This post is the first of a series exploring the role of expert witnesses in notable cases in recent Australian history. The testimony of each expert was significant in responding to the issues of each case, be they factual or legal. As a result, what we can take from these cases is the increasing importance of experts in developing and informing Australian law.
The following cases will be briefly explained and will highlight the influential role the relevant experts played in each case:
- Nigel Carson in Universal Music v Sharman, an important music piracy case in relation to Internet peer-to-peer file sharing;
- Dr Steven Strach on the authenticity of a signature in Permanent Custodians v Yazgi and Anor; and
Nigel Carson in Universal Music v Sharman
In the landmark case of Universal Music v Sharman, the Federal court considered the issue of peer-to-peer file sharing and its relationship with the Copyright Act 1968. The court considered a number of complex legal issues in relation to the ‘digital agenda’ amendments to the Act introduced in 2001. The case involved the operation of the Kazaa Internet peer-to-peer file-sharing system. The system operated worldwide but since 2002 had been controlled by Sharman Networks out of premises in Sydney. Kazaa enables users to share with other any material, whether or not that material is subject to copyright, by placing the file in a public access file called ‘My Shared Folder’. The issue for the Court was whether Kazaa had authorised users to infringe the copyright of the applicants under the Australian Copyright Act.
In assessing forms of non-technological controls over user activity, Nigel Carson, a computer forensic expert from Experts Direct, was consulted. The factual issue discussed was whether the respondent’s failure to take action to enforce relevant terms in the licence agreement contributed to their authorisation of user abuse of copyright. More specifically, Mr Carson’s expertise was sought on whether it would be reasonable for the Court to expect the respondents to identify users breaching licence conditions through their IP address regardless of the potential of the IP address to change. Mr Carson’s evidence detailed that though there is the capability for users to change or obfuscate their IP address, other information is often utilised by enforcement agencies and forensic experts assisting those agencies to successfully locate computers. His evidence was relied upon by the appellants.
Dr Steven Strach: Permanent Custodians v Yazgi & Anor
In Permanent Custodians v Yazgi & Anor, the court considered whether Mrs Yazgi’s signature was forged on a mortgage and loan agreement. Permanent Custodians alleged that pursuant to a loan agreement, they had advanced funds to Mr and Mrs Yazgi and that a mortgage was given to secure their obligations under the loan agreement. The mortgage was registered and the Yazgis defaulted on payments. Mrs Yazgi alleged that her husband had forged her signature on the mortgage and loan agreement.
Dr Steven Strach was consulted as the Handwriting and Questions Document Examiner. He produced a report and addendum for the court and was examined and cross-examined on that report. Dr Strach’s evidence supported that of Mrs Yazgi that the signature on the loan agreement and mortgage was forged. The court accepted his evidence and ultimately found that the signature was a forgery.
This post is the first of a series which will continue to show the importance of expert knowledge within litigation. As the law continues to expand it will continue to be faced with technical issues. Expert knowledge is central to the application of law to reality and will continue to inform the courts. The above experts have had an important role in the development of copyright and property law. They can be found on Experts Direct at their profiles below:
This article was prepared in conjunction with Susan Flynn.
 Universal Music Australia v Sharman License Holdings Ltd  FCA 1242
 Permanent Custodians v Yazgi and Anor  NSWSC 279
 Copyright Act 1968 Clth s 101
 Universal Music Australia v Sharman License Holdings Ltd  FCA 1242, 346