Opinion (ss 76-80) Flashcards
s 76 - the opinion rule - Evidence of an opinion is not admissible to prove…
the existence of a fact about the existence of which the opinion was expressed
Part 3.3 establishes a basic exclusionary rule for opinion evidence, being s 76. The two main exceptions to the opinion rule are …
(1) __________, section ___
(2) __________, section ___
(1) Lay opinion (s 78)
(2) Expert opinion (s 79)
Apart from the main exceptions to the opinion rule (ss 78 & 79), other exceptions include:
(1) __________, section ___
(2) __________, section ___
(1) opinion that is admitted for another purpose, s 77 - this is equivalent to the hearsay exception at s 60.
(2) ATSI traditional laws and customs, s 78A
‘Opinion’ is not defined in the Act, but it means…
an inference from observed and communicable data
‘Opinion evidence’ has been described in the case of RW Miller & Co Pty Ltd as…
‘evidence of a conclusion, usually judgmental or debatable, reasoned from facts’
Factual evidence known to the expert through their specialised knowledge, includes…
conclusions drawn from observations that the expert has made
Comparisons are not opinion evidence, but are…
direct observations (La Trobe Capital & Mortgage Corporation Ltd [2011] FCAFC 4, [48])
Is evidence by a person about his or her own state of mind opinion evidence?
No. It is not evidence of an opinion (Seltsam Pty Ltd v McNeil [2006] NSWCA 158, [123])
Is evidence by a person about another person’s state of mind (i.e., that she intended to …) evidence of an opinion?
It may be…
Is evidence by a person of what she or he WOULD have done or THOUGHT in a particular situation opinion evidence?
No (Allstate Life Insurance Co v Australia & New Zealand Banking group Ltd (No 5) (1996) 64 FCR 73) See also Seltsam [2006] NSWCA 158, [123])
Section 80 abolishes which two common law rules:
(1) __________
(2) __________
(1) ultimate issue
(2) common knowledge
Admissible hearsay, which can also be characterised as opinion evidence, cannot be admitted unless it also __________
comes within an exception to the the opinion (Lithgow City Council [2011] HCA 36, [19])
The opinion rule does not apply to the following:
- s 50(3) __________
- s 77 __________
- s 78 __________
- s 78A __________
- s 79 __________
- s 81 __________
- s 92(3) __________
- ss 110 and 111 __________
- s 50(3) - evidence of summaries of voluminous/complex docs
- s 77 - evidence relevant otherwise than as opinion evidence (similar to s 60)
- s 78 - lay opinions
- s 78A - evidence of an ATSI person about the traditional laws/customs
- s 79 - expert opinions
- s 81 - admissions
- s 92(3) - evidence of convictions
- ss 110 and 111 - character evidence or character of co-accused
If an opinion is admitted for another purpose, which section permits it to be used to also prove the facts about which the opinion is expressed? Section ___
Section 77
Lay opinion is permitted under which section ___
Section 78
Section 78 enables lay opinion to be admissible where:
(1) the opinion is based on what that person __________
(2) and the opinion evidence is necessary to __________
(1) saw, heard, or otherwise perceived about a MATTER or EVENT;
(2) obtain an adequate ACCOUNT or UNDERSTANDING of the person’s PERCEPTION of the matter or event
Lay opinion checklist. It must:
- be __________ (ss 55, 56)
- have a __________ basis
- be based on what the person __________ (s 78(a))
- be necessary to __________ (s 78(b))
- relevant (ss 55, 56)
- have a rational basis (due to ss 55/56)
- based on what the person saw, heard or otherwise perceived about a MATTER or EVENT (s 78(a))
- be necessary to obtain an ADEQUATE account or UNDERSTANDING of the person’s PERCEPTION of the matter or event (s 78(b))
The accepted basis to adduce voice identification evidence is through section ___
- The person who has listened to hours of recordings is in a better position to make a comparison about the ID of speakers than the jury. Evidence is therefore:
- relevant
- opinion is necessary to shed light on the witness’ observation about the similarities of the different voices
Kheir v The Queen [2014] VSCA 200, [65]
Tran & Chang v The Queen [2016] VSCA 79
Case note - Dasreef (2011) 243 CLR 588
Facts: silicosis
Expert evidence excluded. Even though the expert had SK based on TSE, the expert failed to state the reasoning as to how SK applied to the facts/observed to produce the opinion.
