LWB 432Wk13 Murray McCarthy
Week 13
OPINION EVIDENCE
General RULE
General Rule: Evidence of opinions is not admissible
(1)Witnesses limited to describe physical perceptions:
What they saw, heard, felt, smelt, tasted
(2)Witnesses may not offer an opinion or an analysis or an inference or a value judgement which emerges from ANY facts (received or not)
- It is the Court (the tribunal of fact) that draws inferences from the facts proved.
Commonwealth
s.76 CEA 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.
Note:Specific exceptions to the opinion rule are as follows:
- summaries of voluminous or complex documents (subsection 50(3));
- evidence relevant otherwise than as opinion evidence (section 77);
- lay opinion (section 78);
- expert opinion (section 79);
- admissions (section 81);
- exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));
- character of and expert opinion about accused persons (sections 110 and 111).
Other provisions of this Act, or of other laws, may operate as further exceptions.
EXCEPTIONS
Ordinary “Lay” Opinion Evidence
Common Law
Sherrard v Jacob
-Courts of Ireland. Accepted in virtually every common law jurisdiction.
-Gives interesting list of examples of kinds of opinions lay persons can suggest:
-Opinions that derive inferences from perceived facts.
-The identification of handwriting, persons and things;
-Apparent age
-The bodily condition of a person, including death and illness
-The emotional state of a person e.g., whether distressed, angry aggressive, affectionate or depressed
-The condition of things, e.g., shabby, used or new
-Certain questions of value
-Estimates of speed and distance
2 categories may be derived from this list:
(1)Instances where non-expert witness, in giving opinion, is simply summarising their observations
e.g., age.
(2)Notion that ordinary experience of life often qualifies persons to give opinion evidence
e.g., where witness testifies that a person was drunk – opinion derived from perceptions.
[However, cannot go so far as to say ‘too drunk to drive’ – that is legal opinion of the law and is for the Courts]
This evidence saves time
However, witness can be cross-examined on details leading to their conclusion.
This provides best means to undermine their account of the event.
E.g. “Black was drunk” – what did you see? – Are you a doctor? – Must concede that cant tell other medical conditions? – This person could be suffering some medical condition and you could not tell, could you? Etc.
Commonwealth
s.78 CEA 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.
May be more restrictive than the common law in what is permitted
Experts
Common Law
Clark v Ryan – HC
-At trial the court tried to understand how a collision involving a semi –trailer occurred.
-Witness Mr Joy purported expert tried to infer what must have occurred from his prior knowledge and experience
Held:
-Evidence not to be received because:
-Mr Joy was from no recognised field of expertise
-Qualifications he possessed did not indicate a great deal of expertise.
-In addition, Mr Joy had been presented, not as someone who could add to the evidence but as someone simply attempting to repackage the evidence to best suit the plaintiff.
4 Rules for Accepting an Expert Witness from Clark v. Ryan
- Recognised field / science / knowledge?
- Witnessqualifications
- Opinion only received where Court requires help to draw inferences from facts
- The facts upon which opinion is advanced must be proved by admissible evidence
1. Recognised field / science / knowledge?
A body of learning evidenced by:
- Academic writing
- Professional association
- Taught in university or other place of high learning
Cutting edge fields may not be accepted until a point in time where they are recognised.
2. Witness qualifications
See book for list of considerations to be taken into account
Examination in chief is conducted by parties seeking to include evidence (in Voir Dire)
- Academic, professional, training and trade qualifications held by witness
- Experience of the witness in matters similar to the nature of his/her proposed testimony (but experience is not the main factor)
- Membership of trade or professional associations
- Research, publications and writings of the witness
- The general standing of the witness in his/her field
- Whether witness has previously been accepted as an expert in trial courts of the relevant jurisdiction.
Cross-examination is then taken to try to expose weaknesses in the qualifications of witness or the field of expertise.
If either Field or Qualification in dispute determine on a voir dire
3. Opinion only received where Court requires help to draw inferences from facts
Predicated upon assumption that inferences can be drawn from facts without qualifications, study and experience.
If all available inferences can be drawn from the facts without expert opinion, then expert opinion evidence is inadmissible.
However, there will be situations where there are technical and scientific inferences and value judgements can be drawn by only a person qualified in a particular recognised area – only that is it proper to introduce a qualified expert.
Taylor v Harvey
-So called expert was really doing no more than pass an opinion on the reliability of one of the parties to answers interrogatories.
-Expert not needed for that.
-Reliability of a witness is not one where the Court requires the assistance of an expert.
4. Facts upon which opinion is advanced must be proved by admissible evidence
An opinion is worthless unless it is founded upon sound facts
If the facts are inaccurate or wrong then so is the expert evidence.
Personal knowledge by the expert may be provided
- May happen via inspections by the expert, or
- Can be put to them by putting forward hypothetical examples and then call other witnesses to prove up those hypothetical facts and examples.
Ramsay v Watson
-In Ramsay the expert was called to give medical opinion but the expert could not examine the dead patients
-The expert could merely review the second hand reports as to the nature of their conditions.
-The opinion of the evidence was technically admissible, but of no weight at all.
