OPINION EVIDENCE

Facts are things or events capable of being perceived by the five human senses. They include any mental condition of which a person is conscious. As a general rule, evidence of such facts must be direct, in the sense that it must be given by those who have experienced them first hand.

Evidence is that body of testimony a party puts forward to support the desired finding by the Judge hearing the case who must be guided solely by the facts.

Evidence becomes proof only when the Judge, against the backdrop of the totality of the evidence given and all the circumstances of the case, either believes those facts to exist, or considers those facts so probable that a prudent man under the circumstances of the particular case ought to act upon the supposition that those facts exist.

The Court's decision must be the end product of judicial reasoning based on proven facts and legitimate inferences from those facts.

Witnesses are generally not allowed to inform the court of the inferences they draw from facts perceived by them, but must confine their statements to an account of such facts.

If the witness interprets the facts which he perceives he is offering his opinion.

2 TYPES OF OPINION EVIDENCE: (A) experts opinion (B) non-experts opinion

(A) experts opinion Where technical or scientific insight is required to understand the issues which are outside the experience or knowledge of the Judge, expert evidence is admitted in order to assist the Court to arrive at the proper conclusion.

Section 45. Opinions of Experts

(1) When the Court has to form an opinion upon a point of ..science or art, the opinions upon that point of persons specially skilled in that science or art, are relevant facts.
(2) Such persons are called experts.

Science eg. biology, chemistry, physic, medicine, etc.

Art eg. Painting, music, literature, drama, etc.

Illustrations. (a) The question is whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.

Illustrations.
(b) The question is whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The opinion of experts upon the question whether symptoms exhibited by A commonly show unsoundness of mind and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do or of knowing what they do is either wrong or contrary to law, are relevant.

Chandra Sekaran & Ors v PP- the expression science or art is elastic enough to be given a liberal interpretation and the fact that the section does not specify particular fields of knowledge does not mean that they are not included. In this case the court was concerned with whether a document had been typed on a certain typewriter. Expert evidence on this issue was allowed on the basis that expert opinion on typewriting is as much a matter of science study as handwriting and finger print evidence.

Section 46. Facts not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant.

Illustrations. (a) The question is whether A was poisoned by a certain poison. The fact that other persons who were poisoned by that poison exhibited certain symptoms, which experts affirm or deny to be symptoms of that poison are relevant.

Section 60. (1) Oral evidence shall in all cases whatever be direct, that is to say(a).. (b) (c) (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

Section 60. (2) The opinion of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of the treatise if the author is dead or cannot be found or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.

Section 399 of the Criminal Procedure Code creates a special class of Government servants who are permitted to have their reports tendered as evidence in Court in lieu of personal attendance, provided certain formalities are observed.
Officers of the Institute of Medical Research, Government Medical Officers and Malaysian and Singapore Government Chemists are in this category. If their report is served on the Accused person at least 10 days before the trial, such persons need not attend court, unless at least 3 days before the trial the Accused person gives notice that he requires the person to attend, or unless the Court itself gives such notice at any time before the conclusion of the proceedings.

It is however open to the Prosecution not to serve the report at all but merely to call the witness to give oral testimony, thus preserving the element of surprise. And Accused persons are not obliged under our laws to give advance notice of their intention to call any expert witnesses in their defence.

Phipson on Evidence,10th edition, p.1280 Where the opinion of experts is based on reports of facts, those facts, unless within the expert's own knowledge must be proved independently

Expert evidence is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge. (Syed Abu Bakar v PP)

During the course of his testimony the expert may have to refer to documentary and real evidence to support and illustrate his testimony. Sometimes the experts will need to rely on treatises and other extrinsic materials to support his opinion.

Section 51. Whenever the opinion of any living person is relevant, the grounds on which his opinion is based are also relevant. Illustration. An expert may give an account of experiments performed by him for the purpose of forming his opinion.

How competent must the expert be?

-Professionally qualified or -Experience must relate specifically to the matters in issue.

The opposing party may object to a witness on the ground that he is not specially skilled in which case the party calling him must prove his expertise through a series of questions. (Junaidi bin Abdullah v PP [1993] 3 MLJ 217)

Pacific Tin Consolidated Corporation v. Hoon Wee Thiam [1967] 2 M.L.J. 35 Experts : geologists who had testified about the cause of the collapse of a bund in a mining pool in Cheras which resulted in a catastrophic flood
Summary of the principles:
1. The first requirement for the admission of expert evidence on any particular area of practice is that a relevant field of expertise should exist in the sense that there is an organised branch of knowledge in that particular discipline.

