Associate Professor Katherine Biber
Associate Professor, Faculty of Law
LLB Hons (Syd), BA Hons (Syd), MCrim Hons (Syd), Phd (Syd)
Katherine is a legal scholar, criminologist and historian who joined the Law Faculty in 2008. Katherine researches crime and evidence, with a specific focus on photography, visual culture, and adversarial litigation. With a background in community legal centres, Katherine studies the relationship between social disadvantage and transgression.
• Evidence (especially photographic evidence)
• Crime and Criminology
• Indigenous People and the Law
• Improving the Use of Photographic Identification Evidence in the Criminal Justice System
• 'Facial mapping', 'Body mapping' and Expert Identification Evidence
• The Right to Silence
Research supervision: Yes
Available for undergraduate, postgraduate coursework and higher degree research supervision in:
• Criminal Justice
• Gender and the Law
• Indigenous Peoples and the Law
• Law and the Arts
Selected Peer-Assessed Projects
Biber, K. 2007, Captive Images: Race, Crime, Photography, 1, Routledge, London, UK.
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Biber, K., Staines, D. & Arrow, M. 2009, The Chamberlain Case: Nation, Law and Memory, Australian Scholarly Publishing, Melbourne.
Staines, D., Arrow, M. & Biber, K. 2009, The Chamberlain Case: Nation, Law, Memory, Australian Scholarly Publishing, North Melbourne, Victoria.
Biber, K., Sear, T. & Trudinger, D. 1999, Playing the Man: New Approaches to Masculinity, Pluto Press, Sydney.
Biber, K. 2009, 'Judicial Extracts' in Staines., Biber, K., Arrow, M. (eds), The Chamberlain Case: Nation, Law, Memory, Australian Scholarly Publishing, North Melbourne, Australia, pp. 113-151.
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Biber, K. 1999, '"Introduction"' in Katherine Biber,Tom Sear,Dave Trudinger (eds), Playing the man: new approaches to masculinity, Pluto Press, Sydney, pp. 1-16.
Biber, K. 1999, '"Turned out real nice afterall:Death and masculinity in Austraian Cinema"' in Katherine Biber,Tom Sear,Dave Trudinger (eds), Playing the man: new approaches to masculinity, Pluto Press, Sydney, pp. 27-38.
Biber, K., Staines, D. & Arrow, M. 2009, 'Introduction' in Deborah Staines, Michelle Arrow & Katherine Biber, (eds), The Chamberlain Case: Nation, Law, Memory, Australian Scholarly Publishing, North Melbourne, Australia, pp. 3-6.
A long-held and fundamental principle of our criminal justice system is that people accused of crimes have a right to silence, arising from the presumption of innocence. Rules of evidence try to protect this `right+ during trial, by ensuring that juries understand that adverse inferences cannot be drawn from the silence of the accused. Silence, in court, can mean nothing, and we are not to speculate about what might motivate an accused person to remain silent, or what they might have said had they spoken. However, an examination of the jurisprudence in this area shows that the law is often not dealing with actual silence; sometimes when the law refers to the `right to silence+, it seems to mean a `refusal to hear+. In other instances, there is actual silence, and yet the law refuses to subject that silence to any critical interpretation, insisting that we cannot infer anything from it. While we have learned, from theatre, music, linguistics, religion and psychology, to develop sophisticated means for interpreting silence, the law demands that we set aside these interpretive tools, hearing silence that isn+t there, and inferring nothing about something.
The Court Information Act 2010 (NSW) attempts to achieve transparency and accountability under the framework of an 'open justice' system. The Act aims to make court information more accessible to members of the public and media organisations, and to achieve this consistently across all of the NSW jurisdictions. In effect, the Act opens the jUdicial archive, making court records accessible to the public. By making this material accessible, the legislation has the potential to put evidence into a fresh context, after the facts have been resolved in litigation. This article considers several examples from Australia and abroad in which evidence from legal proceedings was put to unexpected uses - either by artists, curators or scholars - giving rise to ethical challenges to how we think about evidence after the conclusion of legal proceedings. Re-contextualising evidence carries with it the risk of harm, humiliation, and the exposure of sensitive and secret material. This article will argue that the Act cannot address the dangers of misuse of evidence without adopting an archival sensibility. It sets out some of the theories and practices adopted by archivists that could guide us before we open the evidentiary archive.
Biber, K. 2010, 'Fact-finding, Proof and Indigenous Knowledge: Teaching Evidence in Australia', The Alternative Law Journal, vol. 35, no. 4, pp. 208-212.
