Expert Evidence And The Family Pet..

[tybrax]

http://www.hearsay.org.au/index.php?option=com_content&task=view&id=257&Itemid=48

[sandgrubber]

Extracts from the article posted above . . . which looks at the laws of evidence as related to breed determination. The article is in the Online Journal of the Queensland Bar Assn.

Issue 25: April 2008 written by Stephen Fynes-Clinton:

Subject to some minor qualifications in later judgements , the seminal contemporary summary of the requirements for admissibility of expert opinion evidence is that by Heydon JA, as he then was, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. At 743-744, His Honour stated:-

"In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight."

The keeping of "pit bull terriers" as domestic pets is restricted generally by State laws⁸, and entirely prohibited by many local governments in their particular areas⁹. . . .

The Council, of course, does not know and cannot know the breed of dog in question as a fact, at least in the absence of an admission by the owner¹¹. A number of local governments have sought to bridge this gap by developing their own breed identification process, and by presenting witnesses to the courts as experts in this field, and therefore qualified to give evidence of opinion as to the breed of the dog. . . .

The methodology which these witnesses employee involves comparison of the physical appearance of the dog with descriptions of physical features in a document called a "breed standard", assigning a score of zero to three against each of the descriptions in that document, and coming up with a final score where some number of points (typically 46 of the possible 66) leads to a conclusion that the dog is of the breed alleged.

These witnesses have been accepted by the Magistrates Court on at least one occasion,

. . .

The problem with all this is that, as revealed by the evidence in a subsequent case in which the matter was squarely raised¹³, the area of expertise which might be described as "breed identification by application of breed standards" appears to be non-existent.

Edited September 18, 2011 by sandgrubber