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.
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