Opinion

Question 1

Section 23, Evidence Act 2006
(Opinion Rule)

Answer 1

A statement of an opinion is not admissible except as provided by section 24 or 25

Question 2

Opinion

Answer 2

A statement of opinion that tends to prove or disprove a fact

Question 3

Justifications for the Opinion Rule

Answer 3

(1) Bare opinion holds little probative weight
(2) Opinion could confuse the tribunal of fact and prolong proceedings
(3) Opinion may be based on other inadmissible evidence (e.g. opinion based on propensity evidence)

Question 4

Section 24, Evidence Act 2006
(General admissibility of opinions)

Answer 4

A witness may state an opinion in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard or otherwise perceived

Question 5

Section 25(1), Evidence Act 2006
(Admissibility of expert opinion evidence)

Answer 5

An opinion by an expert that is part of expert evidence is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence or ascertaining any fact that is of consequence in the proceeding

Question 6

Expert

Answer 6

A person who has specialised knowledge or skill based on training, study or experience

Question 7

Section 25(3), Evidence Act 2006
(Expert opinion evidence - evidence based on proven facts)

Answer 7

If an opinion is based on on a fact that is outside the general body of knowledge that makes up his expertise, the opinion may be relied upon only if the fact is or will be proved

(e.g. a medical expert relying on a ballistics expert)

If not proven, the expert opinion will be disregarded

Question 8

Ways of proving expert opinion

Answer 8

(1) Basing opinion on books and journal articles etc
(2) Basing opinions on facts that are supplied by others and carried out by colleagues or other scientists (assumed facts)

Section 129 allows published documents to be admitted as evidence where the Judge decides that they are reliable sources

Question 9

Section 25(4), Evidence Act 2006
(Expert Opinion Evidence - Sanity)

Answer 9

If expert evidence about the sanity of a person is based on a statement that the person made to the expert about the person’s state if mind, then -

(a) the statement of the person is admissible to establish the facts on which the expert’s opinions are based, and
(b) neither the hearsay rule nor the previous consistent statement rule applies

Question 10

Expert Opinions - Principles

Answer 10

(1) Expert must state qualifications
(2) Facts, matter and assumptions on which opinions are made must be stated explicitly
(3) Reasons for opinions must be stated explicitly
(4) Any literature or material used/relied on to support opinions must be referred to
(5) Expert must not give opinion evidence outside his/her area of expertise
(6) If expert believes his/her evidence might be complete without some qualification, that qualification must be stated
(7) Expert has an overriding duty to assist the Court impartially with his/her area of expertise
(8) Expert is not an advocate for any party

Question 11

Section 23, Criminal Disclosure Act 2008
(Notice Requirements for expert evidence)

Answer 11

If a defendant intends to calls expert witness, he/she must disclose the brief of evidence or report at least 14 days before the fixed trial date