The principle derived is that there must be proof of the __________
link between the SK and how the expert opinion was derived
Case note - Morgan [2011] NSWCCA 257
Opinion of expert witness excluded because expert did not explain how an expert in ANATOMY could perform an anatomical comparison between poor quality CCTV images of a person covered by clothing with images of the appellant.
It had not been established that his evidence of similarity in body shape could be said “to be based on his SK of anatomy”.
Principle derived is that there must be proof of the __________
link between the SK and how the expert opinion was derived
Case note - Meade v R [2015] VSCA 171
Evidence of professional boot manufacturer PROPERLY admitted.
W identified different features of brands of boots and explained how those features could be observed in the CCTV images.
Principle derived is there is a difference between:
(1) observations of ________ characteristics which are not standardised and statistically analysed (as considered in Honeysett)
and
(2) the identification of characteristics of __________ objects, whose features can be reliably identified by the manufacturer
(1) human
(2) manufactured
Case note - Honeysett (2014) 253 CLR 122
Evidence of anatomist excluded.
Opinion had not been based wholly or substantially on SK, but rather, his subjective impression of what he saw when he looked at the images. He had pointed out anatomical characteristics common to the accused and to the man captured by the CCTV.
Expert did not ID any relevant SK or explain how SK was based on TSE. Nor did he explain how any SK applied to the facts assumed or observed so as to produce the opinion produced. Absence of reasoning pointed to lack of any sufficient connection b/w SK and comparison exercise.
MEMORISE THE LAST TWO SENTENCES.
- need explanation as to how SK applies to the facts assumed or observations made in order to reach the opinion
- absence of reasoning points to lack of sufficient connection between specialised knowledge and the comparison exercise (opinion)
A person giving evidence of their opinion under s 79, should differentiate between:
(1) the __________ which his/her opinion is based on; and
(2) his or her actual __________
This exposes the person’s reasoning process
(1) assumed facts or observations
(2) opinion
If the complainant does not display counter-intuitive behaviour, is evidence about counter-intuitive behaviour relevant? Why?
No. The purpose of the evidence is to restore an complainant’s credibility from a debit balance because of a jury misapprehension, back to a neutral balance. It dispels ‘myths’ as to how a victim of a sex offence might react at the time of the offending or in the period that followed it.
Section 388 of EA permits evidence of what?
Evidence of SK to rebut doubts that might arise where a complainant displays behaviour that might be thought to be inconsistent with being the victim of a sex offence.
Under section 80, the Court may not exclude evidence of an opinion solely on the basis that it is about:
(1) __________
(2) __________
(3) __________
(1) a fact in issue
(2) an ultimate issue
(3) a matter of common knowledge
That is, an expert may express an opinion about the ultimate issue, or a matter of common knowledge.
Under s 80, matters of common experience may be admissible, provided __________
the evidence passes through the other admissibility gateways.
E.g., evidence about the behaviour of children may be admissible through s 79, provided it is based on the witness’s SK
Section 177 of the EA enables a party to adduce expert evidence by:
(1) __________
or
(2) __________
(1) Certificate
(2) Affidavit
For an expert Certificate/Affidavit to be relied on without the expert attending, notice must be served on the other parties, not later than _____ days before the hearing, unless the court, upon application, substitutes a different period in accordance with s 77(___)
21 days
subsection 177(3)(b)
A party who receives a notice s 177(3) regarding an expert Certificate/Affidavit, may require the expert to attend Court to give evidence. In such a case, is the expert certificate admissible?
No
A party who requires an expert to attend without reasonable cause may be ordered to pay c_____, in accordance with s _______
to pay costs
s 177(7))
