Completion of A Perfect Circle: Expert Witness

Completion of A Perfect Circle: Expert Witness

1)    Legal Standing of Digital Forensic Analyst

§  Admittance of expert evidence based on the Criminal Procedure Code.

Pros: analyst does not need to provide detail credentials in court as the organization has been gazetted.

Cons: the defence counsel will request for time to understand the report and prepare for cross examination.

§  Acceptance of expert opinion under the Section 5 of the Malaysia Evidence Act 1950

Pros: the testimony and analysis on the digital evidence will be accepted by court if the analyst credibility is established.

Cons: The analyst must justify credentials through declaration of qualifications, background and experiences to assure the integrity of the findings and analysis made.

2)    In Court

Various types of presentation approach to illustrate the findings:

-       Demonstration

-       Animation

-       Slide

-       Verbal/ Written report

a.    Demonstration

Pros: will provide better understanding in court

Cons: In uncontrolled environment such as court, anything can happen.

b.    Animation

Pros: will provide visual illustration and it is suitable for complicated case

Cons: animation cost is expensive

c.     Slide

Pros: will provide some form of visual reference in court where defence counsel may find it hard to digest the information for the cross-examination session.

Cons: must have good presentation strategy to ensure the message understood.

d.    Verbal

Pros: defence counsel may not have any reference for the cross-examination session and it also provide high confidence/credits to the analyst

Cons: focus and avoid mistakes but the analyst need to memorize a lot of details and to ensure accuracy.

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.

What it means to be good enough?

"Trials would be very short if only perfect evidence were admissible"

   These were the words uttered by Posner J. in the case of Indianapolis Colts v Metropolitan Baltimore Football Club [34 F.3d 410]. This quote was referred to in the Reply Essays by David L. Faigman, David H. Kaye, Michael J. Saks and Joseph Sanders against accusations from Professor Edward Imwinkelried. The title of the Reply Essays is HOW GOOD IS GOOD ENOUGH?: EXPERT EVIDENCE UNDER DAUBERT AND KUMHO which discussed the reliability of an expert witness and how to measure the fitness of such opinion to a certain circumstances in a particular case under the Western Law. However, I would like to compare their arguments and the practise herein Malaysia in present. 

            "if one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts.

       

           On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his first-hand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have.

   There were two arguments alleged in which the writers only agreed to unequivocally to the first accusation. The accusation was regarding the 'best evidence' rule that does not exist in the meaning as such to portray that no other evidence can topple it over as it being the best evidence available. Hence, the writers argued that by meaning to say such 'best evidence' rule is unwise thus it was for the judges to determine which is the best evidence. Hence, if such rule persists it shall be a good ground to worry. The writers actually used the analogy portraying the court as a purchaser that is entitled to good and quality goods thus meaning to say it is for the court to decide.

   On the second accusation, there was a conflicting view between the learned writers and Professor Imwinkelried. The weight of such opinion given by the expert in the writers view shall be questioned when it seemed to be dubious. This indirectly imposes the burden for the court to ascertain such opinion is legit or not in prosecuting the case fairly. Therefore, the question of how much better is good enough for the expert opinion to be admissible in court?

   The learned writers sum it up to question whether a person with experience shall be called instead of a scientist who studied the particular subject in matter. This matter was in pursuant to the case of Daubert v Merrell Dow Pharmaceuticals, Inc.[509 U.S. 579 (1993)]. This is because in this case the court argued that it is sufficient for the experienced ones to be called instead of the scientists based on the first-hand experience of the doer whilst the scientists only deal with lesser of that object than the experienced ones. However, it is still subject to court discretion by letting the witness's own characterization determine whether it was science.

   Different approach was taken in the case of Kumho Tire Co. v Carmichael[26 U.S. 137 (1999)] where the court applied the approach of the Eleventh Circuit which deemed that if the expert did not testify about scientific research, then it was not a "scientific evidence". The test as to what amounts to scientific testimony can be review on the aside of Seventh Circuit in Berry v City of Detroit[25 F.3d 1342 (1994)].The court held as follows:

Returning back to the actual argument as to whether such weightage shall be put upon the most experience ones or the scientist? In this essay the conflict remains and argued based on two cases, that is the Daubert's case and the Frye's case. This is because the principle put forth in both cases is of the opposite. For instance in the Fyre's case the principle was that the court shall do whatever the experts told so to do. 

