INTRODUCTION

• A witness will be allowed to testify orally &

produce documents in order to establish facts.

• But he may not get an opportunity to express his

opinion on it.

• Opinion can be an inference from observed facts,

expressed by experts of competence in that area.

• Thus, becomes paramount in establishing facts in

issue or relevant facts.

Who IS an EXPERT

• Ideally the judge or jury is supposed to give opinion;

but exceptions exist.

• If it were to assist in determining a particular fact, an

individual well versed in that field may be wroth

consulting to arrive at a better inference.

• So an expert is a person who has specialized

knowledge on any matter by reason of his special

study or experience.

• English courts have acted on the opinion of experts

from the very early times.

• Archives-Smeaton, a famous Engineer was called to

give his opinion in structural mishap in a harbor.[Folkes V Chadd (1782)]

Functions of an expert

In Davie V Edinburgh Magistrates(1953) functions of

an expert is stated as:

“ Their duty is to furnish the judge or jury with

necessary scientific criteria for testing the accuracy

of their conclusions, so as to enable the judge or jury

to form their own independent judgment by

application of these criteria to the facts proved in

evidence.”

competency of an expert

The competency of an expert is a unique

combination of his knowledge, skill & experience.

But in a courts` perspective usually decided as;

“It is the duty of the judge to decide whether the skill

of any person in the matter on which evidence of his

opinion is offered is sufficient to entitle him to be

considered an expert, and therefore , competent to

give evidence”.

[ R v Silverlock (1894)]

What IS EXPERT evidence

• The facts upon which an expert`s opinion is based must be

proved by admissible evidence, and he should be asked in

his reasoning what those facts are.

• The evidence so provided becomes, expert evidence. And

the expert indirectly becomes a technical witness to the

case.

• However, before an expert may testify, the judge must first

determine:

1. Whether the witness is qualified as an expert in the

particular field by knowledge, skill, experience, training, or

education &

2. That the testimony will help the jury arrive at the truth.

What IS EXPERT evidence

FEW CASES

• Hokkandara Murder case(1999)-DNA Evidence was

produced by the prosecution as an expert opinion to

strengthen the identity of the 4 accused's.(Expert opinion

accepted)

• Mitradasa Fernando v S.I.Police, Kalubowila(1961) - The

prosecution sought to establish that the liquor was not

manufactured in an authorized manner. They brought a

Sub-Inspector(trained for excise ordinance related

malpractices) as an Expert witness. The courts refused the

expert opinion , as he did not come within the class of

specially skilled persons.(s.45 EO) .(Expert opinion rejected)

Thus…

• Experts opinion is nothing more than a slight corroboration,

it is not strong to turn the scale against a person where

other evidence is not conclusive.(Soysa v Sanmugam(1907)

Different kinds of Experts who

render their expertise

• Medical Examiner or Coroner

• Document Examiner

• Finger Print Expert

• Skid-mark expert, speed expert,

and accident reconstructionist

• Bookmaking, narcotics and other

specific “ Types of Crimes”

experts.

• Criminalist or Forensic Scientist

• DNA expert

• Pattern(footprint) Expert

• Psychologist & Psychiatrist

• Polygraph Examiner

• Voiceprint expert

• Photographer( expert in

spectrograph, micrograph, x-ray.)

Various experts

• An expert`s evidence is not confined to what actually

took place, as in the case of other witnesses, but he can

give his opinion on facts.(E.g: Even without attending

a poisoned patient he can describe the desired

symptoms)

• An expert can elaborate on experiments made by him

behind the back of the other party , in order to give the

grounds of his opinion under s.51.[Birrell v Dryer

(1884)].So that it is ensured that the evidence is not

founded on rumor or hearsay as the case may be

otherwise.

EXPERT v layman

• He may cite text-books of accredited authority in

support of his opinions and may refresh his memory by

reference to them.(s.159(4), s.60 - EO)

• He may state facts relating to other cases bearing

similarity to the cases under inquiry, in order to support

his opinion.

• Usually, the courts do no allow for any witness other than

the witness under cross examination to remain inside

court.(CPC s.174) But if the court wishes so, an expert

witness might remain inside.

*Allowed - [Colombo Elerctric Tramway Co. v Colombo Gas

& Water Co. (1915 )18 NLR 385]

*Excluded – Moore v Lambeth County Court Registar(1969)

EXPERT v layman

• The general rule is that expert`s opinions are relevant but not conclusive. In contemplation of which, the following are reasons on its relevancy:

a) A court is not bound to act on the evidence of an expert.

But in Selvaguru v Thaialpagar (1952) Supreme Court held that a rejection of expert opinion without justification by trial judge was wrong.

b) Sufficient reasons must be given by the expert. In Solicitor-General V Podisira (1965), on a charge of selling government arrack without license, the preventive officer`s(expert) evidence was rejected as he failed to give reasons as to how he came to his opinion.

relevancy of expert evidence

c) The difficulty of assessment of expert evidence.

