2. The Historical Context
Updates and background for this project (Digest)
Far from being new, the putative problem of scientific expert testimony in common law courts has a long and rich history…discontent with scientific expertise in the courts has existed as long as there have been scientific expert witnesses, and by mid-nineteenth century, the debate over the meaning of these conflicts and the ways to resolve them had all the features that are blithely assumed to be new.1
INTRODUCTION
2.1 Since medieval times, the common law has grappled with issues as to when and how to use specialist or expert knowledge to assist it in the resolution of disputes. The law has, at different times and for different reasons, employed three distinct procedures for utilising such knowledge in its work: the expert jury, the assessor and the expert witness.
2.2 An understanding of the history behind each of these procedures helps to understand and evaluate many of the current issues and problems associated with expert witnesses. Moreover, the history of these three distinct procedures provides an interesting and important backdrop from which to consider recent reforms in this area of civil procedure.
THE EXPERT JURY
2.3 The first known manner in which English law received expert knowledge was through the use of “expert juries.” 2 By the late 13th century, trial by jury had become the principal way in which both civil and criminal matters were resolved.3 Trial by jury at this time resembled “an inquest of neighbours”:4 the jury comprised members of the local community, who could have been familiar with the persons involved and with the contentious matter itself. These jurors did not evaluate evidence adduced before them, but rather disclosed to the Court their knowledge and preconceived opinions on the matter. They frequently adjourned to make additional inquiries in the community on any point about which they were uncertain.5
2.4 In cases where there was perceived a need for jurors with specialist knowledge, a jury could be, and often was, composed either partially or completely of such experts. Thus, records from the 14th century indicate that juries were composed of “experts and men of particular trades, like the London juries of cooks and fishmongers, where one was accused of selling bad food”.6 Similarly, all-female juries (or the jury of matrons de ventre inspiciendo) were used in cases of disputed pregnancy and paternity, and their tasks included a physical examination of the woman in question. This method of empanelling expert juries persisted over the following centuries, and appears to have been particularly frequent in urban areas and in matters involving practices or customs of a particular trade. Indeed, it has been said that, in trade disputes, the use of juries of men of that trade was “not only known, but exceedingly common in the city of London throughout the fourteenth century”.7
2.5 Similarly, records indicate that juries composed of merchants were used at times in commercial cases until the 18th century. However, in the 18th century, and primarily under the influence of Lord Mansfield as Chief Justice of the Court of King’s Bench,8 the practice of using merchant juries became a regular occurrence in commercial cases. Lord Mansfield explained his reasons for using expert juries in the following terms:
The special jury, (amongst whom there were many knowing and considerable merchants)… understood the question very well, and knew more of the subject of it than any body else present.9
2.6 Many have argued that Lord Mansfield’s practice also had the effect of developing the common law in commercial matters with the assistance of expert knowledge.10 Special provision to retain the merchant jury was made by statute in the late 19th century and early 20th century.11 This came to be known as the City of London jury.
2.7 However, the use of expert juries such as the City of London jury fell into decline and virtual disuse in the latter half of the 19th and early twentieth century.12 This coincided not only with a decline in the use of trial by jury in civil matters,13 but also with the greater use of expert witnesses. The last recorded case of an expert merchant jury occurred in 1950,14 and it was formally abolished by statute in 1971.15
2.8 Interestingly, and in spite of this movement away from expert juries, in 1919 judges were granted the discretion to compose an all-male or all-female jury as the case may require, or excuse a female from jury service, because of “the nature of the evidence to be given or the issues to be tried”.16 This provision was invoked as late as 1968, when a judge empanelled an all-female jury in a case of manslaughter because the “matters in issue involved the handling of a baby” and “he came to the conclusion that women, on the whole, would better understand matters of that sort”.17 While the decision by the trial judge was allowed to stand on appeal, the Court of Appeal expressly disapproved of the practice,18 and the provision was repealed in 1971.19
2.9 In New South Wales, the option to empanel an expert jury of 12 was first provided for in 1832.20 This provision existed in some form21 and was used in numerous cases22 until it was formally abolished in 1947.23
