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DPP wants early alert on expert evidence

Date

Louis Andrews

Director of Public Prosecutions Jon White.

Director of Public Prosecutions Jon White. Photo: Supplied.

The ACT Director of Public Prosecutions wants new laws forcing defence lawyers to reveal expert evidence earlier in cases, in a bid to stop prosecutors being caught off guard during criminal trials.

DPP Jon White has warned the territory is lagging behind most other jurisdictions when it comes to rules surrounding expert witnesses - including psychiatrists and forensic investigators - relied on by defendants.

But the ACT Law Society has argued the proposal would strip accused people of their ''right to silence'', and say prosecutors should anticipate issues likely to emerge at trial.

In last month's ACT Bar Association bulletin the DPP said Canberra was ''increasingly falling behind'' others states.

''Often in the territory the defence will not give notice of, or serve upon the prosecution, an expert report prior to the expert being called into evidence in a trial,'' Mr White said.

''This of course hampers the prosecution's ability to respond to the expert's report and is otherwise quite inimical to the proper conduct of litigation.''

''For example, the prosecution will rarely have the opportunity of considering whether the requirements of the expert's code of conduct have been complied with.''

The code of conduct enshrines a witness' ''overriding duty'' to impartially assist the court.

Court rules already require lawyers to serve copies of expert reports on solicitors at the opposite end of the bar table. However the rules do not apply to criminal proceedings.

Mr White called on the territory to fall into line with its interstate counterparts.

''Trials are becoming more complex and expert evidence is becoming more commonplace,'' he said.

''Other jurisdictions have dealt with this and there is no reason that the ACT should not also adopt similar procedures in relation to the service of expert evidence.''

In NSW a court can order either party to disclose certain information before a trial begins, and in Victoria the accused has to give the Crown an outline of any expert evidence at least two weeks before a trial.

Similar laws exist in South Australia, Queensland and Western Australia.

But Law Society president Noor Blumer said such a move would ''abrogate the right to silence, and shift the nature of a criminal trial, which is that an accused has to prove nothing, and they are presumed innocent''.

''The DPP carry the burden of proving their guilt beyond reasonable doubt, and the DPP needs to anticipate issues and prepare appropriately,'' she said.

The director's calls come as the ACT Supreme Court implements a new ''docket system'' in a bid to tackle the backlog of delayed cases.

The scheme allocates cases to the trial judge earlier in proceedings in the hopes of heading off any delays.

''The docket system can only be effective if there is a framework for a robust exchange of material and an early identification of the issues in the trial,'' Mr White said.

But Ms Blumer said the docket system potentially made mandatory early disclosure of expert evidence unnecessary.

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