Admissibility: Opinion Rule PDF

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E. Opinion Evidence 1. General Rule and its Rationales What is the opinion rule? What is its rationale? What fundamental principles does it promote? 

Opinion evidence is not admissible to prove the existence of a fact that’s asserted in the opinion. o

Opinion evidence about relevant facts generally should not override the fact finder's (judges’/jury’s) own task of assessing the evidence.

Rationale: 1. Opinion evidence might complicate a fact finder's task by having to include an assessment of others' opinions or 2. raise the risk (of appeal?) that the fact finder might improperly differ to the opinion holder's assessment of fact. 3. Opinion evidence may be subjective and if so, it does not necessarily advance the fact finding by the jury. Principles:  efficiency of trial (reduce time) and accruate fact finding (maintain reliability of evidence presented).  It also helps to prevent unfair prejudice. Example of using opinion evidence: Accused's opinion that the victim was violent could not be used to infer that the victim was actually violent but it could be used to infer that the defendant believed that killing the victim was necessarily in self-defence.

What is opinion evidence? -

RULE: It is evidence drawn/to be drawn from an observed fact or communicable data (Allstate). RULE: something that relies on inference and questions of inference (Castel).

Allstate Life Insurance Co & Ors v ANZ Banking Group Ltd & Ors (No 5) (1996) 64 FCR 73 at 75 (Walton:) Facts: Mr Ericson was an employee who had recommended to certain clients that they purchase some debentures. The clients purchased them. The admissibility of evidence was disputed where the evidence in question was whether if Mr Ericson had known of the true circumstances of the debenture issue, he would have recommended the purchase of the debentures to the clients. Held: It was not considered to be opinion evidence as it was just asking what he would have done in a hypothetical situation. Not every statement made by him or an expert is going to be an opinion (Lyngren J). 

Kirby J's dissent in Smith - regarding the police officers' opinion about whether the person in the photographs were the accused. He held that the statements made by the police officers were opinion because by looking at the photos, they were making an inference from a mental impression from an existing phenomena or data. (Note: Majority of court held it was irrelevant)

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Castel Electronics Pty Ltd v Toshiba Pty Ltd [2011] FCAFC 55 at [193] – [205] Facts: Castel distributes Toshiba products. They relied on a series of representations from Toshiba regarding its new products but received complaints about its performance and functionality after it was released for sale. As such, Castel relied on Mr Acton, a financial and management consultant, to give evidence as to the sales margins based on Castel's financial records. He expressed the opinion that from Castel's financial records, the decrease in margins from more than 25% to less than 20% was wholly attributable to the problems experienced by the customers with the defective products. Held: This was not opinion evidence. It is a summary of the company's financial records. It was not based on any inference or judgment. Rather, it was wholly factual and just calculations consisting no more than identifying appropriate costs and margins relating to defective and non-defective goods. His job was to find out the quantum of damage. It does not matter whether there are elements which come within the common knowledge of the jury because the court often relies on forensic accountants to help them with such things to save time and trouble of the exercise. It helps the court understand transactions which involve complex accounting treatments. 2. Exceptions where 'non-expert' opinion is admissible (i) Section 77 opinion evidence tendered for a non-76 purpose When does s 77 apply? In your own words, using an example, explain the operation of s 77. Allstate Life Insurance Co. & Ors v ANZ Banking Group Ltd & Ors (No 5) (1996) 64 FCR 73 S77 - allows the admission of evidence that is relevant for a purpose other than its opinion purpose. Allstate - the court used s77 to prevent the operation of s76. It said that the evidence was not opinion evidence but it instead went to proving inducement and reliance on why the person behaved the way that they did. This is because it was evidence of what they would have done. (ii) Section 78 - Expression of an opinion to communicate perceptions When does s 78 apply – to what kind of opinions? What is the rationale of s 78? S78 applies to opinion evidence if: - the person has seen heard/perceived a matter or event and - if that opinion is necessary to obtain an adequate account/understanding of the person's perception of the matter. Rationale: So as not to exclude evidence from key witnesses. This has to be balanced against other factors such as length of the trial. If the opinion rule is held too strict, it would prevent the admission of vital information. S78 therefore permits the reception of non-expert opinion evidence where it is very difficult for witnesses to convey what they had perceived about an event or condition without including their lay opinion - E.g. age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state. - The reason why it is difficult for observer is because it is almost impossible to separate inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves. (Lithgow) Lithgow City Council v Jackson [2011] HCA 36

