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A quiz about opinion evidence

Facts:

Dagmar Dundee is charged with conspiracy to commit an armed robbery of a local bank. Many conversations between Dundee and his alleged co-conspirators are legally intercepted and recorded. Some of these conversations are spoken in ‘Pig Latin’ so as to avoid being understood by the Police. In order to assist the jury understand the conversations, the prosecution calls a police officer, Officer Murray, to give evidence about the meaning of the telephone conversations.

Officer Murray has no formal training in understanding Pig Latin but acquired an understanding of Pig Latin since joining the robbery squad 4 years ago. Over the last 4 years he has monitored conversations recorded as part of 40 telephone intercept warrants in which Pig Latin was used.

Officer Murray is to give evidence that he is familiar with the structure of Pig Latin and, in particular, the fact that users of Pig Latin commonly remove the first letter of a word and place it at the end as well as adding ‘ay’ or ‘ecans’ after it (so ‘pump’ becomes ‘um-pay’ or ‘um-pecans’), and sometimes place ‘sn’ at the start of a word (so ‘pump’ becomes ‘snum-pay’ or ‘snum-pecans’).

One particular sentence that is intercepted is : ‘I m-aay oing-gay o-tay ob-recan a snank-bay’. Officer Murray says that this translates to ‘I’m going to rob a bank’. Assume that other evidence establishes the existence of the conspiracy and the main issue in the case is the whether the prosecution can prove that the conspiracy is to rob a bank, or to commit some other unspecified offence.

1. What is the first step to determining whether Officer Murray’s evidence is admissible?

Correct

The primary rule of admissibility is found in s 56, which provides that except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding, and evidence that is not relevant in a proceeding is not admissible in the proceeding.

Incorrect

Although all of the exclusionary rules in the Act should be considered, the first admissibility question is whether or not the evidence is relevant in the proceeding. The primary rule of admissibility in s 56 is that except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding, and evidence that is not relevant is a proceeding is not admissible in the proceeding.

Incorrect

Although Part 3.11 of the Act should be considered at the end of any admissibility analysis, the first admissibility question is whether or not the evidence is relevant in the proceeding. The primary rule of admissibility in s 56 is that except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding, and evidence that is not relevant is a proceeding is not admissible in the proceeding.

Incorrect

Although all of the exclusionary rules in the Act should be considered, the first admissibility question is whether or not the evidence is relevant in the proceeding. The primary rule of admissibility in s 56 is that except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding, and evidence that is not relevant is a proceeding is not admissible in the proceeding.

2. Is Officer Murray’s evidence relevant? A)

Correct

Evidence is relevant if it could rationally affect the assessment of the probability of the existence of an ultimate fact in issue. Officer Murray’s evidence, if accepted, could allow the jury to find that Dundee said he was going to rob a bank and that statement could rationally make it more probable that Dundee conspired to rob a bank.

Incorrect

Just because the evidence is what Officer Murray thought does not mean it is irrelevant. All that is required is that the evidence, if accepted, could rationally make the existence of a fact in issue in the proceeding more likely. If accepted, the translated statement could rationally make more probable the fact that Dundee conspired to rob a bank, and is therefore relevant under ss 55-56.

Incorrect

Just because the jury might reject the evidence does not mean it is irrelevant. All that is required is that the evidence, if accepted, could rationally make the existence of a fact in issue in the proceeding more likely. If accepted, the translated statement could rationally make more probable the fact that Dundee conspired to rob a bank, and is therefore relevant under ss 55-56.

Incorrect

Evidence is only relevant if it could rationally affect the assessment of an ‘ultimate fact in issue’ in proceeding: ALRC 26, vol 1, para 641, n 3. Here, the ultimate fact in issue in the proceeding is that Dundee conspired to rob a bank. Therefore, the answer is incomplete and to establish relevance under s 56, the evidence that Dundee said he was going to rob a bank must be capable of rationally making it more probable that Dundee conspired to rob a bank, which is the ultimate fact in issue in the proceeding.

3. What section provides the exclusionary rule that should be considered next?

Correct

Officer Murray’s evidence is evidence of his opinion of the meaning of the phrase  ‘I m-aay oing-gay o-tay ob-recan a snank-bay’. Therefore, unless an exception to the opinion rule applies, s 76 will render his evidence inadmissible, as it is evidence of an opinion that a party seeks to use to prove the existence of a fact, namely, the meaning of the words spoken in the intercepted conversation.

