Present 'digestible' expert evidence

Expert evidence must be presented in a way that’s persuasive, digestible and in plain English, Brisbane barrister Nicholas Andreatidis told an AILA breakfast meeting.

Expert witnesses had to communicate effectively to “a person with a humanities background, because that’s what a judge is”.

“Consider how complicated, detailed, technical evidence can be presented in an easy and persuasive way.”

Mr Andreatidis said the rules for presenting expert evidence differed, depending on the jurisdiction.

“Experts are there to help the court, not be an advocate for the parties,” he said. “Experts may give evidence on observed facts, but matters assumed must be proved by other expert witnesses.”

Under Queensland’s Uniform Civil Procedure Rules, there was no privilege for witnesses’ statements and reports. Mr Andreatidis said there was “not a lot of case law, but that’s not surprising because people don’t want to test it”.

In Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board, Justice James Douglas found experts’ draft reports had to be disclosed. 

He said: “The answer to the question may be sought by asking whether a draft statement or report by an expert is nonetheless his statement or report even though it might not be his final view. If an expert has prepared a draft report it is still his report or statement, no doubt normally reflecting his state of mind at the time he wrote it. The fact that, after consultation with lawyers in an action, he may prepare a further report or amend the draft does not prevent the draft from meeting the description in the rules.”

In Amos v National Australia Bank, Justice Brian Ambrose was deciding whether costs incurred in preparing unused experts’ reports were properly chargeable against an applicant after the case had settled. He said: “The various reports, calculations etc had been made as a consequence of discussions between the bank and its accountants and other experts on forged handwriting, but no completed reports had ever been prepared and indeed none was ever made. The notations, drafts, statements, etc had obviously been prepared for the purpose of litigation and communication of them to the bank was privileged, albeit that, had the reports ever been completed and become expert reports, they would have lost that privilege under the rules.”

Mr Andreatidis said the decision was never tested but “I doubt it’s right”. He suggested the rules did not change simply because final reports were not created and the expert was not called to give evidence.

Experts’ evidence had to be something “outside ordinary knowledge” and “a recognised science”.

Mr Andreatidis explained a case he was involved with after a 21-year-old driver’s vehicle swerved in front of a road train. The insurer produced a “psychological autopsy” in an attempt to show the driver had committed suicide and the insurer was therefore not liable. That was rejected, citing a UK case, R v Gilfoyle [2001], in which it was held psychological autopsy was not a recognised science and there was no way to test the theory it could be used to show whether a person had committed suicide and no academic evidence to uphold it.

In the UK case, a man found guilty of murdering his wife by faking her suicide, appealed on the basis a psychological autopsy was fresh evidence. The court refused to allow the psychologist’s evidence about his wife’s state of mind because it was based on one-sided evidence, there was no academic approval of his methodology and it was “not appropriate evidence to place before a jury”.

The judges said: “The American Psychology Association Panel has recommended psychologists conducting a psychological autopsy state in their report that conclusions drawn are based on a speculative view of events. Unstructured, speculative conclusions are not the stuff of which admissible expert evidence is made.”

Mr Andreatidis warned against accepting experts’ reports on face value, but urged caution. “DNA testing was once [considered] voodoo,” he said.

While an expert witness should be independent, it was not always the case. There was “nothing wrong” with experts who were employees giving evidence, but Mr Andreatidis said their evidence would be scrutinised carefully. “Think about the weight that will be given to it.”

He advised lawyers to check experts’ academic writing. He detailed a case in which an academic was giving evidence about risk profiling conducted by financial advisers. The case was lost after the witness was questioned on an earlier academic report he had authored which said financial advisers were not competent to conduct risk profiling.

During Queensland’s Grantham Floods Commission of Inquiry, at which Mr Andreatidis appeared for the owner of a quarry that was blamed by some residents for a flood that killed 12 people, a geologist gave evidence about a stereoscope, which showed high-definition photographs to give 3D images of the area.

Commissioner Walter Sofronoff QC presented his report to the Queensland Government on 8 October 2015. It cleared Mr Andreatidis’s client, the Wagner family, of any responsibility.

His report concluded: “Quarry or no quarry, railway line or no railway line, if there is ever another sudden dump of water in the upper catchment of the Lockyer Creek of the order of that which fell on 10 January 2011, the same thing will happen again.”

Mr Andreatidis related cross examination of the expert witness who operated the stereoscope after he had described interpreting the images as “a mix of art and science, applied to engineering”. The subsequent questioning about where science ended and art began was “fabulous fun”, he said.

His team knew Grantham residents were wary of hypothetical computer modelling, but they combined the modelling with photos and videos of the events unfolding as the flood waters rose that illustrated “a high degree of calibration” between the modelling and physical evidence.

Mr Andreatidis said hostility towards his client shifted as the modelling was shown. He agreed the methodology was “expensive and not always possible”, but it was “powerful” evidence to demonstrate that the Wagner family’s quarry was not to blame for the flood.