LAW OF EVIDENCE
Alex Kuklik
Alexander Kuklik
12 Wentworth Selborne Chambers
(02) 9231 4422
[email protected]
Today (Lecture 7 )
• Admissibility of evidence – opinion (KOP Chapter 8)
– Lay opinion
– Expert opinion
Admissibility of evidence
Evidence Act - Chapter 3
(Continued)
Admissibility - opinion
Admissibility - opinion
PART 3.3 - OPINION
KOP Chapter 8
Section 76 - The opinion rule
Section 77 - Exception: evidence relevant otherwise than as opinion
evidence
Section 78 - Exception: lay opinions
Section 78A - Exception: Aboriginal and Torres Strait Islander
traditional laws and customs
Section 79 - Exception: opinions based on specialised knowledge
Section 80 - Ultimate issue and common knowledge rules abolished
Admissibility - opinion
76 - The opinion rule
(1) Evidence of an opinion is not admissible to prove the existence
of a fact about the existence of which the opinion was
expressed.
(2) Subsection (1) does not apply to evidence of an opinion
contained in a certificate or other document given or made
under regulations made under an Act other than this Act to the
extent to which the regulations provide that the certificate or
other document has evidentiary effect.
Admissibility - opinion
76 - The opinion rule
Definition:
• “Opinion” – an inference drawn or to be drawn from observed
and communicable data.
• Lithgow City Council v Jackson [2011] HCA 36.
Admissibility - opinion
76 - The opinion rule
Exceptions:
• Summaries of voluminous or complex documents (section 50(3))
• Evidence relevant otherwise than as opinion evidence (section 77)
• Lay opinion (section 78)
• Aboriginal and Torres Strait Islander traditional laws and customs (section 78A)
• Expert opinion (section 79)
• Admissions (section 81)
• Exceptions to the rule excluding evidence of judgments and convictions (section
92 (3))
• Character of and expert opinion about accused persons (sections 110 and 111).
Admissibility - opinion
76 - The opinion rule
Examples:
• P sues D, her doctor, for the negligent performance of a surgical
operation. Unless an exception to the opinion rule applies, P’s
neighbour, W, who had the same operation, cannot give evidence
of his opinion that D had not performed the operation as well as
his own.
• P considers that electrical work that D, an electrician, has done
for her is unsatisfactory. Unless an exception to the opinion rule
applies, P cannot give evidence of her opinion that D does not
have the necessary skills to do electrical work
Admissibility - opinion
77 - Exception: evidence relevant otherwise than as opinion
evidence
The opinion rule does not apply to evidence of an opinion that is
admitted because it is relevant for a purpose other than proof of the
existence of a fact about the existence of which the opinion was
expressed.
•
Using an opinion to prove something other than the truth of the fact
which the opinion is about.
•
Opinion evidence may be relevant for multiple purposes.
•
If relevant for another purpose, the opinion rule does not apply and
therefore the evidence can also be used to prove the opinion (like s 60).
•
When would evidence of an opinion be admitted for a purpose other
than proof of the fact about the existence of which the opinion was
expressed?
Admissibility - opinion
R v Whyte [2006] NSWCCA 75
• Mother gave evidence that complainant said, “a man tried to rape
me”.
• Spigelman CJ held that it was an opinion, but that s 78 (lay
opinion) applied.
• However, Odgers SC comments that s 77 would apply: The prior
consistent statement is relevant to enhance the credibility and of
the complainant, and being admitted on that basis, s 77 applies
(the opinion rule therefore does not apply), and the evidence can
be used to prove the opinion.
Admissibility - opinion
78 - Exception: lay opinions
The opinion rule does not apply to evidence of an opinion
expressed by a person if:
(a) the opinion is based on what the person saw, heard or
otherwise perceived about a matter or event, and
(b) evidence of the opinion is necessary to obtain an adequate
account or understanding of the person’s perception of the
matter or event.
Admissibility - opinion
78 - Exception: lay opinions
Examples of lay opinion:
• Identity of individuals
• Apparent age of a person
• Speed at which something is moving
• State of the weather, a road or the floor of a factory
• Whether someone was under the influence of intoxicating liquor
Admissibility - opinion
Lithgow City Council v Jackson [2011] HCA 36 (KOP[8.40])
• Jackson was found unconscious and injured in a drain. Conceded
that the Council was only liable if he fell from a vertical retaining wall
• A document called “Patient Healthcare Record” recorded
Found by bystanders – parkland
Fall from 1.5 metres onto concrete
No other Hx ?
