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March 2003

Forensic Psychiatric Reports in the Malaysian


Adversarial System
Hardial Singh Khaira
LL.B (Univ. Malaya), LL.M (Univ. Western Australia)

INTRODUCTION

Forensic psychiatry has been described as the branch that is particularly concerned with
the law and the mentally retarded or abnormal offender; the interplay between law and
psychiatry; and, as the means of interpreting violence and predicting dangerousness.1
The instances when psychiatric evidence may become relevant is when it has to be
determined whether the accused is fit to plead or to stand trial; when any one of the
defences of insanity, diminished responsibility, automation or drunkenness is raised; or,
when the accused is to be sentenced.

This particular form of evidence can only be got from a psychiatrist who would
necessarily have to qualify as an ‘expert witness’. The Malaysian Evidence Act 19502
does not have comprehensive sections that clearly define who could give expert
psychiatric evidence and what limits may be set to the scope of the expert’s evidence.
Section 45 of the Act generally states that ‘when the court has to form an opinion upon a
point of ... science’ expert evidence is admissible and illustration (b) provides that expert
evidence may be adduced with respect to the accused's state of mind. Who then in law
would qualify as an expert under this section? The section categorically states that
opinions expressed by such persons who are specially skilled in science are relevant and
such persons are called experts. Sarkar3 elucidates the difference between an expert
witness and an ordinary witness by contending that an expert is ‘one who has acquired
special knowledge, skill or experience in any science, art, trade or profession.’ The
difference between their testimonies would be that an expert is allowed to express an
opinion on the facts while the ordinary witness is confined to stating the facts. Seah J. in
Kong Nen Siew v Lim Siew Hong4 went so far as to accept the opinion of a psychiatric
nurse when he declared that it was unwise to even reject semi-skilled or semi-
professional opinion and held that a psychiatric nurse qualified as an expert within the
meaning of section 45 in that case. In his evidence the psychiatric nurse stated that the
respondent was receiving treatment and had to keep taking a drug called Merellil. He
was also of the opinion that the respondent could not stop taking that drug, as he had not
seen anyone cured of his form of endogenous depression. The opinion expressed here is
surely one that is to be expected from a well-qualified and experienced psychiatrist.

1 Backett, McNeill & Yellowless, Imprisonment Today: current issues in the prison debate,
Macmillan 1988 at p.90.
2 Hereinafter referred to as the "Evidence Act".
3 Sarkar’s Law of Evidence, S.C.Sarkar & Sons Private Ltd. 13th edition p. 515.
4 [1971] 1 MLJ 262 at p.264.

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Nevertheless, Seah J in this case felt that the experience acquired by the nurse by his
years of service was sufficient to qualify him within the definition of an ‘expert’ under
section 45. In coming to this conclusion, Seah J said that he was adopting this course
having regard to the decision in R v Majana bin Sumalag5 where Smith J had held that:

It is unwise to reject semi-skilled or semi-professional opinion. The court should adapt


itself to the circumstances of the country and take advantage of such knowledge as may
be available.

This ruling therefore means that the words ‘specially skilled’ in section 45 should be read
to include the opinions of semi-skilled or semi-professional persons given under certain
circumstances. What exactly those circumstances are or should be were never defined or
explained but presumably, it could only mean that it is the best knowledge that is
available at the time of the trial.

In PP v Muhamed bin Sulaiman,6 Suffian L.P. stated that the expert need not be a person
with academic qualifications and could qualify ‘by virtue of his education, his scientific
qualification and his practical experience.’ Hashim Yeop A Sani J echoed the same view
in Dato Mokhtar bin Hasim's7 case when he said that for a person to qualify as an expert
witness he ‘must have made a special study of the subject or have acquired special
knowledge on the subject.’ The Supreme Court approved both these cases in Junaidi bin
Abdullah v PP8. However Mohd Azmi SCJ (delivering the judgment of the court), added
that

The speciality of the skill required of an expert witness under section 45 would depend
on the scientific nature and complexity of the evidence sought to be proved. The more
scientific and complex the subject matter, the more extensive and deeper will the court be
required to enquire into the ascertainment of his qualification or experience in the
particular field of art, trade or profession.

The Supreme Court in this case laid down two tests that must be applied for the purpose
of section 45. First, does the nature of the evidence require special skill? Second, if so,
has the witness acquired the necessary skill by either academic qualification or
experience so that he has adequate knowledge to express an opinion on the matter under
inquiry? The court also stated that lack of qualification or experience would only affect
the weight rather than the admissibility of the evidence in an uncomplicated matter, but
where the evidence was of a complex and scientific nature, the absence of either
qualification or experience would affect admissibility.

