Opinion

Question 1

What section outlines the opinion rule?

Answer 1

Section 76 Evidence Act 1995(NSW)

Question 2

Why does the opinion rule exist?

Answer 2

R v Runjanji & Kotinnen to allow witnesses to give evidence of an opinion would be seen to be usurping the function of the jury. The law jealously guards the role of the jury or court where it is the trier of facts

Question 3

What is the opinion rule?

Answer 3

Section76 (1) evidence act: evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Question 4

Does the opinion rule apply to evidence given on certificate or other document?

Answer 4

No. Section 76(3) evidence act provides that the rule does not apply to opinions in a certificate or other document.

Question 5

What can a witness give evidence of?

Answer 5

Can only give evidence about what he or she observed not his or her conclusions or opinion unless an exception applies.

Question 6

What are the 3 tips to help determine If it’s fact or opinion?

Answer 6

1. The greater the amount of judgment 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 an opinion.

Question 7

What are exceptions to the opinion rule?

Answer 7

Section 77 evidence act- opinion for non opinion
purpose

Section 78 Evidence Act - lay opinions

Section 78A - aboriginal or Torres straight islanders traditional laws abd

Section 79 Evidence- opinions based on specialised knowledge

Question 8

What is section 77 evidence act?

Answer 8

The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other then proof of the existence of a fact about the existence of the opinion was expressed

Examples: suspicion of a police officer is an opinion relevant to usefulness of a search

Opinion of defendant as to conseny of sexual intet pourse relevant to mens rea.

Question 9

What is section 78 Evidence Act?

Answer 9

Lay opinions:

The opinion rule does not apply to Evidence of an opinion expressed by a person if
A) the opinion is based on what thr perspn saw, heard or oyhefwisr perceived about a mattet or event and
B) evidence of the opinion is necessary to obtain an adequate account or understanding of the persons perception of the matter or event.

Question 10

What is 3 criteria for lay opinions.

Answer 10

1. Opinion must have a rational basis
2. Opinion is based on what the person saw heard 0r otherwise perceived.
3. the court cannot receive an adequate account of the person’s perception by merely giving the facts.

Question 11

What is the authority of R v Panetta NSWCCA?

Answer 11

The person giving the opinion must be able to 0ffer a valuable opinion and be better equipped than a member of the jury to form the particular opinion.

Question 12

What is the authority of R v Whitby?

Answer 12

There are a number of matters of common experience in respect of which a person ordinary intelligence may be permitted to give evidenxe of his opinion upon a matter of which he has personal knowledge. E.g. identiry of individuals, a persons age, the speed of a vehicle.

Question 13

What is section 79 Evidence Act?

Answer 13

If a person has specialised knowledge based on a person’s training study or experience the opinion rule does not apply.

Question 14

What are the two criteria for an opinion to be admissible under section 79 Evidence Act.

Answer 14

1. The person possesses the knowledge based upon that person’s training, study or experience AND
2. The opinion preferred is based wholly or substantially upon that knowledge study or training.

Question 15

Who is an ad hoc expert?

Answer 15

An ad hoc expert is a person who whilst not having formal training or qualifications in a particular area or expertise has acquired expertise based on particular experience this will have to be clearly demonstrated.

Example weal v bottom: where specialised knowledge is based on experience this will have to be clearly demonstrated.

Question 16

What is the relevance of section 80 Evidence Act?

Answer 16

Abolished ultimate issue and common knowledge rules.

Question 17

What information should be elicited from an expert?

Answer 17

Should be something upon which the court needs the help of a third party as opposed to relying on general knowledge and common sense.

Question 18

How is expert evidence admissible?

Answer 18

Section 177 Evidence Act

Evidence of a persons opinion may be adduced by tendering a certificate (expert certificate) signed by the person that:
A) states the persons name and address and
B) states that the person has specialised knowledge based on his or her training, study or experience as specialised in the certificate and
C) set out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge.

Question 19

When must an expert certificate be tendered?

Answer 19

S177(3) evidence act service must be effected not less then - 21 days before hearing

Question 20

If evidence of good character is raised by the accused and that is admitted (s110 ea) will the opinion rule apply?

Answer 20

No. S110 evidence act. If character evidenxe is admorred hearsay, opinion tendency and credibility rules dont apply.

Question 21

What are some other exceptions to the opinion rule?

Answer 21

S50(3) EA volumious documents
S81admissions
S92 ea evidence of judgments and convictions
S110 and 1111 character or and expert opinion of accused person.