Incorrect

Because Officer Murray is giving evidence, the evidence is not a previous representation and is therefore not hearsay under s 59. The opinion rule as contained in s 76 is the relevant exclusionary rule that should be considered next. Although there is room for the argument to be made that Officer Murray is giving evidence of fact, an ordinary reading of the facts suggests that he is giving evidence of his opinion about what the meaning of the phrase ‘I m-aay oing-gay o-tay ob-recan a snank-bay’ is. Therefore, unless an exception to the opinion rule applies, s 76 will render his evidence inadmissible, because the evidence is evidence of an opinion about the meaning of the words spoken in the intercepted phone conversation sought to be admitted to prove the existence of the fact that the words as spoken in that phone conversation have a particular meaning.

Incorrect

Although s 79 will have to be considered, it is not an exclusionary rule, but an exception to one. The relevant exclusionary rule is the opinion rule in s 76. Officer Murray’s evidence is evidence of his opinion of the meaning of the phrase  ‘I m-aay oing-gay o-tay ob-recan a snank-bay’. Therefore, unless an exception to the opinion rule applies, s 76 will render his evidence inadmissible, as it is evidence of an opinion that a party seeks to use to prove the existence of a fact, namely, the meaning of the words spoken in the intercepted conversation.

Incorrect

While Dundees’ statement ‘I m-aay oing-gay o-tay ob-recan a snank-bay’ may be an admission, Officer Murray is not giving evidence of the accused’s previous representation. The relevant exclusionary rule is the opinion rule in s 76. Officer Murray’s evidence is evidence of his opinion of the meaning of the phrase  ‘I m-aay oing-gay o-tay ob-recan a snank-bay’. Therefore, unless an exception to the opinion rule applies, s 76 will render his evidence inadmissible, as it is evidence of an opinion that a party seeks to use to prove the existence of a fact, namely, the meaning of the words spoken in the intercepted conversation.

4. What section provides an exception to the opinion rule that might apply?

Correct

The relevant exception is for opinions based on specialised knowledge.

Incorrect

Section 77 provides an exception to the opinion rule where an opinion has dual relevance. Here, Officer Murray’s opinion is only relevant to prove that the words as spoken in the phone conversation have a particular meaning.

Incorrect

Section 78 contains two requirements:

(a) that the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the person’s opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

While s78(a) is satisfied because Officer Murray’s opinion is based on what he heard, s78(b) is not satisfied. The matter or event is what Dundee said on the tape and Murray’s opinion of what Dundee meant is not necessary to explain that. Instead, Murray can give an adequate account of his perceptions of the event by saying ‘I listened to the tape and heard Dobbs say “I m-aay oing-gay o-tay ob-recan a snank-bay”’.

While a person could argue that the translation is necessary to properly capture the witness’ perception of the statement he heard, so far courts have held that translations are governed by s79, rather than s78.

Incorrect

Section 80 does not contain an exception to the opinion rule.

5. There are a number of ways to approach the requirements of s 79. One way is to look at s 79 as having 3 components that must be satisfied in order for it to apply. What are those requirements?

Correct

Incorrect

The Act does not refer to a ‘field of expertise’ – Officer Murray need only have ‘specialised knowledge’.

Incorrect

Officer Murray does not have to have ‘training, study and experience’. For s 79 to apply, he only needs to have training, study or experience.

Incorrect

Officer Murray’s opinion need not be wholly based on his specialised knowledge. It is sufficient if it is substantially based on his specialised knowledge.

6. Does Officer Murray have specialised knowledge based on his training, study, or experience?

Correct

The terms of s 79 are wide enough that ‘ad hoc experts’ that have not had any formal training or study can give evidence under s 79 if they have acquired specialised knowledge based on their experience.

Incorrect

Formal training or study is not required under s 79.

Incorrect

Merely because a ‘better’ expert exists does not mean an expert cannot give evidence under s 79.

Incorrect

Although Officer Murray may have specialised knowledge in Pig Latin, it is not because he has studied it, but rather because he has experience monitoring conversations spoken in Pig Latin.

7. Is Officer Murray’s opinion based wholly or substantially on his specialised knowledge?

Correct

Officer Murray has specialised knowledge about Pig Latin on which his opinion is substantially (if not wholly) based.

Incorrect

Although it might be said that there is an element of intuition in translating Pig Latin, it cannot be said that Officer Murray’s opinion is based on his intuition. Rather, his ability to translate arises out of his specialised knowledge of Pig Latin. That is, his opinion is based at least substantially on his specialised knowledge of Pig Latin.