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Facts: Jackson was found injured in a concrete drain in a parkland. He sued the council responsible for maintaining the park in negligence. He had no recollection of what happened but sought to rely on a note made by attending ambulance officers which stated "?Fall from 1.5m onto concrete" Held: Cannot rely on it under s78 because ambulance officers were making assumptions on what happened. they were not there and therefore did not personally perceive what had happened. To admit under s78, the opinion has to be based on the fact that the witness perceived it for themselves. - Did not satisfy s78(b) because it was not clear if the primary facts observed by the officers were too evanescent to remember or too complicated to be narrated separately from the impression created. - The word "necessary" was not directed to circumstances where it is impossible or inconvenient to call a person, but to a relationship internal to the evidence of the perceiver, namely, the relationship between the perceiver's perceptions and the perceiver's opinion - If the medical officers had given evidence of the medical and physical details they observed, it would have been admissible. What type of lay opinion does s 78 admit? What type of lay opinion does it seek to exclude? S78 only admits opinions on matters and events that are perceived. So it excludes evidence on uninformed speculation (i.e. opinions formed without having actually witnessed the event). (Partington) - (e.g. in Lee: Catlin cannot say the robbery actually occurred; can only say Lee looked scared like he was running away) S78 has to be based upon the personal perception of the witness and it is necessary to obtain an adequate account of his perceptions. It should be construed as requiring a rational basis for the opinion before it becomes admissible (Idoport). Partington v The Queen (2009) 197 A Crim R 380; [2009] NSWCCA 232 per McClellan CJ at CL at [47]. Facts: Accused was convicted of manslaughter after an intoxicated fight with the deceased. The witness lived downstairs and gave evidence that she heard a fight on the other side of the door. Se said the door was trembling, she heard moaning, and banging up against the door (head banging against the door). The accused argued that they were both really drunk and that he had fallen down, slumped up against the door and that he was in fact trying to call for help. Held: The statement made by the witness on what was perceived (heard/recognised voice of person) from her position behind the door was admissible. However, the evidence on what was happening on the other side of the door was not admissible as she could not perceive (see) what was happening outside the door. - it might be an opinion but it was a speculative or an informed guess - The door deprived her of any capacity to perceive what was happening on the door - She was able to give an account of her perception of the event - what she saw and heard - without proferring her opinion as to what she believed was taking place on the other side of the door. Idoport Pty Ltd & Anor v National Australia Bank [2001] NSWSC 529 (27 June 2001) at [11][15] - Should not be given a narrow meaning - S78 should be construed as requiring a rational basis for the opinion before it becomes admissible - Designed to permit evidence of opinion that would facilitate the understanding of evidence otherwise relevant and admissible. - It assumes that the matter/event perceived by the witness is relevant to the proceeding. That is primary evidence. The opinion is admissible as incidental to an understanding of primary evidence - Therefore, we need to ask the following questions:

