Expert Evidence and its Independence!

Evidence given to the Court by expert witnesses is required to be independent and uninfluenced by any parties and in doing so, the expert owes an overriding duty to the Court. The question that arises is that, what sorts of interest will cause an expert’s evidence to become unacceptable to the Court? How and when should the parties and the Court take action in response to a potential conflict of interest? What consequences flow when it is determined that an expert has not complied or cannot comply with the duty? It is seen that the Courts have adopted a more proactive stand in assessing potential conflicts which, in turn, requires experts and the parties to turn their minds to these issues, and make suitable notifications, at an early stage in proceedings. Furthermore, the Courts have emphasized its own role in taking the ultimate view as to whether a potential conflict is material and how it wishes to treat the affected evidence, even against agreement reached by the parties.

In certain states such as the United Kingdom, the Civil procedure Rules 1998 (CPR) had introduced a section on the Duty of Independence under Part 35 of the Rules where it requires that it be an overriding duty to the Court. Apart from that its provisions provide that (1) expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation and, (2) an expert should assist the court by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of an advocate. By providing rules such as this, the independence of expert evidences are safeguarded and the probabilities of a bias can be prevented.

One such consequence of a determination of lack of independence on the part of an expert is that his/her evidence or proposed evidence will be declared unacceptable to the Court. The evidence, if given, can be disregarded or the expert can be debarred from giving evidence in the first place. The judicial have stressed out the importance of the issue of independence being ventilated at an early stage of the proceedings in order that the affected party is not left without the opportunity to seek alternative expert evidence. The Courts have now started imposing sanctions on experts who negligently disregard their duty while giving independent evidence. For example, Courts may if deem fit make costs orders against experts or report them to their professional body for misconduct.

Therefore, these experts are required to disclose the potential conflicts that may arise such as financial,

longstanding relationships with a party, employment or engagement as a contractor or expert scientific advisor, or due to other potentially conflicting duties by virtue of appointments or other roles undertaken by the expert. The Court has therefore sought to strike a balance between the disclosure of every potential conflict of interest, however minor, and those which ought properly to be brought into the open. The disclosure of potential conflicts expected by the Court is, firstly, that of the expert who should include such matters in his/her report and thereafter should notify matters to those instructing him/her. Equally, once the party instructing the expert becomes aware of a potential conflict, he/she must notify the other party. That, however, is not sufficient. Practitioners will need to go further and notify the 

Court even when, upon receipt of the disclosure, the opposing party has agreed to take no point on 

the issue.

It is ultimately is for the Court to consider the conflict and to decide how it affects the expert’s independence. The Court’s view may differ from that taken by the parties. The disclosure therefore needs to take place as soon as possible after the potential conflict has come to the attention of the instructing party. Similarly, any objections by the opposing party need to be made as early in proceedings as possible. Early disclosure allows the parties to reconsider their respective position and take any necessary action at an early stage before trial; for example by applying for permission for alternative expert evidence, or to seek to pose written questions to the expert in question to further probe any information that s/he has given. Further, early notification allows the Court to consider determining the independence issue as a preliminary matter.

Finally, the independence of expert evidence is to be construed since it provides the Judiciary a helping hand in making sure justice prevails.

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.

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.

         

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

Malaysian Medical Council’s “Good Medical Practice” and Expert Evidence.

A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. This type of persons include the registered medical practitioner. Such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert. Furthermore, the Malaysian Medical Council’s has formed a guidance called the “Good Medical Practice” in giving guidelines for these registered medical practitioner to testify as an expert witness in line with the Evidence Act.

