Chapter 10 - Opinion Evidence Flashcards
OPINION EVIDENCE
Overview
1) By experts
2) By ordinary witness
OPINION EVIDENCE BY EXPERTS
Overview
1) admissibility
2) categories of expert - general
3) categories of expert - gazetted expert
4) experts under EA
5) role of experts
6) distinction between facts & opinions
7) area of expertise
8) issues on opinion evidence by experts
9) procedures to adduce evidence by expert
OPINION EVIDENCE BY EXPERTS
Admissibility
1) The law - S.45 & S.46:
- expert opinions are relevant.
2) Application - Dato’ Mokhtar Hashim v PP:
- Experts opinion is admissible for the matter where inexperienced persons are unlikely to prove & incapable of forming a correct judgment without the assistance of an expert.
- The opinion of these skilled witnesses are admissible including where the opinions come from the personal observations of the witnesses themselves and on the facts within their knowledge.
OPINION EVIDENCE BY EXPERTS
Categories of expert - general
PP v Saad bin Mat Takraw:
1) Gazetted experts:
- creature of statutre;
- accepted w/o the evidence of his expertise.
2) experts under EA.
GAZETTED EXPERT
what are gazetted experts
1) What - PP v Saad bin Mat Takraw:
- Gazetted expert is a creature of statute;
- Gazetted expert is accepted by the court as prima facie expert without the need to lead evidence to prove their expertise.
2) GE v EEA - Kum Wah Sdn Bhd v RHB Bank Bhd:
- A gazetted document examiner was more qualified to give evidence than an expert who is classified under EA.
- This is despite that the expert classified under EA is a former Director-General of the Malaysian Chemistry Department.
3) Example of gazetted experts:
- Gazetted experts are basically people whose appointment of their roles have been officially published publicly.
- An example is a digital forensic analysts being recognized as experts by the Malaysian courts under the Criminal Procedure Code.
PROCEDURE OF ADDUCING EXPERT EVIDENCE
Overview
1) oral evidence must be given
2) evidence of qualifications
3) whether WCS is compulsory
4) evidence of grounds of opinion
5) failure to comply with procedures
EXPERTS UNDER EA
test for “persons specially skilled”
1) General - Phipson on Evidence:
- skilled by special study or experience.
- h/ever, the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility.
- Ref. to in PP v Muhammed bin Sulaiman.
2) Test - PP v Muhammed bin Sulaiman:
- The question which must be asked by a judge on competency of a specially skilled person is:
- is he peritus?
- is he skilled?
- has he adequate knowledge?
3) PP v Dato’ Mokhtar Hashim:
- One who is skilled in any particular art, trade or profession being possessed of peculiar knowledge concerning the same.
- Must have made a special study of the subject or have acquired special experience on the subject.
- Ref. PP v Muhammed bin Sulaiman.
EXPERTS UNDER EA
special study whether needed
Kong Nen Siew v Lim Siew Hing:
- need not be an expert by special study & may be so by experience;
- The fact that he has not acquired knowledge professionally only affects the weight of the evidence and not its admissibility.
- Therefore, semi-skilled or semi-professional persons may qualify as an expert witness
EXPERTS UNDER EA
degree of expertise
Junaidi bin Abdullah v PP:
- Degree required depends on the scientific nature & complexity of evidence that is sought to be proved;
- The more scientific and complex the subject matter, the more extensive and deeper will the court be required to inquire into the ascertainment of his qualification and experience;
- The lack of qualification or experience will affect the weight of the evidence rather than admissibility.
- However, where the evidence is of a complex and scientific nature, the absence of either qualification or experience can certainly affect admissibility.
ROLE OF EXPERTS
role of experts in trial
1) Should not conclude - Ong Chan Tow v R:
- an expert should not be asked to give his conclusions on matters which are eminently matters for the court to decide.
2) Assist - Wong Swee Chin v PP:
- Except on purely scientific issues, expert evidence is to be used by the court only for the purpose of assisting rather than compelling the formulation of the ultimate judgments.
- a judge or jury is required to weigh all the evidence and determine the probabilities.
