Opinion

Question 1

Under what Section of the Evidence Act would the opinion rule be found?

Answer 1

Section 76 The opinion rule

(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Question 2

What did the case of R v Runjani and Kotinnen (1991) find in relation to opinion evidence and the role of the jury?

Answer 2

“The law jealously guards the role of the jury, or the court where it is the trier of facts…”. R v Runjanji and Kotinnen (1991) 56 SASR

Meaning:
**To allow witnesses to give evidence of opinion has been seen by the common law as usurping the function of the jury (or judge)

Question 3

The case of Weal v Bottom (1966) found what?

Answer 3

“Where ‘experience’ is asserted to be the basis of specialised knowledge, this will have to be clearly demonstrated.

Even if the witness has no formal qualification, may possess a wealth of experience that can be relied upon.

Question 4

What is “opinion”?

Answer 4

Opinion is not defined in the Evidence Act. However it is defined in the Oxford Dictionary as: ‘what one thinks about a particular thing, subject or point; a judgement formed; a belief; view, notion’.

Question 5

Section 76(2) of the Evidence Act states that the Opinion rule does not apply in certain circumstances. Which circumstances?

Answer 5

76(2) states that Subsection 76(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. (eg: FASS certificate or Section 257 Certificate)

Question 6

There are specific exceptions to the opinion rule. What are some of the exceptions and in what Section of the Evidence Act are they found?

Answer 6

Specific exceptions to the opinion rule are as follows:
• summaries of voluminous or complex documents (section 50 (3))
• evidence relevant otherwise than as opinion evidence (section 77)
• lay opinion (section 78)
• Aboriginal and Torres Strait Islander traditional laws and customs (section 78A)
• expert opinion (section 79)
• ultimate issue and common knowledge (section 80) - judicial notice
• admissions (section 81)
• exceptions to the rule excluding evidence of judgments and convictions (section 92 (3))
• character of and expert opinion about accused persons (sections 110 and 111).

Other provisions of this Act, or of other laws, may operate as further exceptions.

Question 7

What are 3 tips to help determine if something is a fact or an opinion?

Answer 7

1. The greater the measure of judgement required,
2. The greater the doubt in coming to a particular conclusion of fact, and
3. The greater the scope for error.

The more likely the tribunal of fact will conclude the evidence to be opinion.

(If you really have to think about it or interpret it - likely to be an opinion. The less interpretation of information - the more likely it is a fact).

Question 8

Section 77 is an exception to the opinion rule at S76 in relation to “evidence relevant otherwise than as opinion evidence”. What does this exception provide for?

Answer 8

An example of where Section 77 could be used is for forming reasonable suspicion to search - observations that a person was drug affected are OPINION, however need to be admitted/used to provide reasons for reasonable suspicion or reasonable excuse to search.

NB: similar to Section 60 (non hearsay purpose)

Question 9

The case of R v Panetta found: In addition to Section 78 (lay opinions), there must also exist a rational basis for the opinion. Section 55 (relevance) must also be satisfied.

ie: the person giving the opinion must be able to offer a valuable opinion and be better equipped than a member of the jury to form the particular opinion. Give an example.

Answer 9

A highway patrol officer. Not an expert, however qualified by means of experience and better equipped than a lay person to form the particular opinion.

Question 10

Summarise admissibility per Section 78 (Lay Opinions)

Answer 10

1. Opinion rule does not apply if it is first hand (what the person saw, heard or otherwise perceived)
2. Evidence of the opinion is necessary for the court to obtain an adequate account or understanding of the person’s perception of the event (ie: the court can’t receive an adequate account of the person’s perception by merely giving the facts)
3. Opinion must have a rational basis
4. Relevance
5. R v Panetta

Question 11

What was the phrase “Specialised Knowledge” in Section 79 intended to mean?

Answer 11

The phrase “specialised knowledge” in Section 79 was intended to extend the common law and to emphasis that EXPERIENCE CAN BE A SOUNDER BASIS FOR OPINION THAN STUDY. ALRC report 26, Vol 1, par 742

Question 12

The case of Weal v Bottom found what (in relation to Specialised knowledge)?

Answer 12

This relates to where experience is asserted to be the basis of specialised knowledge. It will have to be clearly demonstrated.

Weal v Bottom (1966) 40 ALJR 436 held:

“Witness has no formal qualification but possessed a wealth of experience”.

Question 13

What are the two tests that must be applied in Section 79?

Answer 13

1. The person possess specialised knowledge based upon that person’s training, study or experience, AND
2. The opinion proffered is based wholly or substantially upon that knowledge, study or training.

Question 14

Name the 5 exceptions to the opinion rule

Answer 14

77
78
78A
79
80

Question 15

What is the meaning of “Ad Hoc”?

Answer 15

Meaning of ad hoc - “For the specific purpose, case, or situation at hand and not other”.

Question 16

What does Section 177 legislate?

Answer 16

Section 177 states that an expert’s opinion may be adduced by the tendering of an expert certificate.