In every legal proceedings, the Malaysian Evidence Act provides for the opinion of legal experts. The Malaysian Medical Council’s guidance “Good Medical Practice” sets out the principles which support good care. When registered medical practitioners act as expert witnesses, they take on a different role from that of a registered medical practitioners providing treatment or advice to patients. However, the principles set out in “Good Medical Practice” also apply to registered medical practitioners who are expert witness. An expert witness may be appointed by any party in legal proceedings. There are a few requirements that needs to be fulfilled before a person is qualified as an expert witness, i.e. inter alia, he has the appropriate expertise and experience; he is familiar with the duties of an expert; there is no actual or potential conflict of interest; and there is no objection by the other parties, including the adjudicating body, to his appointment as an expert witness.

There are few responsibilities of an expert witness. Firstly, the duty of the expert witness is to assist the adjudicating body on matters that are within his expertise. It is very important to note that he must maintain impartiality at all times. He must not be bias. This duty is vital. It overrides any obligation of the expert to the party who has instructed him or by whom he is compensated. The courts in Malaysia has laid down a useful test of independence. This is to be done by asking the question whether that the expert would provide the same opinion if instructed by an opposing party.

Reports given by the expert witness will later be classified as expert evidence. Expert evidence is to be submitted in the manner and time as directed by an adjudicating body. Amongst others, an expert evidence by an expert witness must contain the expert’s qualification; give details of any literature or other material which the expert witness has relied on in making the report; contain a statement setting out the issues which he has been asked to consider and the basis upon which the evidence was given; and contain a statement that the expert understands that in giving his report, his overriding duty is to the adjudicating body and that he complies with that duty. In certain circumstances, in any cause which any question for an expert witness arises, an adjudicating body may at any time, on its own motion or on the application of any party, appoint an independent expert or, if more than one such question arises, two or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law or of construction. For more information on the extension of the principles stated in the MMC’s Code of Professional Conduct, its guideline “Good Medical Practice” and other guidelines of the MMC, please visit http://www.mmc.gov.my/v1/docs/2011%203%20Confidentiality%20guidelines%20Approved%20on%2011%20October%202011_1.pdf

References:

1. Evidence Act 1950

2. Malaysian Medical Council. Expert Witness, 2007

Conflicting Views by Different Expert Witnesses in Accessing the Standard of Care of Professional’s Negligence Cases

Who shall prevail?           

The case of Bolam v. Friern Hospital Management Committee lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals where McNair J held that:-

“Where you get a situation which involves the use of some special skill or competence, then the test is the standard of the ordinary skilled man exercising and professing to have that special skill. It is insufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. There may be one or more perfectly proper standards; and if he conforms to one of those proper standards then he is not negligent. He is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in a particular art.”

Later when analyzing that standard of proof the learned judge made the following conclusive statement regarding a doctor's duty of care:-

“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that medical act ... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such practice, merely because there is a body of opinion that takes a contrary view.”

Hence, there are two limbs to the Bolam test:-

a.            The first is the requirement of a professional person, to exercise reasonable care in undertaking the task associated with his particular professional calling.

b.            The second being commonly invoked is the assertion that a defendant will not be liable under the first limb if he has complied with a responsible professional practice, allowing for the possibility that there may be more than one such practice.

The legal position as enunciated by McNair J therefore contains the important elements that the professional must have acted in accordance with an "accepted practice"; and that the accepted practice must be regarded as proper by "a responsible body of professional" in that art.

There were comments which say that such test has the effect of restraining the courts from scrutinizing and evaluating the professional conduct of a professional possessed of a special skill and competence and that he is not negligent if he has acted within a practice accepted as proper by a body of his own peers who possess similar skill and competence as the professional in question. It does not matter whether there exists another body with a differing opinion that does not accept the action taken by the professional. It is sufficient that he had acted in accordance with one of the bodies of opinion and the courts can never declare his action to be in any way negligent.

Hence, the latter cases are saying that there must be an objective test based upon the court’s perception of what protection of the public requires. In Rogers v Whitaker, the High Court of Australia in holding that the correct test is objective made the following pronouncements:-

“In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life."”