   Meanwhile, in the Daubert's case the principle is that the court shall find out for itself whether there is science to be considered before proceeding with the verdict. However, both cases do not neglect the need of expert evidence in certain situation. The only conflicting view is that to what extend is an opinion of an expert is good enough to affect the verdict of such fair case since there is and never will be the rule of 'best evidence' that cannot be topped by anything, in other words perfect evidence.

  When it comes to application of such expert evidence in Malaysia it is almost the same as the United States since this article was picked from the Case Western Reserve Law Review. Only when such need arises to assist the court in decision making the court may call upon such expert to testify and use their opinion as mere guidance. This is because the opinion given by expert may then form part of the relevant facts. This was then decided in the case of Syed Abu Bakar B. Ahmad v PP [1984] 2 MLJ 19. 

   The same issues are present, regardless the agreed facts that only an expert trained in a specific field can give opinion as an expert witness as per the case of Dato' Mokhtar Hashim v PP[1983] 2 MLJ 232 the question of weightage still persist. However, the case of PP v Muhd. B. Sulaiman [1982] 2 MLJ 320 cleared the doubt by concluding that:

"...while the expert must be skilled, he need not be so by special study, he may be so by experience, and the fact that he has not acquired his knowledge professionally merely goes to weight and not to admissibility."

   Hence, the weight of such expert witness shall depends on the requirement on case to case basis as in the case of Junaidi B. Abdullah v PP [1993] 3 MLJ 217. This means the heavier the burden to prove then the deeper will the court be required to enquire into the ascertainment of his qualification and experience on the particular field concerned. Despite such reliance, that does not impose to compel the court to decide as such in the case of Fyre in the earlier paragraph. This rhymes with the decision put forth in the Daubert's case which the applicable case in Malaysia would then fall to the case of Wong Swee Chin v PP [1981] 1 MLJ 212.

   In conclusion, what amounts to good enough is very much subjective. However, the rule of perfect evidence would never be in existence and the phrase ' best evidence' shall be read and understood as the best evidence available but not perfect for the judges to ascertain accordingly. Hence, more or less the application of the rule on expert evidence in Malaysia is somehow similar but differs in their own way with ones of the United States. Besides, the conflicting principles in Daubert's and Frye's case is seen to be equivalent to the conflicting views in Bolam v Friern Hospital Management Committee[1957] 1 WLR 582 and the case of Foo Fio Na V. Dr Soo Fook Mun & Anor [2007] 1 MLJ 593. Evidently, the Bolam's principle had been overwritten by the Foo Fio Na case which then results in the same principle as such in that of the Daubert's. This means that the level of weightage depends on the court to judge and the court will not act as instructed by the expert although the admissibility will not be affected by weight carried by such testimony made by the expert witness. The court as it will always be independent to decide according to justice and fairness.

-AMIRAH ABD. RAZAK

Types of Expert Witness

There are generally 2 types of experts as held in the case of PP v Saad bin Mat Takraw by Vincent Ng J, namely:

• Gazette experts, such as the gaming experts appointed by gazette notification under Section 11(6) of the Common Gaming Houses Act 1953
•  Experts that come within the purview of section 45 to 49 of the Evidence Act 1950

As to the qualifications of an expert, an expert must be skilled in his field. He may acquire the skill by special study or by experience.

With regards to this, Suffian LP in PP v Muhamed bin Sulaiman [1982] 2 MLJ 320, 322 (FC) said that: … while the expert must be skilled, he need not be so by special study, he may be so by experience and the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility.

In The Queen v Silverlock [1894] 2 QB 766, identity of handwriting was in question and a solicitor was called to give evidence on it, and Lord Russell CJ said at page 771: “it is true that the witness who is called upon to give evidence founded on a comparison of handwritings must be peritus; he must be skilled in doing so; but we cannot say that he must become peritus in the way of his business or in any definite way. The questions is, is he peritus? Is he skilled? Has he an adequate knowledge?”

Phipson on Evidence , 11^th Ed, says in paragraph 1285: “ The competency of the expert is a preliminary question for the judge and is one upon which, in practice considerable laxity prevails. Though the expert must be “skilled”, by special study or experience, the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility.

Apart from that, all expert witness must as a preliminary issue, provide evidence for qualification to enable the court to consider his opinion evidence.

Hashim J in Wong Chop Saow v PP [1965] 1 MLJ 247: “May I, with respect, suggest that to avoid confusion the expert witness should give his evidence as follows. He should first state his qualifications as an expert. He should then state that he has given evidence as an expert in such cases and that his evidence has been accepted by the courts.”

