3 (C) Opinion Evidence

OPINION EVIDENCE
 Opinion evidence entails conclusions, interpretations, evaluations and inferences

derived from observed facts.
 Generally, a witness is expected to only narrate or recite events as he witnessed

them. Thus they are not expected to give their opinion in court.
 The general rule on opinion evidence is that it is inadmissible because a witness

is not meant to form an opinion on issues in court. The reason is because all
ultimate issues are decided on by the court.
 The role of the witness is to give evidence and the role of drawing inferences
belongs to the court.
Hollington v Hewthorn
It was held that: “it frequently happens that a bystander has complete and full
view of an accident. It is beyond question that while he may inform the court as
to what he saw, he may not express an opinion on whether either or both parties
were negligent. The reason being that this is the question the court has to
decide on.”
 S22(3) states that a court is not bound by the opinion of an expert or lay person
witness but may have regard to the person’s opinion in reaching its decision.
Exceptions to opinion evidence
There are two main exceptions to this general rule:
a. Expert opinion evidence where it is relevant;
b. Lay opinion where it is relevant.
1. Expert opinion evidence
 Section 22 of the Civil Evidence Act provides that:
“The opinion of a person who is an expert on any subject, that is to say, of a

person who possesses special knowledge or skill in the subject, shall be
admissible in civil proceedings to prove any fact relating to that subject which is
relevant to an issue in the proceedings.”
 Thus expert opinion evidence in terms of the Act is admissible if it is relevant in
the matter before the court.
 The main reason why relevant expert evidence would be admissible in court us
due to the fact that experts would generally be people who would be better
placed to assist the court to arrive at a sensible decision than it would have
been able to do without such assistance by reason of their expertise and
specialised knowledge.
 Experts are thus expected to facilitate resolution of the facts in issue.
 The expert should be a credible witness.
 Expert opinion evidence in the past has been admitted in cases involving
ballistics, economics, finance etc.
 An expert witness must have the necessary qualifications to give the evidence
that he wishes to give in court. The court has to thus satisfy itself that the
witness has the necessary qualifications which can be obtained through formal
education and/ or experience.
R v Silverlock
In this case a lawyer had extensively studied people’s handwritings but did not
have formal qualifications in that field. However, due to his experience, he was
allowed to give evidence in court as an expert witness.
 An expert witness can be cross-examined on its expert opinion like any other
witness. This can be done to discredit the witness or to show that he or she is
not actually an expert.
S v Lupien
Lupien was observed leaving a discotheque with another person who looked like a
woman but was actually a man. He was subsequently found in a hotel room with
the said person. The evidence of the police was to the effect that the two were
in an intimate position when they were found, which justified the inference that
an act of intimacy had been committed or was about to be committed. Lupien’s
defence was that at all material times he had mistaken the person for a woman.
He sought to lead evidence from a psychiatrist which would show that he had
some chemical in his body which would make him react violently to homosexual
activity and that he would not knowingly engage in homosexual exploits. The trial
court rejected this evidence. However, on appeal, it was held that the evidence
was admissible because it was relevant.
2. Relevant Lay Opinion Evidence
 Section 22(2) of the CEA states that
“The opinion of a person who is not an expert as provided for in ss1 shall be
admissible to prove any fact relevant to an issue in civil proceedings if-
 His opinion is based on what he saw, heard or otherwise perceived; and
 His opinion is helpful to a clear understanding of his evidence or to the

determination of that issue.
 A lay person should not express an opinion in a matter that the court is in a
position to decide on its own.
 In addition, the opinion evidence of lay persons has a more stringent test for
admissibility than for expert opinion evidence. Thus, in order for it to be
admissible, it has to:
1. Be relevant;
2. Be based on what the witnessed perceived one way or the other;
3. Be helpful to the court in its understanding of the facts in issue.
 If it does not meet those criteria then it is not admissible.
S v Adams
This was a case for the claim of damages arising out of a motor vehicle accident.
The court held that a witness can infer that a person was drunk because they
were staggering and their breath smelled of alcohol etc. However, such person
cannot say that the person he is inferring to have been drunk was at fault for
the accident.
 Lay person opinion evidence has been used in a variety of cases such as in the
identification of handwriting, ID of persons, judging drunkenness, or excitement
or in the estimation of speed.
THE RULE IN HOLLINGTON V HEWTHORN
 This rule no longer applies in our law due to the introduction of s31 of the CEA.
 The rule in the case is to the effect that on the trial of an issue in a civil case, a
prior determination of a criminal court is irrelevant and thus inadmissible. This
was based on the fact that the record was considered to be opinion evidence.
 Thus if the criminal court finds an accused guilty for whatever offence, the civil
court cannot use the record of the conviction in order to establish liability on
the part of the defendant who would have been the accused at the criminal trial.
 The reasoning was that the record merely amounted to the opinion of the trial
court.
 Section 31 of the CEA states that:
“where it is relevant in civil proceedings to prove that a person committed a

criminal offence or did or omitted to do anything referred to in subsection (3),
the fact that he has been convicted of that offence by any court in Zimbabwe
or by a military court in Zimbabwe or elsewhere shall be admissible in evidence
for the purpose of such proof.”
 The long and short of this section is that the fact that a person was convicted
for a criminal offence is admissible in civil proceedings where it is relevant. This
is a departure from the rule in Hollington v Hewthorn.
 Where however the criminal matter is on appeal, the conviction shall not be
adduced as evidence in court until the appeal has been heard and finalised.
Why was it abandoned
 It was considered to be incomprehensible for the following reasons:
 In the criminal court the people who preside over the matter are trained
judicial officers. They are trained to sift the relevant from the
irrelevant and they also apply the evidentiary principles of exclusion.
 The threshold for proof in criminal cases is higher than in civil cases...
proof beyond a reasonable doubt v proof on a balance of probability.
 This tide of change was triggered by the case of Goodey v Oldhans Press Ltd
 In this case Goody was a plaintiff who was a convict in the Great Train
Robbery and was serving time for his participation in the Robbery. He
brought an action against a newspaper stating that he had taken part in
the robbery in which 25Million Pounds had been stolen. At the time of
this action, he was serving 30 years imprisonment after having convicted
for the robbery. It was held that the conviction was not evidence that
could be admissible.
 See also Tomz v Sithole 1981 (1) ZLR where it was held that there is need for
the state to intervene and remove the absurdity.

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OPINION EVIDENCE

 Opinion evidence entails conclusions, interpretations, evaluations and inferences

 Generally, a witness is expected to only narrate or recite events as he witnessed

 The general rule on opinion evidence is that it is inadmissible because a witness

Exceptions to opinion evidence

There are two main exceptions to this general rule:

a. Expert opinion evidence where it is relevant;

b. Lay opinion where it is relevant.

1. Expert opinion evidence

 Section 22 of the Civil Evidence Act provides that:

“The opinion of a person who is an expert on any subject, that is to say, of a

 Experts are thus expected to facilitate resolution of the facts in issue.

 The expert should be a credible witness.

 Section 22(2) of the CEA states that

 His opinion is based on what he saw, heard or otherwise perceived; and

 His opinion is helpful to a clear understanding of his evidence or to the

2. Be based on what the witnessed perceived one way or the other;

3. Be helpful to the court in its understanding of the facts in issue.

 If it does not meet those criteria then it is not admissible.

 Section 31 of the CEA states that:

“where it is relevant in civil proceedings to prove that a person committed a

Why was it abandoned

 It was considered to be incomprehensible for the following reasons:

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