CQUniversity
Division of Higher Education
School of Business and Law
LAWS13010
Evidence and Proof
Week 11 Opinion Evidence
Term 3
© CQUniversity
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Table of Contents
1.0
Overview ......................................................................................................................... 3
1.1 Objectives ........................................................................................................................ 3
1.2 Introduction .................................................................................................................... 3
1.3 Prescribed Reading ......................................................................................................... 4
1.4 Reference Reading .......................................................................................................... 4
1.5 Key Terms ....................................................................................................................... 5
2.0
Opinion Evidence............................................................................................................ 5
3.0
Non-Expert Opinion Evidence ....................................................................................... 6
4.0
Expert Opinion Evidence ................................................................................................ 7
5.0
Establishing an Expert’s Credentials ..............................................................................8
6.0
Statutory Rules ............................................................................................................. 14
7.0
Tutorial Questions ........................................................................................................ 14
8.0
Review ........................................................................................................................... 16
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Topic 11 - Opinion Evidence
1.0
Overview
1.1 Objectives
At the end of Topic 11, you should be able to:

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
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distinguish opinion evidence from evidence of observations;
distinguish observational and interpretive non-expert opinion and explain the
different admissibility rules applying to each;
explain the role and utility of expert opinion evidence;
demonstrate how an “expert” may be authenticated for the purpose of giving expert
opinion evidence; and
explain the limitations on expert opinion evidence; in particular, that expert opinion
does not bind the finder of fact, and that expert opinion cannot be given on questions
of law.
1.2 Introduction
We learned, when discussing oral evidence, that oral evidence is meant to be a description,
by the witness, of things they observed using their own five senses. In reality though,
humans almost never simply observe. We invariably interpret those things we have
observed. Our ability to do so effectively has already been described as one of the limits on
oral evidence - the limit of comprehension.
As soon as a witness begins interpreting facts rather than simply reporting them, they enter
the realm of opinion evidence. In some circumstances, opinion evidence can be extremely
valuable for the court. The court may not, in fact, be able to effectively understand the
context of facts, unless some level of opinion is given. However we should bear in mind at all
times that the court is required, on behalf of society generally, to apply the final
interpretation to facts.
Opinion evidence, then, will often be admissible when is assists the court from interpreting
the facts; it will usually be inadmissible when it purports to interpret the facts on the court’s
behalf.
Opinion evidence comes in two basic forms: non-expert opinion evidence, and expert
opinion evidence. Non-expert opinions are opinions given by witnesses who have been
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called upon because they can give evidence about things they observed. These witnesses will
often be allowed to stray (to a mild degree) into opinion evidence, but once the court has
sufficient information to understand the context of their evidence, any further opinions will
be inadmissible.
Expert opinion evidence, on the other hand, occurs when the court calls upon an expert in a
field other than law, to assist the court to understand the facts before it. Sometimes, in
complicated matters, the only sensible way for a court to understand those matters, is to call
upon an expert in another field.
Strict rules surround the giving of expert evidence. In particular, the side calling on the
expert must actually demonstrate that the witness is an expert; the witness will then be
limited to answering questions only in relation to their field of expertise. Finally, no matter
what the expert says, the expert’s evidence can only ever be for the guidance of the court.
The court - including the jury in a jury case - are free to ignore or depart from the expert’s
opinions if they are unpersuaded.
An understanding of expert evidence completes the substantive material for this course.
Hooray!
1.3 Prescribed Reading
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David Field, Queensland Evidence Law (2nd ed, 2011):
Chapter 11, pp. 287-302 (Opinion Evidence).
1.4 Reference Reading
Secondary material
●
Kate Cashman, and Terese Henning, ‘Lawyers and DNA: Issues in Understanding
and Challenging the Evidence’ (2012) 24(1) Current Issues in Criminal Justice 69.
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Gary Edmond, ‘Specialised Knowledge, the Exclusionary Discretions and Reliability:
Reassessing Incriminating Expert Evidence’ (2008) 31 (1) University of NSW Law
Journal 1.