ASSESSORS
2.10 The second way in which English law has, over the centuries, received expert knowledge and assistance is through the use of “assessors”. This practice has been primarily confined to admiralty matters, although a number of English courts were granted the power to appoint assessors in a wide variety of matters in the latter part of the 19th century.24
2.11 As outlined by Dickey, the term “assessor”:
derives directly from the Latin assessor, meaning one who sits with another, or an assistant, and in English law denotes a person who, by virtue of some special skill, knowledge or experience he possesses, sits with a judge during judicial proceedings in order to answer any questions which might be put to him by the judge on the subject in which he is an expert…
Assessors… are not called by the parties, are not sworn, and cannot be cross-examined. Indeed their advice is both sought by and given to the court in private and is disclosed to the parties at the court’s discretion and then usually at the end of the case in the judgment.25
2.12 The practice of using assessors appears to have been adopted by the Admiralty Court, which was founded in the 14th century, from its earliest days, although clear and regular records from this Court do not emerge in this area until the 18th century. Such a distinctive procedure of adducing specialist knowledge grew up within the Admiralty Court because of the direct influence on its work of historical and (then) contemporary maritime procedures in civil law jurisdictions. By the 16th and 17th centuries, Elder Brethren of the Holy and Undivided Trinity, an association of seamen founded in 1514 by Henry VIII, routinely assisted the Admiralty Court. As the common law gradually encroached upon, and finally subsumed the admiralty jurisdiction, this practice was continued. In the 18th century, the situation had developed to the point where judges treated them as “fellow adjudicators”.26
2.13 However, by the mid 19th century, the role of assessors in admiralty matters was receiving unflattering attention: there was considerable unease with the perception that judges were seen to depend upon the opinions of assessors and, in doing so, abdicate their judicial decision-making responsibilities.27 By this time, the role of judge as impartial decision-maker had become firmly entrenched within the common law.28 In 1850, Dr Lushington stated that “in no case whatever have I pronounced any judgment except it was my own”.29 But judicial commentary from the period illustrates the judges’ ambivalence, stressing both their reliance on the assessors’ expertise, and the judges’ ultimate decision-making role. An illustration is the judgment of the Master of the Rolls, Sir Baliol Brett in The Beryl. It contains the following passages:
In the Court of Admiralty the application of the rules is to be made by a mixed tribunal. The tribunal which has to try the case is the judge himself, and the judgment is his and his alone. The assessors who assist the judge take no part in the judgment whatever; they are not responsible for it, and have nothing to do with it. They are there for the purpose of assisting the judge by answering any question, as to the facts which arise, of nautical skill…
Still, it would be impertinent in a judge not to consider as almost binding upon him the opinion of the nautical gentlemen who, having ten times his own skill, are called in to assist him.30
2.14 Unease with the role of assessors grew in the 20th century. Questions were raised as to their continued usefulness31 and whether their role was consistent with notions of natural justice. Thus Lord Justice Scrutton pointed out in The Tovarisch:
The judge in the Admiralty talks to them [assessors] and gets information from them. The parties do not know what the witnesses are telling the judge; they have no opportunity of cross-examining the so-called witnesses.32
2.15 The problem was exacerbated by the longstanding rule that in admiralty matters expert evidence could not be tendered on matters within the special skill or experience of the assessors assisting the court.33 It also caused complication in appeals, since different assessors were used at different levels of appeal, resulting in concern that appeals might be regarded as “not from one judge to another but from one assessor to another.”34 As late as 1970, the British Law Reform Committee reported:
Consultation between the judge and the nautical assessor is continual and informal, both in court and in the judge’s room. The advice which the judge receives from the assessor is not normally disclosed to counsel during the course of the hearing, although the judge may do so if he thinks fit. In his judgment he does usually state what advice he has received on particular matters and whether he has accepted it or not. But he is under no obligation to do so and the practice is not uniform among all judges.35
2.16 In New South Wales, there are examples of the use of assessors in 19th century admiralty matters.36 The overwhelming practice in 20th century admiralty matters has been not to use assessors.37 Interestingly, there has also been, pursuant to the relevant patent legislation,38 the infrequent appointment of assessors in complex patent matters.39
