Opinion mugs.pdf

Opinion evidence 1.

INTRO

A. Facts v. Opinion •

Facts are what a witness actually directly observes & experiences whereas opinions are witness’ beliefs or inferences based on what he observed & experienced

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However, there is arguably a thin line between fact & opinion because all perception arguably has an element of opinion in it o

As per Robert & Zuckerman’s Criminal Evidence, the distinction is therefore not between opinion and fact, but between more generalized and more particularized assertions

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Greater specificity facilitates both the judge’s evaluation of the evidence by exposing the assumptions embedded in the witness’ testimony, and his discouraging of witnesses from volunteering their views about the appropriateness of A’s conduct

B. Rule Against Opinion •

Witnesses should testify to facts which he directly perceived or has personal knowledge of, and is not entitled to state inferences or beliefs based on those facts. o

Therefore, if the witness merely testifies to the information he passively received, he is giving evidence of the fact;

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However, if he goes beyond this by stating his inference or offers an interpretation based on this information, he is giving opinion evidence

• Rationale •

Reliability o

An inference or belief based on the witness’ subjective perception, or a conclusion resulting from the maker’s own untested perspective is unreliable because it may be incorrect – e.g. if the person was not able to walk in a straight line due to a medical condition and not due to intoxication

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Policy o

Witness’ testimony is supposed to provide the facts. Conversely, it is the court’s exclusive prerogative as the trier of fact to draw inferences from the facts and to judge A’s conduct on the standards of legal liability

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An absence of such a rule would allow the witness to draw inferences and judge A’s guilt, which is an usurpation of the judge’s role as trier of fact

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Necessity & Practicality o

The witness’ opinions are ultimately unnecessary because the court is well-equipped to draw its own inferences from the facts that the witness testifies to, and come to its own conclusions about what inferences can be drawn and the application of the law to the facts. 1

The reception of opinion evidence therefore unjustifiably extends & complicates proceedings, resulting in avoidable delay & expense o

The reception of opinion evidence may also raise collateral matters that could distract or confuse the trier of fact

• Opinion Evidence in the EA •

EA doesn’t formulate an exclusionary rule - instead specifies the circumstances in which opinion evidence may be admitted

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Exceptions set out in s 32B(3), 47-53, and 62(1)(d), and supplemented by s 62(2) which permits the proof of ‘opinions of experts expressed in any treatise commonly offered for sale’, and s 32B(1) and (2) for out-of-court statements of opinion o

These admissibility provisions are based on a recognition of the circumstances in which it is necessary for the court to rely on opinion evidence for the purposes of fair & effective adjudication, because: §

The facts involve a level of complexity or technicality or scientific or artistic application which requires the input of a person who is specially skilled in the area; or

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Or the non-expert who has specific knowledge of the circumstances or whose opinion is necessary to accurately convey his perception of the facts are permitted to state their opinions as non-expert witnesses

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Expert Opinions – s 47, 48, 53, and 62(1)(d)

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Lay Opinions – s 49 -53, s 32B(3)

When something is an opinion is not defined in the EA o

However, under the definition of ‘fact’ in s 3(1), paragraph (d) classifies a fact as including a situation in which a man ‘holds a certain opinion’

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E.g. In a trespassing case, the fact that A was of the opinion that the building he entered was open to the public is a relevant fact §

Per AG v Au Wai Pang, s 3(1) of the EA defines fact to include ‘any thing, state of things, or relation of things capable of being received by the senses’, and under illustration (d), that a man ‘holds a certain opinion’ is a fact – accords with s 3(1) as the fact that a man has a particular opinion is something capable of being received by the senses

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In fact, as discussed earlier, any testimony has an element of opinion. Even the identification of a person is technically an opinion

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However, the law takes a pragmatic approach: §

A fact is something that can be directly perceived - ‘any thing, state of things, or relation of things, capable of being received by the sense’ (s 3(1)(a))

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Anything beyond this - such as stating an inference or offering an interpretation of the facts is opinion evidence, which the court can only assess if the opinion is examined in the context of facts that give rise to it.

2. LAY OPINIONS A. Old Categorisation Approach

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S 49 to 52 codify the specific situations in which lay witnesses (non-expert witnesses) is permitted to state his opinion because he has specific knowledge of the circumstances

• S 49 – Handwriting •

S 49 allows a non-expert to state his opinion on handwriting, on the condition that he is acquainted with it •

Explanation to s 49 requires that the witness must have either: o

Seen the person write;

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Received documents purporting to be written by the person in answer to documents written by the witness; or

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Received documents purporting to be written & habitually submitted to the witness by the person in the ordinary course of business

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Witness is also expected to give evidence of the circumstances in which he or she became acquainted with the handwriting under s 53- e.g. a secretary can give evidence that she is acquainted with Pf’s signature on the basis that she has seen him sign documents on many occasions

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With regards to handwriting, either an expert who is specially skilled in matters of handwriting (s 47) or by an expert acquainted with the writing of the person in question (s 49) may be called to give his opinion of the matter. Ideally, witnesses from both categories should be called (Mohamed Kassim)

• S 50 - Opinion of General Customs or Rights •

S 50 provides that a non-expert can give evidence on the existence of a general custom or right if the existence of the custom is relevant, and the person is likely to know of its existence •

E.g. Inhabitants of a particular kampong

• S 51 – Usages & Tenets •

Opinion on contractual terms and trade usages, and the constitution and government of any religious or charitable foundation •

S 51 provides that a non-expert can give evidence on the particular meaning of certain terms of the contract where a trade usage is involved - witness must show ‘special means of knowledge’

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The terms of which the words are used must either been in particular districts or by particular classes of people (s 51(c))

• S 52 - Opinion on Relationship •

S 52(1) provides that opinion expressed as to the existence of the r/s between people is admissible if:-

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Witness was a family member;

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Witness has special means of knowledge about the r/s

Per Illustration (a) and (b), these are opinions based on assertions by conduct, therefore both opinion and HSE, but Pinsler argues that the specific circumstances of the section provides some assurance of reliability

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B. New Principled Approach – S 32B(3)

32B.—(3) Where a person is called as a witness in any proceedings, a statement of opinion by him on a relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

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S 32B(3) is much broader than s 49-52, which makes the latter provisions much less relevant – the question under s 32B(3) is whether the opinion would assist the court in drawing inferences

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If the opinion is admissible, the court would then assess the viability of the opinion against the other facts the case, and determine what weight to allocate to it

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How does this help? o

It may be difficult for a witness to communicate facts without adding his inference. Therefore if his inference assists the court in understanding the facts that he witnessed, s 32B(3) allows him to give evidence of both the facts & the inferences

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This benefit of allowing the witness the freedom to draw inferences when this is necessary for the clarity of the testimony is recognised

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The witness can consequently give evidence of facts he cannot dissociate from his own inferences – e.g. how fast something is moving, how bright a place was etc.

• 2012 Amendments •

This provision used to only be in the CPC, so a lay witness can only give opinions based on facts personally witnessed in criminal cases

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However, s 32B(3) allows the lay witness to communicate both the facts & his opinion where the opinion would assist the court in drawing inferences, for both criminal & civil cases

• Cases •

R v Davies - A was charged with driving a vehicle while unfit to drive ‘through drink and drugs’ o

Court held that the witness who had the opportunity to perceive the condition of A immediately after the accident could state his opinion that A had been drinking alcohol if the facts on which the opinion is based are related to the court.

