A Criminal Lawyer Discusses Exceptions to the Opinion Rule

Section 76 of the Evidence Act 2011 (ACT) states that “Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.” This simply means that an opinion of a witness is not necessarily proof of something; the prosecution must present objective facts that show that the allegations they make are true beyond mere opinions.

The example provided in Section 76 is as follows: “for example,  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.”

Summaries of complex material

The opinion rule does not cover summaries of voluminous documents. (s 50 (3)) of the Act provides that the court may, upon a party’s application, direct that the party can cite evidence in the form of a summary of documents. This is provided that the volume or complexity of the documents in question prohibits the full citation of the text in court.

This direction may be carried out if the party seeking to adduce evidence has served on the other party a copy of the summary, complete with the name and address of the person who had prepared it. They must also give the other party a reasonable opportunity to go through the documents in question.

Evidence for other purposes

Section 77 of the Act says that “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.”

In other words, opinions may be admitted as evidence in criminal law proceedings if applied for a non-opinion purpose. It may also be used to prove that a fact asserted by the opinion exists. However, this exception is subject to exclusions and the discretion of the Court.

Opinions of lay and indigenous persons

The rule in Section 76 does not apply if the opinion in question is based upon a person’s recollection or perception of a matter or event. It also does not apply if evidence of the opinion is needed to fully understand the person’s perception of the event or the matter being discussed.

The Act also makes provision regarding Aboriginal and Torres Strait Islander laws and customs. If the opinion in question is provided by a member of either stated indigenous group, particularly about contents of their traditional laws and customs, it is exempted from the Act.

Expert opinions

A person’s opinion based on their specialised knowledge or information gained through training, study, and experience may also be exempted from the opinion rule. If the opinion in question is based on the expert’s expertise they have gained from their field, it may be admitted as evidence.

This includes, for example, specialised knowledge of child behaviour and development, including expert opinions regarding the impact of childhood sexual abuse on a person’s resulting development and behaviour. It also includes opinions on the general behaviour and development of children and how this compares with the development of victims of sexual offences or similar acts.

Admissions

Section 81 states that evidence of admissions is exempted from the hearsay and opinion rule, and it can be used in court.

Conclusion

The opinion rule states that evidence of an opinion is not admissible as evidence of the fact to which the opinion relates except under certain circumstances. To determine how your unique case may be affected by opinions from prosecution witnesses, you should hire a criminal lawyer experienced in handling cases similar to yours.

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