Opinion (ss 76-80)

Question 1

s 76 - the opinion rule - Evidence of an opinion is not admissible to prove…

Answer 1

the existence of a fact about the existence of which the opinion was expressed

Question 2

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 ___

Answer 2

(1) Lay opinion (s 78)
(2) Expert opinion (s 79)

Question 3

Apart from the main exceptions to the opinion rule (ss 78 & 79), other exceptions include:
(1) __________, section ___
(2) __________, section ___

Answer 3

(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

Question 4

‘Opinion’ is not defined in the Act, but it means…

Answer 4

an inference from observed and communicable data

Question 5

‘Opinion evidence’ has been described in the case of RW Miller & Co Pty Ltd as…

Answer 5

‘evidence of a conclusion, usually judgmental or debatable, reasoned from facts’

Question 6

Factual evidence known to the expert through their specialised knowledge, includes…

Answer 6

conclusions drawn from observations that the expert has made

Question 7

Comparisons are not opinion evidence, but are…

Answer 7

direct observations (La Trobe Capital & Mortgage Corporation Ltd [2011] FCAFC 4, [48])

Question 8

Is evidence by a person about his or her own state of mind opinion evidence?

Answer 8

No. It is not evidence of an opinion (Seltsam Pty Ltd v McNeil [2006] NSWCA 158, [123])

Question 9

Is evidence by a person about another person’s state of mind (i.e., that she intended to …) evidence of an opinion?

Answer 9

It may be…

Question 10

Is evidence by a person of what she or he WOULD have done or THOUGHT in a particular situation opinion evidence?

Answer 10

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])

Question 11

Section 80 abolishes which two common law rules:
(1) __________
(2) __________

Answer 11

(1) ultimate issue
(2) common knowledge

Question 12

Admissible hearsay, which can also be characterised as opinion evidence, cannot be admitted unless it also __________

Answer 12

comes within an exception to the the opinion (Lithgow City Council [2011] HCA 36, [19])

Question 13

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 __________

Answer 13

• 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

Question 14

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 ___

Answer 14

Section 77

Question 15

Lay opinion is permitted under which section ___

Answer 15

Section 78

Question 16

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 __________

Answer 16

(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

Question 17

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))

Answer 17

• 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))

Question 18

The accepted basis to adduce voice identification evidence is through section ___

Answer 18

78. 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

Question 19

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 __________

Answer 19

link between the SK and how the expert opinion was derived

Question 20

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 __________

Answer 20

link between the SK and how the expert opinion was derived

Question 21

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

Answer 21

(1) human

(2) manufactured

Question 22

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.

Answer 22

• 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)

Question 23

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

Answer 23

(1) assumed facts or observations
(2) opinion

Question 24

If the complainant does not display counter-intuitive behaviour, is evidence about counter-intuitive behaviour relevant? Why?

Answer 24

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.

Question 25

Section 388 of EA permits evidence of what?

Answer 25

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.

Question 26

Under section 80, the Court may not exclude evidence of an opinion solely on the basis that it is about:
(1) __________
(2) __________
(3) __________

Answer 26

(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.

Question 27

Under s 80, matters of common experience may be admissible, provided __________

Answer 27

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

Question 28

Section 177 of the EA enables a party to adduce expert evidence by:
(1) __________
or
(2) __________

Answer 28

(1) Certificate
(2) Affidavit

Question 29

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(___)

Answer 29

21 days
subsection 177(3)(b)

Question 30

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?

Answer 30

No

Question 31

A party who requires an expert to attend without reasonable cause may be ordered to pay c_____, in accordance with s _______

Answer 31

to pay costs
s 177(7))