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No harm results from such an approach because the opinion/inferences need not be accepted by the court, and if the facts don’t justify the opinion, then the court can reject them

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Even more liberal approach in Canada - Graat v R o

Supreme Court opined that the trier of fact should be at liberty to consider the entirety of the evidence (including the opinion on the ultimate issue) so that it could effectively decide whether the testimony is entirely or partially reliable or unreliable

• Ultimate Issue Rule •

The traditional English common law position is that a witness is not allowed to express an opinion on the ultimate issue in the case as it would usurp the role of the judge (R v Davies, Sherrard) 4

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Davies – Court held that in a drink driving case, the witnesses were only allowed to give evidence about what their impression was on whether A had been drinking, and should not have been allowed to give their opinion on the ultimate issue – whether A was unfit to drive the car. This is because the witnesses were not expert witnesses such that it was proper to ask their opinion, and this was the very matter the court had to determine o

Arguably this is because its an inference built on an inference, the more layers there are, the more unreliable it gets

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Sherrard – similar case, where A was charged with driving a motor car while under such a degree of intoxication that he did not have proper control of the vehicle. Police witnesses gave evidence that A was staggering before he got into his car, that his eyes were glazed & red, that he smelled of alcohol, and his speech was slurred. They also testified that in their opinion, A was under the influence to such an extent that he was incapable of driving a motor car o

Majority held that the police could testify to A’s intoxication, but not to his unfitness to drive. A lay witness could only give inferential evidence on the following topics: o

Identification of handwriting, persons and things;

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Apparent age;

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Bodily plight or condition of a person including death and illness;

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Emotional state of a person (eg. distracted, distressed, aggressive; affectionate etc);

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Condition of things (eg. shabby, expensive)

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Certain questions of value; and

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Estimates of speed and distance (then cross-examiner may test estimate ability…)

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Minority (Lord MacDermott) contended that on principle, the police’s opinion on A’s fitness to drive should be admitted as the evidence was part & parcel of their intoxication §

The ultimate issue rule cannot be treated as a hard & fast rule without getting in the way of the judicial process.

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Significantly, allowing the witness to make inferences may contribute relevant material for the court’s information, which it would lack if the witness were restricted to reciting what he could remember & describe of the observable facts à holding inferential testimony inadmissible in some cases could leave the court in the position of knowing less of what was relevant to the truth than the witness does, detrimental to the interests of justice

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Furthermore, it is possible for an inference to be so inescapable that it is of no account whether the witness stops with the observed facts or states the inevitable conclusion that is to be drawn

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Conversely, the Canadian position allows for witnesses to express an opinion as to the ultimate issue, and perceives the UK approach to be unduly restrictive (Graat) o

Dickson J opined that (1) it would likely be difficult for a witness to separately narrate the facts observed and the individual facts that justify an inference, and 92) it would be illogical and against the interests of justice for the court to deny the help it could get from a witness’ opinion, which it could always either to accept and accord the appropriate weight, or dismiss.

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Affirmed Lord MacDermott’s dissent in Sherrard – admitting witness inference regarding the ultimate issue may assist the courts in being aware of the full range of the opinion which it can then choose to accept or reject as it sees fit

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Should this apply in SG?

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Based on the wording of s 32B(3), the phrase ‘conveying relevant facts personally perceived by him’, it can be argued that the witness may express his opinion on the basis of those facts, but NOT his further opinion or view concerning the legal consequences of those facts.

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However: o

In the recent local case of Tan Joon Wei Wesley, HC held that opinions from the deceased’s Major and course mates were admitted under s 32B(3) to show that the deceased had a more than even chance of completing his training and becoming a fully-fledged pilot. This arguably, was the ultimate issue in the personal injuries claim. §

Significantly, at [45], Elisha James AR held that s 32B(3) “applies to the situation where the opinion or inference is a way of communicating facts which the witness had seen. An example would be when a witness to a traffic accident may be allowed to testify that the driver involved was intoxicated, the witness's opinion that the driver was intoxicated being inferred from what he had observed, for example the driver had blood-shot eyes, an unsteady gait and slurry speech. The opinion would provide clarity to the witness' testimony. It makes sense as such to allow for its admission. There would be little risk in admitting such evidence as the court will be able to assess the opinion against evidence of the facts upon which it is based.” This is arguably an affirmation of Lord MacDermott’s position in Sherrard, on the facts of Sherrard.

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Rule: Therefore, in cases where it may be difficult for a witness to communicate facts without adding his inference, and his inference would provide the court some clarity and assist in understanding the facts he is testifying to, he should be allowed to make that inference under s 32B(3), notwithstanding that the inference expresses an opinion on the ultimate issue of the case o

The ultimate issue rule originates from the need to prevent the witness from usurping the role of the jury as the trier of fact in drawing inferences and coming to conclusions on the application of the law to the facts. Considering jury trials have been abolished in Singapore since 1969, the rule should be relaxed, as judges are cognizant of their role as the trier of fact and law, and can come to their own conclusions on both the facts of the case and the application of the law to the facts.

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Furthermore, given that the witnesses can easily be xx on their testimonies, even if they are allowed to state their opinions as to the ultimate issue, the reliability of that opinion can be tested, and the court would not be overly prejudiced by this relaxation of the ultimate issue rule.

3. EXPERT OPINION A. Effects of the Amendments to s 47 •

[1] Broadened Scope

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The amendments to s 47 broadened the cope of admissible expert evidence by 6

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Lowering the standard of admissibility from ‘necessity’ to the present ‘likelihood of deriving assistance’ in s 47(1); and

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Replacing specific, enumerated fields of expertise with the general phrase ‘scientific, technical, or other specialized knowledge’ in s 47(1), which broadens the types of evidence which may be admitted, thereby precluding the argument that expert evidence arising out of fields of expertise not listed in s 47 are ipso facto inadmissible

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[2] Discretion o

Under s 47(4), an opinion which is otherwise relevant under s 47(1) shall not be relevant if the court is of the view that it would not be in the interests of justice to treat it as relevant

• Old s 47(1) – Categories of Expert Knowledge •

Considering the new s 47(1) is broader than the old s 47(1), evidence that was admissible under the old categories (science or art) would ipso facto be admissible under the new provision

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Former s 47(1) referred to particular categories (foreign law, science of art, the identity or genuineness of handwriting or finger impressions) to encompass all specialised knowledge

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Foreign Law

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Under the old system, foreign law must be proved as a matter of fact by presenting the court with foreign legal materials (s 40), and accompanying the materials with expert opinion (old s 47(1)

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Pacific Recreation: The function of an expert witness of foreign law is §

(a) To inform the court of the relevant content of the foreign law; identifying statutes or other legislation and explaining, where necessary, the foreign court's approach to their construction;

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(b) To identify judgments or other authorities, explaining what status and precedent value they have as sources of the foreign law; and

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(c) Where there is no authority directly in point, to assist the court in making a finding as to what the foreign court's ruling would be if the issue was to arise for decision there. The expert has to predict the likely decision, and not to press his personal views as to what the law should be.

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Science or Art o

Stephen intended ‘science or art’ to almost function as a catch-all phrase - includes ‘all subjects on which a course of special study or experience is necessary to the formation of an opinion §

Similarly understood in local law - in Chandrasekaran, court opined that the expression ‘science or art’ is elastic enough to be given a flexible interpretation and the fact that the section doesn’t specify particular fields of knowledge doesn’t mean they aren’t included in the provision. Therefore, expert opinion was admissible regarding whether the document was typed on a certain typewriter even though typewriterology is arguable not a real science.