2. Secondly, only a person who has acquired specialised knowledge by a study of that discipline and thereby has qualified himself therein can be regarded as an expert in that specialised area.

3. Since the whole point of calling an expert is to have him give an opinion the third and most crucial aspect of expert evidence is that the facts upon which his opinion is based must be proved by the party calling him by admissible evidence. Without the primary facts to sustain his findings the expert's opinion however learned, is useless.

P.P. V LIN LIAN CHEN (1991) 1 M.L.J. 316, Mokhtar Abdullah J., said:I was satisfied that the prosection had failed to prove a prima facie case for two reasons, viz: the failure to prove the expertise of the chemist and/or the existence of a reasonable doubt cast during the prosecution case itself.
All the prosecution had adduced to show that P.W.2 (the Government Chemist) was an expert was his testimony, as follows:"I have been in the Chemistry Department for 13 years. I have a B.Sc.(Hons) degree majoring in Chemistry, I have a Diploma in Blood Seriology."

That is all!!! Apart from that fact..no evidence was led at all..that this witness had the necessary experience in the analysis of dangerous drugs especially heroin, or for that matter had given evidence in court on the analysis of drugs, or that his expert testimony had been accepted by the Courts .Strictly speaking the prosecution had failed in law to provide the basis for the reception of the expert opinion of P.W.2 under section 45 of the Evidence Act 1950.

KHOO HI CHIANG V P.P. (1994) 1.M.L.J. 765 (SC) :

"It is to be observed that the task of the chemist is to identify the nature of the drug and as held in Rooker v. Rooker "identification is a question of fact, to be proved, like any other conclusion of fact, either by direct or circumstantial evidence... ...In the premises it is clear that the evidence of the chemist on the identity and weight of the drug constitutes evidence of fact and not of opinion. (and)..is factual evidence within the meaning of Section 45 of the Evidence Act. Such evidence is therefore admissible in a Court of Law either given by him orally like any other witness, or as specially provided by law, can be set out in a report admissible pursuant to section 399 of the Criminal Procedure Code"

P.P. V MUHAMED BIN SULAIMAN (1982) 2 M.L.J. 320 An officer who had no special qualifications in ballistics except experience was giving only factual evidence when he testified that the bullet which killed the deceased had been fired from the Accused's rifle.

Conflicting expert evidence: It is necessary for the prosecutor to produce additional expert evidence eg. From the writings of another internationally accepted expert in the field. (PP v Ang Soon Huat [1991] 1 MLJ 1)
Where there is a conflict, the court has a right to prefer one opinion to the other. (Spore Finance v Lim Kah Ngam)

(B) non-experts opinion S.47 allows a non-expert to state his opinion on handwriting on condition that he is acquainted with that persons handwriting. S.48 opinions as to existence of right or custom. S.49 opinions on contractual terms and trade usagesby any witness who has special knowledge. S.50- opinions on relationship.

Expert Evidence in Civil Cases. Order 25 rule 8 of the Rules of the High Court 1980 was enacted in 1981 to provide automatic directions in personal injury actions. Rule 8(1)(b) provides that a party who intends to rely on expert evidence shall within 10 weeks from the trial, disclose the substance of that evidence to the other parties in the form of a written report which shall be agreed if possible. Where they are unable to agree each party is entitled to call two medical witnesses or one expert of any other kind provided always that prior disclosure has taken place as prescribed. Similar provisions are contained in the Subordinate Court Rules 1980 Order 19 Rule 8.

Order 40 Rule 1 of the Rules of the High Court 1980 provides for the appointment of a Court expert. Such experts are truly independent because they answer to the Court. O.40 rule 1(4) : In this rule an expert in relation to any question arising in a cause or matter means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence.

The question upon which the experts opinion is required is formulated by the party making the application and the report of such an expert is sent to the court which may then permit the parties to cross examine the Court expert or even call one expert to give evidence of a contrary view.
The remuneration of the Court expert is fixed by the Court. The parties to the action are jointly and severally responsible for this and the remuneration is recovered as part of the costs of the action. If one party opposes the application then the other party making the application can be made to provide security for the experts fees as a condition for making the appointment.