Snapshot
- Recent High Court decisions have clarified key aspects of the developing law on the admissibility of expert evidence.
- The scope for educative or counterintuitive evidence by experts appears to be expanding, especially in the context of evidence about the development and behaviour of children, and of children who have been victims of sexual offences, even if the effect of such evidence is pertinent to the assessment of their credibility.
- This article is the second of two parts and will review the issues surrounding the admissibility of educative or counterintuitive expert evidence, as set out in BQ v The King.
The High Court has recently revisited the boundaries of expert opinion evidence, clarifying when it may serve an educative function for finders of fact. In particular, the Court has endorsed the admissibility of evidence that challenges common assumptions—sometimes called ‘counterintuitive’ evidence—especially in cases involving child development and the behaviour of victims of sexual offences.
This article examines the implications of BQ v The King [2024] HCA 20 (‘BQ’), a decision that builds on earlier authority and signals a broader acceptance of expert testimony designed to dispel myths and guide juries away from flawed reasoning. While such evidence can indirectly bear on credibility, the Court has confirmed this does not preclude its admissibility when grounded in specialised knowledge.
Previously, in the first part of this two-part article, the implications of Lang v The Queen [2023] HCA 29 for the transparency requirements of expert evidence were explored. This decision and BQ are important for the practice of litigation lawyers when commissioning expert reports. The High Court’s requirements in these cases do not constitute a licence for solicitors or counsel to rewrite expert reports. However, so that reports comply with what is required by both the expert witness code of conduct (Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)) and the common law, they oblige lawyers commissioning expert reports to do what is open to them to ensure reports meet court expectations and constitute admissible evidence.
