Wednesday, 23 October 2013

Expert Evidence : Admissible Opinions???

The first thing I learned about Evidence law is that evidence is information by which facts tend to be proved where else the law of evidence is the body of law that regulates the means by which facts may be proved in both the court of law where the STRICT evidential rules are applicable. This STRICT evidential rules includes NO hearsay and NO opinions. One cannot go to court and say "i heard that... or i believe this.... or he/she told me this". 

So the question that arise is how then do we have expert evidence? 

Our society has becomes more intricate and complex, the judges being only human can only know so much, they are faced with more elaborate scenarios as our community continues to develop. Thus, here arises the need for expert evidence. The reasoning is fairly straightforward, because these expert opinions enable the court to come to a proper decision.

Unfortunately an obstacle arises, that is it is trite law that the opinions of third persons are inadmissible. Here is where the delineation between evidences of fact and opinion comes into play. 

If the evidence given is one of fact then the ordinary rules of admissibility applies. If the evidence is one of opinion, then it would come under the category of expert evidence. Here we can refer to Abdul Hamid LP in Khoo Hi Chiang v Public Prosecutor [1994] 1 MLJ 265 who cited Hobhouse J in The Torentia [1983] 2 Lloyd’s Rep 210 when deciding on whether the evidence sought to be adduced would be categorized as expert evidence:

“ First, evidence is adduced which can be described as direct factual evidence, which bears directly on the facts of the case. Second, there is opinion evidence which is given with regard to those facts as they have been proved and then there is thirdly, evidence which might be described as factual, which is used to support or contradict the opinion evidence. This is evidence which is commonly given by experts because in giving their expert evidence they rely upon their expertise and experience, and they do refer to that experience in their evidence. So an expert may say what he has observed in other cases and what they have taught him for the evaluation of the facts in the particular case…”

Therefore, it is rather evident that the delineation between fact and opinion is paper thin.

In Malaysia, Section 45 of the Evidence Act that defines the situations where an expert opinion is admissible. Now, according to that section, the court may consider experts opinion in only four areas which are:
(i)                 foreign law;
(ii)               science;
(iii)              arts; and
(iv)               identity or genuineness of handwriting or finger impressions.

Now that we know where the courts may consider expert opinion, what is the role/weightage of these expert opinions?

In Chou Kooi Pang v Public Prosecutor [1998] 3 SLR 593, it was held that expert opinion is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge. This implies that the judge still retains the authority to form his own conclusions. The Court of Appeal of Singapore went on to say that if on the proven facts, a judge can form him own conclusions, without help, the opinion of an expert is unnecessary.

Therefore, it goes hand in hand the understanding that evidence of experts can never go beyond an opinion and can never therefore be of absolute certainty. Such was said by Hashim Yeop Sani J in Public Prosecutor v Mohamed Kassim bin Yatim [1977] 1 MLJ 64, which is an appeal by the Public Prosecutor against the acquittal of the accused in respect of three charges. The prosecution tendered specimen signature of the accused to show that the accused knowingly made false statements separately on tree application forms. Hashim Yeop Sani J held that the proper way to assess the evidence would be to see whether the court could act on such evidence if there was corroboration either by direct or circumstantial evidence. The judge concluded that based on mere comparison of handwriting, must at best be indecisive.

That case may have been specifically addressing comparison of handwriting, but it does establish the fact that expert evidence plays a role as an opinion and that just because an expert gives an opinion, the court is not robbed of its authority to decide on a matter.

In conclusion, with every general rule, there is an exception.

But, with all due respect to the experts, an expert’s opinion is essentially still an opinion. 

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