78. Exception - lay opinions

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.

'Necessary' in the context of (b) does not refer to absolute necessity: Jackson v Lithgow City Council [2010] NSWCA 136. Allsop P noted what had been written in Odgers Uniform Evidence Law (2008, 8th Ed, Lawbook Co, p 302) prior to the matter going to the High Court, but found that no distinction need be drawn between an opinion only being a 'compendious description' of what was perceived and an opinion which 'actually draws an inference' from what was perceived.

Basten JA (agreeing with Allsop P and Grove J) said [at 71],

71 When used in the Evidence Act, the term “necessary” connotes a higher hurdle to surmount than that which is ‘helpful’, ‘convenient’ or ‘desirable’, but does not require absolute necessity, in the sense of being the sole means of proof. Whether the exception is satisfied in a particular case may need to take account of the purpose or purposes underlying the general exclusion and the purpose of the exception.