PASSAGE OF THE DAY: "Across many instances, it was often the case that an expert would “stray into expressing opinions on matters of everyday knowledge and experience and therefore impinge upon the function of the jury”, Justice Davis said. “For example, it is the practice of the members of the Queensland Police Service Accident Investigation Unit to prepare their reports to appear like scientific papers. That pretence is then exaggerated by having the paper ‘peer reviewed’ by another police officer who is, like the primary author, a so-called ‘crash investigation expert’,” he said. “As will be explained, most of the opinion evidence sought to be given by officers of the Accident Investigation Unit is inadmissible even if it is ‘peer reviewed’ by another officer who also can’t give admissible evidence.”
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STORY: "Judge finds holes in one of Brisbane’s biggest murder trials, among other cases, by Breaking News Reporter Cloe Read, published by The Brisbane Time, on March 23, 2022. Thanks to Dr. Robert Moles of 'Networked Knowledge' - an important source of information relating to wrongful convictions - for drawing our attention to this story.
GIST: "A Queensland judge has found holes in expert witness evidence and testimonies in several criminal and civil cases, urging defence lawyers to identify the qualifications of witnesses.
In a paper delivered to the Australian Defence Lawyers Alliance Symposium on Friday, Justice Peter Davis raised concerns with several cases across the state and questioned the viability of expert witnesses.
Evidence provided by a pathologist in one of Queensland’s biggest crimes, the murder of 15-year-old Janet Phillips in Brisbane’s bayside suburb of Wynnum in 1987, was probed by Justice Davis.
He questioned that while the pathologist was an expert in forensic pathology and was clearly qualified to give opinion evidence about stab wounds, he lacked expertise in other fields, notably whether Phillips’ killer Lloyd Clark Fletcher raped her before or after her death.
“What was his expertise though to conclude that smudges of blood would be on the body if intercourse had occurred after the stabbing? He clearly wasn’t an expert in the field of intercourse with bleeding bodies,” he said.
“If he gave the evidence which he could give as to the amount of blood which would emerge from the stab wounds and how it would emerge, it was then clearly a jury question as to whether the state of the body was consistent with Fletcher having had intercourse with her post-mortem.
“Potentially, these things had significant forensic consequences.”
In other cases, Justice Davis questioned whether police were qualified enough to give evidence, notably in the murder of Sandra Peniamina, who was stabbed and bludgeoned to death by her husband in 2016.
Evidence showed that low on the kickboards of the kitchen cupboards of the Peniamina home were blood splashes.
“The Crown led evidence from a police officer that the splashes came from a source on the floor,” he said.
“Whether that was truly expert evidence or not hardly mattered because it was obvious from the photographs that the source was perpendicular to the kickboard.
However, the officer was then asked whether the splash mark was consistent with the victim having been kicked. She answered affirmatively. No basis was laid for such an opinion.”
He said it was obvious some force had been applied to Ms Peniamina, but a kick was only one possibility.
“A police officer trained in identifying, photographing and measuring blood stains is clearly in no better position than the jury to determine whether the splash is consistent with having been made by a kick or otherwise,” he said.
Across many instances, it was often the case that an expert would “stray into expressing opinions on matters of everyday knowledge and experience and therefore impinge upon the function of the jury”, Justice Davis said.
“For example, it is the practice of the members of the Queensland Police Service Accident Investigation Unit to prepare their reports to appear like scientific papers. That pretence is then exaggerated by having the paper ‘peer reviewed’ by another police officer who is, like the primary author, a so-called ‘crash investigation expert’,” he said.
“As will be explained, most of the opinion evidence sought to be given by officers of the Accident Investigation Unit is inadmissible even if it is ‘peer reviewed’ by another officer who also can’t give admissible evidence.”
Justice Davis urged defence lawyers to consider a range of information when assessing expert witnesses from the Crown, including requesting disclosure of all notes as well as the witness’ CV, and once all the material was obtained, to identify the factual basis of the opinion and identify the field of expertise from which the opinion was allegedly given."
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
