LAW OF EVIDENCE 2 March

2014

LAW OF EVIDENCE 2 (LAW 591)

1. What is expert/ opinion evidence?

2. What is the distinction between the evidence of facts and evidence of opinion?

3. What do you understand by ‘expert evidence’. Discuss this in relation to section 45 of the Evidence
Act 1950

4. When can a person be regarded as an expert?

5. What are the Court’s duties relating to expert evidence?

6. Chow is charged and convicted of reckless driving contrary to Section 41(1) of the Road Transport
Act 1987. His reckless driving resulted in the death of seven persons. At the trial Chow said in a
shaky voice, “I firmly believe that I have been affected by an epileptic fit at the time. The fit must
have made me lose control of the car. I intended to turn right at the junction, but before I reached
the junction, I suddenly lost consciousness.”

Doctor Eddy, a private medical practitioner was brought as a defense witness. The doctor testifies
that he had been treating Chow for epilepsy for the last five years. In cross-examination, the doctor
said that the last time Chow was treated for epilepsy fit was about six months ago. When asked by
the DPP, to confirm whether Chow had an epileptic fit at the time of the accident, the doctor
replied, “No, I cannot conclusively say so!”

Later, the prosecution produced in Court, one Doctor Mohd Rani, and a leading neurologist of 10
years standing. Apart from having his own private practice, he is also a consultant neurologist to
many hospitals in the country. He had also published several articles; the latest was entitled
“Central Nervous System Disorders and Driving”.

In his testimony he was of the opinion that epileptics should be discouraged from driving as
epilepsy was one of the disorders which increases the risk of accidents in drivers by impairing
concentration among other things.

In cross-examination by the defense counsel, the neurologist said that epileptics should only be
allowed to drive in certain conditions only, viz. that they should be fit-free for at least two years or if
they got fits only at night.

The trial judge accepted the opinion of the neurologist and sentenced Chow to 4 years in jail and a
fine of RM10,000.

Chow now wishes to appeal against the conviction. Advice him on the possible grounds of appeal,
if any?

Habibah Omar
Lecturer of Law
LAW OF EVIDENCE 2 March
2014

7. Rumbia was charged with trafficking in raw opium, a dangerous drugs, contrary to section 39(b)(1)
(a) of the Dangerous Drugs Act 1952. At the trial, the prosecution called Encik Attap, a chemist
who had analysed the said drugs to give evidence. He is a chemist of 10 years with the
Department of Chemistry.

During the examination in chief, Encik Attap gave a detail account of the procedure taken on the
substance. He has followed the established practice to lump all 4 bags of substance together,
analyse it and conclude that it was raw opium of 500 grammes in weight.

The trial judge ruled that the evidence of Encik Attap was admissible.

Rumbia is now appealing against the decision on the following grounds:-

(i) the chemist evidence should not be accepted on the face value;
(ii) the prosecution has failed to prove the competence of the chemist as it was not shown that he
has the expertise or experience in the analysis of dangerous drugs, in particular, opium; and
(iii) that there is a break in the chain of evidence.

Consider each of these grounds of appeal.

8. Sisi was charged with trafficking in raw opium, a dangerous drugs, contrary to section 39B(1)(a) of
the Dangerous Drugs Act 1952. At trial, the prosecution called Mattop, a chemist who had analysed
the said drugs, to give evidence. He is a chemist of 5 years experience with the Department of
Chemistry.

The prosecution did not lead any evidence that Mattop had the necessary experience or expertise
in the analysis of the dangerous drugs, in particular, opium. The trial judge ruled that the evidence
of Mattop was relevant and admissible.

Sisi wishes to appeal against the decision on the grounds that chemist’s evidence should not be
accepted on its face value and that the prosecution had failed to prove the competence of the
chemist.

Advise him on the following:

(a) who is an expert witness and the nature of evidence given by him;

(b) how expert evidence should be presented at the trial and the admissibility of such evidence;

(c) the qualification and competency of an expert witness.

Habibah Omar
Lecturer of Law
LAW OF EVIDENCE 2 March
2014

9a) Nana was charged for driving in excess of the speed limit. She enters a plea of not guilty and
claims trial. The prosecution produced a computer printout from the Automatic Enforcement
System (AES) database. The printout recorded that Nana was driving at the speed of 180
kilometers an hour in excess of the speed limit of 90 kilometers an hour. The evidence was
tendered by Inspector Malik as the officer in charge of the Automatic Enforcement System (AES).
He holds a basic degree in database management from National University of Malaysia. The
defence questioned the accuracy of the Laser Speed gun used in the Automatic Enforcement
System (AES). The prosecution re-examined Inspector Malik on how the laser speed gun
functioned and to form his opinion on the accuracy of the data recorded by the laser speed gun.
Inspector Malik said, “ that a laser speed gun measures the round-trip time for light to reach a car
and reflect back. Light from a laser speed gun moves a lot faster than sound -- about 984,000,000
feet per second (300,000,000 meters), or roughly 1 foot (30 cm) per nanosecond. A laser speed
gun shoots a very short burst of infra red laser light and then waits for it to reflect off the vehicle.
The gun counts the number of nanoseconds it takes for the round trip, and by dividing by 2 it can
calculate the distance to the car. If the gun takes 1,000 samples per second, it can compare the
change in distance between samples and calculate the speed of the car. By taking several hundred
samples over the course of a third of a second or so, the accuracy can be very high.” Based on the
above facts Inspector Malik formed an opinion that the data was accurate.

The defence did not call any witness to contradict Inspector Malik’s statement.

With reference to statutory provisions and decided cases, discuss whether there is a proper basis
for the reception of the above evidence of opinion?

b) Wani had blocked a ‘right of way’ across her land. The ‘right of way’ was used by her cousins to
pass by from their land to the public road. Ahmad, one of the cousins, brought an action for a
declaration that he and others have a common law easement to use Wani’s land as a ‘right of way’.
He called Pak Musa, the village Penghulu to testify that prior to Wani inheriting land from her
father, her father had created a wakaf for the benefit of his family to use part of his land as a ‘right
of way’. The court accepted and acted on the opinion of Pak Musa on the existence of ‘right of way’
for the benefits of Wani’s cousins on her land. Wani appealed against the decision on the ground
that the judge had erred in law for accepting Pak Musa’s opinion.

Advise Wani
(DEC 2013)

Habibah Omar
Lecturer of Law