Opinion Evidence – Structure of Answer rn PDF

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Nick Dowse

Opinion Evidence

Opinion Evidence – Structure of Answer 1. Issue: “Is [witness’s] opinion evidence admissible in [Crown’s/plaintiff’s] proceeding against [accused/defendant]?” 2. The general rule is that a witness must give a plain account of the actual perception of his or her physical senses (sight, sound, taste, smell and touch) devoid of inference, evaluation, interpretation, belief or opinion. 3. However, court will allow opinion evidence in certain situations: a. Go through and say whether or not the particular witness is an expert, a quasi-expert or a lay person… b. Expert Evidence i. In Clark v Ryan, the court laid down requirements for expert opinions @ [4]-[5]: 1. Evidence of opinion must be outside ordinary experience such that the jury/judge require expert assistance to draw correct inferences; 2. Must be an organised branch of science or knowledge; 3. The witness in question must be a qualified expert in the relevant field. a. person’s professional and trade qualification (tertiary education) b. person’s experience c. whether they have a membership of professional or trade associations d. whether the expert’s evidence has been received by a court previously ii. An expert witness cannot be used to put on a show for the jury, to make the case stronger or more vivid/cogent for the jury ( Clark v Ryan per Dixon CJ @ [3]). iii. Whether a person is an expert is a question for the judge, determinable on a voir dire (Taylor v Harvey). iv. Examples: 1. In Clark v Ryan, the witness gave evidence about behaviour of semi-trailer in relation to collision on S-bend between panel van and semi-trailer. Man did not have any experience in the actual use of a semi-trailer and was not qualified in physics to give technical evidence. = not expert 2. In Taylor v Harvey, the Carter J @ 143-4 held that the evidence given about an S-bend crash was comment, if not adjudication, which is not permitted. The evidence was a process of reasoning that could have been given by someone who did not have qualifications. v. State: Experts can give opinions on hypothetical situations, where they haven’t personally observed the event. However, if there is no evidence of the facts the expert is testifying on, the opinion is little or no weight: Ramsay v Watson @ [7]. 1. Need to have foundation for evidence! vi. Overall: is the witness an expert? c. Quasi-Expert Evidence i. Quasi-expert evidence is admissible where it is not merely opinion, but is evidence of fact based on experience (Weal v Bottom per Barwick CJ). ii. Used where the witness has a large amount of experience in the particular issue but does not have any formal qualifications. iii. It is not evidence of what the particular fact is in relation to the actual incident, but evidence that owing to experience, evidence can be given of what was capable of happening (Weal v Bottom per Barwick CJ @ 438). iv. Example: 1. These facts are [similar to/distinguishable from] Weal v Bottom where witness for 18 years had driven articulated vehicles around S-bend in question in both directions, both loaded and unloaded, at different speeds. Evidence admissible because speaking of capability of the vehicle in described circumstances as a fact within his experience or observation. Whereas here, Page 1 of 7

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Opinion Evidence

[apply – eg. only 1 year experience, experience is not related to activity in question]. Thus [is/is not] admissible. d. Lay Person Evidence (Non-Expert Evidence) i. A non-expert can give opinion evidence that is within general knowledge – an opinion derived from perception. A non-exhaustive list of topics comes from Sherrard v Jacob per McDermott LJ: 1. the identification of handwriting, persons and things; 2. apparent age; 3. the bodily plight or condition of a person, including death and illness; 4. the emotional state of a person – e.g. whether distressed, angry, aggressive, affectionate or depressed 5. the condition of things – e.g. worn, shabby, used or new; 6. certain questions of value; and 7. estimates of speed and distance. 8. Whether person under influence of alcohol (facts in Sherrard) 9. Extended list: a. Drunkenness, Identification, age, condition of a person, emotional state of a person, the condition of things new/old, estimates of speed and distance, handwriting, quantity, weight, measure, time, distance, velocity, form, size, strength, hot, cold, sickness, health, deposition, temper, fear, excitement, veracity, general character. e. Conclusion: what type of opinion evidence is this? Is it admissible? 4. Procedural Rules Relating to Expert Reports a. For civil proceedings… i. In civil proceedings, the UCPR requires that expert reports in a party’s possession must be disclosed to the other party: r 212 UCPR. ii. Purpose of Part: r 423 UCPR 1. (a) declare the duty of an expert witness in relation to the court and the parties; and 2. (b) ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue in a proceeding by a single expert agreed to by the parties or appointed by the court; and 3. (c) avoid unnecessary costs associated with the parties retaining different experts; and 4. (d) allow, if necessary to ensure a fair trial of a proceeding, for more than 1 expert to give evidence on an issue in the proceeding. iii. Duty of expert: The duty of an expert witness is to assist the court ss (1), and this duty overrides any duty owed to a party to the proceedings or a person by whom they are paid ss (2): r 426 UCPR. iv. Rule 428 UCPR – requirements of expert’s report: 1. Must be addressed to the court 2. Must be signed 3. Must contain information about qualifications 4. All material facts 5. Whether written or oral v. References to literature on which report relies upon vi. Rule 427 UCPR: 1. Expert’s report is tendered as evidence in chief if court gives leave (or report is disclosed under s 429) 2. Scope of what can testify under s 427(4) 3. Expert must be available for cross examination