The rule of thumb to be used, as held by the Federal Court in Syed Abu Bakar bin Ahmad
v PP9, is that it would be wrong for a judge to form a conclusion on a matter that could be
properly concluded only with the aid of expert evidence. It is not clear here if the judge
must first decide that the opinion being expressed of the accused is within the ambit of a

5 (1957) SCR 14
6 [1982] 2 MLJ 320 at p.322.
7 [1983] 2 MLJ 232.
8 [1993] 3 MLJ 217.
9 [1984] 2 MLJ 19

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form of behaviour which constitutes scientific information outside the knowledge of the
judge on which he can only conclude properly with the aid of expert evidence; or, that it
only concerns matters of normal human nature and behaviour that fall outside the ambit
of scientific nature, upon which the judge could form his own conclusions without any
outside help.10

An equally applicable description of the function of expert witnesses was given in the
Scottish case of Davies v Edinburgh Magistrates11 where Lord President Cooper said that
their
...duty is to furnish the judge or the jury with the necessary scientific criteria for testing
the accuracy of their own independent judgement by the application of this criteria to the
facts proved in evidence.

It has now been established in the case of Khoo Hi Chiang v PP and another appeal12
that if the expert is making a factual observation there is no need to establish the
expertise of the witness. However, the expertise and qualification of an expert witness
must be established where the evidence consists, not only of direct factual observation,
but also of opinions of the expert.13 This approach is further reinforced in the findings of
the court in Kumaraguru & Ors v PP14 where the appellants had been convicted jointly
for trafficking 361.7g of heroin. In that case a chemist (as an expert witness under
section 45) gave evidence on his analysis of the drugs. Vincent Ng JC held that it is not
sufficient to just establish the general expertise of the witness. Evidence must be led to
satisfy the court that he had specific experience in the analysis of drugs including heroin.
He concluded that the court could not presume that he had such specific expertise just
because he was a chemist with 12 years' experience.

It is submitted, that in the final analysis, it is the judge that will decide the facts by the
application of the evidence placed before the court. As Lord Justice Lawton has put it,
there cannot be a ‘trial by the psychiatrist’.15

RELIABILITY OF PSYCHIATRIC EVIDENCE

Bartholomew & Milthe16 have stated that a number of studies indicate that there is a lack
of reliability in diagnoses by psychiatrists. They quote a piece of research by Katz in
which a number of psychiatrists were asked to indicate ‘the presence or absence of
psychopathology on behavioural items’ during the presentation of a videotape of an
interview. They were also asked to make a diagnosis. In the group of thirty-five
participants, twenty-one labelled the patient psychotic and fourteen labelled him neurotic.
In another experiment by Katz & others17 it was demonstrated that when a filmed

10 See the contrasting decisions of Lowery v R [1974] AC 85 and R v Turner [1975] QB 834
11 (1953) S.C. 34 at p.40.
12 [1994] 1 MLJ 265.
13 See the judgment of Abdul Hamid Omar LP, ibid, at p.272-273.
14 [1994] 1 MLJ 254.
15 R v Turner (1975) 2 WLR 56.
16 The Reliability and Validity of Psychiatric Diagnosis in Courts of Law (1976) ALJ Vol. 50 p.450.
17 Ibid.

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interview was shown to an American psychiatric audience, ‘one-third of the audience


diagnosed the patient as having some form of schizophrenia, one-third as being neurotic,
and the remaining one-third as having a personality disorder.’ A British psychiatric
audience on the other hand when shown the same film made ‘no diagnosis of
schizophrenia but 59% ...made a diagnosis of personality disorder, a further 22%
diagnosed psycho-neurosis, 16% suggested other diagnosis, and 3% (one psychiatrist)
made a diagnosis of manic-depressive psychosis.’

It is against this background of general unreliability that one has to take a look at the role
played by the psychiatrist in an adversarial system and the need for pre-disclosure of
psychiatric reports to be used by either the prosecution or defence.

THE ROLE OF THE PSYCHIATRIST

The psychiatrist in Malaysia could become involved in the criminal procedure by virtue
of Chapter XXXIII of the Criminal Procedure Code. Firstly, when the question of the
accused's fitness to proceed with the trial is in question; and, secondly, in the trial proper
itself when the mental state of the accused at the time of committing the offence is in
issue.

a) Fitness to proceed with the trial

The psychiatrist could become involved in the legal process at the commencement of the
trial when s/he could be asked to determine the defendant's competency to stand trial.
Section 342(1) of the Criminal Procedure Code provides that "(w)hen a Judge or a
Magistrate holding a trial has reason to suspect that the accused person is of unsound
mind and consequently incapable of making his defence, he shall in the first instance
investigate the fact of such unsoundness."

