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8. Opinion Evidence

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Opinion Evidence General exclusionary rule Evidence of opinions is not admissible—witness must give a plain account of the actual perception (through their 5 senses) that is devoid of inference, evaluation, interpretation, belief or opinion Laypersons’ opinions  Can give evidence about inferences based on ordinary experience and common knowledge: Sherrard v Jacob (drunkenness—primary facts = stumbling, blood-shot eyes, slurring words | inference = drunk | legal inference = too drunk to drive  inference that drunk admissible ↔ statement that too drunk to drive inadmissible as a legal conclusion) o Rationale—based on necessity because primary facts & inferences drawn from them is a fine line o Including—  Intoxication: Sherrard v Jacob  Gender: Ratten (that the caller was female)  Whether distressed: Ratten (distressed call before murder) o Other examples— (Sherrard v Jacob) (not closed categories)  the identification of handwriting, persons and things  apparent age  the bodily plight or condition of a person, including death and illness  the emotional state of a person—distressed, angry, aggressive, affectionate or depressed;  the condition of things—worn, shabby, used or new;  certain questions of value  estimates of speed and distance (Identity, handwriting, quality, value, weight, measure, time, distance, velocity, form, size, age, strength, heat, cold, sickness, health, mental and moral aspects, disposition, temper, anger, fear, excitement, intoxication, veracity, general character, and sex)  BUT cannot give legal opinion: Sherrard v Jacob (‗too drunk to drive‘  legal opinion—further than common inference from primary facts → inadmissible) o inferences based on ordinary experience and common knowledge Quasi-experts’ opinions  Based on experience, not on qualifications  = giving evidence from own experience as to facts, not giving opinion by drawing inferences: Weal v Bottom (wrongful death by negligence—facts similar to Clark v Ryan—‗quasi-expert‘ gave evidence of own experience of 18 years driving truck around same bend  admissible as explanation of how particular semitrailers behave on that particular bend) o Not evidence of opinion—evidence of fact from experience o Actual experience of the behaviour or event o Can‘t give evidence of why the even occurs, just that it habitually does  Can give inferential evidence in the same way as laypersons: Sherrard v Jacobs  Q for the judge: Clark v Ryan; Taylor v Harvey; on a voir dire Andrew Trotter LWB432 Evidence Expert opinion Rules for accepting an expert witness: Clark v Ryan (HCA) (negligent driving around a bend— expert on vehicle movement—had some experience as mechanic & some studies  short of being a ‗qualified expert‘ → inadmissible) 1. Opinion is only received where the opinion is outside ordinary experience such that jury and judge require expert assistance to draw correct inferences 2. Must be a recognised field, science or knowledge 3. Witness is qualified as an expert in that field  The facts upon which opinion is advanced must be proved by admissible evidence  Cannot merely call a witness to present the case more cogently or vividly than you can yourself: Taylor v Harvey (‗expert‘ on semi-trailer & MVA  added nothing to common sense of jury & judge → inadmissible); Clark v Ryan (HCA) (negligent driving around a bend—expert on vehicle movement—had some experience as mechanic & some studies  short of being a ‗qualified expert‘ → inadmissible)  If dispute about whether a witness can give opinion evidence— o hear submissions on the elements on a voir dire o Question of Law for the Judge 1. Not within ordinary experience—judge & jury need assistance: Clark v Ryan (movements of a car within ordinary experience of people)  Necessity—If all available inferences can be drawn from the facts without expert opinion, then expert opinion evidence is inadmissible. o Research & academic discussion not conclusive  o eg—expert opinion that identification process of criminals from a line-up is fallible—other factors generally within common sense: police encouragement, memory failure etc (even though there has been substantial research etc) ↕  Where technical and scientific inferences and value judgments can be drawn by only a person qualified in a particular recognised area → can call expert 2. Recognised field of science/knowledge: Clark v Ryan (reconstruction of MVA etc—not purporting to be an expert in physics, etc  not a recognised science)  A body of learning evidenced by: o Academic writing o Professional education o Taught in university or other place of high learning (indicative, but not necessary): Clark v Ryan  BUT not finite and closed group: Clark v Ryan  Cutting edge fields may not be accepted until broadly recognised o 20 years ago, DNA and fingerprint experts were not accepted 3. Qualified in that field Considerations—  Academic, professional, training and trade qualifications held by witness  Experience of the witness (but not the main factor)  Membership of trade or professional associations  Research publications and writings of the witness  The general standing of the witness in their field  Whether has previously been accepted as an expert in trial courts of the relevant jurisdictions Andrew Trotter LWB432 Evidence Facts upon which opinion is advanced must be proven by admissible evidence An opinion is worthless unless is founded upon sound facts  Must be able to examine what the opinion is based on (eg if made on the basis of certain documents, photographs, diagrams)  Expert with personal knowledge through own observations—ok: Ramsay v Watson (lead poisoning—doctor gave evidence that 21 other people did not show signs of lead poisoning = contemporaneous physical state (res gestae)— based on statements by people & examination of present state  admissible)  Experts need not have personal knowledge—can give opinions on hypothetical situations o BUT if no evidence of the facts the expert is testifying on, the opinion is little or no weight: Ramsay v