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In Yong Yin Siew v Chong Sheak Thow - expert opinion on the significance of various surnames

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However - the fact that a witness had specialised knowledge did not always make him an expert under old s 47(1)): §

Leong Wing Kong v PP - CoA held that although the officer could be considered an expert since he spent 20 years in the CNB, the court found it 7

‘difficult to categorise the practice of drug users and suppliers as either ‘science or art’’. §

C/f R v Soh Eng Chong and Sim Ah Song, where police officers were considered experts for the purpose of their evidence on the operation of lotteries

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C/f R v Lim Chin Song, police officer could give expert evidence on the practice and usages of secret societies

• S 47(2) – Expert Qualification •

Court must determine whether a person is qualified to be an expert or not - would consider his qualifications, experience and credibility in relation to the issues he has to testify on o

Under the previous s 47(2): Such persons [referring to those that are specially skilled] are called experts

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Contra the current s 47(2): States that a person is qualified to be an expert if he has ‘scientific, technical or other specialised knowledge based on study, training or experience.’

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Misc. Rules

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The experience must relate specifically relate to the matters in issue o

PP v Chong Wei Kian - a witness who had been a chemist for 18 years could not testify as an expert concerning the heroin and its weight because he was not specially experienced and qualified in assessing the nature and weight of drugs

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The expert must be well-acquainted with the circumstances of the case, and should not give evidence without personal knowledge of the circumstances o

Teh Thiam Huat v PP - psychiatrist’s opinion on the drug addiction level of A was considered less than reliable since he had not actually examined A, and relied only on A’s psychological profile

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Burden of proving the expert’s expertise is on the party calling the expert

• General Requirements of Expert Report o

Generally, as noted by CoA in Pacific Recreation, the report must:

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[1] Explain the reasoning and not just the conclusion §

“The expert cannot merely present his conclusion on what the foreign law is without also presenting the underlying evidence and the analytical process by which he reached his conclusion” (Pacific Recreation at [85]).

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[2] Must state & explain any reservations as to his opinion §

“Where the expert can only come to a provisional or qualified opinion, this too must be stated clearly… along with an explanation of the reasons for the uncertainties” (Pacific Recreation at [84]).

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[3] Must stay within the boundaries of his expertise §

“An expert should… be warned against expressing any opinion on issues outside the area of his competence as well as issues which are not part of his brief” (Pacific Recreation at [84]).

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[4] Must consider any opposing opinions

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“The expert should note that he is to consider opposing opinions, if any” under O 40A r 3(2)(e) (Pacific Recreation at [87]).

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[5] Should never conceal adverse opinions §

“This last requirement cannot be overemphasised. An expert should not attempt to conceal any adverse opinion which have come to his knowledge.” (Pacific Recreation at [87])

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Significantly – At [87], an expert is not expected to become an advocate against the party engaging him, but, at the same time, he must be aware that his duty is owed primarily to the court.

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As such any special relationship between the party and his expert must be disclosed to the court o

In Gunapathy Muniandy, Selvam J opined that “The expert must not only be impartial but must also appear to be so. The expert should avoid being the witness of a party with whom he has a special relationship. If that is unavoidable he must disclose the relevant facts. On this point there must be absolute transparency from the expert witness and their legal advisers for they are both officers of the Court.” (at [73])

• Codified Requirements •

O 40A r 3(2) of the Rules of Court sets out the mandatory requirements of an expert report. A failure to include any of these details may result in the court rejecting the opinion (Pacific Recreation at [75])

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O 40A r 3(2)(a): Expert Qualifications

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(i) CV detailing expert’s relevant experience “with special regard to the issues on which the

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expert opinion is sought” (Pacific Recreation at [67]; citing Said Ajami v COC [1954] 1 WLR 1405 at 1408). (ii) Form 58 requirements, such as the expert’s:

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Relevant professional or academic qualifications

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Specific training and experience;

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Number of appearances as expert witness generally and number of occasions for the respective parties specifically.

O 40A r 3(2)(b): Details of any literature or other materials that the expert has relied on in

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making the report. O 40A r 3(2)(c): Statement setting out issues he has been asked to consider and the basis of

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his opinion. Form 58 sets out the details as:

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Complete instructions which were given to the expert;

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Statement of facts leading to the expert’s opinion;

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Facts known by the expert to be true;

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Facts which the expert was instructed to assume;

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Facts which the expert had assumed.

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O 40A r 3(2)(e): Responses to Opposing Opinion

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O 40A r 3(2)(f): Summary of Conclusions

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O 40A r 3(2)(g): Statement of Belief as to correctness of expert opinion See also Form 58 for standard formula.

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O 40A r 3(2)(h): Statement that the expert understands his paramount duty to the court.

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• Ethical Considerations •

It is vital to the integrity & efficacy of the litigation process that expert evidence is neutral & objective, so that it can be properly relied on by the court, especially since expert evidence is often determinative in key issues of a case

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The partiality of such evidence therefore could compromise the interests of justice

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However, the adversarial nature of the common law litigation system inherently raises concerns about the partiality of witnesses. o

(1) Experts are usually paid by the party who calls them for their evidence.

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(2) Experts may hope to be retained as a witness on a regular basis by a particular client or a group of associated clients in the industry.

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(3) Experts may hope to gain favour with a client generally so that non-legal professional engagements may be forthcoming or may continue.

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(4) Critical nature of expert evidence may result in the lawyer influencing the expert to give favourable evidence.

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(5) Professional pride may impel expert to stand his ground in the face of contradictory evidence.

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As such the Rules of Court at O 40A, r 2 expressly provide that the expert owes the court a duty to ensure the veracity & probative value of his evidence (Vita Health at [80]) 10

O 40A, r 2: Expert’s duty to the Court •

2. —(1) It is the duty of an expert to assist the Court on the matters within his expertise.

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(2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

O 40A, r 3: Requirements of expert’s evidence •

3. — (2) An expert’s report must —

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r 3(2)(g): Statement of Belief as to correctness of expert opinion o

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See also Form 58 for standard formula.

r 3(2)(h): Statement that the expert understands his paramount duty to the court.

HC in Vita Health, o

At [79]: Expert witnesses occupy a unique position in the adversarial system – they are allowed to draw inferences and give opinions, unlike lay witnesses

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At [80]: Significance of expert’s evidence is underlined by the obligations imposed on him §

While the party that calls him remunerates him, he is expected to remain detached from the fray, without an interest in the outcome of the proceedings nor partiality to the facts in issue

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Under O 40 r 2(2), expert must acknowledge & accept that he owes a higher duty to the court in ensuring the veracity & probative value of his evidence.

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This duty implicitly obliges him to give testimony that may harm or damage the contentions of his instructing party, if the facts warrant it

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At [82], while an advocate may be as biased as he chooses to be in pressing his client’s case, an expert cannot adopt such a stance §

An advocate is expected to articulate his client’s views;

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An expert on the other hand, should not evolve into a spokesperson for his client. Any expert evidence presented at court ‘should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.’ (Citing Lord Wilberforce in Whitehouse v Jordan at 256– 257)

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At [83], it is entirely permissible for an expert to propound and press home the opinion he seeks to persuade the court to accept. In essence, his advocacy is limited to supporting his independent views and not his client’s cause.

