Abstract
ABSTRACTIn order to minimize the risk of wrongful convictions from unreliable expert evidence judges have long considered it necessary to have regard to the reliability of expert evidence when considering its admissibility. In other words, judges have thought it appropriate for them to separate the wheat from the chaff and not simply leave it to juries. However, in IMM v The Queen (2016) 257 CLR 300, four of the seven judges concluded that save for some provisions of the Evidence Act 2008, reliability is a jury issue, not something for the judge to take into account when determining the admissibility of the evidence. This paper discusses four ‘windows of opportunity’ for judges to consider the reliability of expert evidence post IMM v The Queen and recommends the Evidence Act 2008 (Vic) be amended to expressly enable judges to have regard to the reliability of evidence when assessing the danger of unfair prejudice to an accused.
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