Tuesday, 25 November 2014

04:42 - 1 comment

Opinion Evidence



Section 399 of CPC
-          This is an exception
-          Clear whether you can submit report by government chemist without calling him as witness and bring in that evidence – YES provided some conditions are fulfilled
-          Requirement is mandatory if don’t comply cannot rely on this section
-          Even if this has been satisfied court & accused can insist for him to come to testify
-          For accused to do so, give notice to prosecutor, want notice to be present for trial for chemist to give oral evidence.

Effect
  • Reports of persons identified sub 2 can be admitted in evidence without calling the maker as a witness provided
i.                    PP has delivered the report to defence 10 clear days before trial
ii.                  However the witness must be called if:
a.       The court requires it
b.      The A requires it  but must give notice to PP 3 clear days before trial

1.        PP v Kit Chee Wan [1999]
-          The above principle is found in this case

2.    Lin Lian Chen v PP [1991]
-      doesn’t mean just because you’re a government chemist, will the court just accept without prosecution looking through your experience and qualification?
-      from s.399 looks automatic but here just because you fall within the list and a government chemist, does not automatically mean court need to accept you as expert
-      Prosecution still need to give evidence to your qualification because an expert can only give evidence in the area of expertise so court needs to know your area of expertise




1.        Shamsul Kamar Karia v PP [2013] 9 CLJ 387
-      From court of appeal
-      Appeal convicted and sentenced to death at HC now appealing against his conviction
-      Issue on appeal is on section 399
-      Chemist died before he could be called during trial and in the report said substance found was heroin
-      They want to use section 399 to submit the report and the trial judge allowed it
-      But there is one problem because 10 clear days and notice of report not complied
-      COA said section 32 is a general provision as an exception to hearsay but 399 is a specific to these types
-      between specific and general the court should follow specific therefore 32 cannot apply if you’re going to admit this report, MUST be admitted under 399 and since didn’t comply the requirements of 399, illegality and not curable under section 422 of CPC
-      meaning you have not proven your case and the accused was acquitted
-      Therefore you want to see the chemist and not just seeing the report
-      This is an important piece of evidence so want the chemist to be there

1.        PP v  Chong Wei Kian [1990]
-            Chemist didn’t give qualification evidence
-            If you don’t the court can reject although here in this case chemist for 18 years.

Today, the evidence is already before the court in some courts because put together with the evidences.

2.        Commercial Union Assurance v Lee Siew Khuan [1991]
-            Here they called an advocate and solicitor to testify on a diamond

3.        PP v Muhamed bin Sulaiman [82]
-            Here there’s a chemist and he doesn’t have any academic qualification in ballistic analysis
-            But has experience and practical training in this area
-            Can his testimony be accepted? The court held yes
-            So you have one end very stringent and another end very lacks
So pay attention to subject matter

4.                  Kumaraguru v PP [1994]
-                     Here called for testifying, give evidence and accepted by court. Stating here 12 years in that field

FUNCTION OF COURT IN DEALING WITH OPINION EVIDENCE
As we already know, it is only to assist the court which at the end lies on the judge so the judge can choose to follow or not unless purely scientific matter. You need to give evidence as to your reasoning why you came to the conclusion then the court has to reject your evidence.

5.                  Sim Ah Oh [1962]
-                      Courts needs to hear reasons and the person has a duty to give reason
-                      Look at section 50(1)  of EA 1950.
-                      If reasoning unsound, court will reject

  1. Chin Sen Wah [1958]
-          The ultimate decision on the judge, court has discretion to accept of reject

  1. Wong Swee Chin v PP [1981]
-          Court can reject except on pure science evidence court cannot reject

  1. Ang Soon Huat [1991]
-          The court can choose either one when there is conflicting reports and it is up to the court

  1. Lim Teck Kong
-          How will the court decide between two conflicting experts? It is pure discretion, subjective and question of facts
-          Qualification
-          Experience
-          Reasoning given
-          Other facts for example the first expert check on the materials and it is fresh and the second one did not examine the materials immediately but 6 years later so no immediate sample and freshness so first one carries more weight so can carry the 2nd one.
-          For example Teoh Beng Hock case, she didn’t carry out post mortem and had no direct knowledge, only government experts had direct knowledge. Not on qualification but no fresh sample but third hand and that compromise the weight of evidence.