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Should there be punitive measures to curb partiality? o

There is indication that courts are moving in that direction §

In Ong Chan Tow, the Court held that it was justified for the trial judge to exclude expert opinion on the basis that it was “extremely biased, for, not only did he flatly refute the existence of simple facts… which the Police say they saw, but he expressly emphatic opinions… on which matters the learned District Judge had ample materials from which to form his own independent opinion”.

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In Pacific Recreation, HC opined that “[n]on-compliance… may result in the expert opinion being accorded little or no evidentiary weight as well as in adverse cost consequences” (At [89])

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Court should consider 11

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Explicitly listing partiality as a ground of invoking its discretion to exclude opinion evidence under s 47(4).

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Invoking professional sanctions against lawyers found to have instigated, abetted, or acquiescence to expert partiality.

B. Preliminary Issues

• S 53: Grounds of Opinion •

Bare expression of the expert’s opinion has no evidential value at all (Sim Ah Song). Per Pinsler, There must be some foundation to the expert’s opinion, or some explanation as to how he arrived at it, because the court assesses the value of the opinion in the context of the facts which give rise to it.

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Under s 53, the witness is expected to testify to the facts which form the grounds of his opinion, which also constitute relevant facts under the section o

If the basis or starting-point of the evidence is either shaky or flawed, the conclusion arrived at will be of little or no use to the court (Khoo Bee Keong at [68])

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Illustration: An expert may give an account of experiments performed by him for the purpose of forming his opinion.

• S 62: Evidence Must be Given by the Maker •

As per s 62(1)(d), the general rule is that if a witness is to give evidence of his opinion, it must be the opinion he holds, and not the opinion of another person. This is because an opinion involves a witness’ personal perspective or subjective assessment of the facts. He is therefore expected to testify to those facts. o

Consequently, an expert may only testify to facts within his personal knowledge - e.g. when a psychiatrist testifies that A was not of sound mind at the time of offence, this must be based on his personal assessment of A

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Singapore Tourism Board v Children’s Media Ltd - expert evidence was compromised because the expert concerned had relied on the views of other persons

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However, expert may need to refer to evidence from an external source in the explanation, support or illustration of his testimony o

E.g. Opinions and findings of another expert, statements, reports, articles, computer data, textbooks and reference works, and it would be impractical and illogical for HSR to apply strictly to all secondary sources (you would have to call witnesses to testify every item of info and knowledge the expert seeks to rely on).

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S 62(2) provides that treatises ‘commonly offered for sale’ may be proved if the author is not available because he is: §

Dead;

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Cannot be found;

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Has become incapable of giving evidence; or

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Cannot be called as a witness without an amount of delay or expense that the court regards as unreasonable.

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Therefore qualifies s 62(1)(d) by carving an exception for books

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• Primary v. Secondary Facts Distinction •

It is trite law that facts on which an expert opinion is based must be proved by admissible evidence. However, in cases where out of court information is necessary to the completeness or weight of the expert’s testimony, the law has made clear that as long as the PRIMARY FACTS (on which the expert relies on to derive his opinion) can be proved by admissible evidence, the expert may INCORPORATE HEARSAY MATERIAL AS SECONDARY FACTS to help justify his opinion and reach his final conclusion (Abadom, Gema Metal). o

English Exporters (London) v Eldonwall - held that a professional valuer could give his opinion on the value of the property even though he reached his conclusion on the basis of market information derived from the documents and communications with other professionals which he acquired in the course of his work and his general experience

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R v Abadom - fragments of glass were embedded in the shoes A allegedly wore during the robbery. The Prosecution called an expert to testify that the refractive index of the glass found in the shoes matched the glass at the scene of the crime. §

There was no issue of whether the expert was entitled to give evidence on the refractive index of the glass fragments as this was based on his personal investigation.

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Expert also testified that on the basis of official statistics provided by the Home Office’ research department, the comparison revealed that the particular index was unusual since it featured in only 4% of glass samples analysed by forensic laboratories •

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The Home Office’s data, however were strictly hearsay assertions

Court ruled that once the refractive index of the samples have been established by admissible evidence, the expert could refer to statistical info which indicated the commonality of glass of that refractive index. The principle is that if the primary facts can be established according to the ordinary rules of evidence, the expert may rely on secondary facts, even if they are only HSR §

This is because the expert ‘must be entitled to draw on material produced by others in the field in which their expertise lies… it is part of their duty to consider any material which may be available in their field, and not to draw conclusions on the basis of their own experience’

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Approach was acknowledged by Chan Seng Onn JC in Gema Metal - expert sought to provide an opinion that the design for a metal ceiling was faulty, based opinion on tests carried out by 3P o

Court ruled that the facts contained in the report were not ‘within that category of so-called common professional knowledge which an expert is entitled to rely on when he has no personal knowledge of how that knowledge was arrived at’

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These were clearly primary facts that had to be proven by admissible evidence, or else the expert would effectively be just a ‘conduit’ for the makers of the 3P report, who could not be XX on the substance of their evidence

• Hearsay Statements of Opinion (Both Expert & Lay Witness) •

Given s 62(1)(d) requires that oral evidence of an opinion must be given by the person who holds that opinion, where a witness is unable to be present in court proceedings, the hearsay exceptions in s 32 are extended to statements of opinion (s 32B(1)) on the condition that the statements would have been admissible if made through direct oral evidence (s 32B(2)). 13

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[1] Would direct oral evidence of the opinion be admissible in the first place? o

Under s 32B(2), a statement of opinion shall only be admissible under section 32(1) if that statement would be admissible in those proceedings if made through direct oral evidence.

o

Therefore, s 32B(2) will only be satisfied if the maker would have been a competent witness and could have testified in court proceedings under s 32B(3) (lay witnesses) and s 47-52 of the EA (s 47 – 48: expert witnesses, s 49 – 52: lay witnesses)

•

[2] As per s 32B(1), would the hearsay exceptions under s 32(1) apply?

•

Example o

An MC is admissible even though its hearsay evidence admitted to prove the doctor’s opinion that the patience is sick because under s 32B(1) + s 32(1)(b) this is a statement of a relevant fact made in the course of his profession, and he would have been a competent witness under s 32(1) + s 47

o

However, if the doctor issued the MC based on another doctor’s examination of the patient, the MC is inadmissible because he cannot give direct oral evidence – this would be multiple hearsay, which is not allowed under s 32B(2) (must be made through ‘direct oral evidence’)

C. Issue 1: Whether Opinion can be Admitted as Expert Testimony

• Step 1: Is the court likely to derive assistance from the evidence? •

Under the new s 47(1), necessity is no longer required, and the court may admit expert opinion so long as the court is ‘likely to derive assistance’ from such evidence. o

In past cases where the court found it necessary to rely on expert opinion, they should ipso facto be admissible under the lower yardstick of ‘assistance’

o

Expert opinion should be rejected if: §

It concerns a matter not in dispute;

§

Immaterial to the issue at hand: •

In Ong Chan Tow, expert opinion on the location of the collision between 2 vehicles was rejected on the basis inter alia that such location was immaterial to the question of negligence, having regard to how the accused drove prior to the collision (at 162) o

Appellant called a motor engineer to give expert evidence based on a view of the scene of the accident 2 months later, and a study of a photograph and plan of the scene

o

HC opined that the issue in this case was whether the Appellant failed to stop at a ‘Halt’ sign, which was a matter that could be determined by the court w/o the assistance of expert opinion

§

Issue is of insufficient complexity to warrant expert evidence: •

In Khoo Bee Kiong, the court accorded little weight to accident reconstruction evidence as “the comparatively simple factual scenario left little room for the introduction of substantive expert evidence which was truly helpful as such” (Phang JC at [66]). While the simplicity of the issues in Khoo Bee Kiong went to weight and not admissibility, it is conceivable that 14

no assistance is likely to be derived if expert opinion sought to be adduced is of too simple a matter. •

C/f Tubbs, Julia Elisabeth, where Yong CJ held that the question whether spotting persons intending to cross the road earlier would lower one’s reaction time was an issue beyond “the ordinary human experience for which the court could come to its own conclusions… [as it involved] technical considerations… unsafe to resolve without aid of expert testimony on point” (at [37])

• Step 1B: Common Knowledge Rule •

S 47(1) must also be read with s 47(3), which abolishes the common knowledge rule precluding admission of expert opinion on matters the judge is equipped to decide on based on his own common sense & experience (Turner). On this basis, it is clear that the legislative intention behind amending s 47 is to adopt a broader inclusionary approach.

