There are certain fields of knowledge which may be pertinent to a case and yet are beyond the proficiency of laymen. Here, the court requires the assistance of person who are particularly familiar with or skill in respect of matters under consideration.
Section 45(1) Evidence Act 1950 illustrates on opinions of experts. Where it states that when the court has to form an opinion upon a foreign law or of science or arts, 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 and such persons are called experts.
When the court has to form an opinion upon certain matters which is likely to be outside the experience and knowledge of the judge. When the fields involve is beyond the range of common experience or common knowledge, or when special study of a subject or special training or special experience is necessary then in such cases, the help of expert is required to enable the court to come to a proper decision. This principle is elucidated in Syed Abu Bakar v PP. The principle laid down in Syed Abu Bakar bin Ahmad v PP is that it was wrong for a judge to form a conclusion on the matter which can properly concluded only with the aid of expert evidence. The court felt that the judge without the assistance of expert evidence should not made a finding or fact that the handwriting is not of a certain witness. It is a settled principle that while a judge sits alone, its entitle to weigh all the evidence to put his magnifying glass to determine the probabilities and form his own opinion or judgment. It would be erroneous for him to form a conclusion on a matter which could be properly concluded with the aid of expert evidence.
In the case of Syed Abu Bakar V PP, sergeant Pau that the sign only on a blank form and he did not write the words tiga ratus sahaja but the defence contended otherwise. Therefore a dispute to the handwriting and so it was necessary for the learned judge to make a finding as to the author to those words. Since the document was not examined by any person who has acquired a special skill or expert in a particular subject that is handwriting the question is therefore is the learned judge right in making the finding of fact that he did in the absence and without the aid of expert evidence. It was not proper for the judge to conclude that it was not Sargeant Pau’s handwriting without going further since Sargeant Pau did say that he only affixed his signature but for the learned judge to proceed further and held as he did he was evidently indulging in a determination of a question which was beyond range of common knowledge. The same would apply to the conclusion made by the judge when he stated that they appeared to come from the same pen.
However in cases involving complicated, technical issues such as in medical negligence cases, a person well versed in the field must be called to give his opinion. The witness who gives such evidence is too referred as an expert. There are various fields in which experts may be required to tender evidence namely, foreign law, handwriting and science of art. In our movie we feel that the most relevant field would be science. The field of science is capable of a wide interpretation. For instance science of biology, physics, chemistry, medicine, aerospace, marine biology, oceanography, forensic, tyre marks and etc. In the case of Chandrasekaran & Ors V PP, the Court was concerned with whether a document had been typed on a certain typewriter. Expert evidence on this issue was allowed on the basis that expert opinion on typewriting is as much a matter of science study as handwriting and fingerprint evidence.
The principle underline in the case of Junaidi is that, the answer in regards to question of expert evidence depends on the fact of each particular case. The speciality of skill required of an expert under Section 45, would depend on the scientific nature and the complexity of the evidence sought to be proved.
Qualification of an expert
Test to be applied to determine whether a person is an expert is as stated in the case of Junaidi Abdullah v PP. The most scientific and complex a subject matter, the more deeper and extensive the court will be required to acquire into the ascertainment of his qualification or experience in the particular field of 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 attach to such evidence not withstanding the outstanding qualification or experience or lack of it by the expert. Among the relevant question in regards to this is that, does the nature of the evidence require special skill? And if so, has the witness acquired the necessary skill whether by academic qualification or experience so that he has adequate knowledge to express an opinion on the matter under inquiry? All in all, it seems that there is no hard and fast rule as to the competency of an expert witness.
The lack of qualification or experience on the part of the expert, must necessarily affect the weight of evidence rather than the admissibility. But where the evidence is of complex and scientific nature, the absence of good qualification or experience can certainly affect admissibility.
PREPARED BY: KIRUBINI A/P G.SUBRAMANIAM A130056