  1. Collector of Land Revenue v Alagappa [1971]
-          Will appealing on the issue of rejection of opinion evidence by trial judge is weak ground.
-          Appellant courts don’t want to disturb finding of trial judge because it is question of facts so rare to disturb
-          When would they disturb the finding of trial judge?
-          Misunderstood evidence = judgement unsound but it is very rare and would be very difficult

  1. Dr. Soo Fook Mun [2001]
-          Here saying that experts can be in the same room when the other giving evidence compared to normal witnesses

  1. Shen Yuan Pai [1976]
-          When it comes to expert opinion court must be aware the expert will tend (generally) to give evidence of the support of party who is calling them for they are being paid
-          Theory is that the expert called must give evidence for utmost justice to the court
-          (trying to tell) it depends on their standing, the more qualified and higher standing the less likely they will compromise their reputation to give evidence against accepted theories

  1. Tengku Jonaris
-          Appellant court will not question in findings of trial court unless look at it dispassionately unless bias etc

LATEST CASES ON OPINION EVIDENCE
The cases focus on expert opinion evidence on DNA profiling and the interpretation of s.90A. Usually try to say breach of this section because no certificate.

Notes on overlapping of areas
-          The expert on DNA (chemist) will give his opinion based on the interpretation of an analysis report, which is a computer generated document
-          The expert opinion will be whether the DNA profile of the accused matches the profile which is found at the scene for crime. The matching DNA profile or the lack of it may have a very high probative value

  1. PP v Loo Seng Yip [2004]
-          There was a quarrel ended up stabbing person for 26 times and they found his DNA material

  1. Hanafi Mat Hassan (READ THIS CASE)
-          The bus driver who raped and murder young girl
-          It was in the bus WDE 4265
-          Convicted
-          Defence arguing defence the report breached s.90A not admissible + chemist didn’t explain reasons, breach of s.51 + want to bring in the bus ticket s.45 (issue of appeal)
-          There were many eye witnesses, a boy on his way to tuition in morning and motorcyclist saw screaming girl knocking on the bus, both of them chase, but on bicycle.
-          Accused went to construction site and Indonesian worker saw him ( so many people saw and noted but nobody could help her)
-          The ticket here is a computer generated document and argued wrongly admitted because certificate not tendered, not necessary as certificate but oral evidence from person responsible for that can be admitted
-          The chemist report also as long as there is oral evidence not necessary need to have certificate from maker – s.90A(6)
-          Conviction upheld
-          CA held that DNA expert must explain the nature of the match and frequency of such a  match in population at large
-          Based on evidence the expert had satisfied this requirement s.51 was satisfied

  1. Ahmad Najib Aris
-          Here match accused DNA profile
-          Found pair of jeans with blood stain in accused house and match Canny Ong
-          Then conducted autopsy on victim and proven accused semen
-          Blood stain at back seat n driver seat of car and six strand of hair found in the car was all confirmed through DNA as the deceased
-          Defence argued that the report was not admissible but didn’t question his qualification and the way he answered so they attacked the computer analysis that it cannot be brought it
-          They accepted 90A(6) cause of ordinary use print out no need to bring any certificate oral evidence is sufficient and the court went to say oral evidence also actually not necessary but find it ridiculous because mockery to the whole section 90A
-          Convicted and conviction upheld

DNA EVIDENCE IN COURT
-            Widely used in Malaysia and adduced through expert witness under section 45 EA
-            Steps to adduce DNA evidence in court
-            Generally same steps as with any  other expert evidence

Step 1: is special knowledge required
Step 2: does the witness have special knowledge (syed abu bakar, junaidi, wong, sim etc)

17.    PP v Loo Seng Yip [2004]
-            Prosecution in seeking to prove the charge of murder against the accused, ha adduced evidence or murder against the accused, had adduced evidence that DNA profile of the accused matched the DNA profile developed from blood stains found near the crime scene.
-            Here didn’t give reasons for his conclusion because he didn’t explain what is DNA profiling
-            Expert must give reasons for his conclusion
-            In case of DNA evidence, he must explain characteristics of the match & relationship of match and his sample
-            Explain possibility of random match is impossible ( 1 in 15 quintillion) meaning it is an unlikely impossible match
-            Problem in this case was he did not explained all of these to court so court held unable to accept expert opinion on the DNA matching evidence and without it very little they had against accused and he was acquitted


Based on what happened here, they have been explaining the issues to get it admitted 

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