• Signed by two ambulance officers. Neither gave evidence at
hearing
• Document was admitted pursuant to s 78 as an opinion that he fell
from the vertical retaining wall.
• Appeal to High Court regarding admissibility of the document.
Admissibility - opinion
Lithgow City Council v Jackson [2011] HCA 36 (KOP[8.40])
• Just because the medical records fall within s 69 does not mean
that they escape the opinion rule. A statement of lay opinion in a
business record must comply with s 78.
• Was the document relevant?
• No. The representation was so ambiguous that it could not
rationally affect the assessment of the probability of a fall
from the exposed vertical face. As obiter, the Court continued
on the assumption that it was relevant.
• Did it the representation in the document express an opinion?
Admissibility - opinion
Lithgow City Council v Jackson [2011] HCA 36 (KOP[8.40])
• No. The records are shrouded in such obscurity about what
data they observed - not possible to find on the balance of
probabilities what the impugned representation was stating. It
therefore did not state an opinion.
• If it did state an opinion, did it satisfy s 78(a)?
• No. It must be possible to extract from the form of what the
person stating the opinion said (construed in context) that the
opinion is about a 'matter or event and that it is "based" on
what the person stating the opinion saw, heard or otherwise
perceived" about the matter or event. Section 78 only applies
to opinions given by those who actually witnessed the event
about which the opinion was given Here, the ambulance
officers did not hear or see the fall, so their opinion could not
have been based on it.
Admissibility - opinion
Lithgow City Council v Jackson [2011] HCA 36 (KOP[8.40])
• If it did state an opinion, did it satisfy s 78(b)?
• No. The function of s 78 is to permit the reception of an opinion
where ‘the primary facts on which it is based are too evanescent to
remember or too complicated to be separately narrated.’ [46].
• Where the evidence is that the person appeared to be drunk or
middle-aged or angry, ¡t is impossible in practice for the observer to
separately identify, remember and narrate all of the particular
indications which led to the conclusion of drunkenness, middle age
or anger. Here, not too evanescent - location of body e.t.c. could
have been measured and detailed. [48]
Admissibility - opinion
Lithgow City Council v Jackson [2011] HCA 36 (KOP[8.40])
‘The function of s 78(b) is to make up for incapacity to perceive the
primary aspects of events and conditions, or to remember the
perception, or to express the memory of that perception. But the
ambulance officers were not shown to be suffering from incapacity in
perception, memory or expression.’ [51]. Therefore s 78(b) does not
apply.
• “Necessary” meant that - opinion could not be admitted unless it was the
only way to obtain an account of the ambulance officers‘ perceptions.
True the record was the only evidence tendered bearing on the nature of
what the ambulance officers saw. But if they had been called they might
have been able to give more evidence. Exclusion of that possibility was a
precondition to admissibility.
• Finally went on to consider whether it could be established that
respondent fell from wall in absence of ambulance record. Held that it
could not. Appeal allowed.
Admissibility - opinion
78A - Exception: Aboriginal and Torres Strait Islander
traditional laws and customs
The opinion rule does not apply to evidence of an opinion
expressed by a member of an Aboriginal or Torres Strait Islander
group about the existence or non-existence, or the content, of the
traditional laws and customs of the group
• Reduces difficulty of ATSI’s introducing evidence in relation to native title
claims and criminal defence, succession, family law, placement of
children
Admissibility - opinion
79 - Exception: opinions based on specialised knowledge
(1)
If a person has specialised knowledge based on the person’s training, study or
experience, the opinion rule does not apply to evidence of an opinion of that
person that is wholly or substantially based on that knowledge.
(2)
To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge includes a
reference to specialised knowledge of child development and child
behaviour (including specialised knowledge of the impact of sexual abuse
on children and their development and behaviour during and following the
abuse), and
(b) a reference in that subsection to an opinion of a person includes, if the
person has specialised knowledge of the kind referred to in paragraph (a),
a reference to an opinion relating to either or both of the following:
(i)
the development and behaviour of children generally,
(ii) the development and behaviour of children who have been victims of
sexual offences, or offences similar to sexual offences.
Admissibility - opinion
79 - Exception: opinions based on specialised knowledge
•
Two elements:
•
The person has “specialised knowledge” that is based on the
person’s training, study or experience.
