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."

Gray on 'An Adverse View of Adverse Possession'

 Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'An Adverse View of Adverse Possession'.  The article appears in Volume 96(1) of the prestigious Australian Law Journal.  Here is the abstract:

"The doctrine of adverse possession, under which a trespasser to property belonging to another might ultimately become the legal owner of it, continues to be applied in Australian and United Kingdom courts. Though it may have made sense centuries ago, it has become increasingly difficult to justify the doctrine. It has been stridently criticised by the judiciary and academy. It appears at odds with the law's general reluctance to permit individuals to profit from wrongdoing, and the Torrens system of title by registration. This article critiques the doctrine, suggesting significant reform is necessary."

Call for Papers: "USQ Colloquium on Religious Freedom, Sexuality, and Gender Identity"

 Call for Papers
Religious Freedom, Sexuality and Gender Identity

Recent events, including the introduction of the Human Rights Amendment Bill 2022, have placed the

interaction between sexuality, gender and religious belief at the centre of public attention. 

The debate surrounding this measure takes place within a broader conversation on acceptance of LGBTIQA+ communities, religious freedom, and the role of discrimination law in our society.

The Colloquium: The Law, Religion, and Heritage Research Program Team in the University of Southern Queensland is hosting a scholarly colloquium on Religious Freedom, Sexuality, and Gender Identity.

Date: Friday 28 October 2022

Venue: USQ Toowoomba Campus | Q Block | Q501 and Q502 (physical attendance is warmly encouraged, but a Zoom option will be available)                                                        

Keynote Speakers:  Professor Patrick Parkinson and Professor Anthony Gray          

Invitation: At the colloquium, academics are invited to provide scholarly presentations that address the intersection of sexuality, gender identity, and religious belief in a legal context.

What is required to participate? Presentations should be 15-20 minutes in duration, with time for questions to follow. Presentations must be supported by a completed paper or work-in-progress suitable for distribution to other participants. The opportunity to contribute to a special issue of the Australian Journal of Law and Religion may become available after the colloquium.

Are you interested in contributing? Please register your interest in presenting at the colloquium by contacting Dr Jeremy Patrick jeremy.patrick@usq.edu.au  Please include a CV and a brief abstract of the planned paper (100-250 words). 

Expressions of interest should be submitted by 28 August 2022.

The University of Southern Queensland is committed to the values of diversity, multiculturalism, and gender equity by fostering an inclusive environment that embraces difference and supports, values, and respects the unique perspectives and approaches of all individuals.  Please visit https://www.usq.edu.au/about-usq/values-culture/diversity-inclusion for more information.

Hemming on 'Illegally or Improperly Obtained Evidence: Time to Reform s 138 of the Uniform Evidence Legislation?'

 Associate Professor Andrew Hemming of the USQ School of Law and Justice has published a new article titled 'Illegally or Improperly Obtained Evidence: Time to Reform s 138 of the Uniform Evidence Legislation?'  The article appears in 31(2) of the Journal of Judicial Administration.  Here is the abstract:

"Section 138 of the uniform evidence legislation deals with the discretion to exclude improperly or illegally obtained evidence, and has its origins in the well-known judgment of Stephen and Aickin JJ in Bunning v Cross. Section 138 prevents the admission of improperly or illegally obtained evidence ‘unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’. Thus, unlike the common law, s 138 places the onus of proof on the Crown to justify the admission of improperly or illegally obtained evidence, a situation this article argues should be reversed. The balancing exercise is undertaken through an examination of a non-exhaustive list of matters to be taken into account by the court as set out in s 138(3)(a)-(h). This article will analyse the list of matters in s 138(3)(a)-(h) with a view to considering whether the list should be prioritised in some form, given that jurisdictions such as New South Wales have attempted to influence the balancing exercise by introducing legislation that confers a right of appeal on the Director of Public Prosecutions against an evidentiary ruling that substantially weakens the prosecution case: s 5F(3A) of the Criminal Appeal Act 1912 (NSW). In particular, in light of animal welfare cases such as Lenah Game Meats and Kadir v The Queen, there will be a focus on the matter set out in s 138(3)(h), namely, ‘the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law’. Finally, the interaction between s 138 and s 90 Discretion to exclude admissions will be considered, given that s 90 is effectively a residual fairness discretion to exclude evidence."