Opinion and expert evidence

Question 1

What are the three distinct meanings of ‘opinion’ that occur frequently in a legal context?

Answer 1

1. ‘In my opinion’- personal belief about a fact in question
2. ‘That is a matter of opinion’- there is a reasonable doubt about a fact in question
3. A witness’s opinion which consists of a summary of the inferences or conclusions that a witness draws from an observed event.

Question 2

Which form of ‘opinion’ is relevant and admissible?

Answer 2

The third form.

Question 3

What is the general rule irt to opinion evidence?

Answer 3

The opinion of a witness is irrelevant because it is a function of the court to draw inferences and to form its own opinion from the facts.

Question 4

What is the basis of the opinion rule?

Answer 4

It has no probative value and cannot assist the court in proving a fact in issue.

Question 5

When is a witness’s statement relevant and admissible?

Answer 5

When it is an objective statement of fact about a directly observed event.

Question 6

What is the ultimate issues doctrine?

Answer 6

It is the opinion rule that protects the fact-finding function of a court and states that only a court, and not a witness, can express an opinion about an ultimate fact in issue.

Question 7

What does the opinion rule hold?

Answer 7

The opinion evidence of laypersons and experts is irrelevant and inadmissible when it is superfluous and cannot assist the court because a court can form its own opinion or inferences about a fact in issue.

Question 8

What is the exception to the opinion rule?

Answer 8

The opinion evidence of laypersons and experts is relevant and admsisible when the witness is in a better position to form an opinion than the court and such an opinion will assist the court in determining a fact in issue.

Question 9

Which cases deal with the exception to the opinion rule?

Answer 9

1. R v Vilbro (school inspector)
2. S v Mlimo (police officer with no high education qualification)
3. Holtzhauzen v Roodt (clinical psychologist rape case)

Question 10

What are the two instances in which opinion evidence becomes relevant and admissible?

Answer 10

1. The opinion of a layperson is relevant and admissible on certain issues which fall within the competence and experience of laypersons generally
2. Expert opinion evidence in the form of an appropriately qualified expert or an experienced and skilled laypersons is always admissible to assist the court in determining facts in issue that require specialist knowledge not available to the court.

Question 11

When is the opinion of a witness considered superfluous and inadmissible?

Answer 11

1. Give an opinion as to the legal merits of case
2. An opinion that results in a conclusion of law or that interprets the meaning of words in a statute.

Question 12

What are inferences based on opinion?

Answer 12

An opinion based on a summary of factual data as perceived by the witness.

Question 13

What happens if the witness’s opinion is an inference based on pinion?

Answer 13

Court will allow the witness’s observations to be conveniently communicated to the court in the form of an opinion.

Question 14

When does expert opinion become relevant?

Answer 14

When the court cannot decide on issues without expert guidance.

Question 15

Which case deals with the admissibility of expert opinion?

Answer 15

Gentiruco AG v Firestone.

Question 16

What did the court hold in Gentiruco v Firestone?

Answer 16

The opinion of expert witnesses is relevant and admissible because experts, as a result of their specialist, technical skills or knowledge, are better qualified than a court to draw proper inferences on certain facts in issue. The expert can provide the court with specialist knowledge which falls outside the competence and experience of a court.

Question 17

When else can an expert admit expert evidence?

Answer 17

1. A rule of foreign law where the foreign law is not readily ascertainable
2. Indigenous law (Alexkor v Richtersveld)

Question 18

What are the requirements to qualify as an expert witness?

Answer 18

1. Must have specialist training, knowledge, skill or experience.
2. Must be an expert in the area in which they have been called to state their opinion

Question 19

What are expert witnesses required to do?

Answer 19

1. To support and substantiate their opinions with valid reasons based on proper research
2. Remain objective in their conclusions and not ignore matters that are inconvenient to their conclusions
3. Explain why they drew a particular inference with respect to a particular fact.

Question 20

Which case deals with an expert witness providing reasons for opinion and its probative value?

Answer 20

Cooper SA v Deutsche

Question 21

What did the Court hold in Cooper SA v Deutsche?

Answer 21

That an expert’s bare or bald statement of an opinion is not of any assistance to a court. The opinion must be based on a disclosure in court by the expert of the processes of reasoning which result in their conclusions.

Question 22

What happens if the court is unable to follow the reasoning of the expert as a result of the highly technical nature of the expert’s evidence?

Answer 22

Court must be guided by the reputation and professionalism of expert witness.

Question 23

What did the court hold in R v Nksatlala?