•
The opinion is wholly or substantially based on that specialised
knowledge.
•
Proving these elements is mandatory for admissibility of the opinion.
•
Put another way:
•
Does the opinion actually flow out of the purported expert’s
knowledge; and
•
Does the proposed witness have knowledge that arises from his/her
training, study or experience.
Admissibility - opinion
HG v The Queen (1999) 160 ALR 554 (KOP[8.60])
• Appellant convicted of having sexual intercourse with child under 10.
Appellant was de facto husband of victim's mother. Said to have
happened 1992 -1993.
• Appellant wanted to call psychologist Mr McCombie, who had
examined victim and prepared a report, in which he said victim had
not been assaulted in 1992-1993 but by her natural father five years
earlier.
• Sought an adjournment so he could call him. Crown resisted the
adjournment - said evidence not admissible under s 409B(3) of
Crimes Act 1900 (This section prevented admission of evidence of
complainant’s prior sexual experience or lack of it). Judge agreed - it
was inadmissible and refused to grant the adjournment.
• The issue before the High Court was s 409B(3) and ss 76, 79.
Admissibility - opinion
HG v The Queen (1999) 160 ALR 554 (KOP[8.60])
Gleeson CJ
• Expert must differentiate between assumed facts upon which opinion
is based and the opinion in question.
• By directing attention to whether opinion is wholly/substantially based
on knowledge, the section requires the opinion to be presented in a
form which makes it possible to answer that question.
• What was the opinion based on? Took into account what he was told
by complainant, mother, GP, training, experience, knowledge of
patterns of behaviour of abused children.
• Not in doubt that psychology is a field of specialised knowledge - but
witness had to identify how that knowledge was brought to bear opinions had to be related the to expertise.
Admissibility - opinion
HG v The Queen (1999) 160 ALR 554 (KOP[8.60])
Gleeson CJ
• Here – the opinion was that the abuse occurred in 1987 by
natural father. That was not shown to be based on knowledge as
psychologist. On the contrary, it was based on a combination of
speculation, inference, personal and second hand views as to
credibility of victim, a process of reasoning which went well
beyond field of psychology.
• It is important that opinions provided are based on the specialised
field of knowledge - experts who venture opinions (sometimes no
more than inference of fact) outside that field may invest those
opinions with a spurious appearance of authority and as a
consequence the legitimate process of fact finding may be
subverted.
Admissibility - opinion
Gleeson CJ
“What defence counsel wanted was evidence of his opinion that, although
the complainant had been abused, the abuse had occurred back in 1987
when, for a period of a month, she was in the custody of her father, and that
it was the father who was the abuser. That opinion was not shown to have
been based, either wholly or substantially, on Mr McCombie's specialised
knowledge as a psychologist. On the contrary, a reading of his report, and
his evidence at the committal, reveals that it was based on a combination of
speculation, inference, personal and second-hand views as to the credibility
of the complainant, and a process of reasoning which went well beyond the
field of expertise of a psychologist. He did not put to the complainant, for
her comment, the suggestion that she had been abused by her father; the
complainant told him she could not remember her father. He does not
appear to have considered or investigated the possibility of abuse by some
third party. He appears to have inferred, for no apparent reason, that the
words "stop it daddy", attributed to the complainant by her mother, referred
to sexual as distinct from some other form of abuse.” [41]
Admissibility - opinion
HG v The Queen (1999) 160 ALR 554 (KOP[8.60])
Gaudron J
• Held that there was a recognised field of the behaviour patters of
children who have been victims of trauma.
• Held that s 76 did not justify the judge’s refusal to adjourn.
Admissibility - opinion
Gaudron J
“So far as this case is concerned, the first question that arises with
respect to the exception in s 79 of the Evidence Act is whether
psychology or some relevant field of psychological study amounts to
"specialised knowledge". The position at common law is that, if
relevant, expert or opinion evidence is admissible with respect to
matters about which ordinary persons are unable "to form a sound
judgment ... without the assistance of [those] possessing special
knowledge or experience ... which is sufficiently organized or
recognized to be accepted as a reliable body of knowledge or
experience". There is no reason to think that the expression
"specialised knowledge" gives rise to a test which is in any respect
narrower or more restrictive than the position at common law.” [58]
Admissibility - opinion
Honeysett v The Queen [2014] HCA 29 (KOP [8.70])
• Convicted of armed robbery. CCTV showed three disguised
robbers carrying weapons.
