Opinion

Question 1

Court’s view on Opinion and case?

Answer 1

R v Runjanji &; Kotinnen.
The law jealously guards the role of the jury or the Court where it is the trier of facts.

To allow witnesses to give evidence of opinion has been seen by common law as usurping function of the jury or judge.

Question 2

Section 76 Evidence Act?

Answer 2

The opinion rule

Question 3

76 (1)?

Answer 3

The starting point is that opinion for the purpose of what the opinon was expressed about is not admissible.

Question 4

76 (2)?

Answer 4

opinion contained in a document or certificate made under regulations of another act, and has evidentiary value under that act, is admissible.

Question 5

76 (2) examples?

Answer 5

Fass Certificate

257 Certificate

Question 6

How to determine if its a fact or opinion? JDE

Answer 6

1. The greater the measure of judgement required;
2. The greater the doubt in coming to a particular conclusion of fact, and
3. The greater the scope in error,

The more likely the tribunal of fact will conclude the evidence to be opinion.

(The more interpretation, the more likely it is an opinion).

Question 7

S 77?

Answer 7

Evidence relevant otherwise than as opinion evidence.

Question 8

Explain S 77?

Answer 8

Opinion rule does not apply to evidence of an opinion if it is used for a purpose other than proof of the existence of a fact the opinion was expressed about. (Like s60)

Question 9

S 78?

Answer 9

Exception rule for lay opinions

Question 10

78 (1)?

Answer 10

Opinion rule doesnt apply to evidence of an opinion expressed by a person if;

a) Opinion based on what person saw, heard or otherwise perceived about a matter or event AND
b) Evidence of opinion is necessary to obtain an adequate account or understanding of the persons perception of the matter or event.

Question 11

What must always apply for opinion evidence?

Answer 11

S 55, must be relevant. Must always be rational basis for the opinion.

Question 12

Case on rational basis for opinion?

Answer 12

R v Panetta.
Person giving opinion must be able to offer a valuable opinion, and be better equipped than a member of the jury to form the particular opinion.

Question 13

Recap on s 78?

Answer 13

• Must be relevant - S55
• Opinion must have rational basis.
• Based on what person saw, heard, otherwise perceived (first hand)
• Court cannot receive an adequate account of persons perception by merely giving the facts.
  (R v Panetta)

Question 14

S 79?

Answer 14

Exception: Opinions based on specialist knowledge

Question 15

What is specialist knowledge based on?

Answer 15

Their training, study or experience.

Question 16

Two tests for S 79 admissibility?

Answer 16

1. Person possess specialised knowledged based on training or study or experience, AND;
2. The opinion proffered is based wholly or substantially upon that knowledge, study or training. (can’t give opinion on other things not specialist in.)

Question 17

ALRC report on Sepcialised knowledge?

Answer 17

Phrase specialised knowledge in S79 intended to extend the common law and to emphasise experience CAN be a sounder basis for opinion than study,.

Question 18

What must be demonstrated when using experience as basis for opinion?

Answer 18

Experience must be clearly demonstrated where it is asserted as basis for expert knowledge.

Question 19

Case for experience as specialised knowledge?

Answer 19

Weal v Bottom

Witness had no formal qualification but possessed a wealth of experience and could give expert evidence.

Question 20

Definition of Ad Hoc expert? Cases?

Answer 20

Giving evidence “For the specific purpose, case, or situation at hand and not other.”
Regina v Leung and Wong - Interpreter Gave evidence of who’s voice was who’s based on the amount of hours the interpreter listened to the material.
Morgan v R
Nguyen v R

Question 21

s 177?

Answer 21

Certificates of expert evidence.

Question 22

177 (1)?`

Answer 22

Evidence of persons opinion may be adduced by tendering a certificate (expert cert) signed by person that;

a) States name and address, AND
b) States they have specialised knowledge based on training, study or experience as specified in certificate, AND
c) sets out opinon they hold based on their knowledge.

Question 23

What must be included in 177 certificate?

Answer 23

The assumed facts they relied on to make their certificate.

Question 24

Case for assumed facts to be included?

Answer 24

Regina v Brian John Welsh.
Evidence of history taken by doctor has always been admissible to establish the basis they framed their expert evidence on, but not to establish truth of what was said.

Question 25

S110?

Answer 25

Evidence about character of accused persons

Question 26

how does 110 work?

Answer 26

If evidence is admitted that the def is a good person or of good character, hearsay, opinion, tendency and credibility rule do not apply to any evidence that proves directly or indirectly or by implication that he is not of good character. i.e - We can use what we have such as crim his to disporve them.