●
Gregory Antipas, ‘Unreliable Expert Opinion Evidence: Exclusion Proves Difficult
Under Existing Law’ (2012) 50(8) Law Society Journal 67.
Cases
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Bugg v Day (1949) 79 CLR 442: Expert witness’ evidence ruled inadmissible because he
gave his opinion without having all of the relevant facts.
http://www.austlii.edu.au/au/cases/cth/HCA/1949/59.html
Chamberlain v R (No. 2) (1984) 153 CLR 521: Competing expert accounts of forensic
evidence relating to death of baby Azaria. Court found the jury was entitled to believe either
or neither of the experts. http://www.austlii.edu.au/au/cases/cth/HCA/1984/7.html
Makita v Sprowles [2001] NSWCA 305: Slip and fall case. Expert gave evidence contrary
to relevant Australian standard without explaining why. Held to be inadmissible.
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2001/305.html
R v Osland (1998) 197 CLR 316: Mother and son convicted of murder. Expert witness
sought to give evidence about Battered Wives Syndrome. Court accepted this was a
sufficiently organised area of knowledge.
http://www.austlii.edu.au/au/cases/cth/HCA/1998/75.html
1.5 Key Terms
Assumptions: When an expert is developing an opinion, it is unlikely they will ever have
complete access to the facts. Consequently, in some cases they will assume facts. Those
assumptions, when made, should be recorded and presented to the court, so the court can
decide if the opinion remains valid.
Expert: For the purpose of evidence law, an expert is a person whose formal learning or
acquired experience mean that they are recognised, within a sufficiently formed body of
knowledge, as having a high level of understanding or proficiency.
Inference: An inference is a logical conclusion arrived at by considering one of more facts.
So, an observation that the sky is blue, combined with an observation that the month is
January, might lead to an inference that the day will be hot.
Observation: An observation is something detected with one’s own five senses.
Observations in the strictest sense are never opinion, since observations convey only facts.
Ultimate Issue: The ultimate issue is the question which the parties have brought before
the court for determination. An old common law rule of evidence held that experts could not
give opinions on ultimate issues. Is may be doubted whether this rule remains on foot.
2.0
Opinion Evidence
As we noted in the introduction to this topic, opinion evidence is evidence in which the
witness does not merely report their observations; instead they offer an interpretation of
those observations.
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The fundamental common law rule is that evidence of opinions is not admissible, unless one
of the exceptions apply. We will spend most of this topic considering the relevant
exceptions.
The exceptions have different form and operation depending on whether we are dealing with
expert or non-expert opinion evidence, but the underlying rationale remains the same opinions will only be admitted into evidence where they assist the court to interpret the facts;
witnesses will never be entitled to take over the court’s role of deciding what the facts
actually mean.
3.0
Non-Expert Opinion Evidence
Non-expert opinion evidence refers to interpretations made by witnesses who neither claim
nor have any particular skill which enables them to make those interpretations. They are
just normal folks who happened to witness certain events. There is, in short, no reason to
consider their opinions to be special; the court is just as capable of interpreting the witness’
observations.
Consider an example. In March 2012, during an attempt to apprehend a young man named
Roberto Curti for shoplifting, police discharged their tasers, allegedly 14 times. Curti
subsequently died. Under the circumstances, there was a coronial inquest. One of the
witnesses at that inquest was a Tommy Wang.
Wang also gave an interview to the ABC, in which he said the police “looked like a gangster
mob trying to take down a young guy.”
It is clear from his statement that Wang had formed the view that police were not acting in
the manner of normal police, and that they were using unnecessary force. The inevitable
implication of his statement is that Curti died as a result of the police misconduct.