• Prosecution called expert anatomist who gave evidence of
similarities of anatomical characteristics between appellant and a
robber in the TV footage. Evidence based on viewing the footage
and viewing the appellant in custody.
• CCA dismissed the appeal on the basis that the expert evidence
was properly admitted, based on his study, training and experience.
In the alternative, it said that he was an ‘ad hoc’ expert due to
repeated viewings of the footage. (R v Rang [2006] NSWCCA 167)
Admissibility - opinion
Honeysett v The Queen [2014] HCA 29 (KOP [8.70])
• On appeal to High Court:
• His opinion was that there was ‘ a high degree of anatomical
similarity’ between the person in the footage and the defendant.
• His opinion not based upon measurement (photos not good
enough) but visual assessment.
• Previous cases had criticised “body mapping” as an area of
expertise. On appeal the appellant did not argue that body
mapping was an area of expertise, and stuck to ‘anatomy’ as the
experts area of expertise.
• The Court held that his opinion was not based on his knowledge
of anatomy.
Admissibility - opinion
Honeysett v The Queen [2014] HCA 29 (KOP [8.70])
• His opinion as to handedness could have been based upon his
expertise, as he had done masters thesis on determining
handedness, but it was in fact based upon observations of the
defendants using his right hand.
• The Court concluded that his opinion was not based on his
specialised knowledge of anatomy, because it did not form the
basis of the his opinion.
• Because the respondent admitted that the expert did not look at the
tape over a long period of time before forming his opinion, the issue
of ‘ad hoc’ expertise was abandoned.
• The issue of whether ‘ad hoc’ expertise was acceptable, was left
open.
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
• Mr Hawchar recovered in DDT in respect of a diagnosis of
silicosis, which the Tribunal found was caused when Hawchar
was employed by Dasreef as a labourer.
• Hawchar relied on evidence of Dr Basden (chartered chemist,
engineer and retired academic) - regarding procedures
employers could utilise to reduce risk of silica-related injury.
Report identified two procedures that could have reduced
Hawchar’s exposure to duct, but were not implemented:
• The employment of wet-cutting an the provision of an
exhaust hood close to the source of the dust.
• Also said masks provided were inadequate.
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
• Tribunal relied on Dr Basden’s evidence (his estimate that level of
respirable dust was 1,000+ times greater than 0.2 mg per cubic
metre) as an integer to calculate that the levels of silica dust that
Hawchar had been exposed to exceeded the prescribed
maximum level of exposure.
• The issue was whether the Judge erred in admitting evidence of
Dr as to the numerical level of respirable silica dust in H's
breathing zone.
• The Court of Appeal dismissed Dasreef’s appeal. Appealed to
the High Court.
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
• The terms of s 76 direct attention to the fact that is sought to be
proven by use of opinion evidence – you must identify why the
evidence is relevant. This requires identification of the fact in issue
that the party tendering the evidence asserts the opinion proves or
assists in proving.
• Discussed the two limbs - same as Spigelman CJ in Tang.
• At [36] - cited HG - opinion must be presented in a form that makes
it possible to tell whether it is based on specialised knowledge.
• At [37] - cited Makita - must explain how the field of specialised
knowledge applies to the facts assumed or observed so as to
produce the opinion propounded.