•

Therefore s 47(1) functions as the governing provision that must first be satisfied. The general rule is that the court must be likely to derive assistance from the expert evidence. o

Expert evidence adduced must be regarding an issue that the court is likely to derive assistance from

o

S 47(3) can be relied on to admit common knowledge AS LONG AS the court can derive assistance from the evidence. If the expert witness provides an opinion that is based on common knowledge, the opinion shall not ipso facto be irrelevant.

•

The problem with the common knowledge rule is that there is a really thin dividing line between what is or is not common knowledge o

In Lowery, PC decided that the trial judge correctly permitted an expert witness to give opinion evidence on the issue of which of the two co-A was more likely to have committed murder. The circumstances of the case were such that either L or K must have murdered the victim, or that they acted in unison in murdering the victim. §

The expert testified that L was more likely to have committed the offence because he was more aggressive and lacked self-control, while K, who was weaker in personality and therefore more likely to have been dominated by K

§

PC justified this decision on the basis that the understanding of personalities is a matter for specialists. However, under s 47(1), it could be argued that whether a person has a particular disposition is a matter of general knowledge that the court does not require assistance with

o

c/f R v Turner, where the facts concerned A’s r/s with his girlfriend and his subsequent fit of rage when she told him about her relationships with other men and her resultant pregnancy §

CoA held that these were matters upon which the jury could draw the necessary inferences as to whether there was provocation, without the assistance of psychiatrists, because jurors ‘do not need psychiatrists to tell (them) how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of daily life’

§

In fact, that’s arguably the very purpose of a jury to decide whether A’s state is within ordinary human experience

o

Turner was cited in Chou Kooi Pang v PP, to support the court’s holding that an expert should not give evidence if the court is able to come to its own conclusion w/o assistance 15

§

Hence, on the issue of whether A knew or suspected that he was carrying drugs, the court could come into its own conclusion w/o relying on expert testimony coming to this inference ‘from the surrounding circumstances by the trier of fact… was a matter entirely within the trial judge’s purview’

o

However, in Ng So Kuen Connie v PP, trial judge rejected opinions of both Prosecution and Defence experts that A did not have the requisite mens rea, as he believed that he did not require the assistance of experts in coming to the conclusion that A had the requisite mens rea to justify her conviction §

Cited CKP at [32]: Whether A had the requisite mens rea was a finding of fact to be inferred from the available evidence and surrounding circumstances. As a trier of fact, the trial judge was just as capable of assessing the evidence as the psychiatrists… At no point should the trial judge’s fact-finding role be abrogated to the experts

§

Distinguished cases of Saeng and Gunapathy, by opining that they were cases that to illustrate that where the expert evidence is “clearly within the realm of science (e.g. pathology and standard practice in neurology and radiology), the judge should defer to the opinion of either of the experts and not come to his own opinion.” (At [30]) •

In Saeng-Un Udom v PP, the issue was whether A caused the death of victim. The forensic expert gave testimony that A’s weapon could not have been the weapon used to inflict the injuries found on V. Despite the expert’s opinion, TJ concluded that injuries were caused by A’s weapon. On appeal, CoA found that TJ’s rejection of expert evidence was erroneous because “the expert evidence on pathology was strictly out of the realm of the judge’s experience and expertise. Consequently, the trial judge was not entitled to substitute the expert’s opinion with his own”

•

In Gunapathy, CA held that in determining whether the doctor was negligent in treating a tumour, TJ was not entitled to reject expert opinion on neurologists on a “highly technical, complex, and controversial area” and then come up with a theory of his own.

§

Pinsler argues that Connie Ng is fucked up - both experts testified that A had hypomania and therefore was not capable of understanding her behaviour, and this issue of whether A was or was not suffering from a recognised medical condition is an issue beyond the competence of the trial judge

•

Test seems to be whether A’s state of mind can be classified as clearly atypical so that the trier of fact requires the assistance of an expert o

DPP v A and BC Chewing Gum §

Held that psychiatrists could give their opinions as to the likely effect that cards sold with chewing gum to children would have on the minds of children

§

Court opined that a jury comprised of adults could judge for itself the effect that the cards would likely have on adults, but in the case of children, such assistance was necessary

•

Per s 47(3), the common knowledge rule is abolished. Hence opinions of experts on matters of common knowledge & experience are no longer irrelevant and inadmissible. Even if an opinion is common knowledge, it is admissible as long as it is able to provide assistance to the court (s 47(1)), and admission of the opinion is not detrimental to the interests of justice (s 47(4)). 16

•

Rationale for s 47(3) (as per the SAL Law Reform Committee)

•

Inconsistency – in some areas, the rule is applied rigidly whereas it is not invoked at all in other areas o

The existence of the rule does not operate to exclude the use of expert motor vehicle accident reconstruction evidence in Singapore (Khoo Bee Kiong) and therefore the potential increase in the cost and time of trial as a result of abolishing the rule is not an argument in favour of preserving the rule.

•

Arbitrary – the typical/atypical distinction as seen in A and BC Chewing Gum is arguably arbitrary – ‘typical’ or ‘normal’ can hardly be said to have a definite core meaning, and even if it did, the behaviour of ‘normal’ people is not always transparent and easily evaluated by lay persons o

Furthermore, there are many areas of human behaviour in which ordinary people’s understanding or knowledge is misconceived or out of date and where the guidance of an expert is extremely valuable for example, in cases involving child abuse or the battered women’s syndrome.

•

Lack of justification – in Singapore, there is no need to protect a jury from powerful and confusing expert opinions. Professional judges are perfectly capable of comprehending the subtleties of expert evidence and according the proper weight to such evidence.

•

Reversibility of judicial error - Judges, unlike juries, have to give reasons for their decisions. o

If the judge surrenders his decision-making responsibility to the expert or is unduly influenced by the expert opinion, these errors will be evident from his judgment and can be scrutinized and if necessary corrected on appeal.

• Step 2: What Category does the Evidence Fall Under? •

Considering the new s 47(1) is broader than the old s 47(1), evidence that was admissible under the old categories would ipso facto be admissible under the new provision.

