The Opinion Rule

Question 1

What is the ‘Opinion rule’ Section 23?

Answer 1

A statement of an opinion is not admissible in a proceeding, except as provided by S24 or 25

Question 2

Define opinion:

Answer 2

A statement of opinion that tends to prove or disprove a fact

Question 3

The rationale of the exclusionary rule is to prevent what?

Answer 3

To prevent the admission of unreliable, superfluous or misleading evidence

Question 4

The justification for the general exclusionary rule:

Answer 4

• That where a witness offers a bare opinion it holds little probative weight
• The opinion evidence could confuse the tribunal and prolong proceedings
• A witnesses evidence of opinion may be based on other evidence which would be inadmissible

Question 5

When may a witness state an opinion in evidence?

Answer 5

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.

Question 6

Opinion evidence from a witness may include topics such as what?

Answer 6

• Identity
• Speed
• Emotional state
• Weather
• Age

Question 7

In order to be admissible under S24, the statement must fulfil two basic criteria:

Answer 7

• Opinion must be the only way in which to effectively communicate the information to the fact finder
• The witness must be stating an opinion (be in conclusion, inference) from something personally perceived

Question 8

When is expert opinion admissible?

Answer 8

When the fact finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact

Question 9

If the evidence is opinion evidence, then in order to comply with Section 25 (Admissibility of expert evidence) the opinion must what?

Answer 9

• Be that of an “expert”
• Comprise “expert evidence”
• Offer substantial help to the fact finder in understanding other evidence

Question 10

Definition of an expert:

Answer 10

A person who has specialised knowledge or skill based on training, study or experience

Question 11

Who determines whether the expert witness is properly qualified:

Answer 11

The Judge

Question 12

Explain Section 129 relating to published documents:

Answer 12

Section 129 can act to allow published documents to be admitted as evidence where the Judge decides that they are reliable sources

Question 13

What does it mean in Section 25(3) when it says the fact “is or will be proved”?

Answer 13

That the expert witness may either state the facts on which the opinion is based during evidence in chief or give the evidence on the basis that it “will be” proven.

Question 14

Section 25(4) provides for the admissibility of a persons statement about his state of mind in order to what?

Answer 14

In order to establish the factual basis for the experts opinion on the sanity of that person.

It limits its scope to opinions based on statements made by the person whose sanity is in issue.

Question 15

Principles for an expert opinion (S25):

Answer 15

• An expert must state his or her qualifications when giving evidence
• Any literature or other material used must be referred to by the expert
• The expert must not give opinion evidence outside his area of expertise
• An expert is not an advocate for any party

Question 16

Notice requirement if defendant intends to call an expert witness:

Answer 16

Defence to give notice.

Must disclose the brief of evidence or report

14 days before the date fixed for the trial