Opinion (Chapter 15)

Question 1

State the rule against opinion evidence

Answer 1

A lay witness may not give an opinion on matters calling for special skill or knowledge of an expert unless the witness is an expert.

Question 2

What are some exceptions to the opinion evidence rule?

Answer 2

Weather conditions, persons apparent age, height, emotional condition or state of sobriety

Question 3

What section of the EAC deals with opinion evidence?

Answer 3

Part 3.3 s76

Question 4

What is an opinion?

Answer 4

An inference from observed or assumed facts.

Question 5

What are the EAC exceptions to opinion evidence?

Answer 5

s 78 - Lay witness opinion
s 78A - Abo laws and customs
s 79 - Expert witness - opinions based on specialist knowledge

Question 6

When can a lay witness provide an opinion? (EAC)

Answer 6

s 78 - A lay witness can give evidence about an opinion based on what they perceived and the opinion evidence is necessary to understand the witnesses perception of the matter or event.

Question 7

What is the criteria for admitting expert opinion evidence? CEA

Answer 7

s 79 - 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 option based on that knowledge.

Question 8

Makita v Sprowles sets out the test for what?

Answer 8

Makita v Sprowles sets out the conditions for admissibility of expert opinion evidence.

Question 9

Scenario: The witness is giving expert opinion evidence. The other side are challenging the witnesses status as an expert is disputed. What are the questions for the judge to decide whether the witness is an ‘expert’? (Hint Makita v Sprowles).

Answer 9

Applying the test in Makita v Sprowles, the witness will need to demonstrate (1) the asserted field of specialist knowledge exists (i.e. accountancy, biology, medicine), and if so (2) the witness by training, study, or experience has become an expert in some aspect of that field.

Question 10

Makita v Sprowles - The conditions for the admissibility of expert opinion evidence are:- Hint - 7

Answer 10

1 - Demonstrate that there is a field of specialised knowledge (i.e. accountancy, engineering, biology, medicine etc);
2 - The witness by training, study, or experience has become an expert in some aspect of that field;
3 - Opinion offered is wholly or substantially based on expert knowledge;
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4 - Assumption Identification rule - The factual foundation/basis upon which the opinion is based must be stated; and
5 - Basis rule - The factual foundation/basis upon which the opinion is offered must be based on admissible evidence either before, during, or after the witness gives evidence;
6 - It must be demonstrated that the facts on which the opinion is based must form a proper foundation for it (aka the opinion offered is expressly derived from 4 &5); and
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7 - The experts intellectual reasoning (based on expert skill, and the assumed facts) which produced the opinion must be explained (ensures the courts simply doesn’t just accept the experts conclusion without understanding it).

Question 11

Explain - non-certificated or ‘ad hoc’ expert evidence

Answer 11

Expertise can be acquired by practice without formal training all that is needed to be shown is acquired some skill beyond common experience (i.e. drug squad officer re drug terms, fire fighter re fire patterns, dog trainer re behaviours of breeds of dogs).

Question 12

Expert opinion evidence can be excluded if…(CEA)

Answer 12

s 55-56 - If it is irrelevant to determining a fact in issue

s135 - If the probative value is substantially outweighed by (1) prejudicial value (2) misleading or confusing or (3) waste of time…this could happen due to basis rule not being complied with…

Question 13

Structure for answer on opinion evidence:-

Answer 13

Relevance - s 55 - Expert opinion must first be relevant; that is, ‘if it were accepted, [the opinion] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.

Admissible - s 76 - Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Exception - s 79 - Exception for expert witness - 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.

Makita v Sprowles etc etc

Question 14

Expert witness model answer?

Answer 14

A witness must give a plain account of what they perceived devoid of interpretation or opinion unless it is matters of commence experience (weather, apparent age or height of a person, emotional condition or sobriety) or they are an expert – opinion rule.
CL applies in QLD to determine expert…maktia v sprowles….(1) asserted specialist field of knowledge actually exists (2) and the person by experience, training, or education has obtained expertise in that field.
For an expert opinion to be admissible (3) the expert’s opinion must stay within their specialised field of knowledge, (4) the factual foundation and assumptions of the opinion is stated (assumption rule) (5) proved by admissible evidence either before, during, or after the expert gives evidence (basis rule)…and (5) the scientific principles explained and (6) the application of those principles in forming the opinion must be clearly set out (intellectual reasoning).

