OPINION EVIDENCE

 

*DISCLAIMER*

The notes below are adapted from the Kenyatta University, UoN and Moi University Teaching module and the students are adviced to take keen notice of the various legal and judicial reforms that might have been ocassioned since the module was adapted. the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein

So the rule is normally that oral evidence must be direct and when you talk about opinion it is not direct evidence. So allowance for opinion evidence is an exception to the rule.

So essentially we said that where it would be not the usual case that opinion evidence is admissible, there are certain instances where if you did not permit opinion evidence it would be impossible to reach a decision on the matter because firstly the matter may be too technical for the court and what the court is doing is bringing in opinion evidence is to quipping itself through the admission of the evidence of experts. So admission of expert evidence is an exception to the general rule that oral evidence must be direct. And even if it is a document. Remember we said that the person that authored the document should actually bring the document to court. And I think I pointed out to you the general ground for admission of expert opinion and this is contained at section 48 of the Evident Act:

Section 48 (1): “When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finder or other impressions, opinions upon that point are admissible if made by person specially skilled in such foreign law, science or art, or on questions as to identity or genuineness of handwriting or find or other impressions.

(2) such persons are called experts.”

So essentially at section 48 (1) we are given the basis for bringing in expert opinion. And it is the person that comes then to offer that expert opinion that is referred to as an expert.

And I think we also pointed out that the second general instance when evidence of opinion is going to be allowed is where it is impossible to separate facts from inferences, And an example here is where a person says so and so was driving at a fast speed. You know that when you say that a person is driving at a fast speed you haven’t seen the speedometer of the vehicle. You see a vehicle zoom by and then you say that, my, it is moving at a very fast speed. And fast speed can be something that depends on your perception of what is so going fast but if you didn’t allow people to opine on what they saw a motor vehicle move then it may be impossible to get evidence of this person. Also when you say that you are not feeling well. When a person says I am sick. You are not a doctor. But there are things that you feel that make you opine that all is not well. So when you tell the court or when you tell people that you are not feeling well people will not ask you what was your temperature…You say I think I am coming down with a flu. If the person asks you what is your temperature or what are the symptoms of what you feel and expect you to opine like a medical officer would on an allergy. They don’t expect you to do that. But there is a realm at which you would know that a person is not feeling well.

Then there is the whole question of age. When you say that you are so many years old, that is a matter of opinion. You do not know how old you are. You have been told when you were born. But that that is not a factual thing when a person says I am 20 or 25 years old, it is a matter of opinion. And that would normally be accepted because in those kinds of situations it would be impossible to separate facts from inferences. Or even where a person says so and so was intoxicated. How did you induce that a person is intoxicated? Have you used… what it the instrument used to record how much alcohol is in a person’s blood? Whatever it is, when you see a drunk person or where a person comes to you drunk, do you need a medical doctor to tell you that a person is drunk?

So essentially there you have both facts and inferences because you are looking at the way in which a person is carrying themselves and inferring from that that he could not see that they are behaving normally. And we are trying to explain away why would they behave that; may be they had been seen at some liquor joint so you can conclude that they are operating under the influence of and that is why they seem to be not quite together.

Again the third instance where opinion evidence is admissible is where it is so likely to be correct that convenience dictates that it be admitted. I think I stopped at the point at which we had began to think at expert opinion. And to recap again the opinion of experts only becomes relevant when the court has to form an opinion on technical point on which it would not be usually equipped and those instances are laid out at section 48. It is not in all circumstances that opinion evidence or expert evidence is going to be permitted. It is where you have foreign law, a matter or science, a matter of art, identity of handwriting or finger impression. Those are things that you do not have knowledge of ordinarily. So you would require a person that is skilled in the particular matter to be able to equip the court to come up with a decision if that kind of matter is in issue.

So who an expert? We pointed out that in order for an person to be examined as an expert he must be shown to be competent. He must be shown to have a special study of the subject. He must also be shown to have acquired special experience. So they must firstly be shown to be competent, to have a special study of the subject or to have acquired experience in the subject. So an expert in simple terms is going to be a person skilled, as having adequate knowledge of the subject matter of inquiry.

So essentially is not going to be always the case that an expert would be a person who has gone to school on a particular matter. You could become an expert through experience. So if you have long experience in something or you have been observing a particular subject matter over a period of time, you could qualify as an expert even though you have not gone to school to study the profession or business.

