Expert Evidence 7e - eBook

"Its value to practitioners hardly requires elaboration ... Many a barrister faced with the daunting task of cross-examining an expert ... has turned to Freckelton’s text in his or her hour of need and found invaluable assistance... (This) work is commendably ambitious. It is difficult to think of a field of forensic expert evidence which is not discussed." - The Hon Justice Christopher Beale, Supreme Court of Victoria, (2020) 44 Crim LJ 196

The Seventh Edition of Expert Evidence is the acclaimed work of first resort for analysing the complex law and practice surrounding expert witnesses and expert evidence in personal injury, commercial, criminal and family law litigation. It has been cited for over two decades by superior courts in Australia, New Zealand and other countries and is the leading international work on its subject.

Expert Evidence analyses the common law and statutory criteria for expert evidence admissibility, providing advocacy guidance on how best to assist expert witnesses in courts and to hold them accountable in cross-examination. It discusses the optimal ways for managing concurrent evidence and expert conclaves prior to court hearings. It reviews decisions in relation to the disciplinary and civil liability of expert witnesses, and the potential for wasted costs orders to be made against experts, as well as the lawyers who commission them. It analyses the role of assessors, referees and court-appointed experts, as well as the forensic consequences of courts’ codes of conduct for experts, including when breaches of such codes may have adverse consequences. It also reviews trends in appellate case law in relation to trial judges’ decisions to admit and decline to admit expert opinions.

Expert Evidence also deals with specialist knowledge where admissibility and reliability issues have been encountered, including in relation to novel medical and scientific evidence, and counter-intuitive opinions from mental health professionals. It examines expert evidence on accounting, engineering, statistical, anthropological, survey, and planning evidence, and foreign law matters. 

The Seventh Edition has been further refined to increase accessibility to legal practitioners and experts from a range of disciplines, and to widen its scope. Its international focus is significantly enhanced with legal authorities from across the common law world being referred to and critiqued, reflecting increasing signs of the adoption of internationally consistent approaches to expert evidence.

Key new developments in the Seventh Edition include:

• Substantially revised chapters on expert reports and on concurrent evidence;
• A new chapter on international disputes and litigation dealing with both civil matters and important aspects of expert evidence given in international criminal law proceedings;
• Analysis of numerous important criminal law decisions, including a sequence of judgments in the United Kingdom and Australia regarding novel areas of scientific evidence such as gait analysis and shoeprint evidence;
• New case law from the High Court of Australia, and State Supreme Courts, the Canadian Supreme Court and the New Zealand Supreme Court and Court of Appeal, impacting upon the admissibility of diverse areas of expert evidence;
• Substantially revised chapters on DNA testing, statistical and probability evidence, evidence by psychiatrists and psychologists, especially in relation to diagnosis, PTSD evidence, critical incident stress intervention evidence, and memory evidence; and
• Significantly updated chapters on nursing evidence and medical evidence, including relevant case law on shaken baby/abusive head trauma evidence.

Full Table of Contents

PART 1  - INTRODUCTION

Chapter 1.0        Introduction

PART 2  - COMMON LAW EVIDENTIARY RULES

Chapter 2.0        Common law exclusionary rules

Chapter 2.05      The expertise rule

Chapter 2.10      The area of expertise rule

Chapter 2.15      The common knowledge rule

Chapter 2.20      The basis rule

Chapter 2.25      The ultimate issue rule

Chapter 2.30      Judicial notice

Chapter 2.35      Discretionary exclusion of expert evidence

PART 3  - STATUTORY EVIDENTIARY RULES

Chapter 3.0        Statutory law in Australia

Chapter 3.05      Statutory law in New Zealand

Chapter 3.10      Statutory law in the United States

Chapter 3.12      International Disputes and Litigation

Chapter 3.15      Law reform proposals

PART 4  - APPEALS

Chapter 4.0        Appeals in relation to expert evidence

PART 5  - PROCEDURE

Chapter 5.0        Forensic reports

Chapter 5.05      Court rules and ethical obligations

Chapter 5.10      Costs and client legal privilege

Chapter 5.15      Wasted costs orders (new)

Chapter 5.20      Remuneration of experts

PART 6  - EXPERT WITNESSES AND DECISION MAKING

Chapter 6.0        Court-appointed experts

Chapter 6.05      Assessors

Chapter 6.10      Referees

Chapter 6.12      Single joint experts

Chapter 6.15      Conclaves (new)

Chapter 6.20      Concurrent expert evidence

Chapter 6.25      Consecutive expert evidence (new)

PART 7  - EXPERT EVIDENCE IN COURT

Chapter 7.0        Preparation and examination of the expert witness

Chapter 7.05      Cross-examination of the expert witness

Chapter 7.10      Sentencing evidence by the expert witness 

PART 8  - LIABILITY OF EXPERTS

Chapter 8.0        Criminal and civil liability of expert witnesses and report writers

Chapter 8.05      Regulatory liability of expert witnesses and report writers

PART 9  - MEDICAL, DENTAL AND NURSING EVIDENCE

Chapter 9.0        Medical evidence

Chapter 9.05      Dental evidence

Chapter 9.10      Nursing evidence

PART 10 - MENTAL HEALTH EVIDENCE

Chapter 10.0      Psychiatrists' and psychologists' evidence

Chapter 10.05    Fitness for interview evidence

Chapter 10.10    Fitness to stand trial evidence

Chapter 10.15    Identification evidence

Chapter 10.20    Memory evidence

Chapter 10.25    Mental state evidence

Chapter 10.30    Syndrome evidence

Chapter 10.35    Profiling evidence

Chapter 10.40    Prediction of risk evidence

Chapter 10.45    Post-traumatic stress disorder evidence

Chapter 10.50    Critical incident stress intervention evidence

PART 11 - SOCIAL SCIENTISTS' EVIDENCE

Chapter 11.0       Survey evidence

Chapter 11.05    Historians’ evidence

Chapter 11.10    Anthropologists' evidence

Chapter 11.15    Cultural experts' evidence

Chapter 11.20    Linguists' evidence

PART 12 - SCIENTISTS' EVIDENCE

Chapter 12.0      Scientific evidence

Chapter 12.05    Novel scientific evidence

Chapter 12.10    Fingerprinting, footprint and footwear evidence

Chapter 12.15    Document analysis evidence

Chapter 12.20    DNA evidence

Chapter 12.25    Statistical and probability evidence 

PART 13 - POLICE EVIDENCE

Chapter 13.0      Police evidence

Chapter 13.05    Tracker and sniffer dog evidence

PART 14 - ACCIDENT RECONSTRUCTION EVIDENCE

Chapter 14.0      Accident reconstruction evidence

PART 15 - FOREIGN LAW EVIDENCE

Chapter 15.0      Foreign law evidence 

PART 16 - FINANCIAL EVIDENCE

Chapter 16.0      Valuation evidence

Chapter 16.05    Financial evidence

PART 17 - CONSTRUCTION EVIDENCE

Chapter 17.0      Engineers’ evidence (new)

Chapter 17.05    Architects’ evidence (new)

Chapter 17.10    Quantity surveyors’ evidence

Chapter 17.15    Planning evidence

PART 18 - INTELLECTUAL PROPERTY EVIDENCE

Chapter 18.0      Patent evidence