It has since been held, following the views of Kirby J, Has normally been classified as opinion rather than factual evidence. In the processes of identification and recognition make it unsurprising that evidence such as that given by the police officers Kirby J, who dissented on the issue of relevance in Smith v The Queen, above, accepted (at ) the statement made by Sheller JA, but said (at –) that the dangers of mistakes inherent See, for example, R v Robinson QCA 99 at . Police officers that would not be apparent to the jury. That such recognition may be relevant where there was some distinctive feature concerning the person depicted known to the However, the majority of the court did (at, , –) leave open the possibility Who were not witnesses to the crime, could not rationally affect the jury’s assessment of the issue, and was therefore irrelevant,Īs they were in no better position than the jury to determine the issue: Smith v The Queen (2001) 206 CLR 650 at –. R v Smith was reversed in the High Court on the ground that the evidence of recognition from a photograph, given by two police officers The line to be drawn between opinion evidence and evidence of fact. Recognition (see s 79), made the same point (at ), with the concurrence of the other two members of the court, when discussing In R v Leung (1999) 47 NSWLR 405, Simpson J, in the course of dealing with the admissibility of the evidence of an ad hoc expert on voice On sight involves no more inference than seeing that person and recognising him in the street. Identification of a person from a photograph by another person who knows the first person well enough to recognise that person Recognition evidence: In R v Smith, above, Sheller JA said (at ), with the concurrence of the other two judges of the Court of Criminal Appeal, that an Not fall within s 76: Seltsam Pty Ltd v McNeill, above, at . State of mind, or the state in which a person’s mind would be in some contingency which has not happened, and thus it does It has been held that the state of a person’s mind is a fact and remains a fact whether what is under discussion is an actual The High Court has, however, referred to the definition of an opinion as “an inferenceįrom observed and communicable data” as sufficient for its purpose in Lithgow City Council v Jackson (2011) 244 CLR 352 at . The many difficulties in the application of such a test are discussed, but not resolved, The definition has now been accepted by the NSW Court of Appeal as applicable to the Evidence Act, in Seltsam Pty Ltd v McNeill NSWCA 158 at –. Information which identifies any relevant offence or any suspect” was a statement of negative fact and not an inference from This decision has been accepted as correct by the Full Federal Court, in Bank of Valletta PLC v National Crime Authority (1999) 165 ALR 60 at , when upholding (at ) a ruling that a statement that the NCA had not obtained “any further In the context of the general law of evidence, “opinion” has been definedĪs “an inference from observed and communicable data” the text writers accepting that definition are identified by Lindgren J,Īnd the definition is applied to the Evidence Act, in Allstate Life Insurance Co v ANZ Banking Group Ltd (No 5) (1996) 136 ALR 627 at 629. The term “opinion” is not defined in the statute. The specific exceptions to the opinion rule are listed in the Note to the text of s 76, and include lay opinion (s 78), AboriginalĪnd Torres Strait Islander traditional laws and customs (s 78A), expert opinion (s 79) and admissions (s 81). It directs attention to the finding which the tendering party will ask the tribunal of fact to make: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at. The opinion rule is expressed as it is to direct attention to why the party tendering the evidence says it is relevant. The starting point in determining the admissibility of evidence of opinion is relevance: Evidence of an opinion is not admissible to prove the existence of a fact about the existence
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