Viewing entries posted in September 2013
In response to my growing practice in coronial matters and the need for ongoing professional development, I will be attending the next Coroners Conference in Darwin in late October. I attended the Coroners Conference in Sydney in November 2012 and found it very interesting and worthwhile. The final program for the forum is now available at http://www.apcsc.com.au/program-3%20copy.pdf. I am particularly interested in the forensic related presentations and the update on case law in inquests and criminal trials. There is also a fascinating presentation on the Dr Harold Shipman story from the UK and how that case might present as a catalyst for change. Harold Shipman was Britain's most prolific serial killer. According to the public inquiry into his crimes, the former family doctor killed at least 250 of his patients over 23 years. He was convicted in January 2000 of the murder of 15 elderly patients with lethal injections of morphine. A public inquiry was launched in June 2001 to investigate the extent of his crimes, how they went undetected for so long, and what could be done to prevent a repeat of the tragedy. See http://www.theguardian.com/society/2005/aug/25/health.shipman for the results of the inquiry and the numerous reports that were produced, including strategies to prevent such a shocking series of events from ever occurring again.
An interesting article at page 3 of The Weekend Australian 28-29 September 2013 headed "Scipione opens up on police inquiry" by Dan Box. It states that the NSW Commissioner of Police, Andrew Scipione, has publicly acknowledged that he is the subject of an allegation being investigated by the NSW Ombudsman that he misled the public over a series of controversial surveillance operations. There is a multi-million dollar Ombudsman's inquiry under way, which is being conducted behind closed doors. It involves a whole range of "untested allegations". The Ombudsman is not expected to make any findings within the next year.
I came across another very useful article on expert evidence whilst preparing for my lectures on expert evidence at Victoria University in Melbourne. It is a paper by Dina Yehia SC, the NSW Public Defender - see http://www.publicdefenders.lawlink.nsw.gov.au/agdbasev7wr/pdo/documents/pdf/expertevidence.pdf. The paper discusses section 79 of the Evidence Act, outlines what constitutes "specialised knowledge" and discusses the need to reveal the process of reasoning. It discusses the NSW cases of Morgan (2011), Wood (2012) and Gilham (2012). In all three of these cases, expert evidence came under scrutiny. Finally, the paper provides some practical considerations for cross-examination.
An excellent article by Lynne Weathered on wrongful convictions in Australia in the University of Cincinnati Law Review Vol. 80 Issue 4 - see http://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1147&context=uclr. Lynne is a lecturer in law at the Griffith Law School and the Director of the Griffith University Innocence Project. I heard Lynne speak at the Perth international INJustice conference in March 2012. The article was published as part of a symposium that took place in April 2011 in Cincinnati, Ohio, hosted by the Ohio Innocence Project, entitled The 2011 Innocence Network Conference: An International Exploration of Wrongful Conviction.
An appeal against the murder acquittal of former Perth barrister Lloyd Rayney has been dismissed. Prosecutors appealed against the verdict on the grounds that the judge did not properly assess all of the evidence. They claimed the judge assessed the circumstantial case in a piecemeal and sequential manner and failed to consider the circumstances as a whole. However, the WA Court of Apeal today (made up of 3 interstate judges) rejected their argument and threw out the appeal, finding the trial judge had "carefully and correctly" evaluated the evidence in what was a circumstantial case. See http://www.abc.net.au/news/2013-09-23/appeal-judges-deliver-verdict-in-appeal-against-rayney27s-acqu/4975132
An interesting article in The Australian on 14 September 2013 which follows up on some of the points that I made in my blog posting of 8 March 2013 on "Detective Jurors". See http://www.theaustralian.com.au/news/nation/juror-faces-charges-over-web-search-on-defendants-past/story-e6frg6nf-1226718883946. The article reports that a juror in Queensland faces prosecution for circulating prejudicial material against a man on trial for child sexual abuse. The article states that the case is intensifying concern about jurors who "go rogue" and do their own investigations using the Internet. The event led to a mistrial and the referral of the male juror to the Queensland Attorney-General, setting in train "a process that could make him the first in the country to have the book thrown at him", says the article.
Just read a fascinating article in the Journal of the American Academy of Psychiatry and the Law Online entitled "Expert Witness Confidence and Juror Personality: Their Impact on Credibility and Persuasion in the Courtroom". The article reported on a study which was conducted to investigate the relationship between both expert witness confidence and juror personality with expert witness credibility, as well as expert witness credibility with juror sentencing outcome. Participants were presented with one of three randomly assigned filmed scenarios depicting various levels of manipulated witness confidence. They then completed a sentencing outcome item, the Witness Credibility Scale, and the Goldberg Five Factor Markers. It was found that expert witness confidence had a significant main effect on ratings of credibility, with moderate levels of manipulated confidence yielding the highest credibility. Juror ratings of expert witness credibility also predicted juror sentencing outcomes.
Fascinating article in the Science section of The New York Times from 16 September 2013 where it seems we may have more than one genome in our system. I wonder what the implications are in relation to the use of DNA in forensic settings to identify people with the amazing statistical probabilities that go with it? See http://www.nytimes.com/2013/09/17/science/dna-double-take.html?emc=eta1&_r=0
Another case which touches on expert evidence issues, that has recently been brought to my attention, is that of Re Knowles  VR 751. The case primarily concerns the referral of a petition for mercy following dismissed appeals. It also talks about the role of the court in cases of incompetent counsel. An excellent summary of the case has been provided by Dr Bob Moles on his Networked Knowledge website. See http://netk.net.au/Victoria/Vic6.asp. The case involved a "V" shaped wound to the front of the neck to the stabbing victim who died. At the trial, the pathologist, Dr Manock, who had conducted the autopsy expressed the opinion that the knife must have been totally or partially withdrawn from the wound and reinserted with a twist of about 90 degrees because there was intact tissue separating the tips of two separate tracks within and at an angle to each other in the wound. The pathologist conceded during cross-examination that the "V" shape wound could possibly have been caused by a knife held in the hand of the deceased whilst there was a struggle caused by the accused seeking to divest her of the knife.
I have a keen interest in forensic science, expert evidence and Miscarriage of Justice issues. When I attended the Australian Academy of Forensic Sciences Expert Evidence forum in Sydney at the end of August 2013, one of the speakers mentioned the Victorian case of Klamo (The Queen v Tomas Klamo  VSCA 75 (9 May 2008)). I have now had the opportunity to look at the case and there are indeed clear lessons to be learnt from it. Moreover, a recent article in the Australian Journal of Forensic Sciences, published on 12 July 2013 (see http://www.tandfonline.com/doi/pdf/10.1080/00450618.2013.784359#.UjEyJ75--Uk), refers to the case as "an example of miscommunication and misunderstanding of expert evidence where the conviction was later overturned". See an excellent article by Professor Stephen Cordner at http://www.tandfonline.com/doi/pdf/10.1080/00450618.2012.691551 (which I have just discovered and will analyse).