Opinion on an ultimate issue

The ultimate issue rule

9.103 The ultimate issue rule at common law was abolished by s 80 of the uniform Evidence Acts. Section 80(a) provides that ‘[e]vidence of an opinion is not inadmissible only because it is about … a fact in issue or an ultimate issue’. At common law, an expert witness cannot be asked the central question or questions which the court has to decide—that is, the ‘ultimate issue’ in the case. The ALRC found that the traditional formulation of the ultimate issue rule could be criticised as uncertain, arbitrary in its implementation and conceptually problematic, and recommended that the rule be abolished.[122]

9.104 The ALRC’s criticism reflects widely held views. A decision of a Full Court of the Federal Court, decided before the uniform Evidence Acts were enacted, adopted the following analysis:

It is often said that an expert cannot give an opinion as to the ultimate fact that the court has to decide. This is inaccurate, as experts, especially valuers, often give evidence as to the ultimate fact, and in many cases the question whether that fact exists can be answered only by experts … What the rule really means is that an expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law. [123]

9.105 Further, Cross on Evidence suggests that there is no modern rule of evidence than an expert ‘may not give an opinion upon an ultimate fact in issue’.[124] The following statement by Giles J in R W Miller & Co Pty Ltd v Krupp (Aust) Pty Ltd[125] is said to be ‘substantially accurate’.[126]

It is almost impossible for a rule in those terms to be applied, there are many cases in which an expert has given such an opinion, and a rule in those terms has been doubted in the High Court: see Murphy v The Queen (1989) 167 CLR 94 at 110, 126–127. A lesser restriction has been recognised, that the expert may not give an opinion on an ultimate issue where that involves the application of a legal standard—for example, that the defendant was negligent, that a risk was reasonably foreseeable, that a testator possessed testamentary capacity, that a representation was likely to deceive or that a publication was obscene.[127]

9.106 The main justification for an ultimate issue rule is to prevent the expert becoming involved in the decision-making process. However, as pointed out in Cross on Evidence, ‘it is difficult to believe that a properly directed jury, or a fortiori a court comprising a judge sitting alone, would allow its functions to be usurped by an expert’s answer to the question it has to decide’.[128]

Two issues

Should the ultimate issue rule be revived?

9.107 Calls were noted in IP 28 for the ultimate issue rule to be revived,[129] while still permitting experts to give evidence, for example, about whether the defendant in a professional negligence claim acted ‘in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice’.[130]

9.108 In Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6), Lindgren J considered the operation of s 80 in relation to expert evidence on foreign law. He found that the provision left untouched the fundamental common law principles that exclude expert legal opinion evidence ‘as intruding upon the essential judicial function and duty’.[131] The intention of the section was said to be to address non-legal expert evidence, whether by a non-legal expert witness or a non-expert witness, which applies a legal standard to facts.[132] The section was said to be ‘[inapt] to refer to expert legal opinion which impinges upon the essential curial function of applying the law, whether domestic or foreign, to facts’.[133]

9.109 However, in Idoport Pty Ltd v National Australia Bank,[134] Einstein J distinguished the decision in Allstate and stated that, at least where the effect of foreign law is relevant to the administration of domestic law, the evidence of foreign law experts ‘is not capable of usurping the function of the court any more than is evidence of any other fact relevant to the determination of the rights and liabilities of the parties under domestic law’.[135]

9.110 The Commercial Bar Association of the Victorian Bar submits that there is some confusion as to the interpretation of s 80 of the Act as a result of the conflict between Allstate and decisions of the Supreme Court of the Australian Capital Territory.[136] It states that an ‘authoritative statement by a superior court will, no doubt, clarify the confusion’.[137]

Expert argument

9.111 A related issue concerns the position of expert argument under the uniform Evidence Acts. Although this does not necessarily raise concerns about the operation of s 80(a), it does when expert argument occurs in relation to the ultimate issue. For that reason, it is convenient to deal with the matter at this point.

9.112 The Federal Court Rules authorise the Federal Court to receive expert opinion ‘by way of submission in such manner and form as the Court may think fit, whether or not the opinion would be admissible as evidence’.[138] This provision is said to permit ‘expert argument’.[139]

9.113 In some proceedings expert argument may play a valuable role, in the same way as legal argument, in assisting the court to reach its own characterisation of the evidence for the purposes of applying statutory criteria—for example, economic evidence about market definition in competition cases.[140]

9.114 Suggestions were noted in IP 28 that expert argument should be recognised and encouraged, for example through a saving provision to the effect that the rules governing the admissibility of opinion evidence do not prevent the reception of expert opinion as a submission.[141]

Submissions and consultations

9.115 In IP 28 it was asked what concerns exist with regard to the admission of expert opinion evidence about an ultimate issue or expert opinion by way of submission or argument and whether these should be addressed through amendment of the uniform Evidence Acts.[142]

