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Opinion Evidence Fv Notes

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Lit 2 17 Opinion Evidence

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Lit 2 17 Opinion Evidence

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Opinion Evidence

Table of Contents

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Checklist for opinion evidence: ss 7680

1. State rule: Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76(1) EA

2. What is the evidence?

3. Is the evidence relevant? S 55; Smith

4. Does the opinion rule apply?
a. Req 1#: (1) whether the evidence is evidence of an opinion b. Req 2#: (2) the purpose of the adducing of the evidence

5. Exception 1#: evidence relevant as other than opinion evidence: s 77 a. If the evidence of the opinion is relevant for a purpose other than proving existence of fact about the existence of which the opinion was expressed, opinion rule doesn't apply:
but note the difficulties for hearsay opinions (Whyte; Lithgow) b. Also note s 136 Roach v Page

6. Exception 2#: Lay opinion: s 78 a. Req 1#: If opinion is based on what person saw/heard/otherwise perceived about a matter or event: s 78(a) b. Req 2#: evidence of opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event: s 78(b)

7. Exception 3#: Expert evidence: s 79 a. If a person has specialized knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge: s 79

8. Exception 5#: Character of and expert opinion about accused persons : ss 110, 111

9. Exception 6#: If the evidence of an opinion is contained in a doc given/made under regulations made under an Act to the extent to which the regulations provided that the certificate/document has evidentiary effect: s 76(2)

10. Exception 7#: Summaries of voluminous or complex documents: s 50(3)

11. Exception 8#: Evidence of judgments and convictions: s 92(3)

12. Exception 9#: s 81 admissions

13. Exception 10# ATSI traditional laws and customs: s 78A a. The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or nonexistence, or the content, of the traditional laws and customs of the group

14. Issue: Directions?

15. Issue: Limitation under s 136?

16. Issue: exclusions under ss 135, or 137?

1. Rule: Opinion evidence inadmissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76(1) EA

2. What is the evidence?

3. Is the evidence relevant? Opinion irrelevant if W did not have other info: Smith Irrelevant:

* Evidence of speed not rationally based: Evidence of speed of an oncoming vehicle in the form of an estimate by a witness who had observed that vehicle over a distance of approx 25 metres not admissible as lacking sufficient rational basis to satisfy s 55: Panetta o No rational basis to opinion because of shortness of duration of observation of vehicle and circumstances of that observation:

* Evidence of identity just from looking at photographs irrelevant: In Smith,

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o The police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors or, for that matter, some members of the public who had been sitting in court observing the proceedings. ...
Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury. . . o . The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury."

4. Does the opinion rule apply to exclude the evidence for that purpose? S 76 (a) Req 1#: the evidence is evidence of an opinion def Wigmore's definition of opinion as meaning 'an inference from observed and communicable data' would seem to have been incorporated into the Act: Guide Dog Owners Opinions:

* Opinion: statement on solvency of company: statement of a qualified accountant and insolvency practitioner, based on financial accounts and other company records as to the solvency of a company, is an expression of opinion: Quick v Stoland

* Not opinion - hypothetical idea: What a person would have done in a hypothetical situation from that person is not opinion evidence: Allstate Life Insurance Opinion > Recognition evidence:

* Irrelevant under s 55: Police evidence identifying the person depicted in a photograph as a person known by sight to the witness from limited prior contact - but jury had spent more time in presence of accused than police and were as capable of evaluating whether accused was person depicted in bank security photographs during an armed robbery: Smith v R

* Police officers who knew accused well before he changed appearance by time at trial: Relevant and opinion evidence admissible under ss 78 and 79 : Police officers identified the accused from CCTV footage and photos from it, they had detailed knowledge of the accused whose appearance had changed significantly by the time of the trial: Nguyen

* Evidence of former gf who knew appearance of each accused well and identified them from CCTV footage, admissible under ss 78 and 79: Nguyen Note - in Partington

* Grove J considered that a statement that a moaning person was pushed against the other side of a door was no more than descriptive of an auditory perception by a witness and whatever inferential process may have passed through the mind - so it wasn't 'based on' something otherwise perceived, and thus not an opinion: Partington - but McClellan CJ was of a contrary view and the point was conceded - and Grove J noted that the idea that a 'head' struck the door was an expression of opinion. (b) Req 2#: purpose of evidence is to prove existence of fact abt which opinion is expressed

* Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

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5. Exception 1#: evidence relevant as other than opinion evidence: s 77 (noting s 136)

Checklist: (Relevance?)

