Lay opinion

9.7 At common law, lay opinion evidence is inadmissible unless it fits within ‘an apparently anomalous miscellany’ of exceptions.[9] The main type of evidence admissible under the lay opinion exception to the opinion rule

consists of rolled-up statements by a witness which are in truth conclusions from mere primary facts too evanescent in character to be separately remembered or too numerous and complicated to be separately narrated. Examples include age, sobriety, speed, identity, weather and the condition of chattels or land.[10]

9.8 Section 78 of the uniform Evidence Acts was intended to reform the common law. It states:

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.

9.9 The ALRC gave consideration to including an express requirement that lay opinion be rationally based in order to fall under s 78, but considered that the words that now comprise s 78(b) provided sufficient protection.[11] Further, s 56(2) makes evidence inadmissible unless it could rationally affect the assessment of the probability of the existence of a fact in issue, as required by s 55. Hence, in R v Panetta,the New South Wales (NSW) Court of Criminal Appeal held that opinion evidence that lacked rational basis did not satisfy the test of relevance in s 55 of the uniform Evidence Acts and so was inadmissible.[12]

9.10 In IP 28 it was asked what concerns exist with regard to the admission of lay opinion evidence under s 78 of the uniform Evidence Acts, and whether any concerns should be addressed through amendment of the Acts.[13] It emerged, as stated in DP 69, that the main concern that exists regarding lay opinion evidence is identification evidence given by police officers. Discussion centres on the High Court decision in Smith v The Queen.[14]

Smith v The Queen

9.11 In Smith, two police officers gave similar evidence at trial that was admitted over the objection of the appellant. Both witnesses said that they had had previous dealings with the appellant and that they recognised the appellant as the person depicted in photographs of a bank robbery of which the appellant was accused. The forensic difficulty was that the photographs were of poor quality. They were individual frames extracted from a closed circuit television recording. The resolution of the images was poor, making ready identification of the person in the photographs impossible. The appellant was convicted; an appeal to the New South Wales Court of Criminal Appeal failed, but a further appeal met with success. The High Court ordered a new trial, holding that the police identification evidence was inadmissible.

9.12 The majority[15] held that the identification evidence was inadmissible because it was not relevant under s 55. The police witnesses were in no better position to make a comparison between the appellant and the person in the photographs—and hence to identify the person in the photographs—than the jurors.[16] Gleeson CJ, Gaudron, Gummow and Hayne JJ said that, because the witnesses’ assertions of identity were founded on material no different from the material available to the jury from its own observation, the testimony was not evidence that could rationally affect the jury’s determination of whether the accused was shown in the photographs. They said:

The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision maker permitting substitution of the view of another, for the decision-maker’s own conclusion.[17]

9.13 Kirby J held that the evidence was relevant but that it was not covered by the lay opinion exception because neither police officer was present at the ‘matter or event’ for the purposes of s 78, which Kirby J considered to be the robbery. Kirby J stated that ALRC 26

makes it clear that this provision of the Act was addressed, essentially, to the opinion of eye-witnesses. It exists to allow such witnesses to recount, as closely as possible, ‘their original perception [so as] to minimise inaccuracy and encourage honesty’.[18]

9.14 This interpretation has been criticised on the basis that the term ‘matter or event’ is not necessarily related to the offences or other events in question in the trial, but rather to what the person expressing the opinion ‘saw, heard or otherwise perceived’ regarding a fact. This can involve, for example, a photograph, the appearance of the accused and a comparison of the two.[19]

Submissions and consultations

9.15 The question asked by the Commissions in DP 69—whether Smith v The Queen overly constrains the admission of police identification evidence and, if so, how the situation should be remedied—elicited detailed responses.

Concerns about Smith v The Queen

9.16 The Commissions noted views in DP 69 that Smith v The Queen does overly constrain the admission of police identification evidence under s 78. Concerns of New South Wales Local Court magistrates were noted. Issues concerning the admission of identification evidence from police arise frequently and, as a result of the decision in Smith, magistrates said that they are not able to rely on police opinion evidence as to identification. It was said that magistrates are left to reach their own opinion on identification—in effect themselves identifying the person in police photographs and other evidence. This determination often occurs in a very short time frame, given the speed with which matters are dealt with in the Local Court.[20]

9.17 In submissions and consultations on DP 69, the view that Smith v The Queen provides too great a constraint on police identification evidence tendered under s 78 has been reiterated.[21] In particular, Victoria Police suggests that Smith v The Queen should not be permitted to constrain the admissibility of such evidence because ‘police are trained and regularly exercise their skills in observation of people, their characteristics and actions’. Kirby J’s view in Smith v The Queen is cited with approval.[22]

Support for Smith v The Queen

9.18 Contrasting views have been expressed in other submissions and consultations. The Australian Federal Police says Smith v The Queen does not overly constrain the admission of police evidence, even though it can limit it. It notes that Smith v The Queen can be distinguished on other facts.