The question is, however, how would Wang have known? As a normal citizen with no police
training, was Wang’s opinion that police looked like a “gangster mob” of any value? Or,
rather, should Wang (in court) have just given straightforward evidence of what he saw, and
trusted the court to form the “gangster mob” conclusion for itself? Most of the time, the
opinions of non-experts are simply not helpful. The court’s very purpose is to decide these
things for itself.
On the other hand, there are many circumstances in which a witness would struggle to give a
coherent account of events without including at least some level of interpretation. A
statement as simple as “she looked scared” is, in reality, an opinion. What the witness really
means is “Her eyes were slightly wider than normal and she was shaking. She was unable to
sit or stand still, and continued to look around her. She bit her lip, and I saw tears forming
in her eyes.” Normal human experience tells us that such a person is scared, and it makes
sense to admit the evidence on that basis.
These observational opinions arise from our general understanding of human experience.
They enable the court to understand the evidence of the witness; they may enable the court
to understand how the witness reacted in the circumstances; it may, indeed, be impossible to
properly understand the witness’ story without allowing them this small latitude.
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However, it seems safe to do so. While the witness has no particular expertise to enable
them to give these opinions, it would seem that no particular expertise is needed. Such basic
interpretations of human interaction are common to all of us.
Activity
A witness states “I heard a child crying next door and some angry shouting. I then heard a
loud bang like a door being slammed closed, and the child really screamed loud. I thought,
“She’s done it this time” and I rang the police. She always has horrible men over and there is
always lots of noise. It’s the children I feel most sorry for.”
Which of the following is true:
a) The evidence is inadmissible.
b) The fact that she heard crying and a bang, and called the police is admissible.
c) Her view that there was “angry” shouting and that the door sounded like a door
slamming, are admissible
d) The whole statement is admissible
Answer: (b) and (c) are both admissible. The witness’ gratuitous opinions in the final two
sentences would, however, be inadmissible.
After an automotive accident, a lawyer asks a witness “Do you believe the driver was driving
badly?” You object. What is the grounds of your objection?
a) The evidence is opinion evidence;
b) The witness is not an expert able to answer that question;
c) There is no objective way to measure “good” or “bad” driving;
d) A judgment like that should be made by an expert.
Answer: (a) is the only plausible answer. The evidence is clearly opinion evidence, but the
assistance of an expert or an objective standard would not be helpful. It will be for the jury
to determine whether the driving was good or bad.
4.0
Expert Opinion Evidence
Imagine this: Lisa is driving home one evening. She’s following a police car, so even though
she knows she is usually a careful driver, she’s being that extra bit more careful to make sure
she leaves enough space, indicates early, and stays within the speed limit. She approaches an
intersection, the light goes orange, and the police car begins to brake. Lisa presses her brake
pedal. Disaster - the brakes fail completely! A large crashing sound follows, and within a
few hours Lisa is charged with driving without paying due care and attention. No matter
how much she tries to tell people that the brakes failed, nobody wants to listen. The matter
comes to court. How could Lisa prove that the brakes failed?
One way might be to bring the vehicle into the court as an exhibit. We know that a court is
entitled to learn things from real evidence by directly observing them, so theoretically a
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judge might examine Lisa’s brake lines and observe a ruptured seal which led to the loss of
brake fluid pressure, and thus the failure of her brakes. Realistically, we all know that’s not
going to happen. The judge is an expert in law, not in motor vehicles.
What we really need is for someone who is an expert in motor vehicles to examine the vehicle
and then give evidence about their observations.
Straight away, though, you can see this is opinion evidence. The expert did not see the crash
or anything relevant to the crash. They have been asked, instead, to examine one of the
material facts - the brake lines - and to provide an interpretation of that fact. The important
factor, however, is that this is an opinion the court is not able to make for itself. The court’s
function is therefore not being overtaken by the opinion evidence; rather, the court is
assisted by the opinion evidence. On that basis, the opinion will be admissible.
Evidence law has developed a range of rules to enable expert opinion evidence to be safely
used in the course of trials.
