#7516 - Opinion Evidence - Evidence and Criminal Procedure

An opinion is an inference drawn from observed and communicable data” (Allstate Life Ins. Co. v Aust & NZ Banking Group).

Under section 76 evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Exception: Evidence relevant otherwise than as opinion evidence

An exception to this rule is in section 77 which says 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.

Exception to the opinion rule: Lay opinion (s78)

The opinion rule does not apply to evidence of an opinion expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

A person is a lay person if they do not have any specialised knowledge but they are in a special position to know or have seen something.

This section requires that there be a rational basis for the opinion.

R v Panetta (1997) 26 MVR 332

Facts: In this case the witness saw an oncoming car. The witness was driving in one direction and the oncoming car was going in the opposite direction. The oncoming car which was seen at night for a few seconds was said by the witness to be travelling and approximately 100km/h.

Held: There was no rational basis for that opinion. There is no rational way to form this opinion of a vehicle driving in the opposite direction as you at night. It was inadmissible as evidence as it failed the relevance threshold

R v Harvey (unreported, NSWCCA, 11 Dec 1996)

Facts: The accused school teacher was tried on nine charges of indecent assault on four female students under the age of 10. A witness testified that on one occasion she saw the accused seated at a desk, with one of the student complainants next to him and the accused had on his face ‘a look of sexual gratification’

Held: Section 78 applied to the evidence as it was an opinion.

R v Van Dyk [2000] NSWCCA 67

This case followed Harvey

Facts: The complainants mothers opinion evidence that whenever the accused looked at girls he had a ‘look of wanting’

Held: His honor held that most lay people and many lawyers would have difficulty in giving more detail and ‘a look of wanting’ is a matter of impression and opinion.

Exception to the Rule: Expert Opinion (s79)

This is where someone’s opinion is based on their specialized knowledge.

If a person has specialised 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.

Note: If it is in relation to child development/sexual assault s79(2) creates a special exception.

The application of specialised knowledge in non-established fields

Where a field is not established a person may still testify as having specialised knowledge there are three questions to be answered in deciding whether specialised knowledge can be heard about a topic in disciplines that are newer or not established and there is dispute as to whether the opinion is that of a specialised knowledge:

1. Is there specialised knowledge to be applied to this issue?

The test comes from Frye v United States:

• Has it been subject to peer review?

• Even if it is an emerging field, is the error rate reliable?

• Is there any scientific acceptance of this field or technique?

Daubert v Merrell Dow Pharmaceuticals (1993) 113 S Ct 2786

Facts: Jason Daubert and Eric Schuller had been born with serious birth defects. They and their parents sued Merrell Dow Pharmaceuticals Inc., a subsidiary of Dow Chemical Company, in a California state court, claiming that the drug Bendectin had caused the birth defects. Merrell Dow removed the case to federal court, and then moved for summary judgment because their expert submitted documents showing that no published scientific study demonstrated a link between Bendectin and birth defects. Daubert and Schuller submitted expert evidence of their own that suggested that Bendectin could cause birth defects. Daubert and Schuller's evidence, however, was based on in vitro and in vivo animal studies, pharmacological studies, and reanalysis of other published studies, and these methodologies had not yet gained acceptance within the general scientific community.

Held: The Ninth Circuit found the district court correctly granted summary judgment because the plaintiffs' proffered evidence had not yet been accepted as a reliable technique by scientists who had had an opportunity to scrutinize and verify the methods used by those scientists.

R v Hien Puoc Tang [2006] NSWCCA 167

Facts: Tang was on trial for an armed robbery. There is surveillance images taken. As a result of the High Court decision in Smith, police were excluded from the process of identification. Although psychologists tend to hold the view the police were the most reliable way to give identification evidence. Accordingly, because the footage was not clear enough for the jury to be satisfied beyond reasonable doubt that the person the footage was Tang, expert opinion was called. The opinion of the expert was that Tang was the man in the photos. The expert was however a stranger and never saw Tang nor had dealings with him. The issue here was whether facial mapping could be used to give opinion based evidence under Section 79

Held: The Court discredited this evidence. The evidence was given by a woman who had a PhD in anatomy and was an expert in measuring human beings and human remains and determining who they are based on facial features. There was no doubt she was an expert in anatomy. The expert purported that she had the skill to also do this with photographs, despite not having any training in that field. The court had to determine whether this was reliable based on the questions of mistake, error rates. As the answers to these questions could not be answered the evidence could not be admissible in law. Thus the Court of Criminal Appeal held she was not an expert under Section 79 thus the evidence was excluded. Facial mapping was held not to be an area of specialised knowledge

Osland v R (1998) 197 CLR 316

Facts: The prosecution case was that the defendant and her son had agreed to kill the defendants husband. They dug a grave earlier in the day and the defendant placed sedatives in the victims meal. When the victim fell asleep the son fatally hit him over the head with a pipe in the presence of the defendant. The defendant and her son admitted to killing this husband but argued self-defence or provocation on the grounds of the husbands violent abuse over many years. The son was not found guilty based on his self defence argument. However the defendant was found guilty of murder. Expert evidence was tendered to say that battered women have unusual sensitivities to impending violence.

Held: The High Court rejected the appeal but gave consideration to whether battered women syndrome could be a matter for expert opinions at all. Here the high Court had to decide whether battered women syndrome is something a person can be an expert in. Gaudron and Gummow JJ said that there are some aspects of the behaviour of these women that are outside the behaviour of ordinary people and because of this an expert can assist the jury to understand the behavior. Kirby J with whom McHugh J agreed said there is a need to be careful because battered women syndrome is not universally accepted (this was the case at the time – it is now accepted with legitimate rejections) thus there is a need to ensure the expert only assists the jury in deciding rather than deciding for them. She was subsequently acquitted through other avenues.

1. Has the expert acquired the knowledge through training, study or experience?

R v Yildiz (1983) 11 A Crim R 115

Facts: The issue here was whether through experience a person would be an expert on a particular community. Here, it was relevant to know what the Turkish community held as an attitude to homosexuality. The evidence came from a heterosexual Turkish interpreter. His evidence was that Turkish community regarded homosexuals with great disfavor. He said that he did not know any homosexuals who were Turkish but he was Turkish by nationality and lived amongst Turkish people and in his experience they had that view

Held: It was accepted that through his experience he was an expert to give that opinion

Barker v R (1988) 34 A Crim R 141

Facts: A police officer has study and training in policing but may too gain expert knowledge from experience. Here the issue was whether a police officer through her experience knew drugs and drug taking implements if she saw them. After many years of experience of a police officer she submitted she knew what speed looked like and when she was in a speed lab.

Held: The court said that it was possible that police officer would know this through their experience thus the questions was not what she knew but how she articulated it. There is a difference between saying ‘in my experience….’ And ‘in my opinion’. This is the same evidence just articulated in a different way.

R v Leung and Wong (1999) 47 NSWLR 405

Facts: This case deals with surveillance recordings of telephone conversations. The telephone conversations were conducted in a language other than English. The tapes were listened to by an interpreter for the purpose...