JCV online test 2

The Judicial College of Victoria released the second part of their online self-test yesterday.

There are ten questions to test your knowledge of relevance, opinion evidence and the discretions. Like the last part, you'll probably need to refer to the Evidence Act 2008 to complete it.

Good luck!

Read more...

177. Certificates of expert evidence

177. Certificates of expert evidence

(1) Evidence of a person's opinion may be adduced by tendering a certificate (expert certificate) signed by the person that-

(a) states the person's name and address; and

(b) states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate; and

(c) sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge.

(2) Subsection (1) does not apply unless the party seeking to tender the expert certificate has served on each other party-

(a) a copy of the certificate; and

(b) a written notice stating that the party proposes to tender the certificate as evidence of the opinion.

(3) Service must be effected not later than-

(a) 21 days before the hearing; or

(b) if, on application by the party before or after service, the court substitutes a different period-the beginning of that period.

(4) Service for the purposes of subsection (2) may be proved by affidavit.

(5) A party on whom the documents referred to in subsection (2) are served may, by written notice served on the party proposing to tender the expert certificate, require the party to call the person who signed the certificate to give evidence.

(6) The expert certificate is not admissible as evidence if such a requirement is made.

(7) The court may make such order with respect to costs as it considers just against a party who has, without reasonable cause, required a party to call a person to give evidence under this section.

Read more...

111. Evidence about character of co-accused

111. Evidence about character of co-accused

(1) The hearsay rule and the tendency rule do not apply to evidence of a defendant's character if-

(a) the evidence is evidence of an opinion about the defendant adduced by another defendant; and

(b) the person whose opinion it is has specialised knowledge based on the person's training, study or experience; and

(c) the opinion is wholly or substantially based on that knowledge.

(2) If such evidence has been admitted, the hearsay rule, the opinion rule and the tendency rule do not apply to evidence adduced to prove that that evidence should not be accepted.

Read more...

92. Exceptions

92. Exceptions

(1) Section 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove-

(a) the death, or date of death, of a person; or

(b) the due execution of a testamentary document.

(2) In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction-

(a) in respect of which a review or appeal (however described) has been instituted but not finally determined; or

(b) that has been quashed or set aside; or

(c) in respect of which a pardon has been given.

(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.

Read more...

81. Hearsay and opinion rules - exception for admissions and related representations

81. Hearsay and opinion rules - exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation-

(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and

(b) to which it is reasonably necessary to refer in order to understand the admission.

Note

Specific exclusionary rules relating to admissions are as follows-

· evidence of admissions that is not first-hand (section 82)
· use of admissions against third parties (section 83)
· admissions influenced by violence and certain other conduct (section 84)
· unreliable admissions of accused persons (section 85)
· records of oral questioning of accused persons (section 86)

Example

D admits to W, his best friend, that he sexually assaulted V. In D's trial for the sexual assault, the prosecution may lead evidence from W-

(a) that D made the admission to W as proof of the truth of that admission; and

(b) that W formed the opinion that D was sane when he made the admission.

Admission is defined in Part 1 of the Dictionary.

Read more...

80. Ultimate issue and common knowledge rules abolished

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.

In R v Nguyen (Ruling No 1) [2010] VSC 438 evidence of the effect of amphetamine use was allowed, over an objection that such evidence was 'common-sense'.

While experts may be the source of such evidence, s 144 provides a wide ambit for a court to inform itself of matters of common knowledge provided it advises the parties of its intention to do so (see the commentary at s 144).

Read more...

79. Exception - opinions based on specialised knowledge

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.

In R v Nguyen (Ruling No 1) [2010] VSCA 438, Lasry J ruled that evidence about the effects of the use of amphetamine over a sustained period from Police Medial Officer, Dr Morris Odell, was relevant and admissible specialised knowledge. The submission that the opinion was general and did not relate specifically to the accused (who the witness had not examined) was rejected.

Read more...

78A Exception - Aboriginal and Torres Strait Islander traditional laws and customs

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.

Read more...

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.

Read more...

77. Exception - evidence relevant otherwise than as opinion evidence

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.

Read more...

76. The opinion rule

76. The opinion rule

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Notes

1. The Commonwealth Act and New South Wales Act include an additional subsection.

2. Specific exceptions to the opinion rule are as follows-

· 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). Other provisions of this Act, or of other laws, may operate as further exceptions.

Examples

1. 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.

2. 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.

Read more...