Abdoolcader FJ in Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232, 278: Mr. Jagjit Singh complains that Gee has never given evidence in the High Court but we can see no rule requiring this as a prerequisite to accepting him as an expert. He has given evidence, as he said, in the lower courts and even if had not that would not debar him from being accepted as an expert if he could satisfy the court as to his standing, as there is always a first tie for everything. Previous testification in court as an expert witness is no doubt am added consideration but not necessarily the primary consideration for an otherwise qualified person.

In PP v Lin Lian Chen [1991] 1 MLJ 316, even if the expert is a government chemist, evidence of his qualifications must be given. However, it was held that it must be noted that previous testification in court as an expert witness is not necessarily the primary consideration for an otherwise qualified person.

In certain instances, the court may take judicial notice of the fact that an expert has previously given evidence. For example, in Chong Soo Sin (t/a Syarikat Perniagaan Moden) v Industrial and Commercial Insurance (M) Bhd [1992] 1 MLJ 636, Siti Norma Yaakob J held that the fact a person is a consultant chemist registered under the Chemists Act 1975 is sufficient to hold that he has the necessary skill and experience to qualify as an expert.

As per Seah J in Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262, 263: Dato Ting claims and I think justly claims that he is conversant with Chinese marriage customary law and particularly the Foochow custom. I take judicial notice of the fcat that Dato Ting has appeared in this court in the past as an expert on Foochow customary law relating to marriage and divorce and his evidence had been accepted without question.

But, how the court determine the competency of the expert? Abdoolcader FJ in Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232, 278 held that the competency of an expert is a preliminary question and is one upon which in practice, considerable laxity prevails.

Just Who is An "Expert"???

In our everyday conversation, people inadvertently give their input into a topic. It could be facts, or it could even be an opinion. Their opinion would generally have some sort of basis, something that has shaped their opinion. Their principles, Their moral compass, Their religious beliefs, or Their experience. Regardless, we filter through these opinion. Why do we believe some, but not the others. It is human nature, we put our trust into the words of some, but not the other.

In the courts, when one is adducing expert opinion, that expert opinion could change the course of the entire trial. Though the court does not HAVE to accept the expert’s opinion, but where the court has no knowledge on the matter, an expert’s opinion could swing the trial one way or another. So who are these experts? What makes them an expert?

• An expert must be skilled in his field (obviously!)

Mohamed Azmi SCJ in Junaidi bin Abdullah v Public Prosecutor [1999] 3 MLJ 217 considered this issue. The speciality of the skill required of an expert under section 45 of the Evidence Act would depend on the scientific nature and the complexity of the evidence sought to be proved. Therefore, the more scientific and complex the subject matter, the more extensive and deeper the court will be required to enquire into ascertaining the expert’s qualification or experience in the particular field.

BUT, in the final analysis, it is still 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 lack of it) of the expert. The lack of qualification or evidence on the part of the expert must necessarily affect the weight of the evidence rather than the admissibility.

On the other hand, where the evidence is of a complex and scientific nature, the absence of both qualification or experience can certainly affect admissibility. 

THERE IS NO HARD AND FAST RULE ON THE ISSUE OF THE COMPETENCY OF AN EXPERT WITNESS.

• The expert may acquire the skill by special study or by experience.

Suffian LP in Public Prosecutor v Muhamed bin Sulaiman [1982] 2 MLJ 320 held that while an expert must be skilled, he need not be by special study, he may be so by experience. The fact that he has not acquired his knowledge professionally goes towards weight not to admissibility. In this case, it was held that a government chemist was qualified by training and practical experience to be a ballistic expert.

In Phipson on Evidence 11 th Edition in para 1285:

“The competency of the expert is a preliminary question for the judges and is one upon which, in practice considerable laxity prevails. Though the expert must be “skilled”, by special study or experience, the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility.”

In Kong Nien Siew v Lim Siew Hong [1971] 1 MLJ 262, a husband petitioned ofr dissolution of his marriage on the sole ground that the respondent wife was incurably of unsound mind. The wife contested the allegations. Chang Pak Hong, a psychiatric nurse gave evidence for the husband petitioner. Despite objection from the counsel for the respondent, Seah J held that Chang Pak Hong is qualified to be an expert within the meaning of Section 45 of the Evidence Ordinance and thus might give evidence.