Answer 23

A court stated that a court should not blindly accept the evidence of an expert witness. However, once satisfied, a court should give effect to the conclusions of the witness even if its own observations do not positively confirm these conclusions.

Question 24

What did the court hold in Schneider v AA?

Answer 24

An expert must not assume the role of an advocate but must give an unbiased opinion on matters within his expertise. When a particular issue falls outside his expertise, he must say that his opinion is provisional if he has not fully researched it. If his opinion on an issue requires qualification, he must say so.

Question 25

What happens if there is contradictory expert evidence?

Answer 25

Proper approach is for the court to asses the evidence of the expert witnesses in light of credibility, reliability and probabilities.

Question 26

What did the court hold in Buthelezi v Ndaba in relation to contradictory expert evidence?

Answer 26

When choosing between the opposing vieews of two expert witnesses, the court’s determination must depend on an analysis of the cogency of the underlying reasoning which led the expert’s to their conflicting opinions.

Question 27

What are the reasons for the instances in which an expert is allowed to rely on information/statements that technically amount to hearsay?

Answer 27

1. Courts should not set impossible standards
2. Courts will allow the use of textbooks, which technically amounts to hearsay, if a number of conditions are adhered to by the expert witness

Question 28

What are the conditions which must be adhered to by the expert witness who relies on authoritative textbooks written by others to formulate an opinion?

Answer 28

1. Expert can, by reason of their training, affirm the correctness of the statements taken from the textbook (done under oath)
2. Textbook relied on has been written by persons of established repute or proved experience in that field.

Question 29

What did the court hold in Menday v Protea Assurance?

Answer 29

An expert must have personal knowledge and experience in the special field on which they testify. Alternatively, the expert must rely on the knowledge and experience of others who are accepted as experts in that field.

Question 30

What is experts for sentencing purposes?

Answer 30

Expert evidence received by a court, except in a case where correctional supervision is imposed, to impose a proper sentence.

Question 31

What does the probative value or admissibility of expert evidence given for sentencing purposes?

Answer 31

1. It must be related to the accused
2. It must be related to the particular crime
3. It must be related to the facts found to be proved in the judgment.

Question 32

What is a pre-sentence report?

Answer 32

A report containing information regarding the offender, is based on research and provides the court with recommendations as to the appropriate sentence.

Question 33

What happens if the court decides not to follow the expert evidence?

Answer 33

It should give reasons.

Question 34

What is the procedure for leading expert evidence in civil litigation?

Answer 34

1. Give opponent 15 days’ notice prior to trial that they will be making use of an expert
2. Delivery of summary of expert’s evidence within 10 days prior to trial.
3. If defendant wants plaintiff to be examined by their own expert witnesses, they must give 15 days’ notice that they must subject plaintiff to a medico-legal examination
4. If notice is defective or unsuitable, then the aggrieved party should object to the notice which is 5 days in HC and 10 days in MC
5. Party that ordered the examination must submit the documents within 10 days in HC or 15 days in MC

Question 35

What must the notice contain?

Answer 35

1. The person on whom the notice is served is required to submit themself for a medico-legal examination
2. Nature of the examination required
3. Person who will be conducting the medial examination
4. Date, time and place of thee examination
5. Person on whom notice is served has the right to have their own medical adviser present.

Question 36

What is the procedure for leading expert evidence in criminal litigation?

Answer 36

1. Expert witness is subpoenaed
2. In certain circumstances and provided good cause is shown, it is permissible to receive expert testimony by way of affidavit or certificate
3. At times expert witness can sit in on trial to allow the expert to assess the nature of the case and to understand the issues being presented
4. Prior discovery of expert reports can be obtained on constitutional grounds and
5. Police dockets and reports must be made available tot he defence before the commencement of trial.

Question 37

What is the Hollington rule?

Answer 37

A rule that holds that the judgment and conviction of an accused in a criminal trial is not admissible to prove any facts in issue in any subsequent civil proceedings.

Question 38

Which cases and legislative provisions ameliorated the Hollington rule?

Answer 38

1. Confined to civil proceedings (Prophet v NDPP)
2. Previous conviction/judgment should at least be prima facie proof of the facts on which it is based in subsequent proceedings which are neither civil nor criminal in nature (Hassim v Incorporated Law Society Natal)
3. Previous convictions can be admitted by way of similar fact evidence in both civil and criminal proceedings
4. Sections 197(d) and 211 of CPA allow for the use of previous convictions in subsequent criminal proceedings in specific circumstances