•

Based on the facts, (case name) would be instructive given that the expert opinion in that case falls within the former s 47(1) category of (foreign law, science of art, the identity or genuineness of handwriting or finger impressions) o

See Old s 47(1) for cases on page 7

•

Novel Science

•

In this case _______ is a novel science, and an issue arises as to whether such evidence is admissible under any of the categories in s 47(1)

•

In Singapore, the position remains unsettled due to he SAL Law Reform Committee taking a neutral position in their 2011 report, which left it to the courts to either: o

Observe the Daubert guidelines at the admissibility stage; or

o

Let in all apparently reliable & useful evidence before evaluating the usefulness of the evidence according to the Daubert guidelines at the weight stage

•

Given that the s 47(1) requirements have been relaxed in 2012, incorporating a more inclusionary approach to opinion evidence, it is likely that the court would admit the evidence before evaluating its weight per the Daubert guidelines o

The Daubert guidelines, as applied in the US under the US Federal Rules of Evidence, expert opinion is to be admitted if the testimony is: §

Based on sufficient facts & data;

§

Is the product of reliable principles & methods; and 17

§ •

The expert has applied the principles & methods reliably to the facts

US Cases o

Frye v US was a case where Pf produced an expert who developed the ‘lie-detector’ based on blood pressure. The court held that until a scientific technique has achieved general acceptance in the relevant scientific community, it must remain admissible. Rather than having the court determine the reliability of the knowledge presented by the experts, a task for which a lay judge may not be equipped to do, the decision should be left to the relevant scientific community themselves. §

This is a problematic approach, primarily because it fails to accommodate new and developing areas of science, as well as practical problems such as the inherent difficulty of determining the relevant fields and communities, as well as determining precisely what is accepted and by whom.

o

The current US position is based on the case Daubert v Merrell Dow – in order for the expert evidence to be admitted it must be both reliable – i.e. it has sound scientific foundation – and relevant – i.e. it assists the fact finder in understanding the evidence or in determining the facts in issue §

The court also should pay particular attention to four non-exhaustive criteria to determine admissibility: •

[1] Whether the theory or technique underpinning the evidence has undergone testing & withstood the scientific process of falsifiability;

•

[2] Whether it has been subject to peer review & publication in reference journals;

•

[3] Its known or potential error rate and the existence & maintenance of standards controlling the technique’s operation;

•

[4] Whether the theory or technique enjoys the support of some relevant scientific community or communities à this is the Frye general acceptance test, but its now just one factor as part of a flexible & multi-factorial assessment of evidentiary reliability

o

After Daubert, rule 702 in the US Federal Rules of Evidence was amended in 2000: §

If scientific, technical, or other specialised knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

•

Evaluating the US position o

Pinsler is of the opinion that although s 47(1) does not impose the Frye general acceptance test, the word ‘knowledge’ impliedly imposes a reliability test on the field of expertise, which can be assessed via the considerations of Rule 702 §

If the evidence is unreliable, it should not clear s 4791), or should be treated as having no weight

o

In contrast, Chinty argues that s 47 is a very broad position that can easily fit novel sciencs under ‘other specialised knowledge’. Arguably, all that is necessary is for the area of knowledge to be of a sufficient lucidity to assist the judge given that the law expects the judge to be able to assess scientific theories & deductions 18

• Step 3: S 47(2) – Does the Expert have Qualification or Training? •

X qualifies as an expert under s 47(2) because he has training/study in _____, and which relates to the specific matter of his testimony on ______.

•

If expert only has experience

•

S 47(2) has been amended expressly to include expertise that has been gained purely by experience, thereby allowing witnesses without actual academic or professional qualifications in a particular area to still qualify as an expert. By virtue of his experience in _________, X can still qualify as an expert in ________. o

Nava Bharat Pte Ltd v Straits Law Practice - person could give expert evidence on Indonesian law even though he was not qualified to practise as a lawyer in Indonesia and lacked professional legal training. The crux of the matter was whether he had specialised knowledge of Indonesian mining, by virtue of his practical experience and acquired knowledge.

o

PP v Muhamed bin Sulaiman - witness had no formal training in ballistics but court was satisfied that he should have been accepted as an expert witness on the issue of whether the bullet came from a particular rifle. The court was satisfied that his experience in the chemistry dept, particularly in cases involving ballistics, was sufficient to make him an expert on the matter

o

Leong Wing Kong - the Court of Appeal accepted that a Central Narcotics Bureau officer was an expert on the street price of drugs by virtue of his 20 years of experience working in the CNB, and his access to information about drugs in Singapore in the course of his work.

o

C/f Chong Wei Kian - a witness who had been a chemist for 18 years could not testify as an expert concerning the heroin and its weight as no evidence was tendered to show his qualifications or experience. It appears from the judgment that expert testimony in such cases can only be justified by specially experienced and qualified in assessing the nature and weight of drug.

•

Academic credentials of an expert may sometimes be relevant, but only at the weight stage for “determining the weight of his evidence since it gives an indicator of an expert’s familiarity with the subject” (Tan Mui Teck at [11])

•

Cases

•

Muhamed bin Sulaiman – this was a case where the only evidence connecting A with the killing was the evidence from a chemist that the bullet recovered from V’s body was fired from a rifle issue to A o

Federal Court of Criminal Appeal opined that the question of whether the witness qualified as an expert is a question upon which “considerable laxity prevails… while the expert must be ‘skilled’, he need not be so by special study, he may be so by experience, and the fact that he has not acquired his knowledge professionally merely goes to weight rather than admissibility.”

o

Court considered that the witness had a bachelors of science from the University of Malaya & a diploma in environmental science & technology. Specifically, he had prior experience as he had examined other guns & bullets before, and had given similar gun & bullet evidence in other courts. Witness only needs to be skilled in determining whether a particular bullet

19

has gone through the barrel of a particular rifle, and the court found that he had sufficient practical experience to acquire the necessary skill & adequate knowledge

• Step 4: S 47(4) – Discretion •

Although the ______’s expert opinion is prima facie admissible, the court ultimately has the discretion under s 47(4) not to admit the opinion if admitting it would go against ‘the interest of justice’ o

Rationale §

Discretion is a direct response to the widening of the general admissibility of opinion evidence, and acts as a mechanism to control the amount of expert evidence that is prima facie admissible under the new s 47

§

This is necessary because with broader categories for admission, there is a greater risk of unreliable evidence being admitted

§

However, Law Minister Shanmugam when introducing this provision stated that the discretion under s 47(4) is in addition to the court’s inherent discretion to exclude evidence where the prejudicial effect of the evidence exceeds its probative value – hence s 47(4) must be distinct from, or at least wider than the inherent discretion

o

Prof Pinsler in Admissibility and the Discretion to Exclude Evidence suggests the following factors are likely to be considered on application of s 47(4): •

Prejudicial effect at criminal trial

•

Costs it may unnecessarily incur

•

Delay in proceedings

•

Distraction of the court and/or parties

•

Opinion is confusing or misleading

•

Lack of reliability

•

Court should balance the significance of the opinion (probative value) against these countervailing factors militating against its admission. Since the evidence already found admissible under s 47(1) and discretion under s47(4) is only a residual discretion, the discretion should not be exercised unless the countervailing factors clearly outweigh the benefit

•

However, until the court has come to a conclusive statement, we are uncertain as to how the common law discretion and statutory discretion interact with one another o

Arguably, concerns of costs or delay cannot be said to be in the interests of justice, they are practical concerns that go to the efficiency of the trial, whereas ‘justice’ is arguably more concerned with what would allow the fairest trial

o

Additionally, the considerations under s 47(4) should be specific to opinion evidence, but Pinsler’s factors arguably are largely the same as the factors taken into consideration under s 32(3), although the exclusionary hearsay and opinion rules have different bases §

HSE à the main problem with HSE is unreliability of the evidence

§

Opinion à the main problem is that the opinion could be subjective, inaccurate or based on unsound grounds. S 47(4) therefore should cover cases of: •

Expert bias & conflict of interest (Wong Meng Cheong [2011] SGHC 233 – at [58], for e.g.), the idea of “hired guns”

•

Dodgy science / novel science areas – it cannot be within the interests of justice to award damages for a breach of feng shui contract for example, 20

because the court has to accept that the cause of Pf’s loss was that feng shui instructor failed to put the sofa in the right corner or something, would affect the legitimacy of the court §

Unsound grounds – this may go to either admissibility or weight of the evidence

D. Issue 2: Ultimate Issue Rule •

Another issue is that X’s opinion relates to the ultimate issue of the case, and thus runs foul of the ultimate issue rule prohibiting expert opinion on the ultimate issue as this would allow the expert to usurp the role of the trier of fact (A and BC Chewing Gum)

•

See above (lay opinion)

•

Danger is arguably more pronounced where common sense and specialist expectations diverge.

