Commentary on Justice Einstein’s Paper
Commentary on Justice Einstein’s Paper
I wish to deal with only three aspects of Justice Einstein’s valuable analysis. Two can be examined briefly but one is in my opinion of considerable importance and should be examined at length.
The Character of the Statutory Discretions
It is useful to compare the general character of s 135 with s 137 and s 138.
First, s 135 confers on the court a “discretion” in a strong sense of that word (“may refuse to admit evidence”). Section 137 involves a discretion in a much weaker sense (“must refuse to admit evidence … if its probative value is outweighed by the danger of unfair prejudice …”). In R v Blick (2000) 111 A Crim R 326 at 332-3 (NSW CCA) Sheller JA said:
“When an application is made by a defendant pursuant to s 137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion … [I]n Miller v Jennings (1954) 92 CLR 190 at 197 … Dixon CJ and Kitto J, in an appeal against damages awarded by the trial judge, said of the sum awarded that it was ‘reached after a very full and careful examination of the facts of the case and it represents an informed judgment upon a matter which must largely be one of opinion and must be governed to a not inconsiderable degree by an estimate formed of the witnesses and in particular the appellant’. Translated to the task set by s 137, a trial judge’s estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge’s own trial experience. In that sense, the result can be described as analogous to a discretionary judgment …
Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected.”
Secondly, s 135 rests on a discretion to exclude otherwise admissible evidence. Whether or not there was any equivalent in civil cases at common law is a controversial question: if there is any such discretion in civil cases, it is a relatively narrow one. Section 138, unlike the common law discretions and s 135, rests on a discretion to admit otherwise inadmissible evidence. There was no equivalent to this in any field at common law: R v Coulstock (1998) 99 A Crim R 143 at 146-7 (NSW CCA) per Hunt CJ at CL.
Thirdly, the common law equivalent to s 138 was a discretion to exclude admissible evidence on the ground that it had been illegally or improperly obtained. Whether or not the common law equivalent applied to civil cases,
s 138 certainly does.
Meaning of “Fresh”
In Graham v R (1998) 195 CLR 606 at 608 Gaudron, Gummow and Hayne JJ said “fresh” in s 66 of the Evidence Act meant “recent” or “immediate”, and “the temporal relationship required will very likely be measured in hours or days”. Callinan J (Gleeson CJ concurring) said evidence of an event “relatively remote in time” could be admissible, but such cases “will necessarily be rare and requiring of some special circumstance or feature”.
In contrast to these statements, in R v Adam (1999) 47 NSWLR 267 at 282 the Court of Criminal Appeal (Spigelman CJ, James and Bell JJ) referred approvingly to an unreported judgment of Wood CJ at CL. After commenting on the relevant passages in Graham v R, he said:
“In my view the judgment of Gaudron J, Gummow J and Hayne J was not intended to confine the expression ‘freshness’ strictly or exhaustively in terms of mere hours or days. As the Law Reform Commission Report underlined, a measure of flexibility is appropriate. The question is, as their Honours point out, one of fact and degree.
In my view a statement made seven weeks after an event is not one which should be regarded as being outside the period of fresh memory. It is in fact a relatively short period after events of the kind here involved. Having regard to normal expectation and experience of life, I would regard a statement made at that point of time as still being fresh in the memory of a relevant witness.”
The Court of Criminal Appeal said that that view had “much to commend it”.
The expression “fresh” appears not only in s 66, but also in s 32(2)(b)(i) in relation to refreshment of memory in court, and in s 64(3) in relation to hearsay statements by available persons. A related but not identical question arises under s 72, which turns on the idea of “a contemporaneous representation”. The analysis of these expressions must be conducted on a case by case basis. In Graham v R all that the High Court had to do was decide whether a complaint made after six years was “fresh in the memory” of the representor. In that context, statements to the effect that those words refer to the passage of hours or days and no more are only dicta, in no way binding on later courts, however weighty those dicta may be. A true construction of expressions which are as general as expressions like “fresh” or “contemporaneous” can be evaluated only after the passing of a significant period of time and the decision of many cases which collectively throw up a wide range of potential problems and circumstances. The proffering of general statements unrelated to the particular conundrum calling for solution may sometimes amount to useful future guidance, but if it is not useful in a particular subsequent case it should not be treated as a source of difficulty.
Expert Evidence
The provisions in the Evidence Act on expert evidence illustrate how closely related to the former law the Evidence Act is, and yet how differences can emerge. The close relationship between the Evidence Act and the former law emerges partly from the use by the courts of common law principles to give flesh to the spare words of the sections and partly from the use by the courts of common law cases to illustrate them.
