#8529 - Opinion Evidence Fv - Litigation 2 - Evidence Law

Opinion Evidence 1

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

2. What is the evidence? 2

3. Is the evidence relevant? Opinion irrelevant if W did not have other info: Smith 2

4. Does the opinion rule apply to exclude the evidence for that purpose? S 76 3

(a) Req 1#: the evidence is evidence of an opinion 3

(b) Req 2#: purpose of evidence is to prove existence of fact abt which opinion is expressed 3

5. Exception 1#: evidence relevant as other than opinion evidence: s 77 (noting s 136) 4

6. Exception 2#: Lay opinion: s 78 5

(a) Req 1#: If opinion is based on what person saw/heard/otherwise perceived about a matter or event: s 78(a) (eg Partington): Lithgow v Jackson 6

(b) Req 2#: opinion evidence ‘necessary’ to obtain adequate account or understanding of the person’s perception of the matter or event: s 78(b): Partington v R; Lithgow v Jackson 7

7. Exception 3#: Expert evidence: s 79(1) (Makita; Anderson; Leung Wong) 8

Note: duties of the expert: in Supreme Court Rules 1970 (NSW); and UCPR Rules SCh 7 11

Note: s 79(2) clarifying for child cases 12

Note: s 108C exception to credibility rule 12

8. Exception 4#: Character of and expert opinion about accused persons: ss 110, 111 12

9. Exception 5#: If opinion in a doc given/made under regulations: s 76(2) 12

10. Exception 6#: Summaries of voluminous or complex documents: s 50(3) 13

11. Exception 7#: Evidence of judgments and convictions: s 92(3) 13

12. Exception 8#: s 81 admissions 13

13. Exception 9# ATSI traditional laws and customs: s 78A 13

14. Issue: Directions/ warnings? Eg s 165? 13

15. Issue: Limitation under s 136? 13

16. Issue: exclusions under ss 135, or 137? 13

Appendix A: EA on for Opinion evidence 14

Appendix B: UCPR Rules on Opinion evidence 15

Checklist for opinion evidence: ss 76-80

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?

   1. Req 1#: (1) whether the evidence is evidence of an opinion

   2. Req 2#: (2) the purpose of the adducing of the evidence

5. Exception 1#: evidence relevant as other than opinion evidence: s 77

   1. 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)

   2. Also note s 136 Roach v Page

6. Exception 2#: Lay opinion: s 78

   1. Req 1#: If opinion is based on what person saw/heard/otherwise perceived about a matter or event: s 78(a)

   2. 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

   1. 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

    1. 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 non-existence, 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?

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

  • 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,

  • 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. . .

  • . 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.”

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