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
Maj
“Section 76(1) expresses the opinion rule in a way which assumes that
evidence of an opinion is tendered “to prove the existence of a fact”. That
manner of casting the rule does not, as might be supposed, elide whatever
distinction can be drawn between “opinion” and “fact” or invoke the very difficult
distinction which sometimes is drawn between questions of law and questions
of fact. It does not confine an expert witness to expressing opinions about
matters of “fact”. Rather, the opinion rule is expressed as it is in order to direct
attention to why the party tendering the evidence says it is relevant. More
particularly, it directs attention to the finding which the tendering party will ask
the tribunal of fact to make. In considering the operation of s 79(1) it is thus
necessary to identify why the evidence is relevant: why it is “evidence that, if it
were accepted, could rationally affect (directly or indirectly) the assessment of
the probability of the existence of a fact in issue in the proceeding” [Evidence
Act, s 55(1).]. That requires identification of the fact in issue that the party
tendering the evidence asserts the opinion proves or assists in proving.” [31]
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
“It should be unnecessary, but it is nonetheless important, to emphasise that
what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of
Appeal in Makita (Australia) Pty Ltd v Sprowles[(2001) 52 NSWLR 705 at
743-744 [85]]) is to be read with one basic proposition at the forefront of
consideration. The admissibility of opinion evidence is to be determined by
application of the requirements of the Evidence Act rather than by any attempt
to parse and analyse particular statements in decided cases divorced from the
context in which those statements were made. Accepting that to be so, it
remains useful to record that it is ordinarily the case, as Heydon JA said in
Makita [(2001) 52 NSWLR 705 at 744 [85]], that “the expert’s evidence must
explain how the field of ‘specialised knowledge’ in which the witness is expert
by reason of ‘training, study or experience’, and on which the opinion is ‘wholly
or substantially based’, applies to the facts assumed or observed so as to
produce the opinion propounded”. The way in which s 79(1) is drafted
necessarily makes the description of these requirements very long. But that is
not to say that the requirements cannot be met in many, perhaps most, cases
very quickly and easily…” [37]
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
“…That a specialist medical practitioner expressing a diagnostic opinion in his
or her relevant field of specialisation is applying “specialised knowledge” based
on his or her “training, study or experience”, being an opinion “wholly or
substantially based” on that “specialised knowledge”, will require little explicit
articulation or amplification once the witness has described his or her
qualifications and experience, and has identified the subject matter about
which the opinion is proffered.” [37]
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
• Basis rule?
“Contrary to submissions on behalf of Mr Hawchar, this analysis does not seek
to introduce what has been called “the basis rule”: a rule by which opinion
evidence is to be excluded unless the factual bases upon which the opinion is
proffered are established by other evidence. Whether that rule formed part of
the common law of evidence need not be examined. It may be accepted that
the Law Reform Commission’s interim report on evidence [Australia, The Law
Reform Commission, Evidence, Report No 26, (1985) vol 1 at 417 [750]]
denied the existence of such a common law rule and expressed the intention to
refrain from including a basis rule in the legislation the Commission proposed
and which was later enacted as the Evidence Act 1995 (Cth) and the Evidence
Act 1995 (NSW). What has been called the basis rule is a rule directed to the
facts of the particular case about which an expert is asked to proffer an opinion
and the facts upon which the expert relies to form the opinion expressed. The
point which is now made is a point about connecting the opinion expressed by
a witness with the witness’s specialised knowledge based on training, study or
experience.” [41]
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
• In order for Dr Basden to proffer an admissible opinion about the
numerical or quantitative level of Mr Hawchar’s exposure to silica
dust it would have been necessary for the party tendering his
evidence to demonstrate first that Dr Basden had specialised
knowledge based on his training, study or experience that
permitted him to measure or estimate the amount of respirable
silica to which a worker undertaking the relevant work would be
exposed in the conditions in which the worker was undertaking
the work. Secondly, it would have been necessary for the party
tendering the evidence to demonstrate that the opinion which Dr
Basden expressed about Mr Hawchar’s exposure was wholly or
substantially based on that knowledge. [35]
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
• Dr Basden gave evidence about his experience but did not suggest
he had experience enabling him to give anything other than a
ballpark figure estimating amount of silica a worker would be
exposed to using an angle grinder as in the photographs.
• In his written report, admitted that he had only seen the use of an
angle grinder in this way once before.
• Therefore, in the circumstances, no basis fro the judge to conclude
that the quantitative opinion of Dr Basten was based wholly or
substantially on specialised knowledge, based on training, study or
expertise.
• Lack of connection goes to admissibility not weight.
• Inadmissible. But appeal dismissed because other undisputed
evidence of silicosis
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
Heydon J
1. Expert must disclose facts and assumptions that the opinion is based upon –
“assumption identification rule”
2. The facts and assumptions must be proved for the opinion to be admissible
– “basis rule” or “proof of assumption rule”
3. The facts and assumptions must be related to the opinion – “statement of
reasoning rule”
• All 3 existed at common law and are relevant to the construction of s 79.
• Common law still applies in relation to 2. 1 and 3 are retained in the text of s
79.
