LAW578/591 – LAW OF EVIDENCE II

TUTORIAL QUESTIONS
TOPIC 1 - OPINION EVIDENCE

Question 1

(a) Jason Daubert and Eric Schuller, minor children with major birth defects, sued Duo-
Pharma Bhd claiming that their birth defects were caused by their mothers' ingestion
of Bendectin, a prescription anti-nausea drug marketed by respondent. Defendants
asked for summary judgment, as their experts, Dr. Jumla claimed that all the
literature, research, and tests of Bendectin showed no evidence of harm to a fetus.
Plaintiffs brought their own experts, Dr. Mambo who claimed that he had re-assessed
published test results and performed new, unpublished in vitro and in vivo
experiments that had indicated a link between the drug and birth defects. The
defendant rebutted that the new, unpublished experiments do not have "general
acceptance" in the scientific community, not having been subjected to peer review.
Assuming that you are the judge presiding over the matter, explain the options that
you have when facing conflicting opinion evidence. In your assessment, which
opinion evidence would you adopt?

(b) Manai was charged with the offence of causing grievous hurt to Sheila on the 1st of
March 2005, using a corrosive substance, namely, caustic soda. At the hearing,
Kimia, a chemist from the Chemistry Department, gave evidence for the prosecution.
The following is an extract of Kimia's evidence during examination-in-chief and cross-
examination and also the Session's Court Judge's ruling on the evidence.

During the examination-in-chief, Kimia stated:

"My name is Kimia, I am 28 years old. I have been a chemist with the Chemistry
Department for the past two years. I obtained a bachelor degree of science from the
Universiti of Malaya. This is my first experience in court giving evidence. I examined
the clothing that was sent to me by the investigating offifer Mr. Parames and found
traces of a substance on it which on further analysis I concluded was caustic soda. I
also examined a strand of hair that was sent to me together with the clothing and
found a substance which has the similar chemical structure as caustic soda and thus I
am of the opinion that it is caustic soda as well."

During cross-examination, Kimia was asked on his qualifications. He stated:

"The fact is that I am a chemist from the Chemistry Department and therefore I am
entitled to appear in this court to testify on the substances found on the clothing and
strand of hair. I had the privilege of analyzing the specimens send to me and believe
that the substance on them is caustic soda. I do not want to bore the court with the
analysis process and the grounds upon which I came to my conclusion."

Judge's ruling:

/ myself failed my chemistry test and thus in this matter I need the assistance of this
man to give his conclusion on the substances that were found on the clothing and hair
of the poor victim. I shall accept the finding of this witness and defence counsel was
wrong in questioning this witness's qualifications and the reasons for his conclusion
that the substance is caustic soda."

Dr. Mazlina Mahali

Senior Lecturer UiTMLaw
March 2023
 Manai was convicted and he has appealed against the conviction. Assuming that you
are the appellate court judge, what would your finding be with regard to the above
matters.

Question 2

(a) Rahmat was charged for the murder of Lim in the High Court of Malaya in Kuala
Lumpur. A pistol was discovered in his possession at the time when he was arrested
at a road block. The only issue before the court was whether the bullets that were
extracted from the deceased body were fired from the pistol that was confiscated
from Rahmat.

The prosecution called Nik a forensic officer in the Royal Police Forensic Department
who was of opinion that the bullets extracted from the body of the deceased were
fired from the pistol in the accused’s possession. Nik holds a Bachelor of Science
(Honours) in Chemistry and has had six years of experience behind him in the
Department of Chemistry in the field of ballistic. He had undergone in-service training
under one Horatio Cain, Head of Crime Lab, Miami Police. During his six years in the
Department of Chemistry he had done 62 cases of firearm examinations. In these
cases 54 guns were involved and the bullets and casings he examined totaled about
500 bullets and 900 cartridge cases in all. During his training on the job he had
examined about 130 guns with a total number of bullets 800 in all and cartridge
totaling 720. Out of the 184 guns he had examined they consisted of pistols,
revolvers, rifles and shotguns.

However George, a witness produced by the accused was of the opinion that it could
not be conclusive that the bullets extracted from the body of the deceased was fired
from the pistol in the accused possession. George was a self-styled "private firearms
expert" from the USA who own a chain of firearm supermarket in USA and a
renowned firearms identification expert. He also produced and hosted a television
series in USA titled Unsolved Crime. He holds a Bachelor of Arts (Honours) from La
Salle College and his experience consisted of his posting in Aberdeen Proving
Grounds in the United States for six years, three years with the CIA and one year with
the Government of Singapore dealing in "intelligence and technical" aspects of
firearms.