And the value of the evidence of an expert is enhanced or depreciated according to their experience or the amount study that the witness has undertaken. And what I am trying to underline here is you do not have to have both study and experience, either will suffice. So in a nutshell we are saying that the value of your evidence as an expert is going to be enhanced or depreciated depending on the number of years that you have of experience or the number of years that you have devoted to study of a subject.

And here it is illustrative to look at the case of study  R v Silverlock (1894) 2 QB 766, where the court accept the evidence  of a solicitor as expert opinion in a matter involving  handwriting because though the solicitor was in a manner of speaking unschooled in the matter he was experienced through keen interest in the matter. So if you have a keen interest in some subject or some area and the question arises as to whether you are an expert what would be looked is not whether you actually went to school to gain the knowledge if you gained the knowledge through experience, then that suffices.

The other case that you should look up here is the case of Odindo v R (1969) EA 12. The appellant in this was convicted of driving a motor vehicle under influence of alcohol. A police inspector testified  to the effect that  when the appellant was brought to the control room of the traffic headquarters he was smelling of drink. He was incapable of coherently giving his name. He could not tell the time by the clock on the wall and he could not stand on one foot with his hands horizontally stretched. The inspector concluded his testimony by asserting that in his opinion the accused was completely incapable of having control of a motor vehicle. The judge objected to his opinion saying that the policeman should have confined his testimony to what he observed, leaving the issue of fitness to drive to the court or a doctor. And essentially you can see what kind of unfairness this kind of finding might. You might just have a bad sense of balance; you cannot stand on one foot, that doesn’t mean that you are drunk. If you can’t tell the time by the clock on the wall you might be shortsighted, of you may be illiterate in telling time. Then if you can’t coherently give your name, you may be a person that stutters. So essentially you can see to allow people to make observations and then proceed to judge can  actually occasion a lot of injustice of the accused person. And this is what why the court is saying that the police person ought to just say this is what I observed. But having observed that has nothing to do with whether you can control a motor vehicle or not. It may have a bearing when you control a motor vehicle but those are matters that should be left to an expert.

And another case along the same lines is the case of Stephen v R (1973) EA 22. Again here the court rejected evidence by a policeman that he had found the accused in possession of a drug called bhang. And here what the court is saying is you should tell the court that you found them with some substance of this colour, of this consistency which smells like this. And then leave it to an expert who can isolate the chemical compound of that substance to say that it is bhang. But a person could crash chalk and say that they found you in possession of some dangerous drug. And this is the kind of unfairness that one is trying to guard against. And of course again you are trying to prevent people who would otherwise be lay persons from giving opinion on matters that like study or long life experience.

Another case along the same lines is the case of Charles Ngang'a v R, Kenya Appeal Report Criminal Case no. 66 of 1980. The accused here was charged with offence of causing death by dangerous driving. A police testified on the point of impact to which the defence objected because the policeman was not an expert on the matter. The defendant objected to this because in his view the policeman was not an object on the matter. The trial court overruled the objection and on appeal it was held that unless it can be shown that a policeman  has many years of experience in inspecting motor vehicle accidents, a police witness should not give opinion evidence of such matter. And you can here again you do not need to have gone to school to study this matter, only you to do is to have many years of experience and the many years of experience will qualify you as an expert.

HOW DO EXPERTS TESTIFY?

Experts are brought to court by the party who whishes to rely on their expertise. The person that would fail if a particular matter is not proved is the one that is going to bring the expert to court. That part will inform the court of the expertise of this person that they are seeking to have testify in court. They will inform the court of the expertise because you just go along the street and just bring anybody and say this is my expert. So there is a practice of briefing the court on what is the area of expertise of this person. And the question as to whether a person is an expert or not is a question of fact. So it is not necessarily the case that because you have brought a person—I am told of a case in which a university student was appearing before a disciplinary committee and when they were asked questions they refused to answer. They were staying at the main campus and they said they wanted their lawyer to come in. And their lawyer happened to be a second-year law student. So you can see how you can stretch this expert. You are being asked questions and this student lawyer had not cleared their second year; they were still in the mark of some papers, civil procedure, etc. and they were still there dressed in a suit and carrying the posture of an expert. So the question as to whether a person is an expert or not is a question of fact and that is determined by the court. And the pointer, the things that will help the court in coming to the determination are:

1.     Firstly, the educational background. You want to see certificates.

2.     Evidence on the areas in his field where he has taken extra courses

3.     Work experience

The case to look up here is the case of Mohammed Ahmed v R  (1957) EA 323. The appellant here had been convicted of occupying an unsafe house, which in the opinion of the district housing inspector and the superintendent of works was so unsafe as to constitute a nuisance. The court of appeal held that these two persons were not qualified experts and so their evidence was inadmissible. Again go to the fact that in this determination what the court is going to look at is the experience, where they studied, and also the areas in the field of the courses taken.