Under section 343(2) the case against a person of unsound mind may be postponed if the
Medical Superintendent of a mental hospital certifies that the accused is of unsound mind
and is incapable of making his defence and the Court is satisfied of the fact.

A finding under section 343 of the Criminal Procedure Code should not be confused with
a defence of mental disease under section 84 of the Penal Code. Section 342 of the
Criminal Procedure Code allows unsoundness of mind to be pleaded at any time during
the trial to show that the accused is no longer capable of making his or her defence
whereas under the Penal Code the defence of insanity would relate only to that moment
of time when the offence was committed. Psychiatric evidence that the accused was, by
reason of unsoundness of mind, incapable of knowing the nature of the act or that it was
wrong or contrary to the law, would affect the culpability of the accused but not the trial
itself which must proceed if the Medical Superintendent of the said mental hospital
certifies that the accused person is of sound mind and capable of making his defence.18
Here one might ask the question whether the defence's counsel can make the application
to determine the accused's state of mind?

18 Section 343(1) of the Criminal Procedure Code

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Interestingly Section 342 of the Criminal Procedure Code does not expressly discuss if
the defence, prior to the trial, could make any application to determine the fitness of the
accused to stand trial. According to this section the Public Prosecutor19 seems to have the
sole authority prior to the trial, and, the Judge or Magistrate20 during the trial, to have the
accused person examined for unsoundness of mind. Yeo,21 writing on section 307(1) of
the Singapore Criminal Procedure Code (which is similar to section 342(1) of the
Malaysian Criminal Procedure Code) has rightly pointed out that it is impliedly possible
for the accused's counsel to bring up the question and notify the court of his or her client's
fitness to plead. This observation has been further reinforced by Cheang22 by reference
to section 5 of the Criminal Procedure Code which provides that where there is no local
provision made by the Criminal Procedure Code or any other law ‘...the law relating to
criminal procedure for the time being in force in England shall be applied so far as the
same shall not conflict or be inconsistent with ...’ the Criminal Procedure Code. She has
argued that the current laws of England allow the issue of fitness of the accused to plead
or be tried to be brought up at the instance of the defence or otherwise. It may further be
observed that there is nothing in the Malaysian Criminal Procedure Code that prohibits
the defence from making any such application at any stage of the trial.

b) When the accused's mental state is in issue

As an expert witness during the trial (if the defendant has been certified competent to
stand trial) the psychiatrist may be required to testify on the degree of criminal
responsibility that could be attributed to the accused.

The psychiatrist here usually finds himself or herself giving evidence not from a neutral
point to a court of inquiry but on behalf of those who have engaged his or her services.
As Chiswick23 aptly puts it, in the adversarial system, ‘fragments of clinical material are
given exaggerated importance, extreme positions are adopted and judgments are paraded
as objectively determined facts.’ This incitement of the psychiatrist, it is submitted, to
tailor his or her evidence provides opportunities for the ‘unwary and the unscrupulous to
produce psychiatric testimony on demand, in a stereotyped and unthinking manner,
because experience dictates that such evidence relieves the court of its difficulties and is
therefore welcomed.’24

The fact that the court (especially in criminal matters) is usually looking for assurance in
facilitating the legal process has been mentioned too by Yellowless when he stated that,
‘the psychiatrist is primarily being used to facilitate a process, not to assess a potential
patient.’25

19 Section 342(5) of the Criminal Procedure Code.


20 Section 342(1) of the Criminal Procedure Code.
21 Fitness to Plead in Criminal Proceedings [1985] M.L.J. 1
22 Fitness to Plead in Singapore and Malaysia, V.17 Anglo-American Review, Aug/Sept. p.209.
23 Use and Abuse of Psychiatric Testimony, British Medical Journal 290 p.975.
24 Bowden P., Madness or Badness, British J. Hosp. Med. 1983 Vol. 30 p.388.
25 Supra, endnote 1.