Another case we can have a look as is  the case of Public Prosecutor v Sam Hong Choy [1995] 4 MLJ 121 where it was held that a Chief Inspector of Police who was also an assistant armourer was competent to give evidence on the serviceability of a pistol as the evidence he gave was not of a complex and scientific nature which would require special skills.

However, curiously in Commercial Union Assurance Co plc v Lee Siew Khuan [1991] 2 MLJ 541 it was held that an advocate and solicitor was qualified by virtue of his knowledge of diamonds to be able to give an assessment of the value of a diamond ring. I would think that though it is not only a jeweler that knows diamonds but the business of an advocate and solicitor is the legal practice. As much as he is familiar with diamonds, it is not his business. 

• The competency of an expert is determined by the court.

The expert must as a preliminary issue give evidence of his qualifications to enable the court to consider his opinion evidence as per Hashim J in Wong Chop Saow v Public prosecutor [1965] 1 MLJ 247. The court may even take judicial notice of the fact that an expert witness had previously given evidence. In Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262, Seah J acknowledged Dato Ting as someone coversant with Chinese marriage customary law, particularly the Foochow custom and took judicial notice that Dato ting has appeared in court in the past as an expert on Foochow customary law relating to marriage and divorce and his evidence was accepted without question.

Yet, it is clear in Dato Mokhtar bin Hashim v Public Prosecutor [1983] 2 MLJ 232 that previous testification in court as an expert witness is not necessarily the primary consideration for an otherwise qualified person. However in that case, the expert had never given evidence in High Court but had done so before in the lower courts. 

As per Abdoolcader FJ in that very case “There is always a first time for everything”!

From the cases presented and the judges decision we can see that the competence of an expert is determined by the court with considerable laxity. When the court decided that there is no strict rule, we can see that there really is no strict rule throughout the may cases and the courts have applied their discretion based on the facts as well as circumstance of the case. Though it is rather apparent in cases where there are criminal elements, the courts are not as lax as divorce petitions so forth. The more serious, the more complex and the more the court scrutinize the expert and the expert’s opinion.

A Glance on What is Expert Opinion

Expert opinion is governed under section 45 of Evidence Act 1950. My discussion is inclined more onto academic discussion which hopes to provide a glance and quick understanding on what is expert opinion.

First of all, I would like to apply the illustration given under section 45 in order to give a clear picture that when expert opinion is needed. For instance, when court comes to the question as to whether the death of victim was caused by poison. Then, the opinions of experts as to the symptoms produced by the poison by which victim is supposed to have died are relevant in assisting the judge to reach a decision.

The second example is when there is issue as to whether a certain document was written by A. Then, the opinions of experts on the question whether the two documents were written by the same person or by different persons are relevant to assist the court to decide on the authenticity of the document.

However, we shall bear in mind that there is difference between evidence of fact and evidence of opinion. The primary difference is ordinary rules of admissibility will apply to former but not as to latter because it falls under the category of expert evidence.

I would like to cite what Hobhouse J had said on expert evidence in The Torenia [1983] 2 Lloyd’s Rep 210 which had been applied in Khoo Hi Chiang v PP [1994] 1 MLJ 265, in elaborating on the difference between evidence of fact and evidence of opinion.              

•  First, evidence is adduced which can be described as direct factual evidence, which bears directly on the facts of the case;
• Second, there is opinion evidence which is given with regard to those facts as they have been proved, and then;
• Thirdly, there is evidence which might be described as factual, which is used to support or contradict the opinion evidence. This is evidence which is commonly given by experts, because in giving their expert evidence they rely upon their expertise and their experience, and they do refer to that experience in their evidence. So, an expert may say what he has observed in other cases and what they have taught him for the evaluation of the facts of the particular case. So, also experts give evidence about experiments which they have carried out in the past or which they have carried out for the purpose of their evidence in the particular case in question.”

Expert evidence is important and we cannot expect the judge to know everything. Definitely, there have been some areas which are beyond the experience and knowledge of a judge. Therefore, expert evidence will then be admissible and come into play by furnishing the court with the scientific knowledge to assist the judge.

Abdul Hamid FJ in Syed Abu Bakar bin Ahmad v PP [1984] 2 MLJ 19 had also stated that: “There are however cases in which the court is not in a position to form a correct judgment without help of persons who have acquired special skill or experience on a particular subject, eg when the question involved is beyond the range of common experience or common knowledge or hen special study of a subject or special training or special experience therein is necessary. In such cases, the help of experts is required. In these cases, the rule is relaxed and expert evidence is admitted to enable the court to come to a proper decision.