Watson (lead poisoning—doctor also tried to gave evidence that 21 other people had not shown signs over last 20 years  based on no evidence unless original evidence brought of sensations, feelings at that time etc → inadmissible || statements by 21 men = hearsay, not res gestae as not contemporaneous state of health) Procedural issues Court appointed experts  concern over possible bias by experts  Goals in expert evidence— (r423) (a) declare duty of an expert (b) 1 expert if possible (c) avoid unnecessary costs (d) if necessary, allow for >1 expert  If practical only one expert should be used for the whole case: r423  primary duty to the court: r426  Requirements of expert‘s report: r 428  Appointment— o By agreement: rr429G(1) &429H (must agree on issue to resolve, which expert, when report to be done by, liability for fees) o If want to appoint but cannot agree—court can appoint: rr429G(2) & 429I (must name at least 4 experts in application) o Court can appoint of its own initiative: rr429G(3) & r429J (can ask each party to name 3 experts) o Considerations include— (r429K)  Complexity of issue  Costs  Delay  Interests of justice Disclosure requirements  Early disclosure of expert reports is required to narrow issues & ensure no surprises: R v Ward (2009)  Civil: any document of expert is not privileged from disclosure: r212 o must disclose pre-trial pursuant to r423 o ← giving the other party the name, qualifications etc of your expert  Criminal: the defendant must give notice to Crown of any reliance on an expert: s590B CC o ← including name of expert | finding or opinion proposes to adduce | copy of report  Similarly—Crown must give the defence their expert report prior to the trial (and notice etc) Andrew Trotter LWB432 Evidence Written expert reports: r427 UCPR  Expert may given evidence by report: r427(1) only if— (r427(2)) o Report is disclosed as required under r429 AND o Court gives leave o BUT do not need permission of the opposing party  Report = evidence in chief of the expert: r427(3) o Oral evidence in chief may be given by the expert only: r427(4)  In response to the report of another witness  If directed to issues that first emerged in the course of the trial  If the court gives leave  Must be made available for cross examination: r427(5)  Disclosure— (r429) o plaintiff—within 90 days of close of pleading o Defendant—within 120 days of close of pleading o 3P—within 90 days of close of pleading May be admissible as documentary hearsay [→Statutory Exceptions: ss92&93 QEA] Opinions as to the ultimate issue General rule—cannot give opinion of ultimate legal issue: Murphy  Can give opinion as to ultimate fact in issue o (eg who cause the accident)  Cannot give evidence if the application of legal standard is required as this is an ultimate issue for the judge and jury: Murphy (record of interview with incriminating statements— expert psychologist on level of understanding, capacity to express himself  can say the accused didn‘t understand when saying those things ↔ can’t say therefore he is innocent); Palmer o (eg driver was negligent) Exception—insanity  Insanity—defence has legal & evidential burden of proof to show unsoundness of mind: s27 CC (three capacities)  Expert witness can express opinion that ‗of unsound mind‘ → insane → not guilty Convictions—the opinion of the court Common Law—opinion evidence so inadmissible  When a court makes a decision about factual matters (i.e. that an accused has done certain things and is guilty of an offence) that is just the opinion of that court—can‘t lead that opinion in a subsequent trial: Hollington v Hewthorn Statute—overruled CL position: s79 QEA  In civil proceeding, criminal conviction can be used to prove those facts: s79(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) o Includes fact that committed those acts & had that state of mind required by the offence: s79(3)  Does not apply to defamation: s79(1) Andrew Trotter LWB432 Evidence  Applies whether or not— (s79(4)) o Pleaded guilty or innocent o Convicted person is a party to the civil proceeding  Eg—criminal conviction for dangerous driving → civil claim for negligent driving Andrew Trotter LWB432 Evidence Cases Sherrard v Jacob  Courts of Ireland. Accepted in virtually every common law jurisdiction.  Case was about drunkenness. Police officer was giving evidence in the court about the Defendant‘s drunkenness. HELD:  The Court said that the Police Officer could not say that the person was too drunk to drive BUT could say that the person exhibited signs of drunkenness ie stumbling etc.  The Justice there gave a non-exhaustive list of established instances in which a lay witness might express an opinion:  Drunkenness – you could describe the things perceived which found the opinion (unsteady on feet, blood-shot eyes, speech slurred, etc – but common law allows you to go a step further and say that they are drunk  Identification of handwriting, person, etc; age; condition of a person, death; emotional state of a person; the condition of things new/old; estimates of speed and distance, estimates of value, sex  McDermott LJ quoted from Hardy v Merryl  ―All concede the admissibility of the opinions of non-professional men upon a variety of unsigned questions to be raised arising every day in every judicial inquiry, identity, handwriting, quality, value, weight, measure, time, distance, velocity, form, size, age, strength, heat, cold, sickness, health, mental and moral aspects, disposition, temper, anger, fear, excitement, intoxication, veracity, general character, and sex.‖ Ratten  Wife was shot by her husband. The allegation was murder and he claimed terrible accident,  The telephonist opened the party line key of the telephone system and she was able to give evidence that the caller was a female – this was an opinion because the fact that it was a female calling was relevant to the issue of whether or not it was an accident. She was also able to give an opinion that the female caller was distressed (a lay opinion)  She was able to give these opinions because the comm
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