Opinion Flashcards
The Opinion Rule
S 23
A statement of opinion is not admissible in a proceeding, except as provided by S 24 or S 25.
“Opinion” as per S 4
A statement of opinion that tends to prove or disprove a fact.
Rationale of the opinion rule
“To prevent…”
To prevent the admission of unreliable, superfluous or misleading evidence.
To admit admit such evidence would result in the admission of evidence of doubtful relevance and be a waste of court time.
Justifications for the opinion rule (3)
-Where a witness offers a bare opinion, it hold little probative weight
-Opinion evidence could confuse the tribunal of fact and prolong proceedings
-a witness’ evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible (e.g. where an opinion is based largely on propensity evidence).
General Admissibility of Opinion
S 24
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard or otherwise perceived.
Two basic criteria for S 24
Opinion MUST be the only way in which to effectively communicate the information to the fact-finder
The witness MUST be stating an opinion from something personally perceived.
Criteria for expert opinion evidence to comply with S 25? (3)
The opinion must:
-be that of an expert
-comprise “expert evidence”
-offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding
“Expert”
-As per S 4?
-Who determines if someone is an expert?
-What is the expert required to demonstrate?
A person who has specialised knowledge or skill based on training, study or experience.
Judge must determine whether the expert witness is properly qualified to testify. Opinions given by non-experts on matters calling for expertise are inadmissible.
The expert is required to demonstrate to the court that he/she has the requisite qualification to be deemed “expert” in the field in question.
S 25(4) - expert evidence about the sanity of a person.
If expert evidence about the sanity of a person is based in whole or in part on a statement that the person made TO THE EXPERT about the person’s state of mind, then-
(a) the statement of the person is admissible to establish the facts on which the expert’s opinion is based; and
(b) neither the hearsay rule nor the previous consistent statements rule applies to evidence of the statement made by the person.
R v Hutton principles (8)
-expert must state qualifications when giving evidence.
-the facts, matters and assumptions on which opinions are expressed must be stated explicitly.
-the reasons for opinions given must be stated explicitly.
-any literature or other material used or relied upon to support opinions must be referred to by the expert.
-expert must not give opinion evidence outside their area of expertise.
-if the expert believes their evidence is incomplete or inaccurate without some qualification, that qualification must be stated.
-expert has an overriding duty to assist the court impartially on relevant matters within their area of expertise.
-expert is not an advocate for any party.
