Tuesday, 19 November 2013

Expert Witness :Psychiatrist.

Under section 45 of the Evidence Act 1950,  it has explained on who is an expert.

(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 finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

(2) Such persons are called experts.

            In Mellappa v Guramma A.I.R 1956, under certain circumstances, expert evidence can be consider as a nearly a weak type of evidence as it is consider as a third person opinion. The said circumstances is especially when the expert did not have sufficient expertise on the field.  Expert witnesses often called upon the court to give their testimony. This task will require the specialist who was call upon the court to have a certain knowledge, skills and judgment. There are under certain circumstances where the court is lack of certain knowledge to form an opinion and will need guidance from expert witnesses. The weight of the opinions given by the expert witness will be later determined based on the cases which bring upon the court.

There are many kind of expert which usually being brought upon the court to testify or as witness. In most cases, the most sought after expert witness are expert from a medical field which is psychiatrist. A psychiatrist is a qualified medical practitioner who subsequently specialises in the diagnosis, treatment and prevention of mental illness and emotional disorders and as stated by the Royal Australian and New Zealand College of Psychiatrists, due to their extensive medical and psychiatric training, a psychiatrist able to view illness in an integrated way by taking into consideration the related aspects of mind and body. 

            At first, psychiatrist were not entrusted to gave opinions on mental health in court however, in a US case of Jenkins v US, the US Supreme Court starts to be more open towards psychiatrist in giving their opinion. Court will allow psychiatrist to testify as witnesses of fact about the client who have been treated by them and even allowing them to express an opinion however have certain restriction when it comes to the diagnosis and treatment of their client. In the Field's Expert Evidence book, it has stated that the evidence of an experts plays an important part in cases where the plea of insanity is taken.  In a Malaysian case of PP v Haji Kassim [1971] 2 MLJ 115, we can see that, the psychiatrist who have treated the accused was brought upon the court to testify. In this case, the accused has struck his daughter with a parang on her neck causing her immediate death and at the time, the accused was said to suffer from an acute depression.

In many cases, the state of mind of an accused will be examine by the psychiatrist in order to determine whether there are mens rea on the behalf of the accused and and in most cases, the testimony of psychiatrist acting as the expert witness will be able to affect the judgment in certain cases to the extent where the accused could get an exemption from any punishment from the crime he or she has commits for example, from death sentence, it can be lessen to a life imprisonment or a permanent stay at an asylum or any mental institution. This is to see whether the accused can used the defence of insanity and to used the defence, the person have to be unsound to the extent where the offender will incapable of knowing the nature of the act or that he is doing what is wrong or contrary to law.  

So, as a conclusion, for an accused or defence to used the defence of insanity, the accused have to be examine by the psychiatrist to ensure that at the time when he or she committing the crime, the cognitive faculties of the accused must be completely impaired and to know whether the congnitive faculties of the accused is completely impaired or not, the court need a psychiatrist.


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