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The Evidence Act 2008 (Vic) was created to reform the law on evidence in the criminal and civil trials of Victorian courts as proposed by the Law Reforms Commission of Australia.1
As much as the common law was intended to create reforms in the act of Evidence there are still loopholes that the Act of Evidence still excludes too much evidence during the court trials resulting to unfair decisions.2
In this research paper, the study unveils the instances in which the Evidence Act 2008 does not support justices during court trials.
The General Rule
Inferences are inadmissible in courts because a witness can only speak facts that he or she perceived individually but not giving inferences drawn from the intended facts.
Concerning the Evidence Act 2008, section (1) the evidence presented by the witness can be considered as valid by the court in the discussed exceptions to ensure that truth is availed during court proceedings for justice to be realised when making verdicts.3
The first exception is that a qualified expert can give opinions concerning the given situation where the knowledge of an expert is required. Another option is that the non-expert can also be a witness in court to speak the facts if the matter calls for no expertise.4
The general rule in the Evidence Act 2008 exists therefore due to two major reasons. The first reason brought forward is that any fact presented before the court by a non-expert is seen as relevant but his or her opinions are irrelevant since the person does not have any expertise that is called for by the matter.
Secondly, the general rule is in place to hinder the witness from making the verdict. On the contrary, this does not yield in most cases because the tribunal of facts may be tempted to accept the opinions of the witness instead of drawing their own opinions as judges.5
In balancing such exercise as stated in section (137) the judges might reach at a conclusion that any person can differ.
The first exception where the experts give their own opinions draw a distinction between the expert who gives opinions and the witness who presents facts perceived personally.
The facts in this case provide information that is necessary for the conclusion to be made without favour or discrimination. The opinion of experts should only be used if the evidence provided is valuable as well as reliable.
This exception is therefore in practice to help the tribunal reach conclusions especially in cases where it lacks the knowledge of expertise in that particular field. The expertise opinion is therefore in this case essential since the tribunal will always require such opinions to draw the inferences.6
This kind of rationale is therefore faulty because if the jury lacks the necessary expertise to handle the matter it will not evaluate the viability of the information presented to the court by the expert as either being true or false.
This rationale is therefore unjustifiable and not clear on the qualities of the expert who should be allowed to be a witness during court proceedings. The jury may therefore agree to the opinions given by the expert hence the unjust ruling of the case especially if the expert has been hired by the accused.
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Such uncertainty in the court distorts the meaning of “prejudice” by damaging the case of the accused in unacceptable way through giving the provoked evidence more weight than expected.7
The role of experts in court matters is governed under the Criminal Act 2005 in the criminal litigation and CPR rule 35 in the civil litigation. This is also allowed under the conduct of the experts as a way of helping them and their instructors respond to instances where the CPR applies.8
The non-expert exception also comes as a matter of recognising the vital assumption upon which the rule operates as a way of trying to have a clear distinction between facts and opinions as presented in court, which in most cases turn out to be false.
This is because witnesses will always tend to present their facts by making their own opinions appear as true.9 The issue of differentiating the inferences of the witness from the intended facts is difficult and to some extent, it is virtually impossible.
For instance, in the criminal proceedings a witness can say that the accused is guilt by stating that he or she saw the woman driving the car in question, which in this case is the evidence of opinion.
The witness should provide information about the person who was driving to act as the evidence. In such circumstances, the rationale behind is not clear since the opinions expressed by the witness are treated as facts.10
Expert Opinion Evidence
The court only considers the evidence in matters that requires expertise. The matters that call for expertise are therefore of various fields, which are many and keeps on increasing.
The areas covered include accident investigations, breathe tests, blood tests, voice identification,11 DNA or finger print identification, facial mapping, and customary terms of contracts and verification of enterprises among others.12
The expert opinion is acceptable in matters related to art or literature, for instance in defending the work of literature that could be seen as obscene but again perceived to be good to the public in reference to section four of the Obscene Publication Act.
This act gives provision for such kind of literature or art as long as they are of value to the public.13
In reference to the foreign law, the expert has the freedom to present his or her own opinions to the judges. The experts present the evidence from books and statutes. However, if the jury doubts the information provided, the judge can conduct investigation to solve the conflicting testimony.
This rule is unjustifiable because if the sources presented by the expert are not true the judge may end up ruling the case unjustly. The Evidence Act 2008 creates a loophole of injustice in court ruling since it does not give the judges the freedom to carry out their own investigation about the information presented before the court by the expert.14
In cases of ultimate issues, the court has always tried to prevent witnesses from expressing their own opinions as evidence in ultimate issues because the court has the mandate to draw conclusions on such cases. The witnesses are therefore required to give their testimonies and not decisions.
Such kind of restrictions makes the tribunal court of facts function as an expert witness rather than a jury.15 Such unfair verdicts reveal an illegitimate form of reasoning by not accepting the necessary evidence, which can be traced in section (137) of the Act.
This rule is unjustifiable because the court overlooks the professional evidence during trials and solves the conflicting testimonies, which calls for the expertise that the tribunal court of facts lack hence drawing conclusions based on false assumptions.