THE EXPERT WITNESS
2.17 The third way in which English law has taken advantage of specialist knowledge is through the use of “expert witnesses”. The earliest records of such a practice date back to the 14th century, and involve cases in which surgeons were summoned to establish such things as whether a wound was fresh. Cases from the 16th and 17th centuries also show that surgeons were summoned to give expert opinion on the cause of death, to advise on whether a child born 41 weeks after a husband’s death could be legitimate, and even as to whether fits suffered by children could be a result of witchcraft on behalf of a defendant.40
2.18 Similarly, records from the 15th and 16th centuries show that the advice of grammarians was sought by the courts where the issues in question turned on the meaning of technical Latin phrases in contracts and other commercial documents. In Buckley v Rice Thomas, Justice Saunders made what has since become a famous statement:
[I]n matters arising in our law which concerned other sciences or faculties, we commonly applied to the aid of that science or faculty which it concerns, which is an honourable and commendable thing in our law. For thereby it appears that we do not despise all other sciences but our own, but we do approve of them and encourage them as things worthy of commendation.41
Cases from the early to mid 18th century show that merchants were sought by courts to give expert advice on the correct interpretation of commercial documents.42
2.19 The practice gradually gave way to such experts being called by the parties themselves.43 Although it had occurred gradually over the previous centuries, by the late 18th century, the “adversarial revolution” had transformed the common law system to one that is easily recognisable today.44 With the movement away from the medieval system of static communal organisation, jurors were no longer necessarily taken from the locality in which relevant events occurred, and the issues before them were not those concerning local knowledge. This modern jury was bound not to base its decisions on its members’ own knowledge, but rather solely on the evidence placed before it by witnesses. As Thayer wrote:
[T]he old doctrine of their going on private knowledge began more and more to give way. The jury were told that if any of them knew anything relating to the case, they ought to state it publicly in court. This lay long in the shape of a moral duty of the jurors, not enforceable; but after a time it was enforced and the court assumed that, in general, nothing was known to the jury except what was publicly stated in court – adding to this, under the notion of judicial notice, what they were legally supposed to know and what was known to everybody. This brought matters down to the state of things in which we are now living. The jury became merely judges upon evidence.45
2.20 Moreover, as the idea was that it was the parties and their lawyers who were responsible for the gathering of evidence and calling of witnesses, the judiciary relinquished control over the litigation process and increasingly adopted the role of passive adjudicators. As such, Wigmore, in his Treatise on the Anglo-American System of Evidence, writes of the skilled witness that “by the latter part of the 1700s, he took his place with others as a mere witness to the jury”.46
2.21 The gradual differentiation between the role of jury and witness, along with the greater role of advocates within the litigation process, gave rise to the need for evidentiary rules as to the manner in which evidence was placed before the jury. One such rule appearing in the latter half of the 18th century was what is today known as the opinion rule: “that a witness must have personal knowledge, must state facts, not opinions”. The development of this rule was intricately linked to the rise of the rule against hearsay.47
2.22 In this context, it is interesting to note that, in the late 18th century and early 19th century, the first controversy surrounding the use of expert witnesses was not related to the fact that individual parties called such witnesses. Rather, the problem arose as to how to rationalise the use of skilled persons (a practice long established) with the newly developed rule prohibiting opinion evidence. Experts had thus far been sought out specifically to give such opinions. This problem appears to have been settled by Lord Mansfield in the seminal case of Folkes v Chadd,48 where it was accepted that the evidence of expert witnesses was an exception to the general rule prohibiting mere opinion evidence. The expert witness, as such, became “a special sort of witness”.49
2.23 It is interesting to question why, at this time, there was little judicial comment or perturbation about the possible “adversarial bias” that may attach to experts called on behalf of parties. Perhaps there was at that time an inherent confidence in the objectivity of science, as well as the moral integrity of the “gentlemen” who gave such evidence.50 Similarly, it could be argued that there remained vestiges of the notion, still prevalent in the mid 18th century, that experts were called as an aid to assist the court.