DISTINCTION BETWEEN FACTS & OPINIONS
How to distinguish & examples
1) General:
- Facts: court is entitled to accept at face value, unless it is inherently incredible.
- Opinions: court needs to form conclusion itself.
2) How to distinguish - Khoo Hi Chiang v PP:
- Where the identification by experts is using scientific criteria (e.g. identification of substance), the opinion is nearly always based on impression and not on conscious reflection on data.
- In such a situation, it is fact & not opinions.
3) Junaidi bin Abdullah v PP:
- A chemist in drug cases does not give any opinion as to the ownership, control or possession of the substance sent for analysis;
- he merely reports the result of the chemical examination of the substance to determine the identity of the substance.
- This is to be distinguished from opinions which are of very technical or complicated nature, such as those given by handwriting or ballistic experts.
- Where the opinion of the chemist is confined only to the elementary nature and identity of substance, the Court is entitled to accept the opinion of the expert on its face value, unless it is inherently incredible;
- However, the defence may still call evidence in rebuttal by another expert to contradict the opinion & this was successfully done in PP v Ang Soon Huat.
4) Khoo Hi Chiang v PP:
- The evidence of the chemist on the identity and weight of the drug constitutes evidence of fact and not of opinion within the meaning of S.45.
- Such evidence is admissible either given by him orally like any other witness or, as is specially provided by law, i.e. it can be set out in a report admissible pursuant to and in accordance with s. 399 of the Criminal Procedure Code.
- a chemist’s evidence may be impugned by adducing evidence to show that his findings are not valid scientifically as was successfully done by the accused in PP v. Ang Soon Huat.
AREAS OF EXPERTISE
Science or art
1) Chanderasekaran v PP:
- The expression “science or art” is elastic enough to be given liberal interpretation.
2) Leong Wing Kong v PP:
- Court has a discretion to decide whether an issue is one of science or art & consequently whether it is admissible.
AREAS OF EXPERTISE
Finger impressions or fingerprints
PP v Toh Kee Huat:
- Trial judge acquitted the accused because the evidence of his fingerprints were legally insufficient to infer his guilt.
- On appeal, it was held:
The weight of evidence of finger-prints can never be decried or condemned. - There is no question of “legally insufficient or insufficient” when it comes to the evidence of finger prints or finger impressions.
- Facts & circumstances of the case must be observed strictly.
AREAS OF EXPERTISE
Handwriting
1) Whether conclusive - Mohammed Kassim bin Yatim: v PP:
- can never be conclusive;
- to base a conviction upon the evidence of a handwriting expert is very unsafe.
2) Need for grounds - United Asian Bank Bhd v Tai Soon Heng:
- must give reasons & grounds of opinions;
- In the absence of a clear and precise statement of his reasons, it is difficult for the court to appreciate the opinion of the expert.
- Opinion given without reasons is valueless & not to be used as evidence.
3) Must be tested - Sim Ah Oh v PP:
- The evidence of the expert must be tested like any other evidence against the facts upon which he is deposing.
- The expert should have been asked by the prosecutor to elaborate and give his reasons as to his opinion & how did he come to the opinions.
4) Whether corroboration is needed - Dr. Shanmugam v Periasamy:
- Since an expert is not an accomplice, there is no reason to hold that his evidence needs to be corroborated.
- Instead of corroboration, the opinion of handwriting expert may be backed by the reasons for the opinion which must be carefully probed and examined.
5) Proper weight - Dalip Kaur v OCPC Bkt Mertajam:
- Evidence by a handwriting expert should be viewed with caution as it is only, an opinion evidence.
- But such evidence is entitled to be given proper consideration and weight in the context of the other evidence available to the Court.
ISSUES ON OPINION EVIDENCE BY EXPERTS
conflicting opinions
PP v Ang Soon Huat:
- Where there is conflicting expert evidence on scientific matters, the court is not in the best position to make a finding as to which expert is right;
- The Prosecution should adduce additional expert evidence (perhaps from writings of other internationally accepted experts in this field) to support its case.
- Otherwise, it would likely find that reasonable doubt had been raised and the Prosecution’s burden not fulfilled.
- Therefore, if P failed to adduce additional expert evidence, the case would have to be determined by falling back onto the relevant burdens of proof.
