Opinion

Question 1

What is opinion?

Answer 1

What one thinks about a particular thing, subject or point.

Question 2

What is the Courts view on opinion evidence?

Answer 2

The jury and Court should be the trier of fact

R v Runjaju & Kotinnen

Question 3

What does section 76 state?

Answer 3

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

What does section 76 mean?

Answer 4

That generally a witness can only give evidence of what they see and hear not the conclusions they reach

Question 5

How do you determine if something is fact or an opinion?

Answer 5

1. The greater the measure 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 opinion.

Question 6

What are the exceptions for opinion evidence?

Answer 6

S77 - relevant for another purpose other than opinion
S78 - lay opinion
S78A - ATSI traditional laws
S79 - specialist opinion
S80- Ultimate issue & common knowledge

Question 7

What is section 77?

Answer 7

It is similar to s60. The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant to prove something other than what the opinion was expressed about.

Land valuer - report - the reason tendered was to go to why the report was created. Not to the opinion being the value expressed.

Question 8

What is section 78 about?

Answer 8

Opinion rule doesn’t apply if:

• the opinion is based on what the person saw, heard or otherwise perceived about a matter or event AND
• evidence of the opinion is necessary to obtain an adequate account, or to understand the persons perception of the matter or event.

Question 9

What are the pre-requisites for admissibility of opinion evidence?

Answer 9

In addition to section 78, must be relevant under section 55.

Case of R v Panetta says that the person giving an opinion must be able to offer a valuable opinion, and be better equiped than a member of the jury to form that opinion.

Question 10

What does section 79 allow?

Answer 10

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 that person that is wholly or substantially based on that knowledge

Question 11

What are the two tests under section 79?

Answer 11

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

Question 12

What has to be done if ‘experience’ is asserted to be the basis of specialised knowledge?

Answer 12

It will have to be clearly demonstrated.

Weal v Bottom
- witness has no formal qualification but possessed wealth of experience.

Question 13

What is the meaning of an ad hoc expert?

Answer 13

“For the specific purpose, case or situation at hand and not another”

Question 14

What is a s 177 certificate?

Answer 14

Evidence of a person’s opinion may be adduced by tendering a certificate (expert certificate) signed by the person.

Question 15

What does an expert certificate need to state?

Answer 15

• persons name and address
• specialised knowledge based on training, study or experience
• sets out opinion the person holds

Question 16

How far in advance do you have to give notice of the expert certificate?

Answer 16

21 days.

Question 17

What does section 80 state?

Answer 17

Evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue, a matter of common knowledge.

Question 18

What is section 110 and credit have?

Answer 18

If the baddy says I am a good guy, you can seek to tender other evidence to the contrary.