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The rules of evidence enable law to discover its truths. The rules enable material facts to be 'found' in a haystack of data, and they erect thresholds along a single pathway to admissibility. Each piece of evidence follows the same passage, is tested against the same thresholds, and if it survives it is ruled admissible, and can be used in adversarial litigation in the proof of claims or charges. In teaching the rules of evidence to law students, we are teaching them law's methodology for proving facts that are in dispute. Through the rules of evidence, we teach students to classify, abstract and reason like lawyers. This article questions whether Indigenous perspectives might offer an opportunity to think afresh about how we teach and use laws of evidence.
Edmond, G., Kemp, R.I., Porter, G.R., Hamer, D., Burton, M., Biber, K. & Rocque, M.S. 2010, 'Atkins v The Emperor: the cautious use of unreliable expert opinion', The International Journal of Evidence and Proof, vol. 14, pp. 146-166.
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What happens to a country under constant surveillance? The recent decision in Atkins v The Queen provides a partial answer.1 The sheer availability of images seems to be driving decisions about their admissibility and use as identification evidence. Confronted with CCTV recordings associated with criminal activities English courts have been reluctant to restrict their admission or impose limitations on the scope or form of incriminating opinion derived from them. Although the Court of Appeal decision in Atkins v The Queen is concerned primarily with the way in which an opinion derived from CCTV images was expressed, the decision exposes jurisprudential weakness and continuing problems with photo comparison and facial-mapping evidence.
In 2002 the Jewish Museum in New York exhibited Mirroring Evil, in which contemporary artists represented the Holocaust. Holocaust survivors demonstrated against the exhibition, holding placards in the street outside. An 81 year old survivor of Buchenwald, Isaac Leo Kram, carried a sign that read: `I was there. I testify: Genocide is not art!+ (Kershaw 2002). A sign at the entrance of the museum warned visitors that some might be upset by the exhibition. The New York press, typically supportive of the city+s art institutions when attacked by critics, repeatedly questioned the Museum+s judgment in holding the exhibition. At the heart of the controversy was grave concern that some of the artworks were testing the limits of how the Holocaust could be represented and remembered.
Biber, K., Edmond, G., Kemp, R.I. & Porter, G.R. 2009, 'Law's Looking Glass: Expert Identification Evidence Derived from Photographic and Video Images', Current Issues in Criminal Justice, vol. 20, no. 3, pp. 337-377.
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This article offers a critical overview of expert identification evidence based on images. It reviews the Australian case law and then, in an interdisciplinary manner, endeavours to explain methodological, technical and theoretical problems with facial mapping evidence. It suggests that extant admissibility jurisprudence and traditional safeguards associated with expert opinion evidence and the adversarial trial might not adequately protect those accused of committing criminal acts when they are confronted with incriminating expert identification evidence.
Biber, K. & Dalton, D. 2009, 'Making art from evidence:Secret sex and police surveillance in the Tearoom', Crime, Media, Culture: an International Journal, vol. 5, no. 3, pp. 243-267.
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In 1962, police officers concealed themselves for two weeks in a men+s public toilet in Mansfield, Ohio, and filmed men performing illicit homosexual sex acts. The film footage was used to secure convictions for sodomy, and inaugurated a new form of police surveillance of homosexual public sex. In 2008, the visual artist William E. Jones screened the police footage in art galleries around the world, to both critical acclaim and public objection. This article examines the film, both as a prosecutorial artefact and an artwork, to explore what it says about public sex, police surveillance, the criminalization of homosexual practices, visual evidence, and contemporary art.
In July 1900, Jimmy Governor and his brother Joe commenced their murderous rampage across central New South Wales, killing nine women and children, maiming others, and raping a teenage girl. They were pursued for three months across 3000 kilometres, taunting their hunters with clues, letters and tricks. The last men in the state to be proclaimed outlaws, their pursuit and capture fascinated and terrified a nation on the eve of its Federation.After his conviction, Governor+s execution was delayed until after the conclusion of Federation celebrations; even a fragile nation understood the perilous symbolism of launching nationhood whilst hanging a transgressive black man. This article re-examines the crimes, evidence and trial of Governor, and the intense media reportage around them. It reveals a perpetually contested claim for control: of the family, the workplace, race, nation and empire.
The American photographer Taryn Simon was inspired by the Innocence Project (which aims to acquit falsely convicted people by introducing evidence that was unavailable during their trial) to begin her own photographic project. Simon+s project explicitly scrutinises the role played by photography, especially its role in producing guilt from innocence, in the criminal justice system.
A grainy series of surveillance photographs was tendered into evidence at the trial of a young Aboriginal man accused of robbing a bank. Two police officers testified that they recognised him from the photographs. On appeal to the High Court of Australia, the judges thought that the hooded bandit in the image looked like the spectre from Hamlet. This article uses the discourse of +spectrality+ to explore the consequences for law and ethics when haunted by the transgressive image. It examines the confrontation between the foundational illegality of the Australian nation, and the indigenous man who is accused of a crime against property.