2.24 However, by the mid 19th century, there was evident concern within the judiciary and the general public about the use of partisan expert evidence. There was a perception that “experts could be found who would testify to anything absurd”.51 Indeed, some argue that, by this time, the issue had become “a persistent thorn in the side of the common law”.52 This was a period of great industrial expansion and change in British history, with science being applied to many new and developing areas. Not only did this create legal disputes of novel character, it also required the use of experts to assist the court to understand the ever-changing industrial society. Joining the ranks of expert witnesses were “chemists, microscopists, geologists, engineers, mechanists” and the like.53 At this time, it is said, the law itself came under pressure to be more “scientific” through a rationalisation of its processes and procedures.54
2.25 Much criticism of expert evidence at this time was directed at the reliability and objectivity of science itself, as well as the integrity of scientists. In the Victorian era, disagreements of opinion among scientists were viewed by judges, in particular, as a sign of “money minded” partisanship on the part of the expert.55 This analysis can be understood in the light of the assumption that science was inherently objective – “a ladder by which even a child may, almost without knowing it, ascend to the summit of truth”.56 As argued by Chief Justice James Fitzjames Stephen, the spectacle of leading scientists contradicting each other on the witness box was attributable to their want of moral fibre rather than professional disagreement; most of them, he said, were “all but avowedly advocates, and speak for the side which calls them”.57
2.26 This explanation for the phenomenon of scientists and other experts flatly contradicting one another was echoed by other leading judges of the day. In an 1856 trial, more than one dozen experts were called. Lord Chief Justice Campbell remarked that:
With regard to medical witnesses, I must observe that, although there were among them gentlemen of high honor, consummate integrity, and profound scientific knowledge, who came here with a sincere wish to speak the truth, there were also gentlemen whose object was to procure an acquittal of the prisoner. It is, in my opinion, indispensable to the administration of justice that a witness should not be turned into an advocate, nor an advocate into a witness.58
Similarly, in his Treatise on the Law of Evidence (1885), Taylor states:
Perhaps the testimony which least deserves credit with a jury is that of skilled witnesses. These gentlemen are usually required to speak, not of facts, but to opinions: and when this is the case, it is often quite surprising to see with what facility, and to what an extent, their views can be made to correspond with the wishes or the interests of the parties who call them.59
2.27 For others, however, the situation was attributable not so much to the expert witness as it was to the lawyers:
Armed with an hour’s reading… the great man [ie the lawyer] comes down to court to puzzle, bewilder, and very often to confute men of real ability… A pitiable specimen is that poor man of science, pilloried up in the witness box, and pelted by the flippant ignorance of his examiner! What a contrast between the different caution of the true knowledge, and the bold assurance, the chuckling confidence, the vain-glorious self-satisfaction, and mock triumphant delight of his questioner!60
2.28 Various proposals to reform the manner in which expert evidence was adduced in court were put forward in the latter half of the 19th century, principally by the scientific community.61 Thus, for example, in 1862 the British Association for the Advancement of Science published a report recommending that the jury be dispensed with in civil cases having a technical character, that the bench should consist of a judge and up to three skilled assessors, and that the court should be able to call on witnesses independently of the parties.62 These proposals were opposed on the ground that they were inconsistent with fundamental aspects of the adversarial process, such as a right to trial by jury in civil cases and a right of parties to present to the court the evidence that they choose. As such, the proposals outlined “remedies far worse than the disease”.63
2.29 The difficulties and disrepute associated with expert evidence persisted in England. By the late 1920s, one finds commentary not simply about the partisan problems associated with expert evidence, but also its effect on access to justice and responsible use of court resources. Thus, in 1928 Justice Tomlin said:
Of late years cases involving expert evidence appear to have increased in number and in length. Having regard to the complexity of modern life and the widened field over which science ranges, this is perhaps inevitable, but the overloading of these cases in the preparation of them is becoming not infrequent. Long cases produce evils; they place the parties with the lesser resources at a grave disadvantage, and they delay the course of the general business of the Courts and thereby inflict serious hardships on other litigants.64
2.30 The problems associated with the expert witness in Australia mirror those experienced in England since at least the latter half of the 19th century. Long-time practitioners have noted, for example, in reference to workers’ compensation matters, that “one only had to hear the name of the [expert] witness and one could have written the report oneself and, indeed, the script for cross-examination”.65 Unflattering judicial commentary on certain expert witnesses routinely called in personal injury cases – the “usual panel of doctors who think you can do a full week’s work without any arms or legs” - have also exposed the disrepute with which the area is associated.66
2.31 The task facing reformers of today remains the task identified by Learned Hand at the beginning of the 20th century:
No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is how it can do so best.67
FOOTNOTES
1. T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7 at 8.
2. Note that literature on this topic frequently refers to expert juries as a “special jury”. However, the term “special jury” also refers to the longstanding practice in English law of forming juries, in certain circumstances, from individuals comprising the higher echelons of society. In order to avoid confusion, the terminology of “expert jury” will be used. For a discussion of special juries, see J Oldham, “The Origins of the Special Jury” (1983) 50 University of Chicago Law Review 137.
