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:
Interpretation
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.
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