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Opinion Evidence Notes

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This is an extract of our Opinion Evidence document, which we sell as part of our Evidence and Criminal Procedure Notes collection written by the top tier of University Of Technology Sydney students.

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OPINION EVIDENCE 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 nonestablished 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

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