Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

Since then, many authors and luminaries have turned their minds to the complex issues the Act obliges Victorian lawyers to engage with. A blog devoted exclusively to this one piece of legislation isn't necessary, and is impossible for us to give the attention it deserves.

If you're looking for a more conventional blog posting on topical legal issues, have a look at Quis Custodiet Ipsos Custodes? by the same authors.

This site is no substitute for legal advice from an Australian lawyer. If you have a legal problem, it's great that you are doing a bit of research, but go consult a professional.


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.


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