Case: Borowski v Quayle [1966] VR 382
Outcome: cited
starting point for resolution of Alphapharm's General Relevance Objection is a particular group of exceptions to the hearsay rule that were recognised under the general law as being dictated by necessity. In the Law Reform Commission's Interim Report on Evidence (ALRC No 26, 1985), the Commission described these exceptions as (a) the expert's accumulated knowledge, (b) the reported data of fellow scientists, and (c) information commonly relied upon in an industry, trade or calling (ALRC No 26 vol 1 at [131], vol 2 at [91]). The Commission cited in support: English Exporters (London) Ltd v Eldonwall Ltd [1973] 1 Ch 415 ; R v Abadom [1983] 1 WLR 126 ; Borowski v Quayle [1966] VR 382 ( Borowski ); H v Schering Chemicals Ltd [1983] 1 All ER 849 ( Schering Chemicals ); Reid v Kerr [1974] 9 SASR 367 ; Rowley v London and North Western Railway Co [1852] EngR 1037 ; (1873) LR 8 Exch 221 ; Dickins v Randerson [1901] 1 KB 437 ; R v Perryman (1907) 147 CCC Sess Pap 109 (Lawrence J). There is some overlap between the three categories. The Commission referred, as an illustration of (b), to Borowski , in which the following passage from Wigmore on Evidence, Chadbourn JH (ed) (Little, Brown &amp; Co, Boston, 1979) vol 2 at [665b], was cited with approval: The data of every science are enormous in scope and variety. No one professional man can know from personal observation more than a minute fraction of the data which he must every day treat as working truths. Hence a reliance on the reported data of fellow scientists, learned by perusing their reports in books and journals. The law must and does accept this kind of knowledge from scientific men...[T]o reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on finical and impossible standards.....In general, the considerations which define the (professional) are (a) a proper source of information, (b) an extent of personal observation in the general subject, enabling him to estimate the general plausibility, or probability of soundness, of the views expressed, and (c) the impossibility of obtaining information on the particular technical detail except through reported data in part or entirely. The true solution must be to trust the discretion of the trial judge, exercised in the light of the nature of the subject and the witness' equipments. The decisions show in general a liberal attitude in receiving technical testimony based on professional reading. In Borowski , his Honour found (at 386) that evidence given by the expert in that case: ...would have been directed to matter travelling outside opinion and dependent to a degree upon knowledge based upon hearsay. But this is an area where the hearsay rule does not apply and the matter dealt with in the evidence would clearly have been admissible. The same judge-made exception to the hearsay rule was recognised in the standard texts on evidence at that time: see, for example, D Byrne QC and JD Heydon, Cross on Evidence (3 rd Australian Edition, Butterworths, 1986) at [15.31], [17.161], citing, in addition to Borowski and Schering Chemicals , See v Milner (1980) 2A Crim R 210 (FCA); Holt v Auckland City Council [1980] 2 NZLR 124; Cuthill v State Electricity Commissioner of Victoria [1981] VR 908 at 915 (FC); Baker v Australian Asbestos Insulations Pty Ltd [1984] 3 NSWLR 595 at 607. The Law Reform Commission dealt with the present issue under the heading "Evidence Admissible for a Non-hearsay Purpose" (ALRC No 26 Vol 1 at [685]) stating (footnotes omitted): Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court's assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert's opinion will be admissible also of evidence of the facts stated: Tender of Prior Consistent and Inconsistent Statements ............... Expert's evidence of Basis of Opinion Reference has been made above to the uncertainties that exist as to the admissibility of such evidence and to the unclear exceptions which have had to be created to meet the problems created by the hearsay rule. Under the proposal, evidence by an expert of the facts on which his opinion is based will be admissible as evidence of those facts. Potential dangers have been raised. First, there is the danger that false evidence may be placed before the court. However, the expert will usually form a judgment about the accuracy of what he is told. In addition the tactical pressure on the parties to verify the facts relied upon by the expert should ensure that problems of assessment of the evidence will not arise. They will either call more direct evidence or have to face adverse comment. When assessment problems do arise, the exclusionary discretions may be used. This is similar to the present approach. Another danger suggested is that it could result in an increase in evidence adduced particularly that which is adduced in the Family Court and is of marginal relevance. As at present, the expert will do no more than adduce evidence of the basis of his opinion what he was told will be relevant to that opinion and the assessment of it. However, the relevance proposal and relevance discretion will apply and give the courts express control where now that control and its extent is unclear. It has also been suggested that parties will want to answer the allegations of marginal relevance and this will give rise to an increase in the evidence given. However, this should not occur. First the party against whom the evidence is led can object to the relevance of the facts related by the expert only those affecting his opinion will be relevant. As to such facts, that party will have to decide, as at present, whether he accepts those facts or wishes to challenge them. He would have to do this whether the evidence was admitted as the basis of the expert's opinion or to prove the facts asserted it would be a foolish party who relied on that distinction in relation to key factual elements and did not call rebutting evidence. The proposal in fact has the potential to save time and costs. At present, the party leading the expert evidence should lead non-hearsay evidence to confirm all the statements made to and relied upon by the court. If he does not, it will be open to the opposing party to argue that the opinion should be rejected the hearsay rile will lie in wait. Under the proposal he can call witnesses to confirm the key material, and leave it up to the opposing party to cross-examine the witness to raise the matters in issue. If he does not and leads evidence in rebuttal, it will be possible for the first party to call further evidence. The result of the Commission's deliberations was s 60 of the Evidence Act . The hearsay rule itself is set out in s 59 of that Act. Section 59(1) provides: Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. In their joint report, Uniform Evidence Law: Report of December 2005, the Australian, New South Wales and Victorian Law Reform Commissions have recognised that s 60 had the effect of excluding from the hearsay rule an expert's statement of the factual basis of his or her opinion (see [7.74] ff). The Commissions recognised (at [7.74]) that an expert relies on "statements made to him or her by others about their observations of events which are facts in issue, together with a wide range of factual information from more remote sources". The Commissions gave as illustrations: knowledge acquired by experts from reading the work of other experts and from discussion with them; the reported data of fellow experts relied upon by such persons as scientists and technical experts in giving expert opinion evidence; factual material commonly relied upon in a particular industry or trade or calling. The Commissions also recognised that, through necessity, there existed those judge-made exceptions to the hearsay rule referred to at [761] above. In addition to Borowski , they cited PQ v Australian Red Cross Society [1992] 1 VR 19 ; R v Vivona (Unreported, Victorian Court of Criminal Appeal, Crockett, Tadgell and Teague JJ, 12 September 1994); R v Fazio (1997) 93 A Crim R 522. The Commissions then stated at [7.77], [7.78] (footnotes omitted): 7.77 The proposal that became s 60 was formulated with these exceptions in mind, with the intention that s 60 would perform the role the miscellaneous common law exceptions had performed and the complication of specific exceptions for these kinds of evidence avoided. 7.78 Section 60 also applies to representations of fact unique to the particular case upon which the expert bases his or her opinion. Such evidence is hearsay at common law, but s 60 lifts the statutory hearsay rule in that situation.