Opinion Evidence

Question 1

s 76

Answer 1

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.

(2) Subsection (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.

Question 2

s 77

Answer 2

Exception: evidence relevant otherwise than as opinion evidence

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.

Question 3

s 78

Answer 3

Exception: 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 the person saw, heard or otherwise perceived about a matter or event, and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

Question 4

s 78A

Answer 4

Exception: Aboriginal and Torres Strait Islander traditional laws and customs

Question 5

s 79

Answer 5

Exception: opinions based on specialised knowledge

(1) 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) deals with behaviour of children

Question 6

Honeysett v The Queen

Answer 6

“‘Specialised knowledge’ is to be distinguished from matters of ‘common knowledge’. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person’s training, study or experience must result in the acquisition of knowledge.”

Question 7

Lithgow City Council v Jackson

Answer 7

Court found 2 ambiguities in the wording of the evidence:

1. No adequate evidence as to what facts (if any) that this opinion was based on - it was not clear whether he had moved since his fall.
2. The original document had a question mark precluding the statement, making it unclear whether the words were a conclusion or a question that was unresolved.

The statement could not be classed as an opinion because it was ambiguous and inconclusive.