interested in valid fact-finding. So long as the adversarial system continues unremittingly, however, the interests of litigants in presenting expert evidence that may win the case will prevail over the interests of judges in obtaining objective assistance on technical issues as a basis for valid fact finding.”

We are of the opinion that the case highlights the need for reform in the area of expert evidence. In this regard, we note that the previously cited article by Sperling J offers a number of recommendations which we see as applicable to the family law jurisdiction, such as:
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Promulgating a code of conduct for expert witnesses;
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Consideration of amending statutes to make breach of a duty of objectivity professional misconduct;
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Greater use of the power to refer out technical issues for determination by an expert referee; and
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Amendments to the Rules of Court in respect of matters such as an express power to limit expert evidence to that of a single expert selected by the parties or the Court in appropriate cases.