The court has no means of qualitatively & quantitatively verifying the

conclusions of the witness. If there is conflicting testimony, the court

may have to decide on doubtful matters such as the reputations &

experience of the rival expert.-Keeton v R (1906)

• Thus the experts opinion, therefore is relevant but may not be

conclusive. In R v Pinhamy (1955) Basnayake C.J, contended that

it is not conclusive, but is only an item in the chain of evidence to

establish the facts.

• It was considered as a relevant fact to be taken into account in

forming the opinion of courts – Charles Perera v Motha (1961)

relevancy of expert evidence

expert evidence in Sri lanka

• Exceptions to the general rule of opinion evidence, gave way for experts to be involved in the judicial process.

• These exceptions are provided by s.45 to s.51 of the Evidence Ordinance No.14 of 1895. And form the entirety of expert evidence in Sri Lanka.

• Section 45 , makes expert evidence relevant when courts has to form an opinion on:

1. As to foreign law

2. Of science or

3. Art

4. The identity or genuineness of handwriting or

5. The identity or genuineness of finger/palm/foot impressions.

Section 45

• Illustration –(a)

The question is whether the death of A was caused by

poison.

The opinions of experts as to the symptoms produced by

the poison by which A is supposed to have died are

relevant. Thus this matter relates to science.

Kularatne Murder Case(1967), postmortem revealed she

was poisoned, the prosecution lead evidence by expert

opinion & it became almost decisive on the expert

identification of arsenic poison on the plates used by

Padmini(deceased), by the Government Analyst.

Section 45

• Illustration –(b)

The question is whether A, at the time of doing a certain act

was by reason of unsoundness of mind , incapable of

knowing the nature of the act.

The opinion of experts upon the question whether the

symptoms exhibited by A commonly show unsoundness of

mind, & whether such unsoundness of mind usually renders

persons incapable of knowing the nature of the acts done is

relevant. This is a matter related to medical science or a

Psychologist & Psychiatrist.

Toohey v Commissioner of Metropolitan Police(1965), the

defense counsel used medical evidence by virtue of a

expert to deem his client as mentally ill.

Section 45

• Illustration –(c)

The question is whether a certain document was

written by A. Another document is produced which is

proved or admitted to have been written by A.

The opinions of experts on the question whether the

two documents were written by the same person or

by different persons, is relevant. This matter relates

to the identity or genuineness of handwriting.

Ajith Samarakoon V AG(2004), (Kobeiganne Murder

case) a EQD Expert assisted the judge in identifying

the handwriting of the accused.

• Whenever a question arises before court whether a particular document was written/signed by a particular person, the opinion of any person acquainted with the handwriting of such person would become relevant under this section.

• A Witness is said to be acquainted with handwriting , in the following circumstances

1. A witness has seen the person write, Either the document in question or another document.(Dhani V Neem (1972)- AIR)

2. Witness has received documents purporting to be written by that person in answer to documents written by the witness & addressed to him , There must have been a sufficient for the witness to acquire such knowledge of the handwriting if the evidence is to be worthwhile. Nadarajah v Thillairajeswari (1948), unsuccessful attempt to apply this limb.

3. In the ordinary course of business, documents purported to have been written by that person have been habitually (usually, generally or according to custom) submitted to witness.(Doe V Suckermore (1836)

Section 47

Illustration to s.47

The question is as to what is relevant to prove A`s

handwriting…(where B- a merchant, C- a clerk and D- a

broker.)

• B had written letter to A & has received answers from A.

• C, has constantly read such letters.

• D, has habitually seen & been consulted on such letters.

B,C or D never saw A write. But their opinion is

relevant.(Doe v Suckermore -1836)

Section 47

• Whenever the opinion of any living person is relevant

the grounds on which such opinion is based also

becomes relevant.

• illustration to s.51- states that ;therefore an expert may

give an account of experiments performed by him in

arriving at his opinion.

• Hence the principle highlighted by s.51 is the importance

of tests to value the expert opinion, and a bare statement

of his opinion is not sufficient.(Karuppan v S.I.P

Pindeniya 1959)

Section 51

• An Expert witness is a person skilled in some art, trade, science or profession.

• An expert must have either knowledge, skill, experience, training, or education that is beyond and above that of the average person(layman).

• In this respect, therefore , an expert is in a position to assist the jurors because they do not have the background to this type of.

• Expert opinion are relevant , but not conclusive.

• Experts may be called upon by both sides to a case.

• A mere handwriting is not direct evidence to convict a accused, but is a assisting component.

• Every expert who gives opinion must give logical reasoning or grounds behind his finding for the courts to accept it as evidence.

conclusion