The paper, in discussing HG v R (1999) 197 CLR 414, gives an important reminder of Gleeson CJ’s stress on compliance with formal requirements in the presentation of opinion evidence. The same stress emerges from the reasons for judgment of Mason P in the Court of Criminal Appeal in that case: R v G (1997) 42 NSWLR 451 at 459. These two judgments set or allude to most of these formal requirements.
The relevant requirements can be summarised under seven heads.
1. There must be a field of specialised knowledge and the witness must identify it.
2. The witness must have expertise in an aspect of that field, and must identify it
3. The opinion proffered must be substantially based on the expertise of the witness and the witness must identify it.
4. Any factual assumptions underlying the witness’s opinion must be clearly identified and articulated.
5. Any factual observations made by the witness which underly the witness’s opinion must be clearly identified and articulated, and the observations must have been sufficiently detailed to form a satisfactory basis for the opinion.
6. If the witness relies on a combination of factual assumptions and factual observations, they must be identified.
7. The witness must explain how the knowledge on which the witness is an expert applies to the facts assumed or observations made so as to produce the opinion propounded.
The short point is that not only must the essential requirements for admissibility be satisfied, but they must be proved to have been satisfied. Whether they exist cannot be left to speculation.
1. Field of “Specialised Knowledge”
There must be a field of “specialised knowledge”: s 79 of the Evidence Act. According to Gaudron J, who was in dissent on the opinion evidence point, but not in this respect, that field must involve:
“matters about which ordinary persons are unable ‘to form a sound judgment … without the assistance of [those] possessing special knowledge or experience … which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience’.”
That was the common law test, and the test under s 79 is not “narrower or more restrictive”: at 432. Gleeson CJ said that it was not in dispute that psychology was a field of specialised knowledge, referring to Murphy v R (1989) 167 CLR 94 (para [40]), but plainly if it were in dispute, the witness would have had to have given evidence to that effect. Gaudron J said: “it may fairly be assumed” that the witness “would have given evidence” to the effect that “there is a recognised field of expertise with respect to the behavioural patterns of children who have been the victims of trauma” (at para [65]).
2. Expertise of Witness in Field of “Specialised Knowledge”
There must be an aspect of that field in which the witness is expert, by reason of training, study or experience, and which the witness identifies: see s 79 and Murphy v R (1989) 167 CLR 94 at 111. What must be evidenced is the training, the study or the experience, and how it has made the witness an expert in some aspect of the field of “specialised knowledge”. The reasons for judgment of Mason P said that witnesses must identify their expertise “with precision”.
3. Opinion “Wholly or Substantially Based” on Expert Knowledge
The opinion proffered must be “wholly or substantially based on that knowledge”: s 79. Gleeson CJ said of the witness in question “as Clark v Ryan (1960) 103 CLR 486 illustrates, his opinion had to be related to his expertise”. It would seem incumbent on the witness also to identify how the opinion proffered relates to the field of specialised knowledge in which he is an expert. In HG v R in the Court of Criminal Appeal, Mason P doubted that the witness’s general expertise and experience established that his opinion was based on “specialised knowledge” (R v G (1997) 42 NSWLR 451 at 459). That is, the opinion “lacked the requisite scientific rigour”.
4. Factual Assumptions to be Identified
What the expert gives is an opinion based on facts. So far as they are facts observed by the expert and reported by him to the court, they must be identified (see Gleeson CJ’s use of the word “observed” in para [39]). This type of expert evidence will be considered in paragraph 5 below. So far as the facts on which the opinion is based are facts which the expert does not observe, but which are “assumed” or “accepted”, they must be identified. For this proposition Gleeson CJ cited two important pre-Evidence Act authorities, Ramsey v Watson (1961) 108 CLR 642 and Arnotts Ltd v TPC (1990) 24 FCR 313 at 347-8.
Ramsey v Watson does not illustrate a practice of identifying “assumed” or “accepted” facts so much as permitting the narration by a doctor of the history obtained from a patient admissible as part of the foundation of the doctor’s opinion on the patient’s health, although the narration is not admissible to prove the facts of the history unless some exception to the hearsay rule is satisfied. In the type of case of which Ramsey v Watson is an example, the ultimate opinion of the doctor will usually be based in part on his personal observations of the patient and in part on what the patient tells the doctor. Ramsey v Watson also contains the opinion of Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ that if the history is not supported by admissible evidence, then the opinion “may have little or no value, for part of the basis of it is gone”. In the liberty which this dictum gives for some non-correspondence between assumed fact and proven fact, it has been repeatedly followed later. Thus in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510 Samuels JA approved the language adopted in old American cases quoted in Wigmore, 3rd edition, para 680 note 2. One formulation turned on whether the facts established were:
“so proved as to resemble as near as may be the case under consideration; the jury can judge whether the case supposed is so far like the one they are considering as that the opinion of the expert on the supposed case is any guide to them.”