With reference to statutory provision and judicial precedent, advice the judge on
options he may adopt on dealing with conflicting opinion evidence. From the facts
given, advice the judge as well on which opinion to adopt?

(b) Ben, a journalist, was diagnosed with a tumour in the right ventricle of his brain on 20
November 2017. Dr Fred, a neurosurgeon from Avisena Specialist Hospital,
performed a craniotomy (open brain surgery) on Ben to remove the tumour, which
subsequent test revealed to be neurocytoma, a cancer of the nerve cells.
Subsequently, Ben went through post-operative radiotherapy treatment by Dr Alfred,
a radiation Oncologist, to eradicate any remnants of the tumour and to prevent its
relapse.

However, an MRI scan done in March 2018 by Dr Peter, a radiologist, revealed a

small growth hanging from the roof of the right ventricle. Dr Peter took the view that
the growth was merely scar tissue left over from the previous operation and not a
tumour. Dr Fred however maintained that it was a tumour and advised Ben to
undergo XKnife radiosurgery treatment.

Dr. Mazlina Mahali

Senior Lecturer UiTMLaw
March 2023
 Taking the advice, Ben underwent the treatment. Unfortunately, the surgery led to
very serious side effects of radionecrosis, where healthy tissue died as a result of
radiation involved in the treatment. Ben ended up being crippled, was unable to write
and could only move in a wheelchair with assistance. He also suffered amnesia.

Ben has since sued Dr Fred and Avisena Specialist Hospital for negligence. At the
trial, both parties called their respective expert witnesses. Dr Fred and Avisena
Specialist Hospital called Dr Manan, a senior radiologist of that hospital, who testified
that the image found in MRI scan done in March 2018 is indeed a tumour and that Dr
Fred was right in advising the radiosurgery treatment. Another witness, Dr Mohan, a
senior neurosurgeon from the same hospital further testified that the side-effect
suffered by Ben was a possible risk of Xknife radiosurgery treatment, and that Ben
has consented to the risk.

Ben’s expert witness was one Dr Umar, a leading radiologist in Malaysia and a
visiting professor to Harvard School of Medicine. Dr Umar has presented numerous
papers in international forums in image differentiation in MRI findings. Dr Umar
testified that there is a 95% likelihood that the image presented in the MRI scan in
March 2018 is scar tissue and the Xknife radiosurgery treatment carried out by Dr
Fred was unnecessary. He also maintained that the scar tissue would have posted no
danger at all to Ben.

Based on the facts given above, explain factors that the court would consider before it
admits opinion of experts. Assuming that you are the trial judge in this case, which
opinion would you adopt?

Question 3

(a) Ah Leong is a registered owner of a piece of land in Country Heights, Kajang known
as Lot 60. As a result of his old age and falling health, Ah Leong has left the
management of his affairs to his nephew, Peter. Peter has never been to Malaysia
and in fact, had never met Ah Leong in his 25 years of life. He had been living with
his mother (Ah Leong’s sister) in Brooklyn, New York. Ah Leong and Peter however,
had communicated through letters in several occasions about 10 years ago, when he
was in primary school. Further communications between them were through email.

Whilst going through Ah Leong’s documents, Peter had recently discovered a letter
received from one Raja, offering to purchase Lot 60. Upon enquiry, Peter learnt that
Raja is in possession of a Sale and Purchase Agreement purportedly signed by Ah
Leong for the sale of Lot 60 at half of its market value.

On the advice of Peter, Ah Leong has now filed an action for fraud, seeking the
court’s declaration that his signature in the Sale and Purchase Agreement is a forgery
and the agreement should be voidable at his instance. At the hearing, Peter is called
by Ah Leong’s counsel to testify that the signature on the Sale and Purchase
Agreement is not his uncle’s.

Mr. Malcolm, a private document examiner, was also called by Ah Leong’s counsel to
give his opinion on the authorship of the signature in the Sales and Purchase
Agreement. Mr Malcolm has given expert evidence on handwriting in other cases,
although he has not received any formal education on the subject. Mr Malcolm
Dr. Mazlina Mahali
Senior Lecturer UiTMLaw
March 2023
 testified that he received 10 exemplars signatures from documents signed by Ah
Leong and compared it with the signature in the Sale and Purchase Agreement. He
explained to the court that the curves, slants, proportional size, slope and the line
form of all the 10 exemplars were consistent. The same characteristics were
eventually not identical with the signature on the Sale and Purchase Agreement.

