1. © A. Kuklik. LAW OF EVIDENCE LEC – 2016 Winter Week 7 Professor Elisabeth Peden Miiko Kumar Alex Kuklik

2. © A. Kuklik. Today Admissibility of evidence – opinion (KOP Chapter 8) –Lay opinion –Expert opinion

3. © A. Kuklik. Admissibility - opinion

4. © A. Kuklik. 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

5. © A. Kuklik.

6. 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. [Victorian Act has no subsection (2)]

7. © A. Kuklik. 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 (KOP[8.40])

8. © A. Kuklik. 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

9. © A. Kuklik. Admissibility - opinion 76 - The opinion rule The opinion rule exists because an opinion is more likely to be disputable and of limited assistance in deciding the facts of the case. But what is the difference between evidence of fact and evidence of opinion?

10. © A. Kuklik. Admissibility - opinion 76 - The opinion rule ALRC 26, Vol 1, [738]: It being proposed to maintain an exclusionary rule, the proposals must draw a distinction between evidence of fact and evidence of opinion. As has been pointed out, a major criticism of the law at present is the artificiality of this distinction. Attention has been drawn to the presence of a continuum between evidence in the form of fact and evidence in the form of opinion, the one at times passing imperceptibly into the other. The distinction, however, can serve a useful purpose and is, in the end, unavoidable. Evidence at the extreme of the continuum, which most would be prepared to classify as evidence of opinion, will generally be open to more dispute than material at the opposite end, which most would classify as evidence of fact. For accuracy of fact finding and to minimise confusion and time-wasting, therefore, it is necessary to exercise some control upon material at the opinion end of the continuum. In addition, the distinction must be drawn if rules are to be advanced to control the admission of expert opinion evidence. The approach which has been adopted is to continue to use the fact/opinion distinction for the purposes of drafting an exclusionary rule but to minimise the difficulties flowing from its usage. This is achieved in part by making the primary question for the court the question of whether the evidence, be it ‘fact’ or ‘opinion’, is based on the witness’ personal perception. If it is, lay opinion evidence (subject to other requirements) may be admissible. If it is not, the evidence of opinion will not be admissible unless it is expert testimony. This, generally, is in line with the approach of the law reform bodies in England, the United States, Scotland and South Australia.

11. © A. Kuklik. Admissibility - opinion 76 - The opinion rule An example of the difficulty in sometimes distinguishing is perhaps “physical identification evidence”. Is it evidence of fact or opinion?

12. © A. Kuklik. 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).

13. © A. Kuklik. 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?

14. © A. Kuklik. 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.

15. © A. Kuklik. 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.

16. © A. Kuklik. 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

17. © A. Kuklik. 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. The 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.

18. © A. Kuklik. Admissibility - opinion Lithgow City Council v Jackson [2011] HCA 36 (KOP[8.40]) Can an opinion as to the existence of a fact fall within the definition of an ‘asserted fact’ in s 69(2) (business document rule exception). The majority noted that there were decisions in the affirmative. It also said, ‘the construction of “asserted fact” to include an opinion in relation to a matter of fact, though convenient, is a little strained.’ [17] But: ‘it was not argued in this Court that the authorities which state that “asserted fact” includes an opinion in relation to a matter of fact are wrong. It is not necessary further to deal with this point, which the parties did not debate at any stage.’ And in ACCC v Air New Zealand Ltd (No 1) [2012] FCA 1355 (KOP [7.270]), Perram J said that although in Lithgow the High Court said that this was “a little strained”, this was not binding obiter dicta and therefore he did not follow this. Therefore opinion can = asserted fact.

19. © A. Kuklik. Admissibility - opinion Lithgow City Council v Jackson [2011] HCA 36 (KOP[8.40]) But even so, just because the medical records fall within the hearsay exception in s 69 does not mean that they escape the opinion rule. A statement of lay opinion in a business record, which is admissible under s 69, still must comply with the opinion rule (say, s 78). Perram in ACCC v Air New Zealand Ltd accepts this. Here the High Court held that the note did not comply with s 78(a) or (b). See below….

20. © A. Kuklik. Admissibility - opinion Lithgow City Council v Jackson [2011] HCA 36 (KOP[8.40]) Was the documen trelevant? No. The representation contained in the note was so ambiguous that it could not rationally affect the assessment of the probability the existence of a fact about 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? 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.