Another was:
“From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witnesses.”
Samuels JA said:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided …”.
In the High Court, Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 at 846 Mason CJ, Wilson, Brennan, Deane and Dawson JJ said that it was not necessary for the proven facts to correspond with the assumed facts “with complete precision”. They said: “it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value …”.
However, Ramsey v Watson shows that too extreme a disparity will make the opinion evidence not merely of “little or no value”, but inadmissible. The plaintiff sued for damages based on an allegation that Bright’s disease, from which he suffered, had been caused by lead poisoning incurred in his employment in the Government Printing Office. The defendant proved that 29 other employees had worked at the Government Printing Office, and a government medical officer testified that they did not have symptoms of lead poisoning. Counsel for the defendant attempted to elicit further evidence from the medical officer concerning what each employee told him of his past state of health. He made it clear that he did not intend to call the 29 men as witnesses. The questions were disallowed. The High Court held that the ruling was proper, “it having been apparent that the men would not be called”. Underlying the High Court’s conclusion must be the proposition that so massive a disconformity between the facts to be assumed on the basis of the 29 histories and the total failure to seek to prove them justified total rejection of the evidence. That may be an illustration of a principle identified by McHugh J in Palmer v R (1998) 193 CLR 1 at 24 in the following terms:
“In general, evidence of a relevant fact is excluded only when it infringes some policy of the law, one of which (even in civil cases) is that evidence of the relevant fact is not admissible if the probative value of that fact is so low that it cannot justify the time, convenience and cost of litigating its proof.”
In a case decided under the Evidence Act, a different approach was taken. The exclusion of a bare opinion, i.e. one based on unproved assumptions, was said to be inadmissible because it was incapable of rationally affecting the assessment of the probability of a fact in issue within the meaning of s 55(1) and was therefore inadmissible, being irrelevant, pursuant to s 56(2): Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 374 per Branson J.
The other case to which Gleeson CJ referred was Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 347-8. There Lockhart, Wilcox and Gummow JJ supported the need “for identification of the facts assumed by the witness”. They referred to R v Fowler (1985) 39 SASR 440 to support the proposition that it was impermissible to elicit an opinion based on the whole of the evidence given. Before asserting that proposition at 443, at 442 King CJ distinguished between the case of a medical witness who had examined a person and an expert who had not examined a person. In the former case, he said that the fact that the patient gave a particular history and the actual history given were as much part of the material on which the opinion was formed as the physical examination, and could be given by the medical witness. In the latter case, at least in trials by jury, the witness should give the opinion upon an assumed state of facts postulated to the witness for that purpose.
In the Arnotts case, Beaumont J at trial propounded a stricter approach, not limited to jury trials. The only exception to the rule he propounded was “in a straight-forward, uncomplicated case, where the facts are admitted and readily identified”. Apart from those cases, he said the common law rule was:
“that the premises considered by the expert should be expressly stated rather than left to speculation. It is preferable that these matters be clarified when the witness is examined in chief rather than leave room for argument later as to exactly what matters the expert had in his mind when expressing his conclusions” (at 348).
The Full Federal Court appeared to support Beaumont J’s approach, for apart from rejecting the relevant ground of appeal, they spoke of “the importance of the principle that an expert witness must identify the facts assumed in his or her opinion” (at 349).
The Full Federal Court advanced several reasons why that principle was important.
One was that if it is ignored, the expert tends to drift into giving an opinion on the legal or general merits of the case.
A second was that if the witness deals with the evidence which, according to the witness’s perception, has actually been given, as distinct from dealing with assumptions framed in conformity with the findings which it was hoped the court would make, the witness tends to drift into observations about the truth of the testimony of other witnesses.
A third reason why the principle under discussion was seen as important is that if the witness is asked for an opinion based on the whole or a large part of the evidence, it can be difficult to know which parts the witness thinks important and what weight particular parts play in the conclusion expressed.
Fourthly, if the assumptions are not identified and articulated, the opinions of the expert may be based on undetectable unstated assumptions as to disputed facts or as to disputed propositions of law. Despite the enactment of s 80(a) of the Evidence Act, it is beyond the province of an expert to state propositions of law or to apply propositions of law to the facts: All State Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 83-85. It is also beyond the province of an expert otherwise to intrude on the judicial function by asserting conclusions of fact and law which are in truth only to be decided by the court after applying legal standards: O’Brien v Gillespie (1997) 41 NSWLR 549 at 558. And if there are undetectable assumptions of fact, it is difficult to follow the reasoning of the expert and difficult for the court to apply it to the facts which the court in due course finds.