In practice, if the expert has perceived of the fact from which he proffered his opinion, if the expert directly perceived of the fact from which he or she proffered his or her opinion, or if the facts are not disputed, such expert is asked direct questions. If the expert directly perceives of the matters on which he is preferring an opinion on or where those matters are not disputed you will ask that expert direct questions  such as was the accused insane, or was he so drunk as to be incapable of controlling a motor vehicle. If however the expert did not perceive of the fact or if the facts are disputed he is asked hypothetical  questions such as are the facts adduced consistent with the existence of a certain state such as drunkenness or insanity.

Under section 54 grounds for an expert opinion are admissible but this section does not make it mandatory for the expert witness to give reasons. So while section 54 makes grounds for expert opinion admissible, it does not make it a must that those reasons be given.

And here you should look at the case of the R v Salim s/o Sengero (1939) EACA 147, which is to effect that a court would welcome reasons for a witness’s opinion even though it is not mandatory that this be given.

Note however that it is necessary for experts to give reasons for their opinions as this helps to equip the court with better knowledge of the matter under investigation. And the authority for that preposition is the case of Onyango v R  (1969) EA 362, which his to the effect that it is not a universal requirement that reasons for opinion should be given. An expert should come to court prepared to justify his opinion by argument and demonstration. But he need not necessarily  be asked to do so. In many cases it is sufficient if the expert gives his opinion. The more eminent the expert the less the need for demonstration. So the long and short of this statement is that while the law at section 54  does not require an expert to bring in reasons for his opinion ordinarily when an expert is asked to give opinion in court he should come prepared to justify their opinion and this justification will be through demonstration and argument. So if they come prepared to demonstrate an argument, their reason for the opinion and they are not asked to ….there is no loss but you can imagine a situation when you came in without being prepared as an expert to give reason and then you are asked what the reasons are. In essence what it is also saying if you are an imminent expert, you eminence speaks for you. If you are an up and coming expert you will be more required to give reason than the expert who is well established. Again the question as to whether a person is an established expert or not is a matter of fact. You are looking at what their education background, many years of expertise or work experience.

HOW SHOULD COURTS TREAT EXPERT OPINION?

Remember we are saying expert opinion is admitted as an exception to the general rule and the question that I am posing is how should courts treat opinion of experts. It is opinion only. And the court must still make its own conclusion. And there is strong feeling that courts should not abdicate their responsibility of judicial making to experts. So what the expert in essence is doing is assisting the court on matters that the court is not too well equipped to opine on or to make a decision on. But what the experts can mean, what they are doing is assisting the court. They are not taking over the role of the court.

And the case to look at here is the case of Kit Smile Mugisha v Uganda , Criminal appeal No 78 of 1976, where the court of appeal took the view that expert opinion is only opinion and it cannot take the place of substantive evidence. The court continues to state, “The court has to decided an issue upon such assistance as the expert may offer but it should not abdicate its role of opinion-making to the expert. It must form its own opinion on the subject matter at hand.”

And the other case to look is the case of Hassan Salum v R (1964) EA 172. This case again is along the same lines that the court should not over rely on experts because they can also make mistakes. And the court should not be bound by the expert opinion.

A case to look at on the whole question of expert basing their opinion upon fact is the case of the R v Kipikandimu and Three Others (1946) 7 Zanzibar Law Reports page 90, where a medical expert gave evidence that certain injuries described by him were inflicted before death. He gave no reasons for his opinion. The court held that the opinion evidence was inadmissible as to the cause of death. And again this is going to the fact that we are making that you should go to court as an expert prepared to justify your opinion by argument and demonstration. So if the issue of argument and demonstration arises and you are unable to defend that then it could that the evidence is going to be thrown out. It will not even assist the court informing its own opinion.

