Beyond Common Knowledge: Reviewing the Use of Social Science Evidence in Australian Courts

By McMillan, Kathryn; Pokarier, Nicholas | University of Queensland Law Journal, December 2019 | Go to article overview

Beyond Common Knowledge: Reviewing the Use of Social Science Evidence in Australian Courts


McMillan, Kathryn, Pokarier, Nicholas, University of Queensland Law Journal


I INTRODUCTION

Dinner parties often provide the stage for interesting exchanges, where robust discussion can occur under the veneer of politeness and badinage. It seems it was no different for Sir Owen Dixon who, at a dinner party at the Australian Club during his tenure as Chief Justice, was said by his biographer to be in conversation with

a woman seated next to him [who] was enthusing about how splendid it must be to dispense justice. Dixon replied, in a tone that could only be his:

'I do not have anything to do with justice, madam. I sit on a court of 
appeal, where none of the facts are known. One third of the facts are 
excluded by normal frailty and memory; one third by the negligence of 
the profession; and the remaining third by the archaic laws of 
evidence'. (1)

Sir Owen's remarks are prescient in circumstances where Australian courts are increasingly called upon to adjudicate complex disputes that raise novel questions. These questions may be novel in a number of senses. They may raise a set of facts that would have been--to use a Rumsfeldian phrase--'an unknown unknown' when the legislative enactments that were designed to deal with the underlying dilemma were brought into force. For example, when the Transplantation and Anatomy Act 1979 (Qld) was legislated, its use in an application to authorise the use of spermatozoa retrieved post-mortem in IVF treatment would have been unthinkable. (2)

Alternatively, a case may be novel in the sense that it calls on a judge to consider a question that does not have a statutory regime, or line of authority applicable to it, and instead requires a trier of fact to reach for an answer that is melded from 'common sense' or the use of contentious social facts.

With this in mind, we seek to complete two tasks in this article. In Part II, we will explain the ways in which judges in Australian courts use, and admit, social science material, and related 'social facts', in their decision-making. This will comprise an analysis of the applicability of the doctrine of judicial notice, the pitfalls associated with admission of social science evidence by way of expert evidence, and a critical evaluation of the adoption of social facts by judges as 'a commonsense background' to their adjudication of a dispute. In Part III, we will propose ways to counter difficulties that emerge from the discussion in Part II. Part IV provides a conclusion to this discussion.

This discussion will reveal limitations in the ways in which social science evidence, and social facts, are introduced into evidence. These limitations, in our view, can result in injustice to litigants, particularly in novel cases. Accordingly, we will suggest strategies for courts to adopt in ensuring that decisions are based on the best social science evidence available, while also ensuring procedural fairness is afforded to litigants.

When we refer to 'social science material' (or words to that effect) in this article, we refer to work, research and data that goes to 'the scientific study of human society and social relationships'. (1) We adopt a broad definition of the term, taking it to refer to a wide species of material, depending on the particular context. For example, in negligence cases, the use of social facts by judges will often hinge on the interpretation of medical evidence, (4) and personal views about social facts, such as the nature of care-giving roles to an unintended child of a wrongful birth. (5) In the case of regulatory matters alleging unconscionability, a relevant social fact is the vulnerability of a particular class of persons, which we posit is a matter that is inherently subject to a judicial normative evaluation. (6) However, in 'penumbral' cases, such as those squarely raising complex questions of social facts and social science (for example, the making of declarations with respect to the use of spermatozoa retrieved post-mortem), (7) social science material may refer to the reports of state, territory and Commonwealth law reform commissions, to journal articles prepared by specialists in the field or judicial attitudes to questions of social value (such as children being raised in single-parent households). …

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