21. © A. Kuklik. Admissibility - opinion Lithgow City Council v Jackson [2011] HCA 36 (KOP[8.40]) 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.

22. © A. Kuklik. 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, it 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]

23. © A. Kuklik. 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 pre-condition to admissibility. Finally, the Court 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.

24. © A. Kuklik. 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, criminal defence, succession, family law and placement of children.

25. © A. Kuklik. 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.

26. © A. Kuklik. Admissibility - opinion 79 - Exception: opinions based on specialised knowledge In Dasreef, the plurality of the High Court say that there are two elements to s 79: 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. (Also in Honeysett) KOP suggests three elements to s 79: The person must have a “specialised knowledge”. That means that the subject matter of the opinion - the field of expertise - must be a “specialised knowledge”. That person giving the opinion is qualified in the “Specialised knowledge” based on the person’s training, study or experience. The opinion is wholly or substantially based on that specialised knowledge. (Essentially the same? Doesn’t Kop just split 1 into 2?)

27. © A. Kuklik. Admissibility - opinion 79 - Exception: opinions based on specialised knowledge Proving these elements is mandatory for admissibility of the opinion. Put another way: Does the proposed witness have knowledge that arises from his/her training, study or experience in a field of expertise? Is the opinion actually based wholly or substantially on the purported expert’s knowledge of that field of expertise?

28. © A. Kuklik. Admissibility - opinion 79 - Exception: opinions based on specialised knowledge There is no definition in the Act of “specialised knowledge” At common law, it is accepted that the opinion must derive from a “field of expertise”, but what this means has not been completely resolved. ‘Test of “general acceptance” in the relevant scientific discipline’ (USA Frye test). Test of reliability. Both. Test in Daubert

29. © A. Kuklik. Admissibility - opinion 79 - Exception: opinions based on specialised knowledge ‘Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge… The concept is captured in Blackmun J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc: "the word 'knowledge' connotes more than subjective belief or unsupported speculation. … [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds" Honeysett v The Queen [2014] HCA 29 (KOP [8.70]) [23] Section 177 allows expert evidence to be given by certificate.

30. © A. Kuklik. Admissibility - opinion 79 - Exception: opinions based on specialised knowledge But see also the recent discussion of this issue in: 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.’ This is discussed further below. Section 177 allows expert evidence to be given by certificate.

31. © A. Kuklik. 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.

32. © A. Kuklik. 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.

33. © A. Kuklik. 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.

34. © A. Kuklik. Admissibility - opinion HG v The Queen (1999) 160 ALR 554 (KOP[8.60]) 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]

35. © A. Kuklik. 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.

36. © A. Kuklik. Admissibility - opinion HG v The Queen (1999) 160 ALR 554 (KOP[8.60]) 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]

37. © A. Kuklik. 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 (Prof Henneberg) 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 as an anatomist. In the alternative, it said that he was an ‘ad hoc’ expert due to repeated viewings of the footage. (R v Tang [2006] NSWCCA 167)

38. © A. Kuklik. 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’. He could not discern any dissimilarities. His expertise was ‘biological anthropology and anatomy’. He gives evidence of comparison of body shape, head shape, handedness, e.t.c. His opinion was not based upon actual measurement (photos not good enough) but visual assessment. His observations were therefore the same as a lay observer save for his understanding of anatomy.

39. © A. Kuklik. Admissibility - opinion Honeysett v The Queen [2014] HCA 29 (KOP [8.70]) Previous cases had criticised “body mapping” as an area of expertise. (R v Tang, Morgan v The Queen – which had involved Drs Henneburg and Sutisono!) Criticism had been made as to the lack of research into the method of assessing this. Mindful of this, the Crown did not rely on part of the expert opinion which said there was ‘a high degree of anatomical similarity’. Confined his evidence to: Characteristics of defendant. Characteristics of taped person. Lack of any dissimilarities between the two. He said the offender had short hair because of hairline He said the offender was skinny because clothing was not bulky He said offender was a male because the photo showed no breasts He said the offender was right handed

40. © A. Kuklik. Admissibility - opinion Honeysett v The Queen [2014] HCA 29 (KOP [8.70]) On appeal the Crown did not argue that body mapping was an area of expertise, and stuck to ‘anatomy’ as the Prof Henneberg’s area of expertise. It said that he was only giving ‘an account of the characteristics of the body of the person depicted in each set of images.’ – Circumstancial evidence. The Court held that his opinion was not based on his knowledge of anatomy, but just on his observations of the tape, dressed up in scientific language. E.g. His knowledge as an anatomist that some people have round heads and some have long heads, was not the basis of the conclusion that the person in each video had a round head. That was based on his subjective impression of looking at the images. The jury could have ascertained these facts themselves (remember Smith v The Queen?)