177 Certificates of expert evidence

(1) Evidence of a person’s opinion may be adduced by tendering a certificate (expert certificate) signed by the person that:
(a) states the person’s name and address, and
(b) states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate, and
(c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge.
(2) Subsection (1) does not apply unless the party seeking to tender the expert certificate has served on each other party:

(a) a copy of the certificate, and
(b) a written notice stating that the party proposes to tender the certificate as evidence of the opinion.

(3) Service must be effected not later than:

(a) 21 days before the hearing, or
(b) if, on application by the party before or after service, the court substitutes a different period—the beginning of that period.

(4) Service for the purposes of subsection (2) may be proved by affidavit.
(5) A party on whom the documents referred to in subsection (2) are served may, by written notice served on the party proposing to tender the expert certificate, require the party to call the person who signed the certificate to give evidence.

**Note: requires any facts the expert has assumed as per the Civil Procedure Rules

Question 17

What did the case of Regina v Brian John Welsh find in relation to the admissibility of a Doctor’s evidence?

Answer 17

“Evidence of the history taken by a doctor has always been admissible, as I say, as establishing the basis upon which the doctor frames the expert evidence to be given by him or her in evidence, but not in order to establish the truth of what was said”.

Question 18

What does Section 110 legislate?

Answer 18

Section 110 Evidence about character of accused persons

(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.

Question 19

Why is opinion evidence excluded?

Answer 19

Opinion evidence has been seen by the common law as usurping the function of the jury (or magistrate).

Question 20

Can evidence of any opinion be admitted for an alternate purpose?

Answer 20

Yes. Section 77 allows that evidence relevant, otherwise than as opinion evidence, can be admitted. 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.

*NB: this section operates similarly to Section 60. Opinion evidence may be admitted if it dos not seek to adduce the opinion of an asserted fact - eg: opinions relating to the grounds for suspicion to search - then in for one, in for all.

Question 21

How does the opinion rule apply to “expert opinion”?

Answer 21

Section 79 - Opinions based on specialised 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.

2 part test:

1. the person possesses specialised knowledge based upon that person’s training, study or experience; and
2. the opinion proffered is based wholly or substantially upon that knowledge, study, training or experience.

Question 22

What is an ad hoc expert?

Answer 22

Meaning of ad-hoc expert: “for the specific purpose, case or situation at hand and no other”.

Question 23

What did the case of R v Leung and Wong find in relation to “ad-hoc” expert?

Answer 23

This is the case where an interpreter listened to hours of telephone intercept material and after doing so could provide evidence identifying people’s voices on that tape, thereby making him an “ad-hoc” expert.

Question 24

What is required for an expert certificate to be admitted?

Answer 24

Section 177 provides the rules for the admission of expert evidence. A certificate must be signed by the person that:

(a) States the person’s name and address, and
(b) States that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate, and
(c) Sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge.

(**Encompasses the same criteria required under Section 79).

Subsection (1) (above) does not apply unless the party seeking to tender the expert certificate has served on each other party:

(a) a copy of the certificate, and
(b) written notice stating that the party proposes to tender the certificate as evidence of the opinion.

(3) Service must be effected not later than:
(a) . 21 days before the hearing.

The defence must inform the prosecution in writing if they require the expert to be called to give evidence in court.

Question 25

What did the case of JP v DPP find in relation to expert certificates?

Answer 25

Certificate must state what assumed facts were relied upon to form opinion and must include specific (not generalised) process used to form opinion.

Question 26

What did the case of R v Welsh find in relation to a doctor’s (expert) certificate?

Answer 26

R v Welsh held - Evidence of the history taken by a doctor is admissible to establish the basis upon which the doctor forms his expert opinion but not in order to establish the truth of what was said.

Question 27

Does the opinion rule apply to opinion of good character?

Answer 27

No. Section 110 is the exception rule.

Section 110 allows the Defendant to suggest he is of good character and not the type to do what he is charged with - opinion rule dos not apply to evidence used to challenge this suggestion.

Question 28

What is the starting point in relation to opinions?

Answer 28

Opinion evidence should be adduced from experts to allow the court to better form it’s own opinion in relation to a matter.

Unless calling an expert of our own to challenge expert evidence relied upon by the defence, the prosecution can challenge the assumed facts relied upon by that expert and establish whether or not alternate facts would change their opinion.

Question 29

Morgan v R [2016] NSWCCA 25 held what in relation to ad hoc expert?

Answer 29

In Morgan v R [2016] NSWCCA 25, the appellant had been convicted of a series of “break and enter” offences by circumstantial evidence and voice identification evidence. A tracking device containing a listening device had been placed in a stolen BMW allegedly used by the crook and his co-defendants. After a voir dire, the trial judge allowed into evidence the “ad hoc” expert evidence of a police officer in relation to voice similarity. The officer had extensively compared the voices on the listening devices with conversations recorded between the appellant and his partner while he was in custody.

Question 29

Nguyen v R [2017] NSWCCA held what in relation to ad hoc expert?

Answer 29

Nguyen v R [2017] NSWCCA 4 is another example of a police officer listening to intercepted calls over a lengthy period of time. The officer’s repeated listening gave his identification evidence the quality of ad hoc expertise, and thus was admissible as expert evidence.