Evidence

Tutorial Notes

These notes are an abridged and extended version of David Field’s comments.

1 Michelle suffered several deep stab wounds to various parts of her body, any one of which could have been the fatal one.

    • This statement is relevant to how Michelle died;
    • This statement is also admissible, even though it is Dr Paxton’s opinion, because he is an expert in his area and his statement therefore satisfies the opinion rule;
    • This statement is likely to carry considerable weight with the jury because of Dr Paxton’s expertise and experience.

Extract from ‘Admissibility of Expert Opinion Evidence’ by Martin Sides Q.C.

      Definition of the word ‘opinion’: "an inference from observed and communicable data" or facts (Australian Law Reform Commission Report 26, para 156; Cross - para 15.3).


      It is generally accepted that a witness is only permitted to speak of what he or she directly
      observes through the use of the five senses. The drawing of inferences is the function of the tribunal of fact. It is not the business of witness' to draw inferences or express opinions, a witness' function is to state facts.


      The dividing line between "fact" and "opinion" is far from clear and the above rules are
      not necessarily easy in their application. For the purposes of this paper, it is unnecessary
      to explore those murky waters because there is a well established exception that permits an "expert witness" to give opinion evidence. Before such an opinion is admissible, three
      things need to be established:


      (i) the field of expertise;
      (ii) the witness is a qualified expert; and
      (iii) the matter to which the material relates is not within ordinary human
      experience - "common knowledge".




2 Several of the wounds, because of their location, could not have been inflicted by Michelle on herself, and the number and ferocity of the wounds greatly reduce the possibility of...