9.1 Lay opinion
-    Opinion Evidence Is Excluded Unless Specifically Excepted

Definition
An opinion is any inference from observed facts or other communicable data: R v Perry (No 4) (1982); Allstate Life Ins Co v ANZ (1996)
The rule operates in relation to both hearsay evidence of an opinion as well as in court evidence in the form of an opinion.
The problem is there isn't a distinct line between fact and opinion, they exist on a continuum.

The opinion rule
s76

(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

• Note: Specific exceptions to the opinion rule are as follows:
* summaries of voluminous or complex documents (subsection 50(3));
* evidence relevant otherwise than as opinion evidence (section 77);
* lay opinion (section 78);
* expert opinion (section 79);
* admissions (section 81);
* exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));
* character of and expert opinion about accused persons (sections 110 and 111).
Other provisions of this Act, or of other laws, may operate as further exceptions.

Smith v The Queen (2001) (Difference between fact and opinion in relation to identification.)
Facts: Smith was accused of robbery  identification of Smith was made in court by 2 police officers who had worked on the case and dealt with Smith before, from stills taken from security videos. The police did not see the robbery.

Held: The majority said this evidence wasn't relevant  because the jury can look at the photo and decide for themselves.
•    Kirby J dissented and said it was relevant because the police officers were better placed to identify Smith - he then discussed opinion evidence.
•    For the purposes of s76, the distinction between evidence of a fact and an opinion is one of degree rather than kind - the Police’s evidence was opinion as it was identification evidence and therefore s76 applied and
the evidence was inadmissible.
•    S78(a) was not satisfied as the matter or event in question was the robbery and the police had not seen the robbery.
•    If the police officers had known Smith better than the jury then their evidence would be closer to fact than opinion.

Exception: evidence relevant otherwise than as opinion evidence
s77
The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.

•    This is similar to the provision allowing hearsay evidence for a non-hearsay purpose. Like s60, if evidence is admissible for a purpose other than opinion, the opinion rule doesn't apply which means it is admissible towards the fact which the opinion was about. But remember it only means the opinion rule doesn't apply, the Court could still use discretionary exclusions, warning or s136 to limit its use.

Exception: lay opinions
s78
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.
-    Kinds of Opinion Evidence:
•    Age of a person, drunkenness etc.
•    Identity
•    Speed, Weather, State of the road or floor
•    Emotional state: R v Harvey (1996)“a look like sexual gratification –that’s the best way that I can express it.”

9.2 Expert opinion

Exception: opinions based on specialised knowledge
s79
If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on the knowledge.  

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