5.0
Establishing an Expert’s Credentials
Obviously enough, before an expert may give expert opinion evidence, it must be established
that they actually are an expert. Court do not maintain registers, for instance, of those
eligible to appear as expert witnesses (with the possible exception of the process, described
in previous weeks, of formally accrediting DNA analysts). More to the point, each litigant is
entitled to recruit the experts of their choice to give evidence - and one good way to “knock
out” the expert evidence of the opposing side is to challenge their status as an expert.
Establishing the expertise of an expert witness involves two steps. First, it must be
demonstrated that there is “a body of knowledge or experience which is sufficiently
organised or recognised to be accepted as a reliable body of knowledge or experience” [R v
Osland (1998) 197 CLR 316]. This is a somewhat curious description, which remains open
for debate. Clearly, some areas of knowledge will qualify. For instance, fields like
psychology or handwriting analysis are readily identifiable. However there is no threshold as
to what is “sufficiently organised or recognised.” This will be a question for the judge to
decide on each occasion it is raised.
For instance, some of you might recall an ABC Television quiz show entitled The Einstein
Factor. The basic premise of the show was that each contestant claimed expertise in a
“special subject” which became the basis for many of the questions they were asked. Some of
the special subjects were quite bizarre - everything from “Batman comics” to “The life and
music of Mental As Anything” to “the sea battles of Horatio Nelson” to “the Brownlow
Medal.” Some of these contestants had quite incredible knowledge in their areas of
expertise. However would they be able to give evidence as experts, if those topics came up in
a court case? The Nelson expert might perhaps claim to be a historian, and one suspects
naval military history in the early 19th century would be regarded as a sufficiently well
organised field. However, Batman comics? Mental as Anything?
In Osland, which I have cited above, a forensic psychologist was called to give evidence of the
psychological impacts of what is commonly referred to as “battered wives syndrome”; that is,
evidence of the psychological effects of continuous domestic violence. Her expertise was
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challenged on the basis that there was no sufficiently formed body of expertise relating to
“battered wives syndrome.” The court found to the contrary.
How do you think the court might react to claims that a person was an expert in
anthropogenic global warming, since this phenomenon is so hotly contested? Or, to take
another rather strange example, how might the court react to the suggestion that a person is
an expert in relation to Star Trek? After all, Star Trek has worldwide organisations;
conventions; a substantial body of writing and analysis; isn’t it possible that Star Trek might
be sufficiently formed to enable “experts” to be recognised?
The key point to understand is that there are no easy answers; there is no simple threshold.
If a witness is presented to you in order to give expert evidence, your first question must be
whether their expertise arises from a sufficiently formed body of knowledge.
Once the area of expertise has been established, the next step will be to established the
expertise of the witness themselves. In a well-formed, formalised area of knowledge, this
will not be difficult. The possession of an appropriate higher degree; or the occupation of
certain professional positions; or an indication of the expert’s professional accomplishments
will usually be sufficient. In less well-identified areas of expertise, the task of identifying an
expert will be more difficult, but it ought never to be impossible. If it is impossible to
properly demonstrate an expert’s status, then it is quite likely the area of knowledge is
insufficiently well-formed to actually produce experts.
So, if it is sufficiently well demonstrated that there is a formed body of knowledge or
experience; and that the proposed witness is a suitable expert from within that body of
knowledge, then the witness may take the stand.
Activity
Which of the following do you consider would be fields capable of furnishing an expert
witness:
a) archaeology
b) cannabis psychosis
c) urban soil structures
d) popular music
Answer: All of them, although it is possible (a) is too broad, and that in a real case it might
be necessary to demonstrate that the archaeologist had expertise in the particular civilisation
and history relevant to the issue at hand.
What level of credential is required for an expert to be considered as such?
a) a bachelor’s degree;
b) a higher research degree;
c) membership of a professional body;
d) extensive practical experience.
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Answer: All of the above, and yet none of the above. There is no precise formula for
establishing expertise; it must be determined by the judge as a question of fact.