3. Trial by jury superseded such methods as trial by ordeal, trial by oath and trial by battle.
4. J Stone and W A N Wells, Evidence Its History and Policies (Butterworths, Sydney, 1991) at 16-19.
5. Stephen’s Commentaries on the Laws of England (17th edition, Butterworths & Co, London, 1922) Volume 4 Ch 25; JER Stephens, “The Growth of Trial by Jury in England” (1896-97) 10 Harvard Law Review 150; J Stone and W A N Wells, Evidence Its History and Policies (Butterworths, Sydney, 1991) Pt 1, Ch 1 generally; J B Thayer, A Preliminary Treatise on Evidence at the Common Law (Reprint of the 1898 edition, Rothman Reprints Inc & Augustus M Kelley Publishers, New Jersey & New York, 1969) Ch 1-4 generally.
6. J B Thayer, A Preliminary Treatise on Evidence at the Common Law (Reprint of the 1898 edition, Rothman Reprints Inc & Augustus M Kelley Publishers, New Jersey & New York, 1969) at 94-95.
7. L Hand, “Historical and Practical Considerations Regarding Expert Testimony” (1901) 15 Harvard Law Review 40 at 41. See also A Dickey, “The Jury and Trial by One’s Peers” (1941) 11 University of Western Australia Law Review 205; C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 25-29; Note, “The Case for Special Juries in Complex Civil Litigation” (1980) 89 Yale Law Journal 1155; J Oldham, “The Origins of the Special Jury” (1983) 50 University of Chicago Law Review 137; J B Thayer, A Preliminary Treatise on Evidence at the Common Law (Reprint of the 1898 edition, Rothman Reprints Inc & Augustus M Kelley Publishers, New Jersey & New York, 1969) at 94-95.
8. Lord Mansfield’s tenure was from 1756 - 1788.
9. Lewis v Rucker (1761) 2 Burr 1167 at 1168; 97 ER 769 at 770.
10. J H Beuscher, “The Use of Experts by the Courts” (1941) 54 Harvard Law Review 1105; A Dickey, “The Jury and Trial by One’s Peers” (1941) 11 University of Western Australia Law Review 205; L Hand, “Historical and Practical Considerations Regarding Expert Testimony” (1901) 15 Harvard Law Review 40. E Heward, Lord Mansfield (Barry Rose Publishers Ltd, Chichester and London, 1979) Ch 16 generally; F D MacKinnon, “Origins of Commercial Law” (1936) 52 Law Quarterly Review 30; Note, “The Case for Special Juries in Complex Civil Litigation” (1980) 89 Yale Law Journal 1155; Potter’s Historical Introduction to English Law and Its Institutions (4th edition, Sweet & Maxwell, London, 1962) at 208-09.
11. 6 George IV c 50 (Eng) (Juries Act of 1825) s 31; Common Law Procedure Act 1852 (Eng) s 110; Juries Act 1870 (Eng) s 6; Juries Act 1949 (UK) s 19.
12. See in particular A Dickey, “The Jury and Trial by One’s Peers” (1941) 11 University of Western Australia Law Review 205.
13. See R M Jackson, “The Incidence of Jury Trial During the Past Century” (1937) 1 Modern Law Review 132.
14. Young v Rank [1950] 2 KB 510.
15. Courts Act 1971 (UK) s 35(7).
16. Sex Disqualification (Removal) Act 1919 (UK) s 1(b).
17. Sutton (1968) 53 Cr App R 128 at 130 (Parker LCJ).
18. Sutton (1968) 53 Cr App R 128 at 129 (Parker LCJ).
19. Courts Act 1971 (UK) s 40(1).
20. 2 William IV No 3 (1832) s 25. Note that the jury was referred to as a “special jury”. A close reading of this provision suggests that this the “special jury” was in fact two different types of juries: expert juries of persons such as merchants and bankers, as well as juries comprised of eminent persons of the colony. Case law seems to bear out this distinction, as the special jury was applied in two sorts of cases: those involving difficult questions of law or fact (requiring an expert jury or, in terms of small population of the colony, those with a higher level of education) or matters of grave public importance (requiring eminent persons as jurors). See McLaughlin v Bennett (1889) 6 WN (NSW) 15.