The failure to comply with basis rule may result in exclusion (QEA s 130; CEA s 135).
The hearsay rule does not apply to experts literature, or experiences relied on (see also s 60).

Question 15

Experts are not advocates they owe…

Answer 15

Duty to court…Advocate - An expert is not an advocate for either party. Has a primary duty to assist the court. Issues of bias will be a matter of weight.

Question 16

Ad Hoc experts

Answer 16

Expertise can be obtained by experience without formal training or qualifications. Must prove the witness has acquired knowledge beyond common experience (i.e. drug police officers re drug terms, dog trainer on behaviours of breeds of dogs, and experienced bank manager regarding bank practices).

Question 17

Makita v Sprowles (HCA) authority for admissibility for opinion evidence and how it is presented to court….explain

Answer 17

Makita v Sprowles (HCA) authority for admissibility for opinion evidence and how it is presented to court.
Expert witness
Question of judicial officer to determine whether person is expert (1) does the asserted specialist field of knowledge exist (2) has the person by qualification, training, or experience obtained expertise in that field? Court can be referred to other decisions regarding whether the person has been held to be an expert; and the court may examine the academic rigour of a course to determine whether expert.
Presentation of evidence
Presentation of evidence (3) opinion must stay within limits of expert knowledge (4) Must disclose factual basis and any assumed facts upon which the opinion is based and those facts must be proven by admissible evidence either before, during, or after the expert opinion is given (basis rule/assumption identification rule) (5) state the scientific principles and (6) the intellectual reasoning of how the opinion was formed must be clearly explained to the court…

Question 18

UCPR Chp 11 Part 5 …expert evidence

Answer 18

UCPR – The UCPR sets out when the part applies, and the duties of expert (duty to court, code of conduct), sets out how expert evidence is to be given by report (unless with leave)… service of report…reqruiemtns for report…

The rules encourage limiting expert evidence to single report r 423 (jointly appointed expert or court appointed).

Parties can jointly appoint an expert, or if there is a disagreement, the parties can apply to the court to have an expert appointed. The court has the ability on it’s own initiative to appoint an expert. If each party an expert directions can be given regarding conferences….ect

Question 19

Model answer

Answer 19

A witness must give evidence of what they perceived through 5 senses devoid of interpretation or opinion unless it is a lay opinion (a person’s apparent height, weather, or emotional state), or they are an expert (opinion rule).

Makita v sprowles sets out test for admissibility expert opinion and presentation.

[WITNESS] professes to be an expert in [insert field]. This profession would likely be recognised as a filed in which expertise can be obtained (Makita). The witness would need to satisfy the court that they have obtained expertise by specialised training, study or experience (makita). The court could likely be satisfied this is meet because [the witness has a degree, 30 years experience]. If disputed could examine [insert academic rigor of course etc].

Factual basis of opinion - Here [witness] would need to demonstrate that his specialised knowledge based off training, study, and experience would allow him to carry out [testing, samples, inspection, monitoring etc] (direct evidence) and/or make [assumptions, estimations] about [insert facts i.e. likely exposure levels]. This factual basis would need to be proven by admissible evidence either before, during, or after any opinion is given by [witness] at trial to be admissible (basis rule and assumption identification rule – makita).

If partially inadmissible evidence relied upon that can be disregarded opinion is still admissible question of weight.

The [witnesses] opinion as to [insert…workers exposure, or cause of fault in product] appears [to be or not to be] wholly or substantially based off his specialised knowledge (makita).

The [witness] would also need to explain his intellectual reasonings about how his specialised knowledge when applied to the factual basis concluded in the opinion given. Any statements (text books, science papers or articles) relied upon do not need to be proven by the expert (exception to hearsay) but should be disclosed.

Witnesses evidence would appear to meet the requirements in Makita to be admissible as opinion evidence.

If the other side does not object a trial appeal only question of weight to be given to expert evidence admissibility (maktia)