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Expert Witness in the Land and Environment Court

-  Definitions

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-  The role in practise

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-  The role in court

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Expert witness

The Abel Ecology ecological consulting team includes a range of experts who are capable of providing services in the NSW Land and Environment Court. Our expertise includes ecology and bushfire matters.

 

As an expert witness in both issues Dr Wotherspoon brings a rare combination of experience and understanding in the interaction of ecology and bush fire in the planning and management of developments.  He is an adjunct research fellow at the University of Western Sydney. His research interests include plant and animal species diversity in Littoral rainforest, Blue Gum High Forest and Eastern Suburbs Banksia Scrub, genetic provenance for bush regeneration, road design and impact of roadkill on fauna, biobanking and offset strategies, animal home range, cane toad invasion and control, impact of habitat fragmentation on flora and fauna, use of artificial water storages by international migratory wading birds, and golf course management.

 

Dr Wotherspoon has published papers, including two on biobanking, in international journals.

 

The following notes may be helpful in understanding the role and practise of an expert witness.

Definitions

Expert

A trained and experienced person recognised as having expertise in a particular area.  Training is generally formal, by accredited tertiary educational institutions, but may be by other means.  Experience is generally gained by practise in the profession.

 

Witness

One who can give a firsthand account of something observed or experienced.  A witness is able to provide evidence in the form "In my experience ".

 

Advice

A professional, in this case a scientist, is able to suggest a course of action, ideally that is wise.  Bad advice is that which is based on inadequate data, poor analysis or inappropriate motivation.

 

The precursors to advice are insight, understanding, discernment and wisdom.

 

Insight is the ability to perceive clearly or deeply the inner nature of things.

 

Understanding is to know how things operate, in this case the biological and physical components of living things and their environment.

 

Discernment is the skill of discrimination among alternatives, to develop options, a variety of possibilities.

 

Wisdom is knowing what to do, to make a correct choice of action in the light of insight, understanding and discernment.

Evidence

There are various components to evidence:

 

Raw data: Observations, qualitative or quantitative, recorded in an appropriate format.


Analysis: Sorting the data by categorisation, statistical techniques or other discriminatory methods.

 

Interpretation: To develop a meaning of the data or analysis in the context of a circumstance or a question that is being asked.

 

Opinion: Taking a view on a situation, on the basis of the preceding considerations.

 

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The role in practise

A scientist acts as an expert at all the levels above in daily work.  However, errors of practice may occur that affect performance in the court.  Examples of inappropriate behaviour by an expert witness include the following:

 

Reliance on inaccurate or outdated literature

For example the frog Red-crowned Toadlet is well known to some scientists and familiar to many consultants.  The available literature includes a species profile published by OEH which excludes findings of research by two PhD theses, and is contradicted by published research.  If an expert witness has personal experience of the species they would prefer available literature and their own experience to the published species profile by OEH.

 

A narrow view

There are a variety of ways to interpret the Final Determinations by the Scientific Committee, in spite of clear statements to the contrary in the preamble to a determination.

 

The "Heinz 57 varieties" approach

The Final Determination lists species for a vegetation community, so a consultant will claim that since one of them is missing from a site, the community does not occur. Example: A site without Grey Gum Eucalyptus punctata would not be recognised as Shale Sandstone Transition Forest even though a diversity of listed canopy species does occur.

 

The ring-in argument

A species not on the list also occurs on a site, so a consultant may claim that the community is not present.  For example, in a court case a consultant argued that a coastal site was not littoral rainforest because a single tree of Red Ash Alphitona excelsa, not listed in the Final Determination, was present, so the community must in fact be Western Sydney Dry Rainforest.  Red Ash does occur in littoral rainforest at other locations, such as Iluka.

 

The "fails the definition" approach

A site may have a soil type not mapped as that mentioned in the Final Determination, so a consultant may claim that it does not meet the criterion for a particular community.

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The role in court

The role of a consultant ideally, in acting for a client as an expert, is to be impartial. Some lawyers and case managers ask for an expert to be an advocate for a client. However that is contrary to both the code of conduct for the court and also codes of conduct for professional associations.  The expert witness code of conduct explains the duty to the court as:

 

  • An expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert's area of expertise.

  • An expert witness's paramount duty is to the Court and not to the person retaining the expert.

  • An expert witness is not an advocate for a party.

 

That role is easier when a scientist is engaged as Court Appointed Expert and the fee is paid by both sides, applicant and respondent.  The Court Appointed Expert may find, when reviewing the documentation, that there are such differences in the matters put before the court that independent investigation is required.

 

The cost of the expert witness can vary from an anticipated amount, if additional investigations are required and if new matters are raised in the proceedings.

 

The role of ecologist in many proceedings is to understand a wide range of interacting issues, including management of bushfire asset protection zones, impact on groundwater, changes in tree canopy in relation to fauna roost sites, home range and connectivity, plant-pollinator interactions and many more.  In that context it is important for the ecologist to understand urban design, and engineering and planning matters, as they affect the environmental context of a development.

 

The role of an expert witness in court is detailed in a document written by the Land and Environment Court, called the "Expert Witness Practice Direction 2003".

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