21. 11 Victoria No 20 (1847) s 10; Jury Act 1901 (NSW) s 21; Jury Act 1912 (NSW) s 20.
22. See, for example, Tate v Goodlet (1864) 3 SCR (NSW) 12; Graham v Commissioner of Railways (1864) 3 SCR (NSW) 13; Nash v Bank of New South Wales (1864) 3 SCR (NSW) 13; McLaughlin v Bennett (1889) 6 WN (NSW) 112.
23. Jury (Amendment) Act 1947 (NSW) s 4. For an interesting article on the origins of the jury trial in the colony of NSW, including the use of the jury of four, see P Henchman, “The New South Wales Jury of Four Persons” (1959) 33 Australian Law Journal 235.
24. See A Dickey, “The Province and Function of Assessors in English Courts” (1970) 33 Modern Law Review 494.
25. A Dickey, “The Province and Function of Assessors in English Courts” (1970) 33 Modern Law Review 494 at 501.
26. R G Marsden, quoted in C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 39. See also J H Beuscher, “The Use of Experts by the Courts” (1941) 54 Harvard Law Review 1105; A Dickey, “The Province and Function of Assessors in English Courts” (1970) 33 Modern Law Review 494; W S Holdsworth, A History of English Law (2nd edition, Methuen & Co Ltd, London, 1945) Vol 5 at 120-154; C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 38-48.
27. See in particular C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 40.
28. See T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7 at 9.
29. Quoted in C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 41.
30. The Beryl (1884) 9 PD 137 at 141.
31. See Owners of S S Australia v Owners of Cargo of S S Nautilus [1927] AC 145 at 149-150 (Viscount Dunedin).
32. The Tovarisch [1930] P 1 at 7.
33. See commentary in Australian Law Reform Commission, Civil Admiralty Jurisdiction (Report 33, 1986) at para 288; Great Britain, Law Reform Committee, Evidence of Opinion and Expert Evidence (Report 17, 1970) at 6-7.
34. Owners of S S Melanie v Owners of S S San Onofre (No 1) (1919), noted at [1927] AC 162 (Birkenhead LC); See also Owners of S S Artemisia v Owners of S S Douglas (1925), noted at [1927] AC 164.
35. Great Britain, Law Reform Committee, Evidence of Opinion and Expert Evidence (Report 17, 1970) at 6-7.
36. See Australian Law Reform Commission, Civil Admiralty Jurisdiction (Report 33, 1986) at para 290, which cites the case of The Tyburnia (1887) 8 LR (NSW) Adm 1.
37. See Australian Law Reform Commission, Civil Admiralty Jurisdiction (Report 33, 1986) at para 290; Peters Slip Pty Ltd v Commonwealth of Australia [1979] Qd R 123. Note, however, that now defunct Courts of Marine Inquiry did sit with assessors. For a general discussion, see A G Oglivie, “Courts of Marine Inquiry in Australia” (1979) 53 Australian Law Journal 129.
38. Patents Act 1903 (Cth) s 86(8); Patents Act 1952 (Cth) s 167; Patents Act 1990 (Cth) s 217.
39. Adhesives Pty Ltd v Aktieselskabet Dansk Gaerings-Industri (1936) 55 CLR 523; Cement Linings Ltd v Rocla Ltd (1940) 40 SR (NSW) 491; Genetic Institute Inc v Kirin-Amgen Inc (No 2) (1997) 78 FCR 368; See also F Hoffman-La Roche AG v New England Biolabs Inc [1999] FCA 1424 and P Heerey, “Expert Evidence in Intellectual Property Cases” (1998) 9 Australian Intellectual Property Journal 92.
40. See L Hand, “Historical and Practical Considerations Regarding Expert Testimony” (1901) 15 Harvard Law Review 40; C T Moodie, “Expert Testimony – Its Past and Its Future” (1937) 11 Australian Law Journal 210; C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 35-38; J H Wigmore, A Treatise on the Anglo-American System of Evidence in Trial at Common Law (3rd edition, Little Brown and Company, Boston, 1940) Vol 7 at para 1917.
