Key insights into the use of ‘outside knowledge’ and expert evidence in the courtroom is the focus of a Griffith Law Review special issue launched by Supreme Court Justice Peter Applegarth.
Outside knowledge is any information beyond the evidence given by the parties in a legal case and can range from a judge using their common sense to drawing from philosophy, scholarly articles, government reports and even the internet.
The special issue demonstrates that all human beings, including judges, are unconsciously influenced by information and ideas most readily available to them.
Guest editors, Griffith Law School’s Dr Kylie Burns and Ms Zoe Rathus AM with School of Criminology and Criminal Justice’s Dr Rachel Dioso-Villa wanted to determine how broadly outside knowledge is used in the courtroom and in different areas of law.
In a speech to attendees Justice Peter Applegarth said, “In an age in which judges are expected to know more and more about the way the world works, including the complexities of human behaviour, it is time that more thought was given to how judges make appropriate and fair use of such outside knowledge.”
The special issue suggests that judges reach for outside material when there are gaps in the evidence presented or in the law they are required to apply, but that there is little clarity about the legal process in which judges are operating.
“Judges do not need witnesses to tell them things they already know,” said Justice Applegarth. “However, whenever we intend to rely on “outside knowledge” we need to ask: where did I get this knowledge from?”
Judges have complex considerations to make when relying on outside knowledge including the impact it may have on the fairness of the trial.
“Is it reliable: for instance is it based on experience which is not reflective of general experience, outdated information or information which is incomplete or contestable?” said Justice Applegarth.
“Does fairness dictate that I disclose this “knowledge” to the parties and give them an opportunity to explain about why I should not rely on it?”.
The special issue says that there are inadequate and unclear legal frameworks which govern the admission and evaluation of outside knowledge across common law countries including Australia.
The publication is the final outcome of a three-year project, which also involved University of New South Wales’ researchers, Professor Gary Edmond, Professor Julie Stubbs and Ms Mehera San Roque.
The special issue of the Griffith Law Review is available online from Taylor & Francis and features articles from Alysia Blackham, Kylie Burns, Emma Cunliffe, Rachel Dioso-Villa, Gary Edmond, Zoe Rathus AM and Karen Schultz.
This research was made possible by a research grant from the Griffith University’s Arts, Education and Law Group.