• Proof of assumption rule - not abolished by Act - failure to comply with rule
makes opinion irrelevant. (CF Majority on the need to show this)
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
Heydon J
“The ordinary meaning of s 79, taking into account its language, its
context in the Act (including ss 55-57), the function of the Act (which
is the efficient and rational regulation of trials from an evidentiary
point of view), and the unreasonable results which a contrary
construction would produce, is that it does not abolish the common
law proof of assumption rule. Failure by the tendering party to
comply with the proof of assumption rule makes the opinion
evidence irrelevant. The court may find the opinion relevant,
however, if the evidence already tendered of the primary facts,
taken with further evidence to be admitted at a later stage, makes it
reasonably open to make a finding that they exist: s 57(1).” [108]
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
Heydon J
“While the respondent submitted that the Commission was wrong to conclude that
there is no proof of assumption rule at common law, he also submitted that it followed
from the Commission's decision "to refrain from including a [proof of assumption]
rule" in its draft Bill that the legislature had abolished that rule. The conclusion does
not follow. The Commission's reasoning has misled both itself and some of its
readers. A decision to refrain from including what was thought to be a rule which
does not exist at common law does not demonstrate abolition of a rule which does in
fact exist at common law. The Commission wrongly thought that there is no proof of
assumption rule at common law. On that hypothesis, as the Commission correctly
saw, the question was whether it should recommend that the legislature should enact
one, and it decided not to make that recommendation. In fact there is a proof of
assumption rule at common law, and the question for the Commission thus should
have been whether to recommend that it be abolished by legislation. To abolish it by
legislation would have called for specific language. The Commission's
misapprehension of the common law, and hence of its task, has resulted in a failure
to have enacted specific language ensuring that s 79 tenders need not comply with a
proof of assumption rule.” [109]
Admissibility - opinion
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90])
What do we learn from Dasreef?
• Witness who gives the evidence ‘has specialised knowledge
based on the person’s training, study or experience’.
• Witness must identify the assumptions.
• Witness must explain the reasoning to arrive at the opinion.
• Proof of the factual basis for the opinion (proof of assumption
rule)?? (Heydon only)
Admissibility - opinion
Cases after Dasreef : Basis rule
•
Dasreef adopts Makita:
•
•
Makita was approved by Dasreef:
•
•
Clear Wealth Pty Ltd v Kwong [2012] NSWSC 561 [5] (Rein J).
Chief Executive Office of Environment and Heritage v Kyluk Pty Limited
[2012] NSWLEC 22 [26] (Pain J).
Proof of assumption rule is a requirement for admissibility:
•
•
•
•
•
Millis v Valpak (Australia) Pty Ltd [2013] [8] (Beazley P, Meagher JA
and Gleeson JA)
Origin v Bestcare Foods [2013] NSWCA 90 [82] (Ward JA with
Macfarlan and Hoeben JJA agreeing)
Cooper v The Queen [2011] NSWCCA 258 [194] (Beazley JA with
Hidden J and RA Hulme J agreeing)
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2012]
NSWSC 177 [43] (Stevenson J)
Sydney Attractions Group Pty Ltd v Schulman [2012] NSWSC 951
[61](Stevenson J).
Admissibility - opinion
Cases after Dasreef : No basis rule
•
Not a requirement:
•
•
•
Tivo Inc v Vivo International Corporation Pty Ltd [2012] FCA 252
[412] – [414] (Dodds-Streeton J)
Alton Construction Pty Ltd v Illawarra Hotel Company Pty Ltd [2011]
NSWSC 952 [12]-[13](McDougall J)
King v Jetstar Airways Pty Ltd [2011] FCA 1259 [4] (Robertson J).
•
Matter of weight:
•
Ample Source International Ltd v Bonython Metals Group Pty Ltd (No 6)
[2011] FCA 1484 [300] (Robertson J)
Gilham v R [2012] NSWCCA 131 (25 June 2012) [186] (McClellan CJ
and CL, with Fullerton and Garling JJ agreeing)
Smith v Brambles [2011] NSWSC 963 (26 August 2011) [77] (Schmidt J)
Coote v Kelly [2012] NSWSC 219 [28] (Schmidt J).
•
•
•
Admissibility - opinion
Cases after Dasreef : No proof of assumption rule
• No mention of it as a requirement:
• K & M Prodanovski Pty Ltd v Calliden Insurance Limited [2012] NSWCA
117 [25] (Meagher JA with Macfarlan JA and Tobias AJA agreeing)
• Allianz Australia v Sim [2012] NSWCA 68 [8]-[9] (Allsop P) [113]
(Basten JA with Meagher JA agreeing)
• Cambridge v Anastasopoulos [2012] NSWCA 405 [26] (Meagher JA with
Barrett JA and Sackville AJA agreeing).