Fifthly, a failure to identify and articulate the factual assumptions from which the expert is working encourages the expert to exercise an illegitimate role as advocate. The Full Federal Court quoted Sir Richard Eggleston’s Evidence, Proof and Probability (2nd ed.) page 154 to the following effect:
“the expert has a legitimate role of advocacy in that, having expounded to the tribunal the rules applicable to the case …, his evidence may then consist of argument as to the conclusions that should be drawn from the facts, interpreted by those rules. The difficulty arises because the expert often finds it difficult to distinguish between argument on the assumption that the ‘facts’ put forward by his side are the correct ones, and telling the judge or jury which facts they should accept as true. If he makes his assumptions clear, there is no objection to his arguing what the consequences of accepting those assumptions should be; but he is not to do the jury’s fact-finding for it, where this depends on accepting one or the other set of contradictory witnesses.”
(It may be that the legitimate role for expert advocacy has now been reduced since Sir Richard Eggleston’s time. Practice Note 104 in the Supreme Court of New South Wales, para 2, provides:
“An expert witness’s paramount duty is to assist the court impartially. That duty overrides the expert witness’s obligation to the engaging party. An expert witness is not an advocate for a party.”
A similar provision applies in the Guidelines set out in the relevant Federal Court Practice Direction. The source of these provisions is paragraph 2 of the statement of duties and responsibilities of experts enunciated by Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The ‘Ikarian Reefer’) [1993] 2 Lloyd’s Rep 68 at 81-2. However, there is advocacy and advocacy. It is one thing to be partisan, in the way a barrister is. It is another thing to put to the court, as clearly and vividly as possible, what the expert’s objective opinion, formed without reference to the interests of the party calling that expert, is. Truth is best uncovered by powerful statements on both sides of the question, and the modern expert codes do not inhibit a lucid and vigorous exposition of an expert’s sincere and objective view.)
A sixth reason which justifies the principle that the factual assumptions on which an expert is working should be identified is that a failure to identify and articulate those assumptions will cause the expert witness to move towards the role of filter in which, having heard or read all or much of the evidence, the expert expresses factual conclusions of his own.
Gleeson CJ in HG v R at 428 summarised the point of these arguments in saying that the rule applied to that case “would have required identification of the facts [the witness] was assuming to be true, so that they could be measured against the evidence”. The less the assumed facts are measurable against the evidence, the more the opinion based on them is open to criticism.
5. Facts Observed Must Form a Proper Foundation for the Opinion
It is not every case where an expert must link the opinion proffered to hypothetical assumptions. A doctor can state an opinion as to the cause of death by examining the deceased and without considering any other matter. A doctor may be able to give an opinion on whether a wound was self-inflicted or caused by another person (assuming that there is a relevant field of specialised knowledge, that the doctor is expert in it, and that the doctor’s opinion is based on the expertise) merely by examination of the wound - but not if the doctor’s actual examination of the wound was too brief or carried out for a purpose unconnected with the formation of the opinion (e.g. attending to the welfare of the wounded person), or is otherwise too ill-considered: R v Anderson (2000) 111 A Crim R 19 at 44-45 (Vic CCA). A handwriting expert may give an opinion on the similarity between a particular signature and a set of standard signatures: in general whether there is a sufficiently large number of standard signatures to form the basis of a sound opinion is a question of weight, not admissibility, but once the number of standard signatures falls below a certain level, the question may become one of admissibility: R v Bonython (1983) 38 SASR 45 at 48. Thus an opinion based on observation may be inadmissible if the observation affords inadequate foundation for it, or if the evidence does not establish that the observation affords adequate foundation for it.
6. Absence of Assumed Facts and Observed Facts Considered in Combination
A failure by a witness to make or identify sufficient factual assumptions to form a rational basis for the opinion given may render it inadmissible, or of so little weight that it should not be left for the consideration of the trier of fact. The same is true if a witness fails to make sufficient factual observations to support the opinion. And the same is also true of that class of case where the witness’s opinion can only validly rest on a combination of observations and assumptions. An example is the witness in Bugg v Day (1949) 79 CLR 442 at 456-7 who was experienced in preparing damaged motor vehicles and after inspecting a motor cycle damaged in a collision with a taxi cab, opined that the latter must have been travelling at 40 miles per hour. Latham CJ said that the jury should have been warned that the opinion had little or no weight in view of the fact that the witness had known and assumed nothing about such matters as the weight of the taxi cab or the distances of the vehicles from the point of impact.