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Other writers have made further comments on the bias position that the psychiatrist in
particular occupies within the adversarial system26 and the general opinion expressed by
them has been that ‘the psychiatrists are too prone to offer an opinion based upon a one-
sided knowledge of the case and are insufficiently curious about the total view...’27

This is not to undermine the value of psychiatric reports and evidence, for in some cases
the ability to seek a lesser penalty depends largely on one's success in introducing
supportive psychiatric evidence. Two examples quoted by Chiswick are infanticide and
diminished responsibility. As Chiswick puts it ‘the legal mechanism for showing
compassion can be operated only with a psychiatric key," and it is to the "psychiatry
society that the courts (turn) to operate this quasi-medical defence(s).’28

PRE-TRIAL DISCLOSURE OF REPORTS

Against this background of the adversarial system there is another equally important
aspect of evidence that stems from it. In a number of jurisdictions fears have been
expressed that there have been a number of trials, including murder trials, in which
significant aspects of forensic evidence adduced against the accused have later been
considered to be questionable29. It is this writer's opinion that to no small extent, the
problem may be compounded by the lack of pre-trial disclosure of expert evidence that is
likely to be used in the trial.

The earlier approach adopted by the courts in England made it a rule to generally impose
an obligation on only the prosecution to disclose such evidence as may be relevant for the
defence's use. In Reg v Duke30 the Court decided that the prosecution ‘has the obligation,
if it has evidence in its possession of insanity which will assist the defence...to make that
evidence available to the defence in good time, so that it...may make proper use of it.’

An earlier ruling31 by Diplock L.J. and Lord Denning had also emphasised that while the
prosecution has an obligation to disclose or make available such evidence for the
defence’s use, the prosecutor was under no duty to place such evidence before the court.

In 1982 The Attorney-General in England issued guidelines32 on the disclosure of


information to the defence and it generally provided that all unusual material should
normally be made available to the defence33 subject to some exceptions,34 but any doubt

26 Hucker, Webster & Ben-Aron, Mental Disorder and Criminal Responsibility, Butterworths 1987.
27 Ibid, in the chapter entitled Psychiatrists, Lawyers and the Adversary System, McGee, Atchison &
Orchard.
28 Supra, footnote 1 at p.976.
29 Difficulties of Assessing Expert Evidence, (1987) 61 ALJ 615.
30 (1984) 1 WLR 1031.
31 (1965) 1 QB 248 at pp. 369, 375-376.
32 (1982) 1 All E.R. 734.
33 Ibid at paragraph 2.
34 Ibid at paragraph 6.

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whether the balance of disclosure is in favour of or against the accused, should be


resolved in favour of disclosure.35

Under section 399 of the Criminal Procedure Code a similar obligation has been imposed
but only on the prosecution to deliver to the accused a copy of any report of a
Government Medical Officer which it intends to use in evidence against the accused. The
report must be given to the accused not less than ten clear days before the
commencement of the trial.

A good piece of legislation in this respect would be such as the one introduced pursuant
to Section 81 of the Police and Criminal Evidence Act 1984 (U.K.) which provides that
Crown Court Rules may make provisions for requiring a party to the proceedings
(including the defendant) to disclose to the other party any expert evidence it proposes to
adduce and failure to do so could prevent the evidence from being so adduced. In 1987
the English rules governing expert evidence were introduced and Rule 3(i) of the Crown
Court (Advance Notice of Expert Evidence) Rules provides that following the committal
for trial of any person

...if any party to the proceedings proposes to adduce expert evidence (whether of fact or
opinion) in the proceedings (otherwise that in relation to sentence) he shall as soon as
practicable, unless in relation to the evidence in question he has already done so:

(a) furnish the other party or parties with a statement in writing of any
finding or opinion which he proposes to adduce by way of such
evidence;

(b) where a request in writing is made to him in that behalf by any other
party, provide that party also with a copy of (or if it appears to the party
proposing to adduce the evidence to be more practicable, a reasonable
opportunity to examine) the record of any observation, test, calculation
or other procedure on which such findings or opinion is based and any
document or other thing or substance in respect of which any such
procedure has been carried out.

Rules such as these can have a far-reaching effect because they will put an end to any
‘ambush’ being laid by the sudden introduction of experts at the trial. Expert reports 'in
the proceedings' must be made available for the inspection 'as soon as practicable', and all
relevant working papers may be examined on 'request'. The Rules, however, do not
prevent "expert shopping" and it is still possible to engage experts who are more than
willing to present convincingly the opinion that the party engaging then wants expressed.
It is submitted that the best approach would be to exchange the reports of any experts at a
pre-trial stage. The expert's role is to assist the court rather than to go into battle for the
party that hired his or her forensic expertise. This might even result in an agreed approach
to resolve the differences between the experts, such as, by the undertaking of additional
testing. In addition, such exchanges should serve as a means of procuring from the
experts their real opinions without their opinions being distorted as they so often are
during cross-examination.

35 Ibid at paragraph 9.