Hemming on 'The Use of Real Evidence in Court: Time to Trust the Common Sense of the Jury?'

Associate Professor Andrew Hemming of the USQ School of Law and Justice has published a new article titled 'The Use of Real Evidence in Court: Time to Trust the Common Sense of the Jury?'  The article appears in Volume 96(2) of the prestigious Australian Law Journal.  Here is the abstract:

"Real evidence perhaps is best understood by what it is not: evidence that is neither given by a witness in court nor documentary in form. As such real evidence, while being both tangible and often highly compelling (such as a murder weapon), is also a residual category comprising such assortments of evidence as views, demonstrations and experiments. Real evidence is of course subject to all the usual rules of admissibility such as relevance. But it is the use to which real evidence is put that can lead to controversy and possible appeal grounds. The purpose of this article is to examine the leading cases on the use and misuse of real evidence with a view to recommending (a) legislative reform of the uniform evidence legislation, and (b) statutorily overriding Scott v Numurkah Corporation and Kozul v The Queen at common law. Where real evidence takes the form of an out of court experiment, it is contended that s 53(3)(c) of the uniform evidence legislation should be amended to include an expanded version of the Neilan test at common law, in so far as there should be a presumption that the results of an experiment can be adduced and a jury can make use of what is drawn from the experiment, unless conditions are so dissimilar as to confuse or mislead the jury. Where real evidence takes the form of an in court experiment, it is contended that s 53(4) of the uniform evidence legislation should be amended to allow the court (including, if there is a jury, the jury) to conduct an experiment in the course of its deliberations. The argument is made that the underlying cause of these present restrictions on the use of real evidence is an apparent distrust by the legal profession of the jury’s capacity to properly handle and assess real evidence."

McKibbin, Patrick, and Harmes on "The Impact of Law's History: What's Past is Prologue"

USQ School of Law and Justice lecturers Dr Sarah McKibbin and Dr Jeremy Patrick, along with USQ Open Access College Professor Marcus Harmes, have published a new edited collection titled The Impact of Law's History: What's Past is Prologue.  The book is published by Palgrave Macmillan and collects papers presented at a USQ Law, Religion, and Heritage Research Program Team colloquium on legal history.  Here is the publisher's description:

"This book considers how legal history has shaped and continues to shape our shared present. Each chapter draws a clear and significant connection to a meaningful feature of our lives today. Focusing primarily on England and Australia, contributions show the diversity of approaches to legal history’s relevance to the present. Some contributors have a tight focus on legal decisions of particular importance. Others take much bigger picture overview of major changes that take centuries to register and where impact is still felt. The contributors are a mix of legal historians, practising lawyers, members of the judiciary, and legal academics, and develop analysis from a range of sources from statutes and legal treatises to television programs. Major legal personalities from Edward Marshall Hall to Sir Dudley Ryder are considered, as are landmarks in law from the Magna Carta to the Mabo Decision."

Hemming on 'Nominations to the Supreme Court: Much Ado About Nothing or a Polarized Partisan Court?'

 Associate Professor Andrew Hemming of the USQ School of Law and Justice has published a new article titled 'Nominations to the Supreme Court: Much Ado About Nothing or a Polarized Partisan Court?'  The article appears in Volume 14 of the Elon Law Review.  Here is the abstract:

"The purpose of this article is to examine the recent history of nominations to the Supreme Court with a view to establishing whether the Supreme Court has become a polarized partisan court basing its decisions on values and ideology. For the difficult cases, do Supreme Court Justices reason in reverse by deciding their position in advance and then seeking a logical reasoned argument to justify their pre-determined outcome? Is Posner correct in suggesting that Supreme Court Justices, by virtue of being at the top of the judicial tree, are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication, with the Supreme Court being best understood as a political court? Alternatively, as Green argues, does Posner overlook the strong influence of historical legalism in constraining Supreme Court Justices from acting like politicians? In view of the political battleground that the filling of Supreme Court vacancies has become, there is a clear expectation, at least on behalf of Presidents and Senators, that their nominated and carefully screened candidate will decide important cases in a manner consistent with their own political values and ideology. Legal commentators regularly refer to the relative number of conservative and liberal Justices on the Supreme Court, with the frequent identification of a single Justice as being a ‘swing’ voter. Such expectations and commentary reinforce the popular notion that Justices on the Supreme Court are legal proxies for the political party which nominated them and do not decide important cases with an open mind. This article considers the extent to which this popular notion of a partisan Supreme Court is accurate."

Collins on 'The Significance of the Defence Force Discipline Appeal Tribunal: Analysis of its Activity Over Four Years'

 Professor Pauline Collins of the USQ School of Law and Justice has published a new article titled 'The Significance of the Defence Force Discipline Appeal Tribunal: Analysis of its Activity Over Four Years'.  The article appears in Volume 32(4) of the Public Law Review.  Here is the abstract:

"The Defence Force Discipline Appeal Tribunal (DFDAT) is a statutory administrative body, not a court, established under the Defence Force Discipline Appeals Act 1955 (Cth). The Tribunal hears and determines appeals from courts martial and Defence Force magistrate hearings in respect of service offences by Australian Defence Force personnel under the Defence Force Discipline Act 1982 (Cth). The Tribunal provides the highest-level 'appeal' review in these matters. The Full Court of the Federal Court of Australia can be accessed for appeals and reference on questions of law. An appeal from the Federal Court’s decision to the High Court can only occur where the High Court grants special leave. Both types of appeal occur infrequently. Otherwise, the Tribunal’s determination is final. Little legal academic interest in this specialised area provides minimal scrutiny of the decisions of the Tribunal, including decisions in which the Tribunal interprets the High Court’s case law. This article provides an overview of the type of matters heard in the last four years, the Tribunal’s reasoning and the issues highlighted for military discipline. It reveals any current challenges for justice and the rights of military personnel."