•

However, it will be argued that the ultimate issue rule has no place in Singapore law, even with regard to expert opinion o

Court is not bound by the expert’s evidence. The expert’s opinion is just another opinion that the fact-finder is free to accept or reject.

o

Given that jury trials have been abolished in Singapore since 1969, the judge as a trier of fact is less likely to be unduly influenced by the expert’s opinion on the very issue the court has to decide, as the judge is more able to appreciate the subtleties & dangers involved in the relying on opinion evidence

o

There is no reason the risk of usurpation is greater with ultimate issues per se, to the extent that it should preclude evidence of any opinion about them

o

Finally, if the rule is strictly applied, it can be inconvenient as it prevents the expert from giving the court the maximum benefit of his expertise. It may well be that the expert’s explanation on the significance of his finding on the issue that the court has to decide would be helpful to the court.

•

Furthermore, the most recent position in common law is that the ultimate issue rule’s status as a formal rule of admissibility is rejected o

Per Stockwell, the court can accept opinion whenever it is helpful to the court to do so, irrespective of the status or nature of the issue to which it relates, if it would be a necessary help to the fact-finder to have an expert opinion on the ultimate issue, the witness is qualified to give such expert opinion, and the jury realises it is not obliged to accept this opinion. §

Prosecution called in an expert in photograph identification to testify that A was the person in the video security film of a robbery. CoA held that an expert can give evidence on the ultimate issue of whether A was the person on the security footage.

E. Issue 3: Evaluating Expert Testimony

• Single Expert Witness •

On the facts of the case, there is only a single expert witness on the issue of _______. Therefore, the court may adopt an uncontradicted expert opinion as its own views provided the opinion is based on sound grounds and supported by basic facts (Saeng, Sakthivel) 21

o

Essentially, the expert opinion must be sifted, weighed, and analysed in the context of the factual matrix & objective facts (Sakthivel).

o

Per Dr Lo Sook Ling Adela v Au Mei Yin Christina, which opined that while a judge ‘is not obliged to accept the opinion of an expert even in a situation where there is no contrary expert evidence, such rejection must be based on sound grounds’

o

The rule of prudence is especially relevant where the expert is appointed by the party seeking to rely on his evidence, and not by the court, as it is common sense that no party will call an expert that testifies against its own case (Poh Soon Kiat)

o

If the basis or starting-point of an opinion is either shaky or (worse still) flawed, the conclusion arrived at will be of little or no use to the court, and should be rejected (Khoo Bee Keong at [68])

•

Cases

•

Saeng-Un Udom v PP: Court may, if there is no definite expert evidence to the contrary, agree with the expert, but must not blindly accept the evidence merely because there is no definite evidence to the contrary. However, if the expert opinion is sound, supported by the facts and not compromised by other evidence, it would be illogical for the court not to rely on it. o

Case where Prosecution’s expert testified that the death was caused by an instrument with a sharp edge, whilst A was charged with striking V with a rod

o

HC rejected this opinion and substituted its own view that A had used a metal rod

o

CoA ruled that HC should not have rejected the expert’s opinion, which was ‘based on sound grounds and supported by basic facts’. The court should not have drawn its own inferences in such circumstances

•

Sakthivel: at [76], what is axiomatic is that a judge is not entitled to substitute his own views for that of an uncontradicted expert, but be that as it may, the court must not on the other unquestioningly accept all unchallenged evidence. Evidence must invariably be sifted, weighed & evaluated in the context of the factual matrix, and in particular, the objective facts. An expert’s evidence should not ‘fly in the face of proven extrinsic facts relevant to the matter’ (citing Yong CJ in Dr Khoo James). o

Content credibility, evidence of partiality, coherence and a need to analyse the evidence in the context of established facts remain vital considerations; demeanour, however, more often than not recedes into the background as a yardstick.

• Conflicting Expert Testimonies •

There is a conflict between the testimonies of ____ and _____. As such, the court must examine whether the opinions are logical in their own context, whether they are justified by the facts on which they are based, and whether they are compromised by other evidence.

•

Conflict may concern the facts, the opinion, or both. o

Singapore Finance at 208 - the court's approach in evaluating the conflicting expert's evidence is to examine the scientific grounds and bases, on which they rely. Where the opinion of an expert is based on reports of facts and empirical observations, the court has to satisfy itself, on a balance of probabilities, whether those facts did in truth exist and whether any inference or inferences drawn from those facts taken individually or collectively, were sound or not

•

If the evidence is equivocal, the court may elect which of the theories advanced it accepts. If two theories are advanced, court may elect between the two, OR, reject them both. The court cannot 22

adopt a 3rd theory of it's own no matter how plausible it may be (McLean v Weir, as cited locally in Tengku Jonaris Badlishah v PP and adopted in Muhamad Jefrry bin Safi v PP) o

Factors to consider: •

Logical Coherence: o

Where there is conflicting evidence between experts, it will not be the sheer number of experts articulating a particular opinion that matters, but rather the consistency and logic of the preferred evidence that is paramount (Sakthivel)

o

Opinion must be logical in its own context – i.e. the logical inferences drawn from facts must be sound (Singapore Finance at 208 Ltd)

•

Personal Examination o

Per Phang JC in Khoo Bee Keong, who, at [72] criticises the reliance of expert witnesses on AEICs, which have not been “subjected to testing on the anvil of cross-examination”.

•

Qualifications of Expert o

The opinion of the expert who has more practical experience on the matter is generally preferred (Sakthivel). The issue in question was whether V’s wounds were self-inflicted, and the court found A’s expert’s opinion more reliable since he had more thorough experience in hand injuries, and made a more thorough presentation of the evidence.

o

Professional qualifications are not strictly necessary; conversely, practical experience is more crucial (Muhammad Jefrry v PP)

•

Evidence of Partiality o

While the party calling the expert remunerates him, the expert is expected to remain detached from the fray and should not have any interest in the outcome of the proceedings nor partiality to the facts in issue (Vita Health) §

Therefore, if the expert acts as an advocate of or for a party’s cause. If he appears to do this, he will inexorably lose his credibility.

o

Evidence of partiality would reduce the weight of the expert opinion (Sakthivel) or, in severe cases, may even lead to adverse inferences against the expert evidence (Vita Health)

•

Cases McLean v Weir [1977] 3 CCLT 87 (BCSC) if expert witnesses are equivocal, the court may elect which of the theories advanced it accepts; it cannot adopt a third theory of its own /held/