I also would like to cite the opinion of Yong Pung How CJ in the case of Chou Kooi Pang & Anor v PP [1998] 3 SLR 593, 598:“Further, it is well established that expert opinion is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge. If, on the proven facts, a judge can form his own conclusions without help, the opinion of an expert is unnecessary. (R v Turner [1975] QB 834) Thus, a psychiatrist’s evidence was held inadmissible where its purpose was, in effect, to tell a jury how an ordinary person, not suffering from any mental illness, was likely to react to the strains and stresses of life. (R v Weightman (1991) 92 Cr App R 291)

Expert Evidence : Admissible Opinions???

The first thing I learned about Evidence law is that evidence is information by which facts tend to be proved where else the law of evidence is the body of law that regulates the means by which facts may be proved in both the court of law where the STRICT evidential rules are applicable. This STRICT evidential rules includes NO hearsay and NO opinions. One cannot go to court and say "i heard that... or i believe this.... or he/she told me this". 

So the question that arise is how then do we have expert evidence? 

Our society has becomes more intricate and complex, the judges being only human can only know so much, they are faced with more elaborate scenarios as our community continues to develop. Thus, here arises the need for expert evidence. The reasoning is fairly straightforward, because these expert opinions enable the court to come to a proper decision.

Unfortunately an obstacle arises, that is it is trite law that the opinions of third persons are inadmissible. Here is where the delineation between evidences of fact and opinion comes into play. 

If the evidence given is one of fact then the ordinary rules of admissibility applies. If the evidence is one of opinion, then it would come under the category of expert evidence. Here we can refer to Abdul Hamid LP in Khoo Hi Chiang v Public Prosecutor [1994] 1 MLJ 265 who cited Hobhouse J in The Torentia [1983] 2 Lloyd’s Rep 210 when deciding on whether the evidence sought to be adduced would be categorized as expert evidence:

“ First, evidence is adduced which can be described as direct factual evidence, which bears directly on the facts of the case. Second, there is opinion evidence which is given with regard to those facts as they have been proved and then there is thirdly, evidence which might be described as factual, which is used to support or contradict the opinion evidence. This is evidence which is commonly given by experts because in giving their expert evidence they rely upon their expertise and experience, and they do refer to that experience in their evidence. So an expert may say what he has observed in other cases and what they have taught him for the evaluation of the facts in the particular case…”

Therefore, it is rather evident that the delineation between fact and opinion is paper thin.

In Malaysia, Section 45 of the Evidence Act that defines the situations where an expert opinion is admissible. Now, according to that section, the court may consider experts opinion in only four areas which are:

(i)                 foreign law;

(ii)               science;

(iii)              arts; and

(iv)               identity or genuineness of handwriting or finger impressions.

Now that we know where the courts may consider expert opinion, what is the role/weightage of these expert opinions?

In Chou Kooi Pang v Public Prosecutor [1998] 3 SLR 593, it was held that expert opinion is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge. This implies that the judge still retains the authority to form his own conclusions. The Court of Appeal of Singapore went on to say that if on the proven facts, a judge can form him own conclusions, without help, the opinion of an expert is unnecessary.

Therefore, it goes hand in hand the understanding that evidence of experts can never go beyond an opinion and can never therefore be of absolute certainty. Such was said by Hashim Yeop Sani J in Public Prosecutor v Mohamed Kassim bin Yatim [1977] 1 MLJ 64, which is an appeal by the Public Prosecutor against the acquittal of the accused in respect of three charges. The prosecution tendered specimen signature of the accused to show that the accused knowingly made false statements separately on tree application forms. Hashim Yeop Sani J held that the proper way to assess the evidence would be to see whether the court could act on such evidence if there was corroboration either by direct or circumstantial evidence. The judge concluded that based on mere comparison of handwriting, must at best be indecisive.

That case may have been specifically addressing comparison of handwriting, but it does establish the fact that expert evidence plays a role as an opinion and that just because an expert gives an opinion, the court is not robbed of its authority to decide on a matter.

In conclusion, with every general rule, there is an exception.
The general rule :NO OPINIONS ARE ADMISSIBLE AS EVIDENCE
The exception    :UNLESS THEY ARE EXPERT OPINIONS. 

But, with all due respect to the experts, an expert’s opinion is essentially still an opinion.