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vii. But note that the expert’s report may be admissible under s 92 QEA and there will be no need to call the expert for cross-examination where the expert is not available (e.g. dead, unfit, not in State, not reasonably practicable etc) b. IF CRIMINAL CASE: Use s 93 & 93B QEA. i. Appointment of experts: The parties can agree that expert evidence may assist in resolving a substantial issue and agree to jointly appoint an expert witness to prepare a report on the issue: r 429G(1). The court can appoint expert witnesses themselves: r 429G(3). ii. If the parties are not able to agree on the appointment of an expert, a party who considers that expert evidence may help in resolving a substantial issue may apply to the court for the appointment of an expert to prepare a report: rule 429G(2). iii. There is a duty on the parties to give notice to the other party about an expert and the report upon which the expert opinion is based (s 590B Criminal Code). 1. Early disclosure of expert reports is required to narrow issues and ensure no surprises (Ward @ [9] and [10]). 5. Prohibition of Opinion as to Ultimate Facts a. As a general rule, an expert witness may not be asked the ultimate question which the court itself has to decide, ie one which involves the application of a legal standard (eg driver was negligent, or accused is guilty etc) ( Murphy @ [43]). b. However, this rule does not apply where the court cannot decide the ultimate issue without the assistance of an expert (Murphy). c. Expert cannot be doing the job of judge and jury. 6. Convictions used as evidence in civil actions a. Where there is a criminal case followed by a civil case based on the same set of facts, a conviction in an earlier case is relevant to a later civil trial: s 79 QEA i. It can prove that the person carried out the particular act; and/or ii. It can prove that the person possessed the state of mind comprising the criminal offence b. Note: s 79 QEA does not apply to defamation proceedings (s 79(1)). c. Section 79 QEA overrules the common law position in Hollington v Hewthorn [1943] 1 KB 587 (that conviction not relevant to civil – just opinion of Court).

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Weal v Bottom (1966) 40 ALJR 436  Accident between car and semi-trailer travelling in opposite directions on a bend in a road on a hill between Sydney and Bathurst  Widow of car driver suing driver of semi-trailer for negligence  The widow trying to prove that the semi-trailer went onto the wrong side of the road  The widow wanted to call a witness who had driven articulated vehicles around that kerb in both directions in trucks that were loaded and unloaded for 18 years  The witness had experience in driving around the kerb in question and had observed other semitrailers going around the bend in question at various speeds  The evidence was admissible because it was not evidence of opinion but was evidence of fact from experience  Barwick CJ stated – o “The possibility involved the behaviour of an articulated vehicle in the particular circumstances which I have detailed. That possibility would need to be made out, not by evidence of what the particular vehicle was observed to do this day but by evidence as to what such a vehicle, because of its nature, was capable of doing in the given circumstances. Such evidence could be given by an expert, properly so called, that is to say, by a person who by study and instruction in some relevant scientific or specialised knowledge thus acquired, as to the likely behaviour of such a vehicle so placed. But it could also be established by the evidence of a person who had had actual experience of or had observed such behaviour. Such a person could speak of the capability of the vehicle in the described circumstances as a fact within his experience or observation. 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”

