This blog entry will deal with opinion evidence - what is opinion evidence and how to avoid it in your affidavit. As affidavits are a rather complex topic, this blog will be split into two parts.
This is part one.
Opinion evidence is evidence, in which you give your opinion about something that happened.
In other words, it is used to “prove the existence of a fact about the existence of which the opinion was expressed”.
This type of evidence is excluded under Section 76 of the Evidence Act.
To make it clearer, here are some examples of opinion evidence.
- "My partner was violent towards me during our relationship; he often ridiculed and belittled me and on occasions becoming physically abusive towards me."
- "My partner operated her hairdresser business profitably for the last 4 years before we separated and now she is saying that she is unable to support herself from her business income."
- "My wife was high on drugs"
- "My husband was drunk"
However, you have no underlying facts on which your opinion is based. You will need to add some underlying facts, otherwise, your evidence can be struck out.
Let's take a closer look at the examples above:
"My partner was violent towards me throughout our relationship; he often ridiculed and belittled me and on occasions becoming physically abusive towards me."
Adding some underlying facts to this would require it to be rewritten as follows:
"My partner was violent towards me during our relationship; in particular, on 12 June 2016 my partner slapped me across the face with his right hand while we were arguing and then spat at me. My partner has smacked me at least 8 times in the last 18 months."
Let's now take a look at the second example:
"My wife operated her hairdresser business profitably for the 4 years before we separated, now she is saying that she is unable to support herself from her business income."
This one presents a problem as what you really need is annexures to show her income or a lifestyle that is at odds with her claim that she does not have the income to support herself. This could be evidence of the purchase of a new car, going on an expensive holiday or bank and credit card statements.
And how about:
"My husband was drunk"
If you want to tell the Court that you believe that your husband was drunk, you would need to communicate this something like this:
"My husband walked towards me and he swayed from side to side as he crossed the road. When he was close to me he started to talk to me in a slurred manner and I could smell alcohol on his breath."
The same goes for the statement:
"My wife was high on drugs."
In line with the above sample, this would need to be rewritten along the lines of:
"I saw my wife sitting down on the floor. When she spoke with me, her speech was slurred and her eyes were red. I could see on the floor next to her a syringe and a small bowl with a light yellow liquid in it."
It should be noted that under Section 78 of the Evidence Act, the opinion rule will not apply if:
"(…) the opinion is based on what the person saw, heard or otherwise perceived about a matter or
the evidence of the opinion is necessary to obtain an adequate account or understanding of the
person’s perception of the matter or event.(…)"
What this means is that the evidence is not to prove the truth of your opinion, but to explain your perception of events (correct or incorrect) and in turn explain your subsequent behaviour based on that perception.
An example would be that you find your partner has cancelled the credit cards that you use and you then withdrew money from the joint bank account.
The reason that your ex-partner cancelled the credit cards was that they were stolen or lost, however, you did not know this.
You thought they had done this to stop you using the credit cards and that is why you took the money from the bank account.
As you can see, the rules of evidence are complex. What I have shown you is only a few and in a simplified form.
In part 2 of the blog on evidence, I will present some additional rules of evidence.