EXPERT WITNESSES.

LEGAL PROVISIONS AND DECIDED JUDGEMENTS ON EXPERT WITNESSES.

Duncan Abeynayaka – LLB, Attorney At Law.

 

EVIDENCE ORDINANCE

45. When the court has to form an opinion as to foreign law, or of science, or art, or as to identity or genuineness of handwriting or finger impressions, palm impressions or foot impressions, the opinions upon that point of persons specially skilled in such foreign law, science, or art, or in questions as to identity or genuineness of handwriting or finger impressions, palm impressions or foot impressions, are relevant facts.

Such persons are called experts.

46. Facts bearing upon opinions of experts.

47. Opinion as to handwriting.

48. Opinion as to existence of right or custom, when relevant.

49. Opinion as to usages, tenets &c., when relevant.

50. Opinion on relationship, when relevant.

51. Whenever the opinion of any living person is relevant the grounds on which such opinion is based are also relevant.

 

CODE OF CRIMINAL PROCEDURE

148.

(1) The Magistrate shall then take, in the presence of the accused and in the manner hereinafter provided, the statements on oath or affirmation of those who know the facts and circumstances of the case, and put them in writing (called the depositions):

Provided that the Magistrate shall not except where the Attorney-General otherwise directs summon and record the evidence of any expert witness but shall only cause such witness's report to be produced and filed of record.

 

01. SOYSA V. SANMUGAM - 10 NLR 355

Section 45 of the Evidence Ordinance, No. 14 of 1895, enacts that when the Court has to form an opinion as to identity or genuineness of handwriting, the opinions on that point of persons specially skilled in questions as to identity or genuineness of handwriting are relevant facts, and that " such persons are called experts."

Under section 45 of the Evidence Ordinance no person is an “expert” unless he is “specially skilled “in the science, art, or kindred department of knowledge as to which he comes forward to testify.

 

02. THE SOLICITOR-GENERAL V. PODISARA - 67NLR 502

That the evidence was not sufficient to prove that the witness was an expert. The burden lay on the prosecutor to elicit relevant material on this matter. Further, it was the duty of the Court to satisfy itself that the witness was specially skilled on the subject on which he was called to testify.

 

03. REGINA V PINHAMY- 57 NLR 169

That it was not established that identification of dead persons by superimposition of photographs was a science or art within the meaning of section 45 of the Evidence Ordinance. The mere reference to the medical witness as “Judicial Medical Officer, Colombo” was insufficient for the purpose of making his evidence relevant under section 45 of the Evidence Ordinance in regard to matters other than these which properly fell within the functions of a medical officer.

When an expert is called to give evidence the side calling the witness should elicit from him his qualifications and experience in order to establish to the satisfaction of the Court that he is a person who is specially skilled in the science on which he is called to give expert testimony.

 

04. QUEEN V KULARATNE - 71 NLR 529

Witnesses like Doctors and Analysts usually preface their evidence with a list of their qualifications and experience (as they did in this case) and there is the danger that a jury would look upon anything said by them as based on expert knowledge. Such a witness should not be permitted to express an opinion on any matter in a field where he has no expert knowledge, and if such an opinion has been expressed before it is found that it is outside his sphere of specialized knowledge, then we think that a trial Judge should give a clear direction to the jury to categorically disregard that opinion altogether.

 

05. SUDATH SILVA V KODITUWAKKU, IP - [1987] 2 SL.R 119

On his own showing it is evident that he has not carried out an independent examination of the petitioner to ascertain whether he had any injuries It seems to me to be preposterous for any medical officer before whom a suspect is produced for a medical examination in the custody of a police officer to expect him to tell the officer in the very presence of that police officer that he bears injuries caused to him as a result of a police assault. This seems particularly so when the suspect is produced at the instance of the police themselves and hot upon an order of court. I therefore reject the report of the M.O. as being worthless and unacceptable. The circumstances of this case disclose a gross lack of responsibility and a dereliction of duty on the pan of the M.O.

 

06. RENUKA SUBASINGHE V ATTORNEY GENERAL - 2007 1 SRI LR 224

A trial Judge is not prevented from bringing an independent mind to bear upon the question of age using whatever the legal admissible evidence that is available to him, including his observations where possible. Expert evidence is not the sine qua non in each and every case where "proof of age" is in issue if the trial Judge can safely and correctly form an opinion of his own, independently of any expert medical evidence. There could be instances; a decision on such an issue would not be possible without the assistance of an expert, qualified in the particular field. At the same time there may be instances where such opinion would not be necessary and the trial Judge himself, or with the assistance of a medical officer like a JMO, even though such a medical officer may not be an expert on matters relating to age such as an osteologist/anatomist or a dental surgeon, could decide the issue.

 

07. GRATIAEN PERERA V THE QUEEN - 61 NLR 522

While I would not go to the extent of saying that an expert's evidence would only afford “some slight corroboration of the conclusion arrived at independently “I would hesitate to act solely upon it. If there is other independent evidence in support of the conclusion reached, recourse need not be had at all to the expert's evidence. I think the modern, view is to accept the expert's testimony if there is some other evidence, direct or circumstantial, which tends to show that the conclusion reached by the expert is correct; provided, of course, the Court, independently of the expert's opinion, but with his assistance, is able to conclude that the writing is a forgery.

The expert should, therefore, have drawn the attention of Court to the details which influenced him in reaching his decision, so that the Court could, independently but with the expert's assistance, have formed its own opinion.

At the same time the decision being the Judge's, he should not delegate his function to the expert. The opinion of the expert is relevant, but the decision must, nevertheless, be the Judge's. To reach his decision his attention must be drawn to the points of similarity and dissimilarity.