If the opinions of two experts conflict the court has to make its own opinion the court by looking at the credibility of the evidence available and the eminence of the experts. If the two conflicting experts are equal in eminence and credit worthy then the matter is taken as not proved and the party on whom the burden of proof lies has to dispense of it in another way.

What do we mean by creditworthy in evidence other than bank terms? Credit worthy here is speaking about credibility or believability of a person as a witness. Is that clear? So if the two of them are equally eminent and credit worthy, the matter is taken as not proved and the party on whom the burden of proof lies has to dispense with the matter in another way.

Under section 63 (2), opinion evidence should be direct and oral unless it is expressed in a book commonly offered for sale. In looking at the whole question of expert opinion, you should revisit the question of proof of handwriting. You remember when we were looking at documentary evidence you looked at proof of handwriting under section 50. You should look at that again because when you are trying to prove handwriting you go to expert evidence and these rules and particular.

That dispenses then with expert opinion and we will now proceed to look at the second category of instances where opinion evidence is admissible as an exception to the general rule. We say that opinion is not generally admissible. It is only admissible in three instances. We have looked at one instance and now we are going to look at the second instance.

Second instance: when it is not possible to separate facts from inference.

A witness cannot communicate effectively without admitting opinion evidence. And  I gave the opinion of that to include issues pertaining to identity. For instance, if I say that I saw somebody going into a place a stealing, all I am doing is opining that the person that I saw stealing is the person that is now before me. Do you see what I mean? When you are talking about identification of say a person who committed a crime or identifying something you are just offering or tending an opinion that the goods that are put before you are the same goods that were stolen. Isn’t that an opinion? Because it could be the case that there were the same kind of goods available elsewhere. So all you are doing is offering an opinion. There is also the whole question of A who sells, etc. So when you talk about identify you are not just talking about identity of person but also of things. So when you say that you identify these implement or gun as the one that we used at the scene of crime where you were you are just opining that what was before you is the same thing that is before you in another instance. So we are saying that evidence of identity is an expression of an opinion. And I am giving the example of goods. You are opining that the goods that are recovered after a robbery are the same goods that were taken during the robbery. Do you see what we are saying that you are opining? It’s really just your opinion. Could you really say conclusively that this is it? You would be opinion that this is it.

Courts treat opinion of identity very cautiously to avoid convicting people on mistaken identity. And here the case to look at is the case of Roria v R (1967) EA 583. Here 14 days after a raid on a Masai manyatta, the appellant was identified at an identification parade by the wife of one of the persons killed in the raid. He was identified as "either the person on who killed her husband or who passed close to her when entering the manyatta". And the court rejected this evidence noting that the danger of possible wrong identification is greater when the only evidence is identification by one witness and although no one could suggest that a conviction based on such identification should never be upheld, it is the duty of the court to satisfy itself that in all cases it is safe to act on such identification. In normal circumstances courts will require corroboration of such identifications especially where it is identification at night by single witnesses. And again this is because the court must satisfy itself that in all circumstances it is safe to act on the identification. In fact in instances where the only evidence is identification by a single witness, the evidence is required to be absolutely watertight to justify a conviction. In essence what we are saying is that that courts exercise a lot discretion when they are faced with evidence of identification, and this is again going back to the principle that we have often referred to—fairness to the accused person…. So if it is single witnesses at night you exercise more caution. If indeed this is the only evidence for it to secure conviction it must be watertight.

How are identification parades carried out?

The procedure- and essentially here what I am now looking is possible ways of identification. We have been talking about identification  parade and that is not the only way in which you can identify a person because we have been talking about them-that is the person you look at. How do you carry out an identification parade? And the procedure for the identification parade was laid out in the case of R  v Mwango s/o  Manaa (1936) 3 EACA 29, which case was approved for the case of Simon Musoke v R (1968) EA 72. And the procedure is as follows:

1. Firstly, the accused is always informed that he may have a lawyer or friend present when the parade takes place.

2. Secondly, the office in charge of the case does not carry out the identification but he may be present.

3. Thirdly, the witnesses do not see the accused before the parade

4. Fourthly, the accused is placed among at least 8 persons of a similar age, height, general appearance—if the accused is scruffy you don’t bring unscruffy people-- and class of life as himself or herself. So there is similarity.

5. Fifthly, the accused is allowed to take any position he choses and he is allowed to change position after each identifying witness has left if he so wishes.

