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ARTICLE · 22 SEPTEMBER 2021

Opinion evidence in New South Wales

Lamont Law
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Evidence of an opinion is not admissible to prove the existence of a fact about which the opinion was expressed.

AustraliaLitigation, Mediation & Arbitration

Evidence of an opinion is generally inadmissible to prove the existence of a fact about the existence of which the opinion was expressed (s 76(1) Evidence Act 1995 (NSW)). The irrelevance of the evidence to the fact in issue and adducing of evidence for some other purpose does not ignite the exclusionary rules. If, however, the evidence is found to be relevant to the fact in issue and another purpose, it will attract protection under an exclusionary rule.

It has been held that:

"Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered to prove the existence of a fact. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between "opinion" and "fact" or invoke the very difficulty distinction which sometimes is drawn between questions of law and questions of fact.

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