Incorrect

Although Officer Murray would use rules of translation in forming his opinion, that does not mean that his opinion is not based wholly or substantially on his specialised knowledge.

Incorrect

Officer Murray is not an expert at translating, although he may have specialised knowledge about translating Pig Latin.

8. The prosecution submit that s 80 abolishes the common knowledge rule and therefore it does not matter how commonly known Pig Latin is. What is the correct response?

Correct

Incorrect

Although s 80 abolishes the common knowledge rule, it does not mean the prosecution’s submission is correct.

Incorrect

Although s 80 also abolishes the ultimate issue rule, the prosecution’s submission is directed to s 80(b) not s 80(a).

Incorrect

Section 80 provides that evidence of an opinion is not inadmissible only because it is a matter of common knowledge. However, if Pig Latin is sufficiently common, then the prosecution may not be able to put forward Officer Murray as a person able to give an opinion based on specialised knowledge.

9. What is the next section that you should consider?

Correct

The evidence is adduced by the prosecutor in a criminal proceeding. Thus, the evidence must be excluded if the probative value of Officer Murray’s evidence is outweighed by the danger of unfair prejudice to Dundee.

Incorrect

Although s 135 could apply on the facts, s 137 is a better answer. This is because a heavy onus lies on the party seeking exclusion under s 135 to show that the dangers listed substantially outweigh the probative value of the evidence. Under s 137, a lesser onus exists, as the evidence must be excluded if the risk of unfair prejudice outweighs the probative value of the evidence. Thus, where the evidence sought to be excluded has been adduced by the prosecution in a criminal proceeding, it will rarely be the case that the discretion in s 135 will be utilised, as the terms of s 137 are easier to satisfy.

Incorrect

Officer Murray’s evidence is only relevant for one purpose. There is no second purpose, and therefore no way to limit the use to be made of the evidence.

Incorrect

The facts state that the conversations were legally intercepted and recorded, and so Officer Murray’s evidence was not obtained in consequence of an impropriety or of a contravention of an Australian law.

10. On the facts given, would the evidence be excluded under s 137?

Correct

The evidence has considerable probative value as, if accepted, it suggests unambiguously that Dundee said to a co-conspirator ‘I am going to rob a bank’. In assessing the probative value of the evidence, the court must assume that the evidence is accepted as both credible or reliable, unless the evidence is so lacking in credibility or reliability that a rational jury could not accept it: IMM v The Queen (2016) 257 CLR 300. Unfair prejudice involves the danger that the fact finder may misuse the evidence in some way - such as by engaging in illogical reasoning, or where the evidence provokes a desire to punish or where, after hearing the evidence, the fact finder may be willing to convict even if not satisfied of guilt beyond reasonable doubt: ALRC 26, vol 1, para 644. There is no obvious reason why Officer Murray’s evidence would be used in an improper manner. Further, the evidence is not so lacking in credibility or reliability that it a rational jury could not accept it. Therefore, it is likely that the probative value will outweigh the danger (if any) of unfair prejudice.

Incorrect

Although Officer Murray’s evidence may be undeniably probative, that is not enough of itself to conclude that the evidence would not be excluded under s 137. What is required is that the probative value of Officer Murray’s evidence outweigh the danger of unfair prejudice to Dundee.

Incorrect

Unfair prejudice means the danger that the fact finder may use the evidence to engage in impermissible or illogical reasoning. Therefore, the mere fact that the evidence is given by a police officer will not be enough to constitute ‘unfair prejudice’.

Incorrect

It is very hard to conclude that the probative value of the evidence is outweighed by the danger of unfair prejudice. In assessing the probative value of the evidence, the court must assume that the evidence is accepted as both credible or reliable, unless the evidence is so lacking in credibility or reliability that a rational jury could not accept it: IMM v The Queen (2016) 257 CLR 300. Here, the evidence has considerable probative value as, if accepted, it suggests unambiguously that Dundee said to a co-conspirator ‘I am going to rob a bank’ and there is no reason to think that a rational jury could not accept Officer Murray’s evidence. Unfair prejudice means the danger that the fact finder may use the evidence to engage in impermissible or illogical reasoning. There is no obvious reason why the evidence would be used on an improper basis. Therefore, it is likely that the probative value will outweigh the danger (if any) of unfair prejudice.