Determining Dangerousness: Whatever Happened to the Rules of Evidence?

By Ruschena, David | Psychiatry, Psychology and Law, April 2003 | Go to article overview

Determining Dangerousness: Whatever Happened to the Rules of Evidence?


Ruschena, David, Psychiatry, Psychology and Law


To justify the indefinite detention of an individual convicted of a serious offence, the High Court of Australia has required expert evidence by a psychiatrist or psychologist to the effect that the individual is likely in the future to commit further serious offences. This article examines whether the rules for admissibility of expert evidence, properly applied, allow any weight to be attached to such predictions. In fact, predictions of future offending are admitted, but are only relied upon where they confirm a court's pre-existing attitudes toward the dangerousness of an individual. It appears that judges are utilising expert evidence to avoid the charge that they are engaging in the arbitrary exercise of power and are acting outside the judicial method. This has significant constitutional implications for the validity of legislative schemes an compatibility with courts exercising judicial power in accordance with the Australian Constitution.

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In various states of Australia, sentencing laws have been enacted which empower a judge to make a determination about whether or not a person is a "serious danger to the community". Such a determination is used as the justification for sentencing orders that explicitly breach the general limitation that a sentence must be proportional to the crime that has been committed. Such laws have been introduced in Victoria, (1) Western Australia, (2) Tasmania, (3) Queensland, (4) and South Australia, (5) and each is based upon an assumption that it is possible and appropriate for a judge to make a finding as to dangerousness in respect of a specific individual.

This article examines the constitutional validity of a judicial determination of dangerousness made under indefinite sentencing legislation. Its central hypothesis is that predictions of future offending are by definition inappropriate in a court room, as any determinations of dangerousness based upon such predictions are an invalid exercise of judicial power conferred by Chapter III of the Commonwealth Constitution, or an exercise of executive power that is inconsistent with Chapter III Courts.

Part 1 examines the current laws, the process of interpretation and application, and the decisions of the High Court of Australia setting out the evidence required for such a finding to be made. The crucial role, which is accorded to psychological and psychiatric evidence as to "dangerousness", is outlined.

Part 2 discusses the process by which a court evaluates such psychological and psychiatric evidence. It examines the general rules applied when adducing expert evidence, illustrated by their application to the field of forensic odontology. Analysis then proceeds upon how the rules should properly be applied to expert evidence as to dangerousness. A discussion of the reasons why the courts may fail to analyse such evidence rigorously follows.

Part 2 argues that judicial assumptions about determinations as to the probability of future offending present special obstructions to the objective analysis of such evidence. A prediction of probability of future offending is not a finding of fact of the type usually made by judges, although it has a superficial similarity to such findings. In reality it is a value judgment which has been taken out of the context in which such determinations are usually made and, being so decontextualised, is removed from the justificatory rationale for such determinations. Put simply, the laws of evidence, properly applied, would not permit such evidence to be adduced.

Part 3 examines the constitutional implications of this verisimilitude. The reasoning processes by which judges arrive at determinations of

dangerousness do not involve the application of judicial method. The judge, as a judge, has no particular aptitude for the analysis of the determination to be made, which is entirely based in policy. A reasonable bystander would conclude that judges are only present to make the indefinite incarceration of offenders more palatable politically. …

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