Court Experts

675. The Use of Court Experts in Australia.[865] The power of an Australian court to call a witness (including an expert witness) without the consent of the parties is limited to criminal cases, and may not exist even then (the decisions on the point are conflicting).[866] The existence of a common law power to appoint an independent ‘court expert’ to assist by reporting on some disputed issue is similarly uncertain, and even where that power is conferred by rule of court, it is rarely used.[867] The main objection to increased use of court experts is that either the expert becomes in effect the arbiter of the case, or his evidence or report must be subjected to cross-examination by both sides, with an opportunity to call evidence in refutation. The former is inappropriate, especially where (as is common) there is disagreement within the particular profession or discipline: the choice of expert can in effect determine the approach that will be adopted.[868] The latter is likely to increase the cost and length of the trial, without, in most cases, any corresponding advantages in resolving the dispute. It can be argued that the difficulties in proving Aboriginal customary laws are such that no possible assistance should be rejected. On this view, courts should be given a variety of powers to help them in resolving these difficulties, including the power to call for an expert opinion or report. Given the present uncertainty of the law, this would probably require legislation. However the Commission has received no real support for this view, and experience suggests that the problems are better dealt with in other ways. Given the objections to court experts there appears no sufficient reason for a special law in the present context.