Thursday, 21 November 2013
A Summary On Expert Evidence
In section 3 of the Evidence Act 1950, any fact is proven by evidence while in section 5 of the Evidence Act emphasizes that only evidence which is declared by the law as relevant is admissible so as to avoid prejudicial evidence or evidence of little probative value. Section 60 of the Evidence Act declares that such evidence be direct in the sense that it is perceived directly by the witness through any of his senses. To sum it up, witnesses are only permitted to speak of facts which would be what they saw or heard but not express opinions. But there is one exception to this rule of direct evidence is the opinion of experts as seen under section 45 of the Evidence Act 1950, “ (1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to identify of genuineness of handwriting or finger impressions, the opinions upon that point of persons specifically skilled in that foreign law, science or art, or in questions as to identify or genuineness of handwriting or finger impressions, are relevant facts. (2) Such persons are called experts.”
An expert witness is one who has specialized knowledge based on his training, study or experience. In the case of Syed Abu Bakar bin Ahmad v PP (1984) 2 MLJ 19 , expert evidence is admitted to enable the court to come a proper decision. The expert should at the outset satisfy the requirements of competency as set out in section 118 of the Evidence Act 1950. The test of competency of an expert witness under section 45 of the Evidence Act was set out as follows in Junaidi Bin Abdullah v PP (1993) 3 MLJ 217:
“first, does the nature of the evidence require special skill? Second, if so, has the witness acquired the necessary skill either by academic qualification or experience so that he has adequate knowledge to express an opinion on the matter under inquiry? The answer to both questions must necessarily depend on the facts of each particular case. The specialty of the skill required of an expert under section 45 would depend on the scientific nature and the complexity of the evidence sought to be more extensive and deeper will the court be required into ascertainment of his qualification or experience in the particular field of art, trade or profession. But in the final analysis in a non-jury trial, it is for the trial judge himself as both judge of fact and law to determine the weight to be attached to such evidence notwithstanding the outstanding qualification or experience (or the lack of it) of the expert.”
An expert’s evidence is not one of fact but only advisory in nature, The duty of the expert is to furnish the court with the necessary scientific criteria for testing the accuracy of the conclusions thereby enabling the judge to form an independent judgment by the application of these criteria to the proved facts.