41. Buckley v Rice Thomas (1554) 1 Plowd 118 at 125; 75 ER 182 at 192.
42. C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 35-38; See also L Hand, “Historical and Practical Considerations Regarding Expert Testimony” (1901) 15 Harvard Law Review 40; J H Wigmore, A Treatise on the Anglo-American System of Evidence in Trial at Common Law (3rd edition, Little Brown and Company, Boston, 1940) Vol 7 at para 1917.
43. Note, however, that English and Australian courts have always maintained that they have the inherent power, though rarely exercised, to appoint a court expert. See for a discussion of, and case law on, this topic J Basten, “The Court Expert in Civil Trials – A Comparative Appraisal” (1977) 40 Modern Law Review 174; I Sheppard, “Court Witnesses – A Desirable or Undesirable Encroachment on the Adversary System?” (1982) 56 Australian Law Journal 234.
44. See T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7.
45. J B Thayer, A Preliminary Treatise on Evidence at the Common Law (Reprint of the 1898 edition, Rothman Reprints Inc & Augustus M Kelley Publishers, New Jersey & New York, 1969) at 174.
46. J H Wigmore, A Treatise on the Anglo-American System of Evidence in Trial at Common Law (3rd edition, Little Brown and Company, Boston, 1940) Vol 7 at para 1917. See also T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7; L Hand, “Historical and Practical Considerations Regarding Expert Testimony” (1901) Harvard Law Review 40; C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 35-38; C T Moodie, “Expert Testimony – Its Past and Its Future” (1937) 11 Australian Law Journal 210.
47. J H Wigmore, A Treatise on the Anglo-American System of Evidence in Trial at Common Law (3rd edition, Little Brown and Company, Boston, 1940) Vol 7 at para 1917. See also T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7; L Hand, “Historical and Practical Considerations Regarding Expert Testimony” (1901) 15 Harvard Law Review 40.
48. Folkes v Chadd (1782) 3 Doug KB 157; 99 ER 58.
49. C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 59. See also T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7; L Hand, “Historical and Practical Considerations Regarding Expert Testimony” (1901) 15 Harvard Law Review 40; C T Moodie, “Expert Testimony – Its Past and Its Future” (1937) 11 Australian Law Journal 210; J H Wigmore, A Treatise on the Anglo-American System of Evidence in Trial at Common Law (3rd edition, Little Brown and Company, Boston, 1940) Vol 7 at para 1917.
50. T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7 at 14.
51. C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 98.
52. T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7 at 14.
53. T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7 at 14-15.
54. C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 96-97.
55. C Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press, Oxford, 1994) at 99.
56. Prince Albert, quoted in T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7 at 16.
57. Quoted in T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7 at 21-22.
58. Quoted in W L Foster, “Expert Testimony – Prevalent Complaints and Proposed Remedies” (1898) 11 Harvard Law Review 169 at 170.
59. P Taylor, A Treatise on the Law of Evidence (8th edition, W Maxwell & Sons, London, 1885) Vol 1 at 79.
60. C O’Dowd, “Cornelius O’Dowd on Men and Women, and Other Things in General” (1864) 96 Blackwood’s Edinburgh Magazine 284, quoted in T Golan, Laws of Men and Laws of Nature (Harvard University Press, Cambridge Massachusetts, 2004) at 105.
61. Note that the scientific community was itself undergoing transformation in the 19th century, with the influx of new and varied areas of expertise. For a discussion, see T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7.
62. T Golan, Laws of Men and Laws of Nature (Harvard University Press, Cambridge Massachusetts, 2004) at 122.
63. Former Attorney-General Mr Whiteside MP, quoted in T Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12 Science in Context 7 at 23.
64. Graigola Merthyr Company Limited v Mayor, Aldermen and Burgesses of Swansea [1928] 1 Ch 31.
65. H D Sperling, “Letter to the Editor” (2003) 6(3) Judicial Review 223 at 223.
66. Vakauta v Kelly (1989) 167 CLR 568 (Toohey J), quoting the trial judge.
67. L Hand, “Historical and Practical Considerations Regarding Expert Testimony” (1901) 15 Harvard Law Review