7. Demonstration of Scientific Basis of Conclusions
The opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If one cannot be sure of that, the evidence is not admissible. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R, on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist” (at para [41]). The point is exemplified by Gleeson CJ’s treatment of the expert in that case. The issue was whether the accused had interfered with the daughter of his de facto wife in 1992-3. Gleeson CJ said that the witness might have been able to say that the complainant’s behaviour appeared to be inconsistent with her having been abused at that time. But the defence wished to call the evidence to say that the complainant had been abused - but in 1987 rather than in 1992-3, and by her natural father rather than the accused, 1987 being a time when she was in the custody of her natural father. Gleeson CJ said (at para [42]):
“Logically, there were a number of competing possibilities. The complainant may have been sexually abused by nobody; she may have been abused as she claimed, by the appellant; she may have been abused by her father; she may have been abused by both her father and the appellant; she may have been abused by some person or persons unknown. It was not demonstrated, and it is unlikely, that it is within the field of expertise of a psychologist to form and express an opinion as to which of those alternatives was to be preferred.”
The process of making the reasoning explicit enables the court to see whether the evidence is admissible expert evidence, or whether it is instead nothing more than “putting from the witness box the inferences and hypotheses on which” the party calling the witness wishes to rely (HG v R at para [43]). The vital importance of compliance with the requirement of s 79 that opinions of expert witnesses be confined to opinions based wholly or substantially on their specialised knowledge was stressed by Gleeson CJ for the following reason: “Experts who venture ‘opinions’ (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted”. But the rendering explicit of what experts say not only aids the court in the determination of admissibility; it aids the court in fact finding at the end of the trial by making plain what the process of reasoning is. This is important, because it is not the role of the finder of fact merely to accept the opinions given to it, or select one opinion which seems more plausible than another. According to Lord President Cooper in Davie v Edinburgh Magistrates 1953 SC 34 at 40, experts must “furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence”. It follows that an expert witness must explain what Fullagar J called “the basis of theory or experience” on which the opinion of the witness has applied to the dispute in question rests: R v Jenkins; ex parte Morrison [1949] VLR 277 at 303.
Returning to the subject discussed in paragraph 4 above, compliance with the formal requirement to state the witness’s assumptions explicitly has a particular significance under the Evidence Act. If that course is not taken, and the factual material in the expert’s evidence was not observed by the expert but rests on representations to the expert, the effect of s 60 is that the representations are admissible notwithstanding their hearsay character. Section 60 provides:
“The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.”
See R v Welsh (1996) 90 A Crim R 364.
The effect of this is that it abolishes the distinction drawn in Ramsey v Watson between a history given by a patient to a doctor being admissible as a foundation for the doctor’s opinion, but not as evidence of the facts asserted, and a history which is admissible because it falls within a hearsay exception (e.g. those relating to res gestae or omissions). Under s 60, the history is admissible whether or not it falls within s 63(1) (unavailable witnesses),
s 64(2) (available witnesses), s 72 (contemporaneous statements about health) or s 81 (admissions).
It is open, however, to the party against whom the history is tendered to seek an order under s 136 limiting the use of the evidence to use as a basis for the opinion but not evidence of the facts, if the latter use might be unfairly prejudicial to a party or be misleading or confusing. Finkelstein J said in Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 that it could be proper to use s 136 to limit the “extraordinary effect” of s 60 where inferences arise because the hearsay representation “involves ‘facts’ that are in conflict or ‘facts’ that are unreliable”. He also said that the problem could be overcome in the case of experts by requiring them to express an “opinion in answer to a hypothetical question leaving it to the party calling the expert to prove the facts upon which the opinion is based”. That is judicial recognition of the fact that s 60 can have no role to play if the evidence is expressed in the form of assumptions and not representations. A representation is a statement made by a representor (usually to a representee, but note paragraph (c) of the definition of “representation” in the Dictionary, Part 1) which affirms, denies or describes a matter of fact. An assumption does not affirm, deny or describe a matter of fact: it merely postulates it. On the other hand, in the same case Branson J said at 378 that if a different result flowed from casting the evidence in the form of assumptions rather than representations - that is, if
“s 60 of the Act does operate to give mere form significance in this way, the result cannot be regarded as entirely satisfactory”. It is questionable, however, whether the difference between a representation and an assumption is a matter of mere form. But the expert could not, without committing perjury, state, as representations from a person with knowledge of the primary facts, what were only assumptions put to the expert, in an attempt to gain an advantage from s 60.
J D Heydon
14 November 2000
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