To simplify, under the objective test, it is the courts who shall determine what the standard of care is, not the profession. This test was then fully endorsed in Malaysia for the first time in the case of Kamalam a/p Raman & Ors v. Eastern Plantation Agency (Johore) Sdn Bhd Ulu Tiram Estate, Ulu Tiram, Johore & Anor    where Richard Talalla J, at p. 263 of his judgment had this to say:-

“ ... that the current state of the law, by way of elaboration may be found in the decision of the High Court of Australia given in Christoper Rogers v. Whitaker”

It was then followed in the subsequent cases such as the case of Foo Fio Na v Dr Soo Fook Mun & Anor and Tan Ah Kau v The Government of Malaysia. 

The objective test is said to have loosened the weightage of a responsible body of opinion in the relevant profession or trade. Hence, when there are conflicting views by different expert witnesses in accessing the standard of care of professional’s negligence cases, it is the court who plays decisive role in adjudicating what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life" as decided in the case of Rogers v Whitaker. The courts will not automatically bound by evidence as to the practice of the profession. It has an obligation to question and scrutinize the professional practice, to ensure that the standard set by law is attained.

Expert Testimony on the Subject of Foreign Law

Subjects of expert testimony may include foreign law, science or art, handwriting, finger impressions. Under the category of science or art, it may cover medical professional or other profesion such as engineers and accountants. Under the category of handwriting, it involves expert who will be responsible to determine the genuineness of the disputed handwritings whereas under the category of finger impressions, it involves expert who is responsible on  the identification and comparison of finger prints that are in dispute.

I would discuss about the subject of foreign law under this post. There are 2 simple issues that I would like to raise out which are whether the court can take judicial notice of foreign law and what is the manner of proving the foreign law.

For the first issue, the answer is simply in negative. As per Ong J in the case of Sivagami Achi v PRM Ramanathan Chettiar & Anor [1959] MLJ 221, 223: I cannot obviously take judicial notice of Hindu Law on which there is no expert opinion evidence before me, nor have any arguments been addressed to me from the Bar based on authoritative decisions on Hindu law as to rules of intestate succession under the Mitakshara system.

Furthermore, as per Abdoolcader J in Mak Sik Kwong v Minister of Home Affairs, Malaysia (No 2) [1975] 2 MLJ 175: Mr Mohideen thereupon submits that there was no evidence that these matters were or are in fact rights accorded exclusively to citizens of China and suggests that I should take judicial notice of the law of China, but when I evinced horror at the suggestion and referred him to the provisions of section 45 of the Evidence Act 1950, he resiled and promptly applied for an adjournment…

Nevertheless, section 57(1)(b) of Evidence Act 1950 provides that the court shall take judicial notice of all public Acts passed by the Parliament of UK and all local and personal Acts directed by it to be judicially noticed. But, section 57(3) also provides that the court may refuse to do so unless and until the person who calls upon the court to take judicial notice of a foreign law produces any such book or document as it considers necessary to enable it to do so.

However, for all cases that are not covered under section 57, the foreign law relied must be proved as a fact.

As regards to the second issue, Abdoolcader J in Mak Sik Kwong v Minister of Home Affairs, Malaysia (No 2) [1975] 2 MLJ 175, 180 held that foreign law on a particular topic is a question of fact. An opinion upon a point of foreign law can be proved by evidence of experts (section 45) and in this connection, statements as to any law of any foreign country contained in law bokks, printed or published under the authority of the government of that foreign country, are relevant as provided under section 38 of Evidence Act 1950.

It is also clear that the expert on foreign law cannot assume the power of decision. This was held by GP Selvam J in The H156 [1999] 3 slr 756, 764 that the function of an expert on foreign law is to submit the proposition of foreign law as fact for the consideration of the court. The court will make its own findings of what the foreign law is. Even though the expert may submit his conclusions, he must present the materials and the grounds he uses to make his conclusions. The expert may not usurp the function of the court and present his finding. Further, he cannot decide the issue by applying the law to the facts without setting out the law and reasoning process.