For instance where police tender opinion evidence on identification of a defendant from video footage where direct observation of the defendant (eg his or her physical appearance including body language, posture, movements, and facial expressions) has occurred [in] day to day dealings with the defendant over a period of time, the police have an advantage in identifying the defendant.[23]

9.19 The Office of the Director of Public Prosecutions (NSW) (NSW DPP) puts a similar view. It says that Smith v The Queen poses no excessive constraint on police identification evidence being admitted under s 78 ‘because of the way in which the decision has been interpreted by the Courts’. The NSW DPP argues:

It appears that the Smith [majority] judgment is widely misunderstood as preventing the admission of ‘opinion’ evidence, even though the majority judgment makes it very clear that the finding that the evidence was irrelevant, very much turned on the facts of the case, in which the relevant images, the only evidence against the accused, were of poor quality.[24]

9.20 The Law Society of New South Wales and the New South Wales Public Defenders Office (NSW PDO) both say that Smith v The Queen does not constitute an excessive constraint. The NSW PDO reiterates its strong opposition to any ‘tampering’ with the decision.[25]

Amendment of the Acts in light of Smith v The Queen?

9.21 As noted above, the NSW DPP takes the view that Smith v The Queen poses no excessive constraint on the admissibility under s 78 of police identification evidence. However, it is suggested that erroneous interpretations of Smith v The Queen should be overcome by amendment of the uniform Evidence Acts to include a new Part 3.9 entitled ‘Crime Scene Identification Evidence’. This would apply to ‘evidence given about security photographs and video images of the type at issue in Smith’ and other cases ‘which depict persons at or near a crime scene or at a place connected with the crime’.[26]

The Commissions’ view

Smith does not pose an excessive barrier

9.22 The Commissions take the view that the majority’s approach in Smith creates a barrier to admissibility, but that the barrier is not excessive. The majority said that opinion evidence concerning identification can only be considered relevant where the witness is at some advantage in recognising the person in the photographs. What may constitute a sufficient advantage is not a matter elaborated on in the majority judgment, and is primarily a factual question to be determined in individual cases. On the majority view, a sufficient advantage was lacking in Smith v The Queen.

9.23 Another reason Smith v The Queen poses no excessive barrier is that the decision was made on peculiar facts, leaving room for the decision to be distinguished. As already seen, the reasoning of the majority in Smith v The Queen was that the opinions of the police officers were not based on anything in substance additional to that upon which the jury would base their view. It will often be the case (as noted by the Commissions in DP 69)[27] that a police officer will base his or her identification of a person in a photograph on material that is different in a substantial way from the material available to the tribunal of fact. In contexts outside police investigations, this may be even more likely. Family and social contexts are examples. There is no blanket prohibition on identification evidence being admissible under s 78, and such evidence is required to be relevant in order to be admissible.[28] Further, Smith v The Queen establishes no such prohibition. Whether lay opinion evidence of police officers or other persons is relevant must be determined on the particular facts of the case.

Amendment of the Acts in response to Smith is problematic

9.24 Accepting that Smith v The Queen poses no general difficulty in relation to s 78, no amendment is needed to overrule the decision or otherwise to qualify its effects. However, it may be added that overruling Smith v The Queen could be difficult given that it is a decision turning on its own facts, rather than on legal principles that require modification. Further, any amendment designed to overrule Smith v The Queen might mistakenly be interpreted as designed to change the underlying law. On the submissions received and consultations conducted, and the views expressed in the case law, the Commissions conclude that the lay opinion exception to the opinion rule is operating satisfactorily and requires no amendment.

[9] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [739].

[10] J Heydon, Expert Evidence and Economic Reasoning in Litigation under Part IV of the Trade Practices Act: Some Theoretical Issues (2003) unpublished manuscript, 3–4. Section 78 also makes admissible (subject to Part 3.11) lay opinion evidence as to the state of a road or the floor of a factory: S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.4180]; and as to the intelligence of a person with whom the witness has had dealings relative to the intelligence of inhabitants of a small town in which the person lives: R v Fernando [1999] NSWCCA 66, [154].

[11] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [740].

[12]R v Panetta (1997) 26 MVR 332, 336.

[13] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 6–1.

[14]Smith v The Queen (2001) 206 CLR 650.

[15] Gleeson CJ, Gaudron, Gummow and Hayne JJ.

[16]Smith v The Queen (2001) 206 CLR 650, [9].

[17] Ibid, [11]. No attention had been given to the question of relevance in the arguments advanced at trial, or on appeal to the New South Wales Court of Criminal Appeal: Smith v The Queen (2001) 206 CLR 650, [6]. The decision of the Court of Criminal Appeal is reported as R v Smith (1999) 47 NSWLR 419.

[18]Smith v The Queen (2001) 206 CLR 650, [60] citing Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [739]–[740].

[19] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.2.4180].

[20] New South Wales Local Court Magistrates, Consultation, Sydney, 5 April 2005.

[21] Supreme Court of Victoria judge, Consultation, Victoria, 17 August 2005; J Gans, Submission E 59, 18 August 2005.

[22] Victoria Police, Submission E 111, 30 September 2005.

[23] Australian Federal Police, Submission E 92, 20 September 2005.

[24] Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[25] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[26] Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[27] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [8.23].

[28] Uniform Evidence Acts s 56(1).