9.116 There was some support for reintroduction of the ultimate issue rule. The concern focused the possible influence such evidence may have on juries.[143] Some judges of the New South Wales District Court submitted that the abolition of the ultimate issue (and common knowledge) rules has led to a significant increase in the tendering of opinion evidence which, while apparently relevant, is ‘redundant’ and that the rules should be re-established.[144]

9.117 Others considered that the experience under the uniform Evidence Acts does not suggest any problems that could be remedied by reintroducing an ultimate issue rule.[145] There were comments that the ultimate issue rule is too technical and hard to apply; is not needed in trials before a judge alone; and restricts the expression of expert opinion unnecessarily. The Law Society of South Australia agreed that ‘it would not be advisable’ to reintroduce the ultimate issue rule.[146]

9.118 While submissions and consultations emphasised the need to distinguish clearly between submissions based on expert opinion and expert opinion evidence itself, there were no calls for amendment to the uniform Evidence Acts in relation to expert submissions or argument.

The Commissions’ view

9.119 The Commissions maintain the view expressed in DP 69: that the uniform Evidence Acts appear to be operating well without the ultimate issue rule, and accordingly do not require amendment in this regard.

9.120 In the previous Evidence inquiry, the ALRC spoke of the rule’s justification as follows:

The popular justification for the rule, that it [prevents] the expert or lay witness from usurping the function of the jury, is misconceived. There is no usurpation. The jury, in any event will be told that they must assess the evidence, lay and expert. It is upon the most important issues that expert assistance can be crucial and the courts need to be able to receive it. It is necessary to give both sides, be the proceedings criminal or civil, full opportunities to call witnesses to give relevant evidence.[147]

9.121 It was noted that such evidence would be controlled by the requirements for lay and expert opinion evidence and by the provisions now found in Part 3.11.

9.122 The Commissions continue to find the ALRC’s reasoning compelling. Consideration of the materials and of submissions and consultations on the current inquiry has not altered the Commissions’ intention not to recommend any change to s 80 of the uniform Evidence Acts as regards the ultimate issue rule.

[122] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [743].

[123]Arnotts Limited v Trade Practices Commission (1990) 24 FCR 313, 350 (Lockhart, Wilcox and Gummow JJ) quoting R Eggleston, Evidence, Proof and Probability (2nd ed, 1983), 147–148.

[124] J Heydon, Cross on Evidence (7th ed, 2004), [29125].

[125]RW Miller & Co Pty Ltd v Krupp (Aust) Pty Ltd (1991) 34 NSWLR 129.

[126] J Heydon, Cross on Evidence (7th ed, 2004), [29125].

[127]RW Miller & Co Pty Ltd v Krupp (Aust) Pty Ltd (1991) 34 NSWLR 129, 130–131.

[128] J Heydon, Cross on Evidence (7th ed, 2004), [29105].

[129] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [6.46].

[130] In terms of the Civil Liability Act 2002 (NSW) s 5O(1) introducing a modified Bolam rule: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

[131]Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79, 84. However, while the court is presumed to know the public laws of the State, foreign law is proved ‘as fact’: 83.

[132] Ibid, 84.

[133] Ibid, 83.

[134]Idoport Pty Ltd v National Australia Bank (2000) 50 NSWLR 640.

[135] Ibid, 656–657.

[136]John Edward Platts v The Nominal Defendant [1996] ACTSC 87; Walton v Corporate Venture Pty Ltd [1996] ACTSC 55: suggesting that s 80 has entirely displaced the common law relating to evidence on an ultimate issue.

[137] Commercial Bar Association of the Victorian Bar, Submission E 37, 8 March 2005.

[138]Federal Court Rules (Cth) O 10 r 1(2)(j).

[139] Justice R French, Submission E 3, 8 October 2004.

[140] Ibid; J Heydon, Expert Evidence and Economic Reasoning in Litigation under Part IV of the Trade Practices Act: Some Theoretical Issues (2003) unpublished manuscript, 70–72. See Velevski v The Queen (2002) 187 ALR 233, [181]–[182].

[141] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [6.51]; Justice R French, Submission E 3, 8 October 2004.

[142] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 6–7.

[143] P Greenwood, Submission E 47, 11 March 2005; Confidential, Submission E 31, 22 February 2005; Victorian Bar, Consultation, Melbourne, 16 March 2005.

[144] New South Wales District Court Judges, Submission E 26, 22 February 2005.

[145] B Donovan, Consultation, Sydney, 21 February 2005; S Finch, Consultation, Sydney, 3 March 2005; I Freckelton, Consultation, Melbourne, 17 March 2005; New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

[146] The Law Society of South Australia, Submission E 69, 15 September 2005, agreeing with 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), [8.131].

[147] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [743].