Use of court experts may be curbed

Submitted by Editor on Thu, 23/09/2004 - 23:32

}:) An inquiry into the use of paid witnesses in court cases will consider limits on the use of experts and penalties for unethical conduct. }:)
Sydney Morning Herald

23 September 2004

By Jonathan Pearlman

The NSW Attorney-General, Bob Debus, has referred terms of reference for the inquiry to the NSW Law Reform Commission and ordered a report to be tabled in Parliament by early next year.

The inquiry, to be led by Justice Michael Adams of the Supreme Court, follows revelations in the Herald about the overuse of professional experts.

Doctors, accountants, town planners and engineers can charge up to $10,000 a day to give evidence but judges cannot punish witnesses who give dishonest or biased evidence.

Thousands of experts have begun to advertise in online directories, including some who claim to have specialties in up to 20 different areas. Some witnesses offer to charge on a no win, no fee basis - a practice that is illegal in the US.

Senior judges, including the Chief Justice of the Supreme Court, Justice Jim Spigelman, are concerned about the risk of bias and the impact of experts on the length and cost of cases.

The Law Reform Commission will invite submissions from judges, the NSW Law Society, the NSW Bar Association and peak bodies of professionals such as doctors, engineers and architects.

The commission will consider reforms in New Zealand, Britain and Canada and the use of panels - or "hot tubs" - in which groups of experts are sworn in together and are able to discuss and criticise each other's reports.

Some courts, such as the Land and Environment Court and the Queensland Supreme Court, have begun to curb the use of witnesses by requiring expert evidence to be given by a single witness approved by the court. Those changes have helped halve the lengths of cases.

The commission's executive director, Peter Hennessy, said he expected some professional bodies would oppose the use of court-appointed experts or moves to limit the number of paid witnesses.

"Some will say that it is up to judges to manage the experts before them in their own hearings," he said.

"But the comments made by senior members of the judiciary indicate that we need to look at this and come up with a better way of using experts in court."

The commission has been ordered to review "the accreditation and accountability of expert witnesses ... including the practice of expert witnesses offering their services on a no win, no fee basis" and "the desirability of sanctions for inappropriate or unethical conduct".

It is expected to publish reform proposals in November and submit a final report to the Attorney-General by the end of March 2005.

The chairman of the commission, Justice Adams, will lead the inquiry. The inquiry is also expected to include the president of the Mental Health Review Tribunal, Dr Duncan Chappell, a retired Family Court judge, Professor Richard Chisholm, a full-time member of the commission, Professor Michael Tilbury and a Supreme Court judge, Justice David Kirby.



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