Another issue is that the practice of the general rule creates semantic effects since it allows the expert to present the opinions using his or her own method, which is not applied in the court when handling the matter.16
Non-Expert Opinion Evidence
In this exception, non-expert witnesses can sometimes present evidence in court that the tribunal court of facts may fail to distinguish the witness’s opinions from the intended facts.
The non-expert witness is allowed by the Evidence Act 2008 to present his opinions as a collection of facts as perceived by the tribunal of facts.17
The acceptance of such evidence creates a faulty rationale in relation to the general rule where the tribunal court of facts has the role of drawing opinions.18
In some circumstances, the non-expert witnesses give their own opinions where the knowledge of an expert is required by simply describing the facts concerning the suspect.
For instance, a witness can provide information to justify that the suspect was insane instead of calling for an expert to justify whether the suspect is insane or not. Such instances could also include cases of driving while drunk, identifying a person’s health, voice as well as age.19
This rule is unjustifiable and unclear since there are loopholes of allowing the witness play the role of the judge, which leads to injustice ruling since the he/she will always exclude evidence to prove that his/her statements are true. This is therefore not acceptable in relation to section (55) of the Act.
At common law, the court is not allowed to listen to any opinion of the non-expert witness since it is only the jury with the mandate to decide upon the facts presented as evidence.
In the civil proceedings, the rule tries to survive as per the Evidence Act 2008 since the witness is not allowed to give his own opinions as whether the suspect was insane or not.20
However, the rule does not apply successfully since it can be avoided by use of convincing words as presented carefully by the non-expert hence failure to be questioned by the judges.
The distinction between the errors in the civil and the criminal courts involves differences in criminal as well as civil litigants. In the criminal courts, the plaintiff must be found guilty without any doubt as opposed to the civil court where the judge has the right to determine the truth.21
Errors are therefore not considered in determining the substantial rights of the affected party if the evidence presented was accepted in error. The judge should in this case not admit evidences that are improperly presented or not easily practiced.
Through the research conducted, it has been concluded that the Evidence Act 2008 excludes evidence based on rationales that are either unclear or unjustifiable. For instance, in the case of non-expert witness the evidence provided could be true.
However, the judge has the mandate to draw conclusions or call experts to give their opinions, which might not be true and ends up excluding such evidence. The judges might therefore make decisions based on false opinions hence compromising the truth in courts, which leads to injustices in ruling the cases.
Freckleton, Innocent. & Selby, Henry. Expert Evidence: Law, Practice, Procedure and Advocacy (4th Edition) (2009) Law book Co: Sydney, p.52.
Genn, Hans, Paths to Justice: What People Do and Think about Going to Law (2009) USA: Hart Publishing
Ligertwood, Ann, Australian Evidence (4th Ed), (2004) LexisNexis Butterworth
Redmayne, Francis, Expert Evidence and Criminal Justice. (Oxford 2001)
Reinarman, Richard, ‘Rejecting General Acceptance, Confounding the Gate-keeper: the Law Commission and Expert Evidence’ (2009) Crim LR 551
Waldorf, Roberts, ‘Drawing on Expertise: Legal Decision-making and the Reception of Expert Evidence’ (2008) Crim LR 443.
Zuckerman, Andrew, Criminal Evidence (Oxford, 2004) at 294–5.
1 Genn, Hans. Paths to Justice: what people do and think about going to law  USA: Hart Publishing
2 Freckleton, Innocent. & Selby, Henry. Expert Evidence: Law, Practice, Procedure and Advocacy (4th Edition)  Law book Co: Sydney, p.52.
3 Ligertwood, Ann, Australian Evidence (4th Ed), (2004) LexisNexis Butterworth
5 Genn, Hans. Paths to Justice: what people do and think about going to law  USA: Hart Publishing
7 Freckleton, Innocent. & Selby, Henry. Expert Evidence: Law, Practice, Procedure and Advocacy (4th Edition)  Law book Co: Sydney, p.52.
9Ligertwood, Ann, Australian Evidence (4th Ed), (2004) LexisNexis Butterworth
11 Redmayne, Francis, Expert Evidence and Criminal Justice. (Oxford 2001)
12 Redmayne, Francis, Expert Evidence and Criminal Justice. (Oxford 2001)
14 Waldorf, Roberts, ‘Drawing on Expertise: Legal Decision-making and the Reception of Expert Evidence’ (2008) Crim LR 443.
16 Genn, Hans. Paths to Justice: what people do and think about going to law  USA: Hart Publishing
17 Waldorf, Roberts, ‘Drawing on Expertise: Legal Decision-making and the Reception of Expert Evidence’ (2008) Crim LR 443.
18 Freckleton, Innocent. & Selby, Henry. Expert Evidence: Law, Practice, Procedure and Advocacy (4th Edition)  Law book Co: Sydney, p.52.
19 Zuckerman, Andrew, Criminal Evidence (Oxford, 2004) at 294–5.
21 Reinarman, R. ‘Rejecting General Acceptance, Confounding the Gate-keeper: the Law Commission and Expert Evidence’ (2009) Crim LR 551