Monday, 2 December 2013

Expert witness under civil and islamic law in Malaysia-part 2

For the second part, we will continue the discussion on the comparison between the expert witness under civil and islamic law in Malaysia. This part will focus more on the definition of terms used and also what are the things that are present and also absent in both statutory provisions on expert witness in the Malaysian law.

The first term to be emphasize on is “relevant facts” which can be found in the provision on expert witness in the Evidence  act 1950[1], the first limb of section 45.The meaning of “relevant “ is explained in Section 3 of Evidence Act 1950[2], which reads:

 3. In this Act, unless the context otherwise requires—
“relevant”: one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

For the judicial interpretation on meaning of relevant facts, it was discussed by Thesiger J in the case of R v Hartz[3]:

 “’relevant’ is used in the sense that evidence in which it is defined in Art 1 of Stephen’s Digest Law of Evidence. It is thereby stated the word means “ any two facts to which it is applied are so related to each other that according to the common course of events either taken in by itself or in connection with other facts proves or renders probable the past…existence of the other.”

In a nutshell, it can be said that relevancy is of a probative value that is sufficiently useful to prove something important in trial

Another illustration for the definition of relevancy can be taken fro the case of Thavanathan v PP[4]. the main issue in this case was whether it was open for a second appellate court to consider evidence adduced on a charge of which the accused person had been acquitted to support his conviction on a second remaining charge. Chong Siew Fai FJ stated in his judgment that it its allowed, as long as it satisfied the law relating to relevancy which in present context of the law are principally section 5,6,7,8,9 of Evidence Act 1950. It can therefore be adduced that the scope of “relevant” is restricted to provisions relating to relevancy under Evidence Act 1950.

Moving on to the definition of “qarinah”. It is the utmost importance that these two terms to be differentiated since the only thing that is different between the two provisions, apart from the additional usage of the word “nasab” in the islamic evidence statute is the usage of “qarinah” and “relevant facts” that substitute each other in the different acts.
         Qarinah means evidence that can be drawn from the temporal and spatial and any other circumstances, in simple words, circumstantial evidence. is a tool of proof that applicable in Law of Evidence in order to establish a claim and convict a crime. Qarinah was attested by the 'ulama as a great proving method whenever it fulfills and appropriate with the conditions that rules by the syarak. The other difference is that the islamic law provision on expert witness consist of a third subsection which requires two or more experts must be called to give testimony if possible but if there are no two experts, one expert testimony is adequate. If two experts give different opinions, then a third expert must be called to testify. This provision is absent in the Evidence act 1950.

So, with the civil law using the term relevant facts and islamic law, on the other hand uses the word “qarinah” which means circumstantial evidence. Is relevant facts and circumstantial evidence can be used to reflect one another in this case? Lets hear some comments.

[1] Act 56
[2] ibid
[3] unreported
[4] [1997] 2 MLJ 401

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