• No mention of it as a requirement, unresolved conflict noted:
• Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383
[209], [243] (Sackville AJA with Meagher and Barrett JJA agreeing).
• Not ‘dwell’ on the status of the basis rule:
• P & M Quality Smallgoods Limited v Leap Seng [2013] NSWCA 167
[34] (Barrett JA and Hoeben JA and Tobias AJA agreeing).
• Not appropriate to resolve conflict:
• Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage
[2013] NSWCCA 114 [61] (Price J) .
Admissibility - opinion
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage
[2013] NSWCCA 114 [177] (KOP [8.90])
• Kyluk pleaded guilty to picking endangered plants. At sentencing
objected to expert evidence regarding soil analysis at location of
offence.
• The report did not reveal who did the testing, or what was done,
or the chain of facts giving rise to testing.
• Was it admissible?: lack of factual basis to support opinion.
Defendant relied on Heydon in Dasreef (i.e. Basis Rule is in
UEL)
•
Admissibility - opinion
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage
[2013] NSWCCA 114 [177] (KOP [8.90])
Price J
• There is no rule that precludes the admissibility of a report that
does not comply with the Expert Witness Code (in the procedure
rules), but the code remains relevant when considering ss 135 –
137.
• Even if an opinion based on assumed but unproven facts is
admissible, it may be given little or no weight if the assumption is
not made good by the evidence.
• Here no evidence of what went on in the laboratory, so could not
be tested. Defendant unfairly disadvantaged – probative value
was substantially outweighed by unfair prejudice to the
defendant.
Admissibility - opinion
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage
[2013] NSWCCA 114 [177] (KOP [8.90])
(per Schmidt J with McCallum J agreeing with additional remarks)
“An expert opinion which meets those requirements need not be excluded if
all of the factual bases upon which the opinion is proffered are not
established by the expert's own evidence. Even if facts which the expert
"assumes" or "accepts" in reaching the opinion expressed are not proved in
some other way, then the opinion may still be admissible. That will depend
on the nature of those facts and what bearing they have on the opinion. If
they provide but a small part of the basis upon which the opinion rests, then
the failure to prove those facts may have but little impact, and not render
the opinion inadmissible. The failure to prove facts which provide a
significant basis for the opinion might, by way of contrast, be such as to
render the opinion no longer relevant to a fact in issue, no foundation for
the opinion having been established. Such an opinion, even if it were
admitted, would be of no value. Where an opinion is admitted, the failure to
establish a fact which is not of such significance, may nevertheless have an
impact on the weight given to the opinion.
Admissibility - opinion
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage
[2013] NSWCCA 114 [177] (KOP [8.90])
• So do we have resolution of this issue?
Admissibility - opinion
Tuite v The Queen [2015] VSCA 148
•
The defendant was charged with aggravated burglary, rape, indecent assault and
intentionally causing injury.
•
Expert opinion evidence was to be called about the analysis of DNA samples
from the crime scene and a DNA sample provided by the applicant following an
unrelated conviction.
•
The DNA evidence was presented in the usual form of a ‘likelihood ratio’. That is,
for each DNA sample where the suspect cannot be excluded as a contributor, a
ratio is calculated which shows how much more likely it is that the suspect was
the source of the DNA than that some other person chosen at random from the
population was the source.
•
Here, the ratios were calculated using a new software package, known as
STRmix. At a pre-trial hearing, the applicant challenged the admissibility of the
DNA evidence on the ground that the new methodology was not — or had not
been shown to be — sufficiently reliable for use in criminal trials: the methodology
was largely untested, it was said, and had not been generally accepted by the
forensic science community.
Admissibility - opinion
Tuite v The Queen [2015] VSCA 148
The defendant argued that he novelty of the methodology and its lack of
proven reliability meant, according to the argument, that the opinion
evidence must be excluded because either:
(a) the opinions were not based on ‘specialised knowledge’ within the
meaning of s 79(1) of the Act, and the evidence was therefore
inadmissible; or
(b) even if the evidence were admissible under s 79(1), its probative
value was outweighed by the danger of unfair prejudice and the
evidence must therefore be excluded under s 137 of the Act.
The trial judge refused to exclude the evidence. The defendant sough
leave to appeal.
