Rules of Evidence
Opinion
Section 76 provides that a mere opinion about a fact is not admissible as evidence to prove the fact. Where a statement is the opinion of a witness and not an observation of fact, and relied upon to establish a fact referred to in the statement, then the statement is deemed to be an opinion. Thus, in accordance with section 77, an opinion used as evidence of something other than the facts alleged in the opinion is nevertheless admissible.
Exceptions...
Regulatory certificates and documents
Sub-section 2 of section 76 allows an exception where an Act or regulations provide that a document or certificate made under them has evidentiary effect, such document or certificate is admissible in evidence in spite of it being in the way of opinion.
Lay opinions
A person may make an assessment of someone’s age, their sobriety or the speed they are driving at, for example. These assessments are based on what the witness themselves has seen, heard or otherwise perceived. This requirement means that mere speculation is not allowed. Such opinions are largely, if not entirely subjective, and are most certainly less accurate than an objective measure. Nevertheless courts allow this sort of evidence under section 78. A lay opinion will only be allowed if it is needed to acquire a complete picture of the witness’s understanding of the facts.
Aboriginal and Torres Strait Islander Traditional laws and Customs
A view expressed by a Aboriginal or Torres Strait Islander group about the existence or non-existence, or content of, any traditional laws or customs of their own group is exempt from the opinion rule.
Specialised Knowledge
Opinions based on specialised knowledge are exempt form the opinion rule subject to section 79. Where a witness has specialised knowledge and acquired that knowledge through training study or experience and the opinion given is based entirely or mostly on that knowledge, then the opinion qualifies for the exemption.
Specialised knowledge is defined very broadly, so it does not have to be that of a profession or a commonly recognised area of study. The definition in sub-section 1 should only serve to exclude subjective belief, and the opinions of people who have drawn conclusions with less than ideal learning, or who cannot establish that they are highly experienced or well read on the given topic. Examples of inexpert opinions that would be inadmissible include police and interpreters who identify the identity of a voice in a telephone intercept based on repeated comparisons with undisputed recordings.
In sub-section 2 it is specified, merely to avoid doubt, that such knowledge includes that of child development and behaviour, and the impact of child sexual abuse.
Abolition of Ultimate Issue and Common Knowledge rules
It was the rule that where a witness expresses an opinion about an issue to be decided on by the court, or where a witness gives an opinion about a matter of common knowledge, then such evidence is inadmissible. These common law rules have been abolished by the Uniform Evidence Law, section 80 so that such opinions can be considered by the court. This does not affect the inadmissibility of other kinds of opinions.
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Admissions
Section 81 provides that the hearsay rule and the opinion rule do not apply to evidence of an admission or confession, or a previous representation made by someone at the time of an admission. This means that such evidence is admissible, even if it amounts to a witness alleging that they heard the defendant make the admission.
A clear definition therefore is warranted. In the dictionary section of the Act it is defined as a comment ‘adverse to the person’s interest in the outcome of the proceeding’ and ‘made by a person who is or becomes a party to a proceeding.’ According to Beale,
The weight of authority favours the view that an “admission”, as defined by the Act, includes a statement which, on its face, may appear exculpatory but actually inculpates D (eg a false alibi)
Evidence of admissions must be first hand
Section 82 provides that evidence of an admission must have been acquired first hand from the person making the admission. It is unacceptable if the deponent can only say that they were told about it by another person who heard it from the defendant. Additionally section 83 states that admissions in which one party makes an admission to a second party accusing a third of involvement in a matter, are not admissible as against the third party. Such a confession remains admissible against the first party only. This may happen where there are joint defendants to a trial.
Exclusion of admissions obtained wrongfully
Under section 84 an admission obtained by violent, oppressive, inhuman or degrading (VOID) conduct, or the threat of such, is inadmissible. It is normally up to the plaintiff or prosecutor to prove that it was given out of the free will of the defendant and not by extracted by a VOID means. It should be unnecessary to prove this if the means by which the admission is obtained precludes wrongful means of extraction – such as a defendant of their own volition telephoning someone who poses no threat, and making the admission.
Reliability of admissions – criminal proceedings
Some admissions may be unreliable. In criminal proceedings an admission is ruled to be inadmissible subject to section 85 if certain factors bear upon its reliability. If a criminal defendant can prove that any out of a list of factors in sub-section 3 applies then their admission is inadmissible for unreliability. These factors include factors intrinsic to the person such as age, personality, education, mental, intellectual or physical disabilities. It also includes the manner of questioning and the nature of any threat, promise or inducement.
Exclusion of records of oral questioning – criminal proceedings
An admission may be recorded as sound or video, and such recordings may be transcribed, or a document may be acknowledged as a true representation by means of the defendant’s signature. Such evidence is admissible at court, as is oral testimony that an admission was made (as stated above). However section 86 prevents the use of mere notes, unsigned written statements or other such documents from being tendered as evidence of admissions in criminal proceedings.
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Beale, Christopher W, QC, Pocket Evidence Law, Foley’s List, Melbourne, 2014, p12, citing R v Leung & Wong [1999] 47 NSWLR 405; Li v The Queen [2003] 139 A Crim R 281.
Northern Territory Government, Department of Justice, Discussion Draft of the Uniform Evidence Act for the Northern Territory, Darwin, 2011, p 50.
Beale, op cit 3, p 13.
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