1. Rule: The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed: s 77

2. Is the evidence of the opinion admissible for another purpose?
a. If hearsay purpose, then discuss Lithgow and Whyte see 2a below.

3. If yes, then s 77 is satisfied.

4. Then the evidence of the opinion is admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76

5. Consider other exclusions, warnings, and 135137 - in particular s 136; Roach
> 2a If the evidence of the opinion is relevant for a hearsay purpose: if

* Opinions of an asserted fact not based on personal knowledge - cannot fall within first hand hearsa hearsay exceptions unless opinions were based on something perceived: Note that it is y unlikely that an opinion could be excluded from the hearsay rule in s 59 under s 69 purpo (Lithgow) as Lithgow suggested that an asserted fact based on personal knowledge could not se include an opinion on that asserted fact. Similarly provisions employing the requirement of personal knowledge (eg s 66) would also not be able to admit opinions.

* If opinion admitted for a hearsay purpose, unclear whether s 77 operates, of if it has to still comply with the opinion rules? (likely still has to comply: Whyte; Lithgow.) o As the hearsay purpose (and opinion purpose) of adducing the evidence of the opinion would be to prove the existence of the fact X about which the opinion was expressed
the on purpose that the opinion evidence cannot be adduced in order to fall under s 77, it does not appear to fall within the s 77 exception. o Note that R v Whyte [2006] NSWCCA 75 presumed that hearsay evidence of an opinion which is not rendered inadmissible by s 59 must still meet the requirements for admissibility of opinion evidence in Pt 3.3 (the opinion rules). Furth When is a statement about an opinion from facts known from personal knowledge admissible as er firsthand hearsay / any exception relying upon personal knowledge - such as the s 69 business drafts records? Ie - when is an opinion about an asserted fact based on personal knowledge?
dooda h. Eg: AA has personal knowledge of X, inferred from X, the opinion Y: Guide Dog.

* The distinction between observed facts and opinions is tenuous (Quick v Stoland).

* Although Lithgow did not decide the matter as it was not required to, the majority judgment suggested that an 'asserted fact' (in s 69, the exception for business records where the representation in them was made by a person with personal knowledge of the asserted fact), does not include an opinion in relation to a matter of fact.

* Although in one sense every person who holds an opinion has personal knowledge of that opinion. To hold an opinion about a conclusion is different from having personal knowledge of that conclusion. The personal knowledge can only be derived from seeing, hearing or otherwise perceiving Y, not by drawing inferences from X.

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6. Exception 2#: Lay opinion: s 78

Rule:

Rule: Evidence of an opinion expressed by a person if: (a) opinion is based on what person saw/heard/otherwise perceived about a matter or event; and (b) evidence of opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. See

Notes on const
ruction

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1. Notes on construction

2. S 78(a) req - below

3. S 78(b) req below Lithgow suggests a strict interpretation -s 78(a) requirement that the person perceived the matter or event upon which the opinion is based, and (b) evidence of the opinion is necessary to obtain an adequate account of the event - otherwise the facts are too evanescent etc. But note that construction suggested to be liberal in Guide Dog Owners; Idoport o S 78 changes the common law and expands scope for lay evidence to be adduced; Idoport o S 78 shouldn't be given a narrow meaning but one that recognizes that it is founded on a revival of the distinction between opinion based on a witness' perception and mere uninformed speculation: Idoport o S 78 should be construed as requiring a rational basis for the opinion before it becomes admissible: R v Panetta o S 78 permits opinion evidence to be admitted without evidence of the primary facts on which it is based: Guide Dog Owners - although the absence of the primary facts may affect the weight to be given to the opinion: Harvey S 78 will not render a lay opinion admissible on a matter requiring particular expertise : R v Ta (eg. Evidence from a nonlawyer referring to a doc as being brought into existence for purpose of obtaining legal advice, not lay opinion evidence: AWB v Cole

Procedural notes: o Suggested that giver of opinion do not have to identify perceptions on which conclusions was based: Lithgow - but this may make it harder to establish s 78(a) that it was based on and s 78(b) necessity. Under CL what this covered:

* Opinions of weather, physical conditions of objects, estimates of speed and distance, a person's general health and emotional health, a person's age, the authorship of a handwritten document if the writing is familiar to them and identity: Ex parte Sampson

* Opinion of person's attitude or state of mind: eg person not homosexual because of use of word 'poofter': R v von einem

* That a person is drunk: Lipovac

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