41. © A. Kuklik. 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 a masters thesis on determining handedness, but it was in fact based upon observations of the defendant using his right hand to take money. The Court concluded that his opinion was not based on his specialised knowledge of anatomy, but merely his observations.

42. © A. Kuklik. Admissibility - opinion Honeysett v The Queen [2014] HCA 29 (KOP [8.70]) As to ‘Ad hoc’ expert argument: In Butera v DPP (1987) 164 CLR 180, the Court accepted that a person could be a ‘temporary expert’ by watching a tape over and over – thereby qualifying herself ad hoc. But that was a common law case, but also dealing the admissibility of tapes under s 48. In R v Tang [2006] NSWCCA 176, NSW CCA said that this was OK. The High Court just said that the issue did not arise here. This was because the respondent admitted that the expert did not look at the tape over a long period of time before forming his opinion, so the issue of ‘ad hoc’ expertise was abandoned. So the issue may still be open?

43. © A. Kuklik. 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.

44. © A. Kuklik. 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.

45. © A. Kuklik. 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.

46. © A. Kuklik. 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]

47. © A. Kuklik. 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]

48. © A. Kuklik. 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]

49. © A. Kuklik. 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]

50. © A. Kuklik. 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 (rather than the appropriate safety measures) 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]

51. © A. Kuklik. 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, he admitted that he had only seen the use of an angle grinder in this way once before, and gave no evidence that he had measured directly or inferentially the amount of dust to which an operator would be exposed. But the primary judge used it to prove such a calculation. The Court held that in the circumstances, there was no basis for the judge to conclude that the quantitative opinion of Dr Basten was based wholly or substantially on specialised knowledge, arising out of training, study or expertise.

52. © A. Kuklik. Admissibility - opinion Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (KOP[8.90]) Lack of connection goes to admissibility not weight. Inadmissible. But appeal dismissed because other undisputed evidence of silicosis.

53. © A. Kuklik. 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)

54. © A. Kuklik. 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]

55. © A. Kuklik. 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]

56. © A. Kuklik. 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) To avoid problems, you should do so if at all possible.

57. © A. Kuklik. Admissibility - opinion Cases after Dasreef : Basis rule Dasreef adopts Makita: Clear Wealth Pty Ltd v Kwong [2012] NSWSC 561 [5] (Rein J). Makita was approved by Dasreef: 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).

58. © A. Kuklik. 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).

59. © A. Kuklik. 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).

60. © A. Kuklik. 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 and relied on a particle size analysis from a laboratory. It was not allowed in. 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 proved factual basis to support opinion. Defendant relied on Heydon in Dasreef (i.e. argued that basis rule is adopted by UEL)

61. © A. Kuklik. 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 – s 135.

62. © A. Kuklik. 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.

63. © A. Kuklik. 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?

64. © A. Kuklik. 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.

65. © A. Kuklik. Admissibility - opinion Tuite v The Queen [2015] VSCA 148 The defendant argued that the novelty of the methodology and its lack of proven reliability meant, 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 sought leave to appeal.

66. © A. Kuklik. Admissibility - opinion Tuite v The Queen [2015] VSCA 148 The VCA set out that it had to answer the following questions: (a)is reliability of the expert evidence 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?

67. © A. Kuklik. 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.”

68. © A. Kuklik. Admissibility - opinion Tuite v The Queen [2015] VSCA 148 In answer to (a): “The language of s 79(1) leaves no room for reading in a test of evidentiary reliability as a condition of admissibility.” [70] What about s 137? This falls to be determined as part of the s135 / 137 assessment [10]: “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]. What would a NSW court say?

69. © A. Kuklik. Admissibility - opinion Tuite v The Queen [2015] VSCA 148 In answer to (b): “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.

70. © A. Kuklik. 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]

71. © A. Kuklik. 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. ” Therefore is there no ‘field of expertise’ test to establish what specialised knowledge is?

72. © A. Kuklik. Admissibility - opinion Tuite v The Queen [2015] VSCA 148 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). Also the judge was entitled to find that the probative value was not out weighed.

73. © A. Kuklik. 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.