Both parties also called medical experts to support their respective cases. Raja’s
counsel called Dr Adam, a clinical psychologist who has examined Ah Leong on three
occasions. Dr Adam had obtained a PhD in Psychology from Cambridge University,
United Kingdom and has been in practice for the past 20 years. Dr Adam testified that
Ah Leong is suffering from early dementia, a mental condition which affects his
memory.

Ah Leong’s counsel on the other hand, called Dr Jaswant, a senior psychiatrist from
University Hospital, Petaling Jaya. Dr Jaswant had been treating Ah Leong over the
past two years, in which they had a regular meeting every month. Dr Jaswant had
been a psychiatrist for the past 10 years and has done extensive studies and
presented various papers at international conference. His area of research focused
on dementia and alzheimer’s disease, and how to differentiate them with depression.
Dr Jaswant’s evidence is that Ah Leong is suffering from depression and not
dementia. He also stressed out that Ah Leong’s cognitive functions are unaffected by
it.

As the trial judge, discuss the relevancy and admissibility of the evidence presented,
and decide which opinion to adopt between Dr Adam and Dr Jaswant’s testimony?

(b) Police executed a search on reasonable suspicion in the apartment of Jamal and
Odom, and found 18 vials of cocaine in a pillowcase on the bed of the rooms of the
apartment. Odom being the occupant of the room was charged with possession of a
controlled substance with intent to distribute under Section 39B of the Dangerous
Drugs Act 1952. Detective Chandran, give evidence that he had testified over 1,000
times in drug related cases, and he had been attached at the Narcotics Department
of the PDRM for 22 years. He added that in a hypothetical situation where the vials of
cocaine were found without paraphernalia, it indicated that the person in question
intended to distribute the drugs. He did not give the basis of his opinion however the
defense counsel elected not to cross-examined the Detective. The court admitted
Detective Chandran’s opinion. Was the testimony properly admitted?

Question 4

(a) Yatim a senior officer of the Immigration Department was charged under the
Immigration Act 1959 (Act 155) (Amended 2006), that he had knowingly made false
statements and signed against those statements with the name "Dato' Alias Bin
Ahmad, Ketua Pengarah Imigresen" in the passport application form of one Tan Ah
Boo.

The prosecution wanted to prove that it was the accused who made those statements
in the application form and signed the statements under the above name. The
prosecution obtained a specimen signature of the accused on a separate piece of
paper, the testimony of handwriting expert Encik Jamal who testified that the
signature was similar and the testimony of the Assistant Passport Officer, Encik
Dr. Mazlina Mahali
Senior Lecturer UiTMLaw
March 2023
 Roslan who was familiar with the accused's signature were produced for that
purpose.

Mr. Harcharan, a chemist from the Chemistry Department on the other hand who
testified on behalf of Yatim, formed an opinion that the statement and the signature
were not made by Yatim. With reference to statutory provisions and judicial
precedents discuss the relevancy and admissibility of En Jamal and Mr Harcharan’s
evidence.

Assuming that Mr Harcharan received a short training on examination of documents

and detection of genuineness of handwriting, discuss the approach of the court in
dealing with the conflict of opinions.

(b) Kumar is a construction worker at Subang Perdana Construction Sdn Bhd. His daily
allowance is RM100 and he has to work from 9am to 5pm every day. He started
working for the company for six months. Before the employment, we was told by his
good friend, Raju (who also works at the construction site) that he can resign without
notice whenever he wants because they are not bound by any employment contract
as they are daily paid workers.

In July 2019, Kumar refused to work at the construction site as he was offered a
permanent job offer from other company. Subang Perdana Construction Sdn Bhd
now sued Kumar for breach of contract, relying on an employment contract
purportedly signed by Kumar. During trial, Kumar argued that the signature in the
contract was not his. To prove that, he brought Sita (his wife) to prove that the
signature in the contract was not his.

Kumar also brought in Mr. Arul (a supervisor of a construction site in Subang), who
testified that in a construction site business, it is a custom that daily paid workers may
resign at anytime they please and they do not have any obligation to find
replacements if they resign. He stated that daily paid workers do not receive any
benefits such as medical, pension or even paid leave from the company they served.
They are daily paid, given no meals and their job is terminated when a particular
project has been completed. Mr. Arul also added that there is no obligation on the
part of contruction company to offer daily paid workers any job at other construction
sites. As such, the reciprocal consideration is that daily paid workers may resign at
any time they please.

As the Magistrate, decide on the relevancy and admissibility of Sita’s and Mr. Arul’s
evidence.

Dr. Mazlina Mahali

Senior Lecturer UiTMLaw
March 2023