Sherrard v Jacob [1965] NI 151  Defendant charged with drink driving  Police officer in this case could testify that the defendant was under the influence of alcohol  The police officer came to this conclusion based on experience and common knowledge  The police officer could testify that the defendant exhibited signs of drunkenness  However, the police officer could not testify that he was too drunk to drive – this is a question of law for the courts to decide  McDermott LJ outlined examples of categories in which lay persons could give opinion evidence  Non-expert witness can give inferential evidence on many topics.  Examples include (but are not limited to) – (1) the identification of handwriting, persons and things; (2) apparent age; (3) the bodily plight or condition of a person, including death and illness; (4) the emotional state of a person – e.g. whether distressed, angry, aggressive, affectionate or depressed (5) the condition of things – e.g. worn, shabby, used or new; (6) certain questions of value; and (7) estimates of speed and distance.  Held: Police officer as a layperson able to testify whether defendant was under the influence of alcohol

 Extended list:

Drunkeness, Identification, age, condition of a person, emotional state of a person, the condition of things new/old, estimates of speed and distance, handwriting, quantity, weight, measure, time, distance, velocity, form, size, strength, hot, cold, sickness, health, deposition, temper, fear excitement, veracity, general character Sherrard v Jacob

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Clark v Ryan (1960) 103 CLR 486  S-bend in the road and collision between panel van and semi-trailer driving in opposite directions  Plaintiff claimed that defendant breached duty of care given – o the nature of the defendant’s vehicle o the fact that the road was wet o that the defendant was speeding  Witness gave evidence about behaviour of semi-trailer in the circumstances  The man did not have any experience in the actual use of a semi-trailer and he was not qualified in physics to give technical evidence  Dixon CJ held that cannot use the witness to present the plaintiff’s case more vividly and cogently before the jury  Requirements that must be met before expert opinions are admissible in court – o Evidence of opinion must be outside ordinary experience such that jury and judge require expert assistance to draw correct inferences o Must be an organised branch of science or knowledge o Witness is qualified expert in the relevant field  Whether someone is an expert is a question for the judge

Taylor v Harvey [1986] 2 Qd R 137  Motor cycle and car travelling in opposite directions and they collided on an S bend  Witness’ evidence was not admissible because – o His observations could have been made by another person o It was a judgment by him of a kind which is made in litigation of this kind everyday by fact finding tribunals at every level in the judicial system  Justice Carter held that – o Evidence was comment, if not adjudication o Evidence was a process of reasoning that might have been given by someone who did not possess the expert’s formal qualifications o Not admissible opinion evidence

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Ramsay v Watson (1961) 108 CLR 642  A man claimed he had contracted lead poisoning as a result of working in a printing office  Evidence of range of other people who worked in printing offices for same amount of time had not contracted lead poisoning or exhibited features of lead poisoning  Expert medical officer in this case and his comments were not admissible and he was talking about feelings and sensations from the last 20 years that had been told to him  Just because you are a physician, or doctor or person of status, doesn’t mean that you are going to be able to overcome the hearsay rule – if cannot call the foundation evidence (which supports physician) then what physician is saying will have very little weight (foundation of expert’s opinion needs to be called in the court room)  If court had called 21 people that would have been fine – all of those are foundation evidence for medical officer  The High Court stated – o “This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient” o If you are going to call expert witness, call the information that the expert’s opinion is based on in order to support it – must satisfy the foundation material o If you cannot recall the foundation material the expert’s evidence would have little value, because their opinion would be based on all those people  If a physician is giving expert evidence in trial based on 2 patients that they treated, we would need to bring in those patients to state what they told the physician, otherwise very little weight will be placed on what the physician said

Murphy (1989) 167 CLR 94  Rape and murder of a girl  The record of interview with the accused included some alleged voluntary confessionary statements  The standard of the accused’s vocabulary and literacy was tested by a psychologist  The psychologist report was relevant to the reliability of evidence given by the accused  Key points – o Expert can give opinion as to ultimate fact in issue (e.g. who cause the accident) o Expert cannot give evidence where case requires an application of legal standard (e.g. driver was negligent or accused is guilty)  High Court held that this should have been admitted because it would have assisted the jury in assessing whether the accused had said those things and whether they were reliable or not  Doubtful that there is now an absolute rule precluding an expert witness from expressing a view as to an ultimate issue (per Mason CJ & Toohey J)

79 Convictions as evidence in civil proceedings (1) In this section-civil proceeding does not include an action for defamation. convicted means a finding of guilt for an offence, on a plea of guilty or otherwise, and whether or not a conviction was recorded. (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.

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(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.

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