Admissibility - opinion
Tuite v The Queen [2015] VSCA 148
The VCA set out that it had to answer the following questions:
(a) is reliability a criterion of admissibility of opinion evidence under s
79(1) of the Evidence Act, or is reliability to be assessed in
deciding whether the evidence should be excluded (under s
135 or s 137); and
(b) by what criteria is the reliability of expert scientific evidence to be
assessed?
Admissibility - opinion
Tuite v The Queen [2015] VSCA 148
Re admissibility of the opinion: “..the principal complaint made by the
defence was not that the witnesses were unqualified to give evidence
about the statistical evaluation of DNA profiles and likelihood ratios.
Instead, the objection was to the probabilistic methodology itself.”
…
“For the purpose of s 79 admissibility, the defence contends that the
prosecution has not established that STRmix is a reliable body of
knowledge in respect of which evidence based on ‘specialised
knowledge’ can be given.”
Admissibility - opinion
Tuite v The Queen [2015] VSCA 148
“The language of s 79(1) leaves no room for reading in a test of evidentiary
reliability as a condition of admissibility.” [70]
…
“In our view, s 79(1) contains its own specification of the requisite foundation of
the witness’s ‘knowledge’, namely, that the knowledge must be ‘based on the
person’s training, study or experience’. To take an example discussed in
argument, a medical specialist with expertise in occupational lung disease may
have come up with a new theory about the link between a particular form of lung
disease and a particular industrial emission. Notwithstanding its novelty, the
theory could properly be viewed as part of the expert’s ‘specialised knowledge’
provided that the theory was demonstrably based on ‘the person’s training, study
or experience’. Once that was established, it would be no objection to
admissibility that there was dispute in the relevant field about whether the theory
was ‘correct’. Questions of reliability would fall for consideration separately, as
discussed below.
Admissibility - opinion
Tuite v The Queen [2015] VSCA 148
…
It follows, in our view, that a person’s knowledge may qualify as ‘specialised
knowledge’ for the purposes of s 79(1) even if the area of knowledge is novel or
the inferences drawn from the facts have not been tested, or accepted, by
others. The position would have been different if, instead, s 79(1) had provided
that an opinion was only admissible if shown to be based on a ‘reliable’ or
‘established’ body of knowledge. No such language was used, however, and the
legislative history makes clear that this was a deliberate legislative choice.” [77]
Admissibility - opinion
Tuite v The Queen [2015] VSCA 148
“In its 1985 Interim Report on Evidence, which preceded the enactment of the
Uniform Evidence Acts, the Australian Law Reform Commission said:
[It has been suggested that] the expert must be able to point to a relevant
accepted ‘field of expertise’ and the use of accepted theories and techniques.
Quite what constitutes such a field remains a matter for speculation. There are
major difficulties in implementing such a test ... It is proposed, therefore, not to
introduce the ‘field of expertise’ test. There will be available the general discretion
to exclude evidence when it might be more prejudicial than probative, or tend to
mislead or confuse the tribunal of fact. This could be used to exclude evidence
that has not sufficiently emerged from the experimental to the demonstrable.”
• The question of the reliability of an expert opinion does not fall to be
considered under s 79(1);
• It was open to the trial judge, on the evidence before her, to conclude that the
opinion evidence of the Crown witnesses was based upon their specialised
knowledge, and was therefore admissible under s 79(1).
Admissibility - opinion
Tuite v The Queen [2015] VSCA 148
• The question of the reliability of an expert opinion does not fall to be
considered under s 79(1);
• It was open to the trial judge, on the evidence before her, to conclude
that the opinion evidence of the Crown witnesses was based upon their
specialised knowledge, and was therefore admissible under s 79(1).
• What about s 137?
“The question of the reliability of opinion evidence falls to be determined
as part of the assessment which the Court undertakes for the purposes
of s 137”, [10(c)]
• BUT remember, Victoria currently grounds this principle based on the
decision in Dupas v R. That decision has not been followed in NSW.
See [85]
Admissibility - opinion
Tuite v The Queen [2015] VSCA 148
• Here Court said judge was entitled to find that the probative value was
not out weighed.
• There is a useful discussion of what “specialised knowledge is” and
whether it requires an accepted field of expertise.
Admissibility - opinion
80 - Ultimate issue and common knowledge rules abolished
Evidence of an opinion is not inadmissible only because it is about:
(a) a fact in issue or an ultimate issue, or
(b) a matter of common knowledge.