On 23 December 1826 on the New South Wales frontier, a white shepherd named Henry Preston went to his employer, John Jamieson, to conect his weekly rations. Neither Preston nor his dog returned home, and another shepherd raised the alarm. A brief search yielded nothing. Foul play was feared and suspicion fen upon a group of local Aborigines. The Magistrate was not at home and the district constable, although summoned, did not arrive. A rumour circulated that the Aborigines had been seen with sugar rations. Jamieson decided to take the matter into his own hands.
Biber, K. 2005, 'On not speaking: The right to silence, the gagged trial judge and the spectre of child sexual abuse', The Alternative Law Journal, vol. 30, no. 1, pp. 19-23.
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Is there a right to silence for people accused of crimes? What is the .extent of that right? The right to silence co-exists with the presumption of innocence; both are long-standing principles which have come to be given their effect through rather narrow technical procedures. In NSW and federally these principles are implemented through s 20 of the Evidence Act 1995, and the interpretation of s 20 in some of the cases discussed in this article. In criminal matters, the Crown bears the burden of proving the guilt of the accused to the requisite standard: beyond a~y reasonable doubt. The accused is entitled to be presumed innocent unless and until that standard has been met. The accused need not do anything in their own defence, and under s 20 the failure of the defendant to give evidence does not entitle a trial judge to Comment in any way that suggests the defendant has failed to give evidence because they are, or believe they are, guilty of the offence.
This paper proceeds from the idea that the nation is a fantasy, an imaginary zone through which identity, belonging and control are mediated. I explore the consequences of imagining the nation in this way by reading the formative Australian cases through which Native title jurisprudence developed in this country. Those cases +- Mabo, Wik and Yorta Yorta +- and the public discourses surrounding them reveal the competing national fantasies at stake in disputes over property, recognition and co-existence. Using the theoretical writing of psychoanalytic scholars Slavoj +i+ek and Julia Kristeva, and the critique of nationalist practices from the work of Benedict Anderson and Ghassan Hage, I interrogate what it means to possess the nation.
Biber, K. 2002, '"The Hooded Bandit: Aboriginality, Photography and Criminality in Smith v The Queen'', Current Issues in Criminal Justice, vol. 13, no. 3, pp. 286-300.
Biber, K. 2001, '"The Threshold Moment: Masculinity at home and on the road in Australian cinema"', Limina: A Journal of Historical and Cultural Studies, vol. 7, pp. 67-86.
Biber, K. 1995, 'The Emperor's New Clones: Indiana Jones and Masculinity in Reagan's America', Australasian Journal of American Studies, vol. 14, no. 2, pp. 67-86.
Biber, K. 2007, 'Looking and knowing: Jurors and photographic evidence', Reform, vol. 90, no. Winter 2007, pp. 24-26.
Biber, K. 2011, '"Crooks Like Us", Peter Doyle, Historic Houses Trust of NSW, Sydney', Current Issues in Criminal Justice, vol. 23, no. 2, pp. 287-290.
Biber, K. 2011, 'Murdering Stepmothers: The Execution of Martha Rendell', Australian Feminist Studies, vol. 26, no. 70, pp. 509-511.
Biber, K. 2011, 'Wanted: The Outlaw in American Visual Culture; Capturing the Criminal Image: From Mug Shot to Surveillance Society; Pictures from a Drawer: Prison and the Art of Portraiture', History of Photography, vol. 35, no. 4, pp. 439-441.
Biber, K. 2010, 'Book Review: "Neurotic, Perverse and Psychotic: 'Lacan at the Scene', by Henry Bond"', Source:The Photography Review, vol. 62, pp. 64-66.
Biber, K. 2007, 'Book review: "Framed: Women in Law and Film"', Australian Feminist Studies, vol. 22, no. 54, pp. 413-414.
Biber, K. 2006, 'Book review: "Law's Moving Image"', Social & Legal Studies, vol. 15, no. December 2006, pp. 607-609.
Biber, K. 2005, '"Murdering Holiness" by Jim Phillips and Rosemary Gartner', Australian Journal of Legal History, vol. 9, pp. 131-134.
Graycar, R., Morgan, J. & Biber, K. 2002, 'The Hidden Gender of Law', The Hidden Gender of Law, vol. Vol 24(4), pp. 603-607.
McDougal, D., Biber, K. 1999, 'Book Review: Transcultural Cinema by David McDougal', Canbera Anthropology, vol. 22, no. 2.