Opinion evidence

Question 1

What is the opinion rule?

Answer 1

The opinion rule excludes evidence of an opinion (which is sought to be used to prove the existence of a fact about the existence of which the opinion was expressed) (s76).

Question 2

What is the definition of opinion?

Answer 2

[evidence] is likely to be considered an opinion as it is an ‘inference drawn from observed and communicable data’ or ‘evidence of a conclusion … reasoned from facts’ in that it [ie not directly observed].

Question 3

What are the exceptions to the opinion rule?

Answer 3

evidence relevant for a non-opinion purpose

lay opinions

ATSI laws and traditions

opinions based on specialised knowledge (expert opinion)

Matters of common knowledge

Question 4

What is the definition an opinion?

Answer 4

evidence] is likely to be considered an opinion as it is an ‘inference drawn from observed and communicable data’ or ‘evidence of a conclusion … reasoned from facts’ in that it [ie not directly observed].

Question 5

When identification evidence is classified as opinion evidence?

Answer 5

• Identification evidence may be either evidence of fact or evidence of opinion, depending on the circumstances:
  o Where there is little risk of misidentification (eg where the witness identifies a person, clearly depicted in a studio photograph, as his/her spouse), identification evidence will normally be regarded as a statement of fact;
  o Where a real risk of misidentification is present (eg where the identification is made from a photograph which does not clearly depict the person who is its subject), it will usually be appropriate to classify identification evidence as opinion evidence.

Question 6

Explain the exception to the opinion rule - evidence relevant for a non-opinion purpose

Answer 6

S77 - IF the evidence of an opinion is not adduced to prove the existence of a fact about the existence of which the opinion was expressed, but adduced for some other purpose, the opinion exclusionary rule does not apply.

Note: The use of this evidence may be limited under s136.

Question 7

Explain the exception to the opinion rule - lay opinions

Answer 7

S78 – hearsay rule doesn’t apply to evidence if the opinion is:
o Based on what the person saw, heard or otherwise perceived about a matter or event; and
o Evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

Question 8

Explain the exception to the opinion rule - ATSI laws and traditions

Answer 8

S78A – Opinion rule does not apply to evidence of an ATSI person about the existence or non-existence, or the content, of the traditional laws and customs of the group.

Question 9

Explain the exception to the opinion rule - Expert opinion

Answer 9

1. Step 1: Does the person have specialised knowledge based on their training, study or experience?
2. Step 2: Is the opinion based wholly or substantially on that knowledge?

Question 10

Explain the exception to the opinion rule
- Matters of common knowledge

Answer 10

S80 – evidence of an opinion is not inadmissible only because
- It is about a fact in issue or an ultimate issue; or
- It is a matter of common knowledge.