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Opinion Evidence Notes

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8 Opinion Evidence

8.1 General rule of inadmissibility s 23: A statement of an opinion is not admissible in a proceeding, except as provided
by s 24 or 25. The reason for this is to objectify the subjective. This is to allow the jury to form their
own opinions. S 4 - Interpretation: Opinion, in relation to a statement offered in evidence, means a statement of opinion
that tends to prove or disprove a fact. R v Munro - "it may in practice be difficult in some expert testimony to disentangle
facts from inferences and opinions" but it must be done to "enable the jury better to
evaluate competing theories." FACTS: in this case a constable has created computer­
generated diagrams that were presented as "fact when they were in most cases a
reconstruction of what happened based on the constable's opinion". If they were to go
to the jury then they should have been separated from the photos and the jury warned
of their nature.

8.2 Rationale Opinion may usurp the role of the fact finder, be based on inadmissible evidence and
be highly unreliable. Law Commission's 1991 Preliminary Paper: "such evidence can be classified as
unfairly prejudicial, misleading, confusing or time­wasting." APN NZ v Simunovich Fisheries - NZSC ­ "an opinion that a fact or circumstance is
true or exists is not generally capable of establishing that the fact or circumstance is
indeed true or does actually exist." Opinion allowed if directly relevant to a fact in issue: R v Gooch - The fact in issue was whether D had come on to Mrs B. She said that he
had "come onto" her making her feel "uncomfortable". Defence submitted that this
was opinion. Court held that it was not because the feelings of the witness were "part
of the context" and therefore "a matter of fact, not opinion." Mrs B's feelings were
found to be relevant, and of a probative value outweighing any illegitimate prejudice.

8.2 Exceptions

s 24 - GENERAL ADMISSIBILITY OF OPINIONS A witness may state an opinion in evidence in a proceeding if that opinion is
necessary to enable the witness to communicate, or the fact­finder to understand, what
the witness saw, heard, or otherwise perceived. Gives 2 criteria: 1) opinion must be based upon the personal experience of the witness; 2) expression of opinion is the only way it can be communicated.

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