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(a) Whether the matter/event is relevant to the proceeding (b) Whether the witness has perceived (seen, heard) (c) Whether the witness has formed an opinion from what was perceived (d) Whether the evidence is necessary in obtaining an account of the witness' perceptions of the event Give three examples of evidence that might be admissible under s 78. E.g. age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state. "I think he was 20" - i thought the accident happened 1km "the car was going at least 60ks an hour" - whether someone was intoxicated at all - the V looked young, looked underage 3. Section 79 – Opinions based on specialised knowledge What is the rationale for this exception to the opinion rule? Specialised knowledge is more reliable than common knowledge. Not all opinions are equal. The jury may not have such relevant knowledge and therefore may benefit from the uncommon knowledge that few members of the community might have. This would help resolve difficult questions. This exception is particularly useful to the court when it comes to assessing evidence of children or to address misconceived notions about children and their behaviour, ultimately preventing an inappropriate reasoning process. (i) When is opinion evidence admissible under s79? It is admissible if: (a) the witness who gives evidence "has specialised knowledge based on the person's training, study or experience" (b) the opinion expressed is "wholly or substantially based on that knowledge" Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [30]-[43] Facts: Employee sued former employer in the Dust Diseases Tribunal for contracting silicosis from exposure to silica dust. The tribunal admitted expert opinion from someone who was qualified as a chemist and professional engineer on the likely levels of respirable silica dust in the employee's breathing zone. The engineer spoke of an angle grinder being exposed to dust "of the order of a thousand or more times" the permissible levels. Whether such evidence was admissible? Held: Not admissible. Although it was numerical and quantitative, it was not and evidently not intended to be an assessment which could form the foundation of a calculation of the time weighted average level of the exposure of a particular worker. It was an expression of approximation. His opinion lacked reasoning which pointed to the lack of any sufficient connection between the numerical assessment and relevant specialised knowledge. - The expert must disclose facts and assumptions on which his opinion is founded and those facts and opinions must be proved by otherwise admissible evidence - The expert must give a statement of reasoning showing how the facts and assumptions relate to the opinion stated so as to reveal that the opinion is based on the expert's expertise. (ii) What is ‘specialised knowledge’? Is the witness’ knowledge required to be in a recognised field of expertise?

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R v Tang at [135] – [140] - Recognised body of expertise (E.g. facial identification). The common law says that we have to have a recognised field of expertise but the UEL is unclear on whether it has to be a recognised field of expertise and whether new areas have to gain acceptance of fields of recognition. - the word 'knowledge' connotes more than subjective belief or unsupported speculation. It applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.

Facts: Appellant was charged with robbery when armed with an offensive weapon. The issue concerned the expert testimony of Dr Sutisno and her qualifications to give evidence on facial mapping and body posture. Held: 1. Facial identification: This was a recognised area of expertise and common law shows that we have a recognised body of expertise. This was her specialised area based on her training, research and experience in the course of facial reconstruction. Therefore could be admitted. 2. Body posture: She had some study of anatomy and some experience but the evidence barely substantiated her subjective belief and it did not manifest anything of a "specialised" character. Pan Pharmaceuticals v Selim [2008] FCA 416 at [33]-[34] - The court said there were two aspects of evidence that constitute 'specialised knowledge': (1) Study and training  Identifying based on disciplines: hard science, applied or technical science, social science - might have special knowledge or expertise resulting from particular education or learning where some technical study or education has been undertaken (2) Experience  When no particular technical study or education might have been undertaken: then look to experience e.g. case of managers and the like.  such evidence will often have to be afforded less weight  Court will assess if it simply goes to ordinary experience Velevski v R (2002) 187 ALR 233 per Gaudron J at [82]; per Gummow and Callinan JJ at [154] - there can be specialised knowledge which is outside the experience of ordinary persons but this does not mean that you cannot take into account general knowledge. - 'specialised knowledge' imports knowledge of matters outside the knowledge or experience of ordinary persons and which is 'sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience' Facts: Accused was convicted of murder of his wife and 3 daughters. Whether expert evidence on whether the wounds were suicidally-inflicted or was it murder wounds could be admitted. Held: It was accepted that it could be an expert knowledge as it is a recognised field of expertise to differnetiate between self-inflicted wounds vs. murder. - The test is on the reliability of the knowledge (Gummow and Callinan JJ) HG v R (1999) 197 CLR 414 per Gaudron J at [58] - expert or opinion evidence is admissible when ordinary persons are unable to form a sound judgment without the assistance of those possessing special knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge - no reason to say 'specialised knowledge' gives rise to a test that is narrower or more restrictive than the position at common law. Facts: Accused was allegedly said to have raped his de facto step daughter. Defence sought to rely on evidence from psychologist to establish that the sexual assault was committed by the natural biological father rather than the step father. The psychologist said she could give evidence of the behavioural patterns of children who suffered trauma. There was a report done that suggested that she was likely to have suffered under the hands of her biological father 6 years ago. Speculative inference – reasoning went beyond expertise.