6. Sixthly, witnesses should not be allowed to communicate with each other after they have been to the parade. That is of course as one is walking out and the other one is walking in.

7. Sevenly, to exclude all persons who have no business at the parade.

8. Eighthly, careful notes should be taken after each witness leaves the parade and the notes should include, did the witnesses identify any person and under what circumstances, in what position was the person identified, or any other circumstances of the identification.

9. Nine, if the witness desires to see the accused walk, hear him speak, see him with his hat on or off, this should be done but all persons in the parade should be requested to do what the witnesses has requested as a precautionary measure.

10. Ten, the witness should touch the person he or she identifies

11. At the termination of the parade or end of the parade the accused should be asked if he is satisfied that the parade is being conducted in a fair manner and a note should be made of his reply.

12. In introducing the witness to the parade, the witness should be told that he will see a group of people who may or may not include the suspected person and throughout the parade it is critical that the parties conducting the parade act fairly to avoid depreciation of the identification as evidence. It is dangerous or wrong to suggest to the identifying witness that the person to be identified is believed to be present on the parade. And the case to look at here is the case of R v  Bulatikwa (1941) 8 EACA 46, where the officer conducting the parade told the identifying witness: "You know a man called Bulatikwa whom you said killed your uncle, come on to the verandah and see whether you can find him". And this was said to be wrong because it is a suggestion that the person to be identified is actually in the parade.

It is not established practice to question a witness who has made an identification at a parade as to their reasons for doing so. So you don’t put an identifying witness to task after they have identified whoever they identify. A voluntary statement or comment made by the witness however can be received as evidence as part of the identification. So even though they are saying that you do not ordinarily ask witnesses questions to find out the reasons why they identified a particular person if they voluntarily make a comment then that comment will be recorded and should be received as evidence as part of the identification. And the case to look here is the case of Simon Musoke v R. You have it. I have already given it to you. In this case the appellant was charged with another person on one count of theft of a motor vehicle and two counts of robbery with violence. The evidence was that on the material day the accused person had been seen at a funeral and at a bar dressed in a helmet, which was readily identified by the prosecution witness. The evidence of identification by the bar owner was rejected by the trial court on the grounds that no question were put to this witness to elicit reasons for identification. The stolen motor vehicle was found outside the bar and in it was found amongst other things the helmet exhibited at the trial. On appeal the issue was whether the evidence of identification was properly disallowed on the grounds that no questions were put to him to elicit reasons for identification. And the court held that it is not established practice to question a witness who has made an identification at a parade as to his reasons for doing so. Comments voluntarily made by the witness are often received as part of the identification. But answers to questions would be of less value and of doubtful admissibility. And essentially I am just making the point that I made earlier: that it is not usual practice to begin to ask a person questions at an identification: why did you identify that person? But if they do volunteer statements those will be received as part of the identification. And the authority for that preposition is the case of Simon Musoke.

The second way of identifying is through fingerprints. And fingerprints are provided for at section 48. If you look at section 48 it talks about expert witnesses. It talks about fingerprinting. And fingerprints may be taken also for purposes of comparison. So fingerprints should be another way of identifying other than an identification parade.

The third one is footprints. You can use footprints and here what is done is a  comparison of footmarks. You would look for instance for the soil type on the shoes. You have seen cases where an offence committee and the only evidence they might have is that the person was wearing a particular kind of shoes which formed a particular kind of impression and the evidence would be to compare the soil type at the scene of crime with the soil type on the shoe and to see whether the foot marks left on that soil are the same as the ones that are contained in the shoes that the person suspected wore. And the case to look at here is the case of R v Maganga (1935) 2 EACA 59.

The fourth way of identification is by use of police dogs. And the question has arisen here whether this is reliable. And the case to is the Wendo and Another v R., where it was stated evidence of identification by police dogs is admissible and can corroborate other identification. But the dog must qualify as an expert. So you have to bring its training to court, and that has to be taken into account in weighing the value of its evidence.

Before we leave the whole area of identification it is important to distinguish between identification and recognition. Identification refers to a situation where one is trying to remember whether the person you are seeing is the same person you saw at the scene of crime, whereas recognition refers to the situation where one knows the person, you know the person positively, and you saw them so you recognized them when you saw them. You are not trying to remember whether the person you saw at the scene of crime is the same person. You are saying you know that person and that is the person you saw. Recognition is more reliable than identification. And the case to look at here is the case of Reuben Taabu Anjononi v R (1980) Kenya Law Reports page 59. You should look at that case on the whole question of recognition versus identification.

