Eyewitness Identification and Expert Insight: R v Forbes
| Author | Andrew Roberts |
| DOI | 10.1350/ijep.2010.14.1.340 |
| Published date | 01 January 2010 |
| Date | 01 January 2010 |
| Subject Matter | Case Note |
CASE NOTE
EYEWITNESS IDENTIFICATION AND EXPERT INSIGHT:RvFORBES
CASE NOTE
Eyewitness identification and expert
insight: RvForbes
By Andrew Roberts*
Associate Professor, University of Warwick
Keywords Eyewitness identification; Psychological research; Expert testimony;
Sequential line-up; Australia
lthough there is long-standing judicial acknowledgement that eyewit-
nesses’ attempts to identify others are particularly vulnerable to the risk
of error, the courts have, in the past, appeared reluctant to allow the jury
to hear expert testimony on the possible causes of error. In many jurisdictions, the
common knowledge rule has been invoked to justify the exclusion of such
evidence, the claim being that juries possess sufficient experience to enable them
to properly evaluate this kind of evidence. In Australia, the Uniform Evidence Acts
provide that expert opinion ‘is not inadmissible only because it is about a matter
of common knowledge’.1The Australian Law Reform Commission, recognising the
restrictive effect of the common knowledge rule on the admissibility of expert
opinion relating to eyewitness identification, has suggested that the Act clears
away a major obstacle to the reception of such evidence.2But despite this reform,
there remain grounds on which the exclusion of expert evidence on this subject
can be justified. A precondition of the reception of expert opinion under the Acts
is that the witness’s testimony must be based on ‘specialised knowledge’, and in
Velevski vThe Queen, Gaudron J stated that ‘the concept of “specialised knowledge”
imports knowledge of matters which are outside the knowledge or experience of
ordinary persons’.3
doi:10.1350/ijep.2010.14.1.340
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2010) 14 E&P 57–62 57
A
1 Evidence Act 1995 (Cth) and (NSW), s. 80(b).
2 Australian Law Reform Commission, Uniform Evidence Law, Report No. 102 (ALRC: Sydney, 2005)
para. 9.127.
3Velevski vThe Queen [2002] HCA 4 at [82].
* Email: Andrew.J.Roberts@warwick.ac.uk.
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