Opinion Evidence

Question 1

Skilled Witnesses

Answer 1

They will be called in order to give their opinion on a situation they have not seen or experiences

Kennedy v Cordia - Slipped on ice, and fell. It was the status of health and safety as an area of expertise that was one of the issues. Drew a distinction between ‘opinion evidence’ - Providing an opinion based on factual evidence of others and ‘skilled evidence of fact’ - Witness providing background information in an area of expertise

Test of admissibility of expert evidence:

1) Whether the evidence is necessary or helpful
2) Whether the witness has the necessary knowledge and experience
3) Whether the witness is impartial in his presentation and assessment of the evidence
4) Reliable body of knowledge or experience to underpin the evidence

Question 2

Role of Expert

Answer 2

They may not express an opinion which usurps the function of the court. Ingram v Macari - Didn’t have a right to comment on porno mags being corruptive

There are not there is decide definitively the case, even if giving evidence on crucial point. Mitchell v HMA - Drug case, ultimate question

If it’s not lead sometimes it can be fatal Columbia Steam Navigation Co v Burns

Question 3

Laying the foundation for expert evidence

Answer 3

Basis of fact must be laid for the opinion of expert to be said. Blagogevic v HMA

Question 4

Challenge to expert evidence

Answer 4

Must be satisfied that a witness is in fact an expert. Do not need a particular standard of qualification R v Silverlock - Handwriting hobby
Wilson v HMA - Cannibis resin oil, been to seminars on it

Just because a witness is an expert does not mean the court will necessarily hear him, his evidence can still be irrelevant. Hainey v HMA - Malnutrition lines, couldn’t comment
N v Advocate General for Scotland - Kenyan

It can be challenged in a number of ways:
Not an expert
Not in right field 
Basis of the fact has not been laid 
Expert's integrity is compromised. 

Gage v HMA - Mannequin dressed up, car shown. Juror wouldn’t understand psychological evidence
Campbell v HMA - Same statements exactly impossible
Peebles v HMA - Low IQ didn’t matter as he understood how to work computers.
Hodgson v HMA - Sex not understand
Gilmour v HMA - Main evidence came from a special knowledge confession, new method low score susceptible to pressure.
McKay v HMA - Wanted to character attack another victim but you can’t
McBrearty v HMA - Complainer was a pathological lair
McGartland v HMA - Knot drugs
Dunbar v HMA - Licking envelope

Young v HMA - It has be to a reliable source, case linkage analysis was not

Question 5

Duties of an expert

Answer 5

Ikarian Reefer -
Independent and uninfluenced by the exigencies litigation
Independent and unbiased assistance to court
Facts or assumptions to be stated
Material facts detracting from opinion not to be omitted
If falls outwith expertise: should declare this
If proper data not available: provisional opinion
If a report is not whole truth, expert should qualify it
If change of view after considering other expert’s report, should be intimated without delay

McTear v Imperial Tabacco - Experts on either side some were engaging in advocacy.