Commonwealth
79 CEA Exception: opinions based on specialised knowledge
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.
- This is a bit more liberal than the common law
- If person has specialised knowledge, then the opinion rule does not apply.
- Two things:
- Makes no mention of a recognised branch /field of knowledge
- A person can be considered an expert based on experience and experience alone.
NOTE: UCPR (Qld) r423 a party intending to rely on expert evidence must give notice and disclose certain particulars; r425 – the court may appoint their own expert witness
Quasi Experts
Common Law
Weal v Bottom
-An action was bought by the widow of a car driver killed in a collision with a semi-trailer driven by defendant.
-Collision occurred when defendant took a downhill left-hand turn, and P’s case was that the rear of the trailer swung onto deceased side of the road (facts similar to Clark v. Ryan)
-The witness, Mr C did not offer an opinion about what might have occurred based on hypothetical facts put to him.
-Instead, he spoke of his own experience in driving these trucks for 18 years in both directions, loaded and unloaded, around the very bend the accident happened etc.
-He had driven the same kind of vehicle as the D.
-He had also vast experience of observing the behaviour of other vehicles on the bend in question.
-Barwick CJ:
Such evidence could be given by an expert … But it could also be established by the evidence of a person who had actual experience of or who had observed such behaviour. … In truth, the evidence of such a person is not the expression of an opinion nor is he strictly within the category of an expert, though there is a tendency to refer to such evidence compendiously as expert evidence.
-Mr C’s evidence was:
-Of his similar experience.
-Not drawing theoretical conclusion, but merely offering his own observations as pertinent to assessment by the tribunal of fact
-Not a perception of the facts in issue
Commonwealth
s.79 CEA
- Quasi-expert witness appears to fall under the category of one with “specialised knowledge” based on “experience”. No separate category exists under the Act.
“Ultimate issues”
Common Law
GENERAL RULE:
- An expert witness cannot give opinion on the very issue the court has to decide upon ie one which involves the application of a legal standard of proof eg Negligence.
- At common law, no witness may state an opinion as to whether or not a person’s conduct conforms to a legal standard: Palmer.
The only exception is for insanity: Thomas.
EXCEPTION:
- General Rule does NOT apply where the court cannot decide the issue without the assistance of an expert,
Murphy v. The Queen
-An expert may give an opinion even though it touches directly on the very issue the court must decide (i.e., the “ultimate issue”)
-This may occur whenever the issue is one the tribunal of fact is not equipped to draw inferences without the assistance of an expert
- Therefore, an expert may testify that a professional person has not acted according to prevailing standards of skill or prudence in their field: Davy v. Morrison, Thannhauser v. Westpac
- This differs from Palmer
Whether a person has been negligent is a question of law and fact but whether a person has acted according to prevailing standards of skill is purely a question of fact: Grismore v. Consolidated Products
Commonwealth
Section 80 CEA Ultimate issue and common knowledge rules abolished
Evidence of an opinion is NOT inadmissible only because it is about:
(a)a fact in issue or an ultimate issue; or
(b)a matter of common knowledge.
Although this appears to abolish the “Ultimate Issues” there are NSW authorities that suggest that this does not abolish the rule where it is ultimately for the tribunal of fact to apply a legal standard to facts found.
- A fact in issue or an ultimate issue
- The reference to an ultimate issue does not enable a witness to express an opinion on the ultimate legal issue to be determined by the Court: Allstate Life Insurance Co.
E.g., a witness cannot give an opinion that an accused is guilty
- The provision does appear to abolish the prohibition of opinion as to ‘mixed law and fact’, with the result that witnesses can give opinions on matters such as whether a person was negligent – but vide s.78 this is restricted to experts and not non-experts.
CONVICTIONS AS EVIDENCE OF UNDERLYING FACTS
Queensland
Section 79 - Convictions as evidence in civil proceedings
(1)In this section - “civil proceeding” does not include an action for defamation.
(2)In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence.
(3)In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.
(4)This section applies—
(a)whether or not a person was convicted upon a plea of guilty; and
(b)whether or not the person convicted is a party to the civil proceeding.
- In civil proceedings in Qld:
-A record of conviction is admissible for proving, where relevant, that the person committed the offence: s.79(2)
-If convicted, the person deemed, unless contrary proved, to have the requisite state of mind to constitute the offence.
Commonwealth
Section 91 - Exclusion of evidence of judgments and convictions
(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
Note:Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.
Section 92 - Exceptions
(1)Subsection 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove:
(a)the death, or date of death, of a person; or
(b)the due execution of a testamentary document.
(2)In a civil proceeding, subsection 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction:
(a)in respect of which a review or appeal (however described) has been instituted but not finally determined; or
(b)that has been quashed or set aside; or
(c)in respect of which a pardon has been given.
(3)The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.
- In proceedings in Federal jurisdiction:
- General rule: evidence of decision, or finding of fact, inadmissible to prove existence of a fact in issue – even if that fact is relevant for another purpose: s.91
- However: in civil proceedings, s.91 does not prevent admission of evidence that a party has been convicted of an offence, unless the conviction:
- Is subject to review or appeal not finally determined
- Has been quashed or set aside
- Has been pardoned.
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