Exclusionary rule: Opinion evidence Flashcards
What is an opinion?
A opinion is an inference draw from observed facts or communicable data (All state life insurance)
What is the rule against opinion evidence, and what does it exist?
A witness must only give evidence of assertions of fact based on their own knowledge (see s 79 CEA)
A witness who expresses an opinion is drawing an inference from observed facts. A witness who expresses an opinion is usurping the role of the jury. It is the role of the tier of fact to draw inferences from assertions of fact not the witness.
The rule is qualified: Lay opinion, ad hoc expert, expert witness.
Question: A witness was called in a fraud proceeding. She attended an art shop with the complainant. The complainant purchased a painting from a defendant who said it was an original not a copy. The defendant was charged with fraud. The defendant’s case theory is that the complainant had ‘buyers remorse’ and the defendant never told her it was an original…the complainant is a liar.
During cross the witness is asked whether she thought the complainant was lying. Is this evidence admissible?
The witness is asked to express an opinion about the state of mind of another witness (i.e. whether she is lying)…she is not qualified to express that opinion, and to give that evidence would usurp the role of the jury.
Question: A receipt for the purchase of a painting is tendered as a book of account under s 84 QEA. The receipt also contains a description that the painting sold is an original. The marker of the statement, receipt, was an 18 year old person sales person with no formal qualifications, and this was their first job.
The purchaser is suing the business for selling a fake painting.
Discuss…
The document whilst admitted under s 84 ‘book of account’…the statement regarding the painting as an original could be admitted as original evidence that the statement was made…however the opinion expressed by the sales person could not amount an expert opinion unlikely to be an ad hoc expert…idk this is a bad example
What are the exceptions to the opinion rule? (hint 3)
- Expert evidence
- Ad hoc expert
- Lay opinion
- Identification evidence
What is the lay opinion exception?
A witness can express a opinion about matters of common experience for example: Weather, apparent age or height, emotional condition, or state of sobriety.
What is an ad-hoc expert? and how is there evidence admissible? and what are some examples? (give 4)
An ad hoc expert is a witness who has acquired expertise by practice cf training or education. The witness must acquire some skill or knowledge beyond common experience.
- Fire fighter give evidence about cause or progress of bush fire
- Police officer (drug squad) opinion about drug terminology
- A person with 40 years building exp evidence to interp the expression of “conditions of employment” in an agreement
- A long serving bank employee can give evidence about bank practices
Question: A sues B for breach of contract. B sold a painting which was sold as an unique piece of aboriginal art from Uncle Burke. A engages a local elder, Uncle Aaron, who is has significant experience in trading and selling aboriginal art, however Uncle Aaron has no formal education or training.
Can uncle Aaron give evidence about whether the paining is a an original?
Uncle Aarron may be considered an ad hoc expert, however he would need to demonstrate he has obtained some skill or knowledge above ordinary experience (Honeysett v The Queen).
Would appear the Aaron has significant experience in trading abo art would need to examine whether that would including selling Uncle Burke art given it has a unique style. Aaron would also need to comply with the basis rule etc.
Dasreef, inter alia, held that the starting point in determining the admissibility of expert evidence is [insert]?
What is the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving?
i.e. The expert is being called to give an opinon to prove that Offender and the defendant shared similar physical characteristics in support of a conclusion of identity.
i.e. The expert is being called to give an opinion to prove the machine was not built with appropriate materials to support inference of machine was defective.
Is expert evidence is an exception to the rule agaisnt opinion evidence?
If so, why?
A witness who posses specialised skill or knowledge is permitted to express an opinion that is relevant and within their expertise to express and to draw in literature.
The rationale for expert evidence is that “…is a bridge between data in the form of primary evidence and a conclusion which cannot be reached with the application of expertise” (Dasreef).
Makita v Sprowles sets out the common law criteria for expert evidence and it’s presentation. Discuss.
(1) Asserted field of specialised knowledge must exist;
(2) Is the witness has obtained expertise in that field; study training or experience;
(3) The opinion must be wholly or substantially based on specialised knowledge;
(4) basis rule - the factual basis and any assumed facts must be stated and proved by admissible evidence either before, during, or after the opinion is expressed.
(5) scientific method and principals must be stated
(6) intellectual reasoning - How opinion was propounded
Question: An expert in fire burns was called to give evidence about an injury sustained by a victim. The victim allegedly sustained the injury when trying to put out a fire. During his testimony, the expert expressed it was his expert opinion from the nature of the burns the victim was not genuinely trying to extinguish the fire.
Discuss.
R v Singh; Makita v Sprowels;
The expert has specialised knowledge regarding burns. An expert can only express an opinion within the scope of their specialised knowledge.
The witness can not express an opinion outside of the scope of their specialised knowledge. As such, the portion of the opinion regarding the victims statement of mind would be inadmissible opinion evidence as the witness has strayed outside of their area of expertise.
What is the ultimate issue rule? and does it still exist?
An expert must avoid swearing the ultimate issue that the tier of fact is to decided i.e. is the defendant guilty, or is the substance meth, or the defendant has been negligent in the building of the house
s 80 CEA has abolished the ultimate issue rule
Are expert witnesses advocates for the party who calls them?
No - the primary duty is to the assist the court. The fact a witness may be aligned to one party is a question of weight.
Where an witnesses status as an expert is challenged what does the court consider?
(1) whether the asserted field of specialised knowledge exists (i.e. accounting, branches of medicine and engineering etc)
(2) Has the witness obtain expertise in that field by training, study, or experience? (n.b. in highly developed sub fields sciences an expert in one field might not be an expert in another sub field; court can also examine academic rigor or integrity of study)
What are two grounds, other than whether the witness is an expert, can a party object to?
A party may object to an experts evidence if they (1) do not stay within in their field of specialised knowledge or (2) contravene the “basis rule” namely the factual foundation of any scientific opinion must be proved by admissible evidence, either before, during, or after the opinion is given.
At common law, an experts opinion must comply with the basis rule (Makita v Sprowles). The basis rule has been modified in the cth jurisdiction…discuss
s 79 CEA; Dasreef; Langford v Tasmania; The basis rule does not apply, however a question of weight if the underlying facts are not proved.
At common law, where there is a failure to object to a breach of the basis rule what happens?
The expert evidence will be given as much weight as it deserves
Where an expert relies upon professional literature (books, articles, research) or own experiences in forming expert opinion…is that in inadmissible hearsay? If no, what is the rationale?
No (R v Noll)
The rationale as an exception to hearsay is that no one person can know everything, science is a team effort, and it would be an impossible standard to insist on proof
Evidence of identity is largely opinion evidence. “Circumstantial identification evidence” is what ?
Cf direct identification - circumstantial identification evidence is asserts that the general appearance, characteristic, or propesnity of the accused is similar to that of the person who committed the crime…it may be evidence of age, race, statue, colour, voice, distinctive mark, or gait…it is different from direct positive identification of the accused as the witness does not claim to recognise the accused as the person who committed the crime…however it is inference drawn from the facts.
Why is eye witness identification evidence unreliable?
conditions of observation, memory, concoction, collusion
Dominican direction
Where identification evidence is critical to the crown case the judge should draw juries attention to the strengths and weaknesses of the identification
What is ‘recognition evidence’ ?
Where a witness is already well known to the witness…this not opinion evidence it is a factual statement…no more element of an inference then seeing someone on the street.