10.0 Limitations on Expert Evidence
Expert evidence must be given within the bounds of a range of requirements and limitations,
in order to ensure that the evidence is helpful to the court.
The facts underpinning expert evidence must be made explicit
Expert evidence is, by its very nature, opinion evidence - that is, the expert makes inferences
which are based on facts. Consequently, if the expert’s inferences are to be given any weight
by the court, it will be necessary for the court to know the facts or assumptions that were
relied upon by the witness, in making their inferences.
The facts relied upon by the expert should be proven by evidence (or, at least, should be
capable of being proven by evidence). Where the witness relied on assumptions, those
assumptions should be made explicit. If the court forms the view that the assumptions were
too different from the true facts of the case at hand, the expert’s opinion will obviously be
given low (or no) weight.
In the case Bugg v Day (1949) 79 CLR 442, a motor vehicle repairer gave expert evidence
relating to the speed a taxi was travelling at when it collided with a motor cycle. The
evidence appears to have been based on an assessment of the damage done to the two
vehicles. In cross-examination, however, it came out that the expert had not been told the
weight of the taxi at the time of the incident. The weight of the taxi would obviously have
been a major factor in determining the level of damage done to the vehicle at any given
speed. Given that such an important fact had been omitted from consideration, the expert’s
evidence was given little weight (Latham CJ described it as having been “destroyed”).
The basis of the expert’s opinion must be made explicit
Once the facts are known (or the assumptions are made explicit) it is not sufficient for an
expert to then simply drawn their expert opinions and present them to the court, expecting
the court to value the opinions on blind faith. The expert must be able to explain to the
court, in lay terms, how they came to form the opinion they have presented. If they cannot
do so, the evidence will be given little weight.
For instance, in Makita v Sprowles [2001] NSWCA 305, a “slip and fall” case, an expert
named Professor Morton gave evidence about the slipperiness of the plaintiff’s shoes and the
defendant’s staircase. He described the relevant Australian Standard, and acknowledged
that the stairs met that standard; but then went on to argue that for less slip-resistant
footwear, the steps remained dangerous. The court found that in giving such an opinion, it
was necessary for the Professor to indicate why he felt the Australian Standard was
inapplicable, and to demonstrate why his analysis should be preferred. The court found that
the Professor had done neither of these things, and the Professor’s expert evidence was held
to be, essentially, useless. As a result, the plaintiff failed to make out a breach of the store’s
duty of care, and the plaintiff’s case failed.
The expert must stay within their area of expertise
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We have already noted that in order to be an expert for this purpose, an organised field of
knowledge must exist, and the expert must be identifiable as having expertise within that
field. This obviously implies that their opinions are only valuable while those two conditions
remain true. As a result, if an expert witness begins giving opinions which are outside their
acknowledged area of expertise, then they are no longer giving expert evidence, and their
non-expert opinion evidence will almost always be inadmissible.
To take an example, in R v Anderson, the accused had a serious domestic dispute with his
partner. Both of them ended up with stab wounds, and the partner dies from her wounds.
During the trial, one of the key questions was whether Anderson’s stab wounds were caused
by his partner during their altercation; or whether they were self-inflicted, following the
altercation, in order to provide some justification for him stabbing her. Two doctors were
called to give expert evidence, and they gave evidence relating to how the wounds might have
been caused. On appeal, the Victorian Court of Appeal found that while the doctors were
experts within their professional field, neither of them could properly claim any particular
expertise in analysing stab wounds to determine whether they were, or were not selfinflicted. On that basis, their evidence was ruled inadmissible.
Experts on questions of law are not permitted
The whole point of a court accept expert opinion evidence is that the court recognises it does
not have inherent access to the full body of human knowledge, across all formalised and
informal fields of expertise. It therefore requests the assistance of experts from those other
fields.
In the field of law, however, our system of courts regards itself (quite correctly) as fully
capable, without the assistance of other “experts”.