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Held: Evidence inadmissable because the opinion was not shown to have been based, wholly or substantially, on specialised knowledge as a psychologist. (iii) Is the opinion evidence required to relate to a matter that is beyond the common knowledge of jurors? s80 UEL - Evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue or a matter of common knowledge. Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR; [2007] FCAFC 70 at [55]-[57] - more broad: doesn't necessarily have to be outside the scope of common knowledge to be admissible under s 79. Facts: Appellant sought to admit evidence that the respondent's use of the colour purple in connection with its chocolate confectionary business constituted passing off and misleading and deceptive conduct under the TPA. Wanted to admit the evidence of a marketing expert to talk about branding. Trial judge at first said it was inadmissible because it was within the knowledge and experience of ordinary persons. Held on appeal: provided s 79 can be satisfied, opinion may relate to an issue that is outside the knowledge or experience of ordinary persons. Here, the expert's evidence was admissable as an area of specialised knowledge despite using evidence of common knowledge within his opinion. Velevski v R (2002) 187 ALR 233 per Gaudron J at [82]; - more narrow  While 'specialised knowledge' imports matters outside the knowledge or experience of ordinary persons and which is 'sufficiently recognised to be accepted as a reliable body of knowledge or experience'.  it doesn't mean expert witness strictly cannot have regard to matters that are within the knowledge of ordinary persons when formulating their opinions. (iv) When does a witness have ‘specialised knowledge’? Adler v ASIC [2003] NSWCA 131 at [629] - says that the scope is not restrictive. Seems to suggest that you do not need a recognised area of expertise as it imposes/assumes expertise with professional conduct (e.g. duties of directors = area of specialised knowledge). Facts: ASIC brought proceedings against Adler and Williams for contravention of corporations law. Held: Proper professional conduct in the sense of due care and obedience to customary practices and ethical rules = a field of specialised knowledge of director’s duties. -

common law and the Act states director's duties of due care and proper conduct suggest that a company director should have specialised knowledge and be able to speak of duties and their applications.

Leung and Wong (1999) 47 NSWLR 405 at [36]-[48] - whether the witness can be seen as an ad hoc expert Facts: Whether a qualified interpreter could be classified as an ad hoc expert witness in identifying voices. He had prolonged exposure to the tape because he had to listen to the tape hundreds of times.

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Held: He was an ad hoc expert within s79 for the purpose of identifying the voices by means of voice comparison. He had become familiar with the voices on the tape-recordings. His specialised experience qualified him or her to give the evidence. - He was familiar with the accents and language of the participants - Enabled him to bring a greater understanding to the voice comparison than a person without that language skill would have been - If the two sets of tape recording had been in English, it would have been open to leave it to the jury to make their own comparisons and assessment. - It was ultimately up to the jury to determine whether they accepted Fung's opinion. Honeysett v The Queen [2014] HCA 29 at [20] - [48] Rule: (v) What is required to establish that the opinion is wholly or substantially based on the witness’s specialised knowledge? Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [35]-[42] - there must be a sufficient connection between the quantitative assessment and the relevant specialised knowledge - Here, there was insufficient connection. Additionally, the expert has only seen the grinder grind up dust once. Makita (Australia) Pty Ltd v Sprowles (2001) thand [84]-[87] - It is not enough that there is a recognised field of spec...