•

Per Gould J – It is true that the court may accept in whole or in part, or reject in whole or in part, the evidence of any witness on the respective grounds of credibility or plausibility, or a combination of both. o However in technical matters, unlike in lay matters where the issue is within the traditional intellectual competence of the court, it cannot substitute its own medical opinion for that of a qualified expert’s o If the medical evidence is equivocal, the court may elect which of the theories advanced it accepts. If only two medical theories are advanced, the court may elect between the two or reject them both; it cannot adopt a third theory of its own, no matter how plausible such might be to the court. o There is an evidentiary bar to opinion evidence on technical subjects from non-qualified witnesses, and an equally rigid bar against judges coming to conclusions on technical matters (other than domestic and constitutional law) founded on their own opinions rather than on evidence from qualified 23

•

•

witnesses Michael Hor has criticised McLean in When Experts Disagree: If a judge is too incompetent to adopt a third theory of his own, why is he competent to choose between two conflicting theories Suggests: o Making it mandatory for the court to appoint a third expert to determine the issue. o Referring the dispute to an expert tribunal, which has institutional safeguards to guarantee independence. o Training judges on the areas of expertise that they are likely to encounter – e.g. in the US, lawyers must have a prior degree in a non-legal area.

Tengku Jonaris Badlishah v PP [1999] 1 SLR(R) 800 (CA) – applied McLean Facts

•

A was charged with murder, claimed that he was suffering from diminished responsibility at the material time as a result of depression & ‘cannabis intoxication’

•

o

His expert testified to that effect;

o

P’s expert contended that A was not suffering from any abnormality of mind

TJ preferred the prosecution’s expert evidence and held that the accused’s defence not made out.

/held/

•

Yong CJ held that TJ was entitled to elect between the evidence of the two experts, endorsing the approach of Gould J in McLean: o

If the medical evidence is equivocal, the court may elect which of the theories advanced it accepts. If only two medical theories are advanced, the court may elect between the two or reject them both; it cannot adopt a third theory of its own, no matter how plausible such might be

•

Found that TJ did assess the expert evidence ‘carefully & dispassionately’, and agreed with TJ’s conclusion that A was not suffering from any abnormality of mind

Singapore Finance Ltd v Lim Kah Ngam (S'pore) Pte Ltd [1983-1984] SLR(R) 403 (HC) – approach in evaluating the conflicting experts’ evidence is to examine the scientific grounds and bases on which they rely Facts

•

Pf claimed against Df for damage caused to Pf’s buildings as a result of excavations carried out by Df o

Pf’s experts testified that the damage was caused failure of Df, inter alia, to prevent a ‘bottom heave’

o

Experts for the other parties testified to the effect that that the damage was not caused by a ‘bottom heave’, but by factors including ‘differential consolidation settlement brought about by de-watering’ and a freak flood, which were not the fault of the Dfs

/held/

•

Lai J held that the approach in evaluating conflicting experts’ evidence was tp examine the scientific grounds & bases on which they rely. Where the opinion of an expert is based on reports of facts and empirical observations, the court has to satisfy itself, on 24

a balance of probabilities, whether those facts did in truth exist and whether any inference or inferences drawn from those facts taken individually or collectively, were sound or not •

On the facts: o

The opinion of the plaintiff’s expert that bottom heave had occurred was partly based on his assumption that the first stratum of soil was impermeable to water so that consolidation settlement brought about by dewatering must be necessarily excluded

o

HOWEVER, the plaintiff failed to prove such a fact on a balance of probabilities (this being a civil proceeding)

o

In contrast, the evidence showed that water seepage had occurred and that soil investigation reports indicated that the first stratum of soil in the area was fill material and was permeable to water.

Muhammad Jefrry v PP [1996] 2 SLR(R) 738 (CA) – applied McLean Facts

•

A was charged with trafficking – claimed that the large amount of heroin found in his possession was for his & his gf’s personal consumption

•

Defence expert testified that o

There was no direct correlation between the severity of withdrawal symptoms and the amount of drugs consumed – A’s youth & good health would result in less severe withdrawal symptoms on the night of his arrest;

o

A could dramatically increase his consumption of dosage such that he was a severe addict at the time of his arrest, a medical condition known as reinstatement

•

P’s expert testified to exactly the opposite, and that A showed only mild withdrawal symptoms at the time of his arrest, which TJ accepted

/held/

•

CoA held that TJ was justified to do so o

P’s expert had more practical experience with drug addicts than D’s expert, who was a psychologist who had no detailed understanding of drug consumption

•

SGCA laid down 3 criteria for the acceptance of expert evidence – the value of evidence, its impressiveness (persuasiveness) and reliability o

Expert’s qualifications are of secondary importance compared to his knowledge & familiarity with the particular subject matter. The court is not primarily influenced by a witness’ professional titles.

Sakthivel Punithavathi v PP [2007] 2 SLR(R) 983 (HC) – genuine and irreconcilable differences between experts of comparable standing and credibility can create a reasonable doubt Facts

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A was charged with causing grievous harm to her maid with a chopper, and called a witness to testify that the injuries to her fingers were self-inflicted

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TJ accepted the evidence of A’s expert witness

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/held/

•

•

•

HC concluded that P’s experts: o

Could not convincingly account for the superficial cuts (logical coherence);

o

Did not sufficiently justify their opinions (logical coherence);

o

Had limited experience with hand injuries (qualifications of expert).

C/f D’s expert who had: o

More clinical experience in the matter (qualifications of expert);

o

More thorough in his presentation of evidence (logical coherence)

While VK Rajah JA opined that there was ‘no precise pecking order or hierarchy’ relating to expert evidence, and abundantly eminent experts may still lack credibility in a particular matter

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Some of the factors the court would take into consideration are: o

Consistency and logic of opinion with evidence (paramount concern)

o

Authority and reliability of experts - credentials, relevant experience §

As far as medical experts go, the expert with greater relevant clinical experience may often be more credible or reliable on ‘hands-on’ issues, but conceded that this was not a strict rule of thumb

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At [75]: Where there is conflicting evidence between experts, it will not be the sheer number of experts articulating a particular opinion that matters. Rather, consistency & logic of the preferred evidence is paramount.

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At [76]: Axiomatic that a judge is not entitled to substitute his own views for those of an uncontradicted expert (Saeng) o

Be that as it may, a court must not blindly accept the evidence merely because there is no definite evidence to the contrary. However, if the expert opinion is sound, supported by the facts and not compromised by other evidence, it would be illogical for the court not to rely on it.

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An expert’s opinion should not fly in the face of proven extrinsic facts relevant to the matter (Khoo James v Gunapathy d/o Muniandy [2002] 2 SLR(R) 414) o

Content credibility, evidence of partiality, coherence and a need to analyse the evidence in the context of established facts remain vital considerations

o

Demeanour, however, more often than not recedes into the background as a yardstick.

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If, in the final analysis, the court is unable to settle on a preferred view the matter must be determined on the basis of the burden of proof – i.e. has a reasonable doubt been raised? [77] o

It would however, be a legal heresy to suggest that a reasonable doubt is inexorably raised in all cases where experts differ.

o

What nevertheless may plausibly be suggested is that genuine and irreconcilable differences between experts of comparable standing and credibility can create a reasonable doubt.

Eu Lim Hoklai v. PP (2011) SGCA 16 (VK Rajah JA) – where the court cannot decide with any degree of certainty between alternate case theories, the benefit of the doubt has to be given to the accused. Facts

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A was charged with the murder of his mistress by stabbing