Opinion Flashcards
What does the case law of Mundar SMITH state about Opinion evidence?
The court did NOT allow the evidence. The officer could not give id evidence (his opinion) in this matter
Police officer in Smith is giving an opinion and excluded under section 76 (opinion rule)
What is the Opinion Rule as defined by S76 of the Evidence Act?
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
What is an Expert Opinion as per S79 of the Evidence Act?
(1) 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.
What is the exception of a Lay Opinion Rule as per S78 of the Evidence Act?
The opinion rule does not apply to evidence of an opinion expressed by a person if—
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event
What is the requirement of an Expert Certificate as per S177 of the Evidence Act?
The requirement for service of an Expert Certificate in accordance with S177 does not only apply to the prosecution. It applies to any party seeking to rely on an expert certificate.
Serve 21 days prior to hearing.
Notice to tender expert certificate.
Only required to call witness of expert certificate if defence notify prior to hearing.
True or False
Where an Expert Certificate contains history given by the victim provided to the expert for the purpose of giving an opinion, the history is hearsay and inadmissible.
FALSE!
What are examples of Lay Opinons?
age, sobriety, weather
What are the exceptions of Opinion as per S78(b) of the Evidence Act?
(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
Broken down:
Firstly, the opinion must be based on the witness’s own perception, it cannot be on the opinion of another or an observation made by another. Secondly, expression of the opinion must be necessary to understand the evidence. I.e, relevent.
What does S76(2) of the Evidence Act state about Opinions?
Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