Other issues of mixed fact and opinion, apart from identity related as we have said to help especially where one is testifying as to their own health. So when a person says that they are sick, this is opinion as I have pointed out. Because the person does not go into the detail of the causes of the illness or the incapacity resulting from this illness. The cause of illness and incapacity resulting from the illness will be matters left to experts but that does not remove from you the capability of opining on your being sick. The other example we have said is speed. One can say whether or not a particular motor vehicle is being driven at a particular speed, you do not need to be a rocket scientist to tell whether a vehicle is being driven at a fast speed. The practice, however, is not to convict on the evidence of single witnesses. So on questions of speed even though a person will find that the vehicle was moving at a fast speed, conviction should not be based on the evidence of single witnesses. This is provided for at section 43 (3) of the Traffic Offences Act.

Therefore we are talking about identification. Remember with identification there are different ways of identifying. You can use identification parade, you can use fingerprints, you can use footprints, you can use police dogs.

The second one we have said is health, and we have also talked about speed. The next is age.

Age

Witnesses often testify as to their own age. But this is a fact upon which such a person cannot have first hand knowledge of that age. Because you know that age can only be proved can only be proved by the testimony of a witness other than the person in question who was present at birth, or the production of a birth certificate. So when you testify as to your age, you are giving an opinion, even when you testify as to the age of persons at whose birth you were not present, you are giving an opinion. And of course you know that age is a prime factor in certain cases. For instance if you want to distinguish between an inditement for rape and defilement age is going to be a factor. Or if you want to establish at what age that criminality attaches to a person’s act, that is critical and so you may have instances where opinion of a person’s age is being given. And of course if you want to you may actually call for people that were there when the person was born. And normally this is what is done. You either bring a birth certificate or have people testify as to age.

There is also intoxication as mixed facts and opinion. And here the evidence is based upon observation, which you can give without any scientific check being carried out. And of course we go back to the case of Odindo v R . Remember Odindo was permitted to tell the court what this man could not do but he was not permitted to opine on whether the person was capable of controlling a motor vehicle or not. But to be able to tell that a person is operating  under the influence of  alcohol  this is not the time either. By observation, facts and inferences, you have facts on how the person is walking, they normally walk straight but now they are not properly focused, they are probably tottering around… those kinds of observations. All a person that you know is not really short sighted, that doesn’t seem to be seeing very far. So you should revisit here when you are looking at intoxication the case of Odindo v R to see just what kind of opinion will be admitted and which will not be allowed as far as investigation is concerned.

WHERE OPINIONS ARE ADMISSIBLE ARE CASES WHERE OPINIONS ARE SO LIKELY TO BE CORRECT

And the final category of circumstances where opinions are admissible are cases where opinions are so likely to be correct that the court deems this convenient and time saving to admit them. And examples here opinions as to handwriting of a person by person acquainted with such person's handwriting. And this is provided for at section 50(1)—opinion as to handwriting of a person by a person acquainted with such person’s handwriting. Because remember, handwriting is a matter for experts. So when you have a person acquainted with a handwriting be allowed to opine as to whose handwriting is before the court or is under proof, it is an exception to the general rule. You are allowing this person to bring what they know to bear on the determination.

The second example is contained at section 51 (1). Opinion as to the existence of a general rights or custom by persons likely to know of it. Who would be the persons to know of the existence of customary law? Who are the repository of customs?… So you would be going to people who have a working knowledgeable, a familiarity of general the rights or customs.

Thirdly, opinion as to usages, tenets, constitution, and government of any association body or organization given by persons having special means of knowledge thereon. This is provided for at section 52. So here you are contemplating a situation where the whole question about say the articles of faith of some cult. So the opinion of persons who would have knowledge of those special means of knowledge. Say you are a member or you are actually a senior person in the cult, then you will be allowed to opine on those articles of faith or the constitution or the tenet of that body, organization, etc.

And fourthly, opinion as to the relationship of one person to another, expressed by conduct or evidence of persons who are best placed to know it. So for instance, if the question is whether X and Y are married, the fact that they were usually by their friends as husband and wife would be relevant and admissible opinion because that is an opinion as to a relationship by a person who has special knowledge. And that is provided for at section 53.