LAW 4111

OPINION EVIDENCE
INTRODUCTION
⚫ General principle
⚫ Rationales
⚫ Qualification of expert
⚫ Evidence of handwriting expert
⚫ Requirement of corroboration
⚫ The ultimate issue rule
General principle
⚫ Witness must give evidence of fact and not opinion.
Rationales
• It is the role of the court to form any opinion necessary to a
case, so that allowing witnesses to give their personal
opinions would usurp the function of the tribunal of fact.
• If the witnesses were permitted to express their opinion, it
would amount to delegation of judicial function.
• There is a risk that the court might be unduly influences by
the opinion of a witness who is either not impartial or who
because of his status, attracts more credence than would
otherwise be justified
• Difficulty of proving perjury on a matter of opinion.
Expert opinion
⚫ 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.
⚫ S 45 of EA- upon a point of foreign law or of science or
art, as to identity or genuineness of handwriting or
finger impressions...
⚫ Syed Abu Bakar v PP
Why opinion evidence is relevant?
• Necessity
• Reliability
• Buckley v Rice Thomas: ...if matters arise in our law
which concern other sciences or facilities, we may
commonly apply for the aid of that science or faculty
which it concerns.
• Folkes v Chadd: on certain matters, such as those of
science or art, upon which the court cannot form an
opinion, special study, skill or experience being
required for the purpose, ‘expert’ witness may give
evidence of their opinion.
⚫ Davies v Edinburgh: requires opinion of expert only in
situation the court can’t come to a judgment without
the assistance of expert opinion.
Expert opinion is not required
⚫ R v Turner: An expert’s opinion is admissible to furnish
the court with scientific information, which the court
is likely to be outside the knowdge and experience of a
judge or jury. If on the proven facts a judge or jury can
form their own conclusion without help then the
opinion of an expert is unnecessary.
⚫ Lim Ting Hong v PP: there was an accident. The issue was
of negligence, whether he had stopped at the stop sign. The
counsel called a motorist expert. The court did not allow
for the calling of the expert. The court could form an own
opinion. It was within court’s knowledge.
Role of an expert witness
⚫ Cia Naviera SA v Prudential Assurance Co Ltd, the
Ikarian Reefer.
⚫ 1. expert evidence should been seen as an independent
product of the expert uninfluenced as to form or content by
the exigencies of litigation.
⚫ 2.an expert witness should provide independent assistance
to the court
⚫ 3.an expert should state the facts or assumption on which is
opinion is based.
⚫ 4.he should make it clear when a particular question or
issue fall outside his expertise.
Cont:
⚫ 5. if the opinion is not properly researched, he must
state it
⚫ 6. if after exchange of report, an expert witness
changes his mind, such change must be
communicated
⚫ 7. if the expert refer to photographs, plans, etc...they
must be provided to the opposite party.
⚫ Autospin (Oil Seals) Ltd v Beehive Spinning : the judge
reiterated that an expert witness carries a heavy
responsibility because their evidence is given special
respect and weight by the court.
Qualification of expert
who is an expert?
⚫ Junaidi v PP –laid down the test to be applied to determine
whether a person is an expect .
⚫ 1) does the nature of the evidence require special skill?
⚫ 2) 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.
⚫ Dato Mokhtar Hashim v PP
⚫ PP v Mohamad Sulaiman
Basis of the expert opinion
⚫ The expert must give reasons for his opinon.
⚫ Sec 51 of EA
⚫ Yong Szee Fatt v Pengkalan Securities Sdn Bhd, COA
cited dictum of Brown, acting CJ in Sim Ah Song &
Anor v Rex: “ the business of an expert witness is to draw
upon the store of his handwriting and experience in order
to explain some matter which his experience should qualify
him to understand. He is quite entitled to express his
opinion, which indeed is the natural corollary of his
explanation. But a bare expression of his opinon has no
evidential value at all.”
The ultimate issue rule
⚫ There is a historic common law rule forbidding an
expert to give his opinion on the very issue that the
court has to decide.
⚫ Example: whether or not the defendant in a murder
case was suffering from insanity, rather than exhibiting
symptoms that was not inconsistent with such a state.
⚫ Malaysia: Wong Swee Chin v PP: in the ultimate analysis
it is the tribunal of fact, whether it be a judge or jury which
is required to weigh all the evidence cannot transfer this
task to the expert witness, the court must come to its own
opinion. and determine the probabilities.
The ultimate issue rule
⚫ UAB v Tai Soong Heng Construction Sdn Bhd: in a
forgery case of a cheque, the issue is on the quantum
of proof, the court held that in the law of opinion, an
expert is only to assist and cannot decide the ultimate
issue on the forged cheque.
⚫ Position in UK, US, Canada, Australia : have done
away with the ultimate issue rule.
⚫ R v Stockwell: “the rule is observed more on its breach
rather than observation”.
Expert opinion on handwriting:
need corroboration?
⚫ PP v Mohamed Kassim: handwriting opinion of a
handwriting expert is poor evidence. It is not
conclusive and requires corroboration.
⚫ Muralilal v State of MP: there was nothing on the law
that the opinion of a handwriting expert must be
corroborated. (this case changed the position that
handwriting expert is subject to special category)
⚫ Dr Shanmuganathan v Periasamy s/o Sitambaram
Pillai: followed Muralilal
Non expert opinion
⚫ S 47,48,49,50.
⚫ S 47- opinion of non expert when relevant. Eg:
secretary of a person may be familiar with his
handwriting, and she can be called to give opinion of a
non expert.
⚫ Doe d. Mudd v Suckermore
⚫ Lucas v William
⚫ Lee Kim Luang v Lee Shiah Yee