Furthermore, as we have noted several times, opinion evidence cannot be allowed to
supplant the decision-making role of the court. Imagine if, in a negligence case, a “legal
expert” were called to give an opinion about whether particular actions constituted a breach
of the defendant’s duty of care. If that expert’s evidence were accepted, what would be left
over for the court to do? It is better surely for the courts to protect their own integrity by
insisting that expert opinion evidence by legal experts not be permitted.
There is, however, one limited exception to this general principle. Where a question of
foreign law becomes central to a case within an Australian common law jurisdiction, expert
evidence may be called in order to enable the court to understand the foreign legal scheme,
and the meaning of the specific provisions under consideration. However the court will then
apply the law as explained, without further assistance from the expert.
Traditionally, experts were generally not entitled to give opinions on “ultimate issues”
In the past, experts were not allowed to give evidence regarding the “ultimate issue” before
the court; that is, the single key question which would determine the outcome of the trial.
The rationale for this exclusion appears to have been that if an expert were to do so, this may
result in the expert effectively usurping the court’s determinative role. If the expert
effectively told the court what the verdict should be, what was the remaining role of the
court?
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On the other hand, this appears to have been quite a restrictive rule for two reasons. First, as
we are about to learn, the court is not bound by the opinions of an expert. The court is
entirely at liberty to hear the opinion of an expert, decide it is not convinced, and form some
other inference from the same facts considered by the expert.
Second, the expert is only able to advise the court regarding the facts (and the inferences
which might be drawn from them). It still remains for the law to be applied to those facts
and inferences. Again, this makes it clear the expert evidence, even on the ultimate issue, is
unlikely to usurp the court’s role.
Finally, if an expert’s evidence is indeed so conclusive that it effectively disposes of a case,
one wonders why this is regarded as a bad thing? No other witness is prevented from
assisting the court simply because their assistance might resolve the disputes active in a case.
Perhaps because of these and similar reasons, the ultimate issue rule seems to have fallen
away in Australia; although in the common law jurisdictions is has never been expressly
overruled. The closest that can be found is the decision of Mason CJ and Toohey J in
Murphy v R (1989) 167 CLR 94. The appellants in that case were convicted of the infamous
kidnapping, rape, torture and murder of Anita Cobby. Expert evidence relating to the
intellectual capability of one of the applicants was adduced, and objected to partly on the
basis that such evidence may go to liability, which was the ultimate issue in the case. Mason
CJ and Toohey J decided the question on other grounds, but made the statement in passing
that “It is doubtful that there is now an absolute rule precluding an expert witness from
expressing a view as to the ultimate issue.”
The question will in all likelihood remain whether the witness’ opinion is of assistance to the
court, or whether it has the effect of usurping the role of the court.
The court is not bound by the expert’s opinion
One inherent risk of using expert opinion, particularly in jury trials, is that the jury will
forego their role as the deciders of fact, and instead simply accept whatever views are put to
them by the experts. The experts, after all, are experts. they have the benefit of years of
learning and practice. Experts typically present a very confident and professional persona in
the witness box. We are all used to the idea of engaging experts and trusting them in their
areas of expertise.
It should be remembered at all times that the purpose of an expert witness is to advise and
assist the court by providing inferences based on given facts. It remains open to the jury, at
all times, to decide that it is not persuaded by the evidence of the expert. If this is the case,
the jury is entitled to make its own inferences from the facts, and to prefer those to the
expert’s opinions.
This becomes particularly important when both sides produce experts, and those experts
give opposing (or at least varying) inferences based on the same facts. This famously
occurred in the trial of Lindy and Michael Chamberlain (as they then were) for the alleged
murder of their daughter Azaria in 1980. They were convicted and jailed for this offence, and
subsequently acquitted after one of the longest and most tortuous legal and public battles in
Australian legal history. To this day, most people have an opinion on the case, and Lindy
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Chamberlain’s cry “That dingo’s got my baby” has entered the common lexicon, not always in
good taste.
The Chamberlains’ trial relied heavily on expert evidence, particularly regarding the traces of
blood found in the Chamberlains’ car, and also evidence regarding the behaviour of dingoes.
Expert evidence was called from both sides, and it often conflicted. One of the grounds of
appeal raised by the Chamberlains in the High Court in 1984 was that the conflict in expert
evidence should, almost as a matter of course, have resulted in the jury having reasonable
doubt. After all, if the experts could not agree, how could the jury be convinced beyond
reasonable doubt?
This argument was unsuccessful. The court made it clear that a jury, presented with
conflicting expert opinions, may quite validly choose to completely accept one expert’s
evidence and completely reject the other. They are under no obligation to invest the expert’s
evidence with weight. Consequently the conflict in expert evidence did not, of itself, raise a
reasonable doubt requiring an acquittal.
Activity
You are arguing a torts matter, but it has given rise to a constitutional issue. To assist the
court you have arranged for a senior Professor in Constitutional Law to be available to give
evidence. What boundaries must the Professor remain within?
a) She must confine her expert opinions to constitutional law;
b) She must state the factual basis for her views;
c) She must explain if her views diverge from the mainstream of expert opinion;
d) She will not be allowed to give evidence at all.
Answer: (d). Expert witnesses on points of law are not permitted.
You are arguing a hotly contested criminal matter, which has features a battle of expert
witnesses about the capacities of a particular computer program. In summing up, the judge
says “If you believe Expert A, then you might find that the following facts are true … and if
you believe Expert B, the following facts will be true. Much will depend on which expert you
believe.” Which of the following is then true?
a) You will feel confident provided your expert witness has given a good description of
his findings, amenable to a lay understanding;
b) You will feel confident provided your expert has remained within the bounds of
expert testimony;
c)
You will object and ask the judge to direct that the unresolved “clash of experts”
amounts to reasonable doubt, so the defendant should be acquitted;
d) You will object on the basis that the judge has not instructed the jury that they have a
third option, to believe neither expert.
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Answer: Much would, of course, depend on the tactics of the case; however (d) is the most
likely outcome. The judge’s comments give no particular cause for the confidence in (a) or
(b); and (c) has been specifically ruled against, in Chamberlain.
6.0
Statutory Rules
In civil cases, the Uniform Civil Procedures Rules 1999 (UCPR - these apply in Queensland)
have changed certain aspects of the way experts give evidence. Those changes are typically
quite sensible and useful. They can be found in Part 5 of the UCPR.
First, the rules make it clear that the expert’s duty is to assist the court. They do not have a
duty to assist the side that called them, even though that party is usually paying the expert’s
fees.
Second, the expert’s evidence in chief is usually given by way of a written report, which must
be given not only to the court, but also to the other side, generally within 90 days of the close
of pleadings. The report must address many of the factors we have considered above - for
instance, it must outline the expert’s basis for claiming to be an expert; it must outline the
facts and presumptions upon which the report is based; it must give an account of the
methods used by the expert to reach this conclusion; and finally the expert must inform the
court if there is a divergence of opinion, within the field of expertise, about any of the
questions discussed in the report. The expert must then give an explanation if their opinion
is contrary to the general consensus.
Where both sides call expert witnesses and those expert witnesses disagree, the court may
direct them to meet and prepare a joint report. That joint report should outline areas in
which they agree; areas in which they disagree; and the efforts they have made to resolve
those disagreements.
These rules mean that expert evidence is available to assist parties well before the trial
(which may result in parties withdrawing altogether), and that time is not lost attempting to
adduce expert opinions in the course of the trial itself.
The side not calling the evidence is still entitled to call the expert into the court to be crossexamined, if they wish. Thus the experts are able to assist the court in a far more efficient
manner, without impinging on the right of the other side to cross-examine.
7.0
Tutorial Questions
Evidence in the movies: My Cousin Vinny
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Frustratingly, I have had trouble finding a clip online of the relevant scene in the comedy
movie My Cousin Vinny. The movie itself is in the “city meets country” genre, and
culminates in a courtroom scene in which an out-of-work hairdresser becomes an expert
witness and saves the case.
The relevant portion of the script is at this link:
http://www.law.indiana.edu/instruction/tanford/web/movies/MyCousinVinny.htm
Honestly though, do yourself a favour and rent the movie. After watching the scene,
consider the following questions:
1. At the commencement of Vito’s evidence, she is introduced as an expert in “automobiles”.
Opposing counsel seeks to describe the relevant field of expertise as “tyre marks” and then
the lawyer calling Vito re-confirms she is being called as an expert in “general automotive
knowledge.” What difference would this have made?
2. What is the basis of Vito’s alleged expertise? Do you think this would qualify her in
Australia? Can you support your position with case references?
3. During the voir dire the opposing counsel asks Vito a trick question. She calls him on it,
which demonstrates her expertise. Would the question have been proper or improper in
Australia?
4. What was the importance of the Defence lawyer’s action in tendering the photograph?
What rule relating to expert evidence was met as a result?
5. In this situation, an expert witness had already been called. After Vito’s evidence, he was
recalled and acknowledged his earlier evidence had been wrong. Let’s pretend for a moment
that he had stuck to his guns. How might the conflict have been resolved?
More evidence in the movies: Inherit the Wind
I am not sure whether Inherit the Wind was the first of the great courtroom movies, but it
comes pretty close. The movie tells the story of the Scopes Monkey Trial in the USA, in
which a school teacher was arrested essentially for teaching evolution as an alternative to
creationism in US schools (a debate which still rages in the United States). Towards the end
of the movie, the two lawyers have a dramatic showdown when the defending lawyer calls his
opponent as an expert witness on biblical matters. Watch the following feature, ignoring the
obvious objection that in any sensible courtroom, the opposing lawyer could not be called as
an expert witness.
https://www.youtube.com/watch?v=vHasThIfX6I
Now consider:
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1. Early in the examination, the questioning attorney asks the witness whether he has any
knowledge of Darwin’s Origin of Species; and if not, how he could judge its veracity. What
rules relating to expert evidence, discussed during this lecture, were in play here?
2. Later, after an objection from the prosecuting junior, the defence lawyer is instructed to
confine his questions to the bible. Was this a fair ruling by the judge? Why or why not?
3. In your view, was the witness actually questioned in relation to his biblical expertise, or
was he in fact asked to give evidence to justify the basis of his personal faith? If the latter,
was this fair?
4. Did the expert witness actually provide any opinion which the jury might not have arrived
at on its own?
8.0
Review
In this topic you have learned:
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that opinion evidence is evidence where the witness does not just relate facts, but also
relates inferences which they have drawn from those facts;
that opinion evidence may be given by experts, and by non-experts; and that these
two types of opinion evidence are treated differently;
that opinion evidence is only ever admissible where it assists the court in some way to
form views which the court is unable to form without the assistance of the opinions;
that opinion evidence by non-experts is generally inadmissible, unless the opinions
are necessary in order for the witness to sensibly give a description of those things
which they observed;
that opinion evidence from experts may be admissible;
that as a preliminary step, to admit expert opinion evidence it must be proven that
there is a relevant body of knowledge, sufficiently organised or recognised that a
person may be regarded as an “expert” in that field;
that the expert’s qualifications to be considered an expert must be proven;
that the expert must make clear what facts and assumptions underpinned their
evidence;
that experts must not give opinions on questions of law, which are reserved for the
court alone;
that in the past, experts were unable to give evidence on the “ultimate issue” of a case,
although it may now be doubted whether this rule remains;
that the jury is entitled to ignore, or be unpersuaded by an expert opinion; and
that under the Uniform Civil Procedure Rules, evidence in chief by experts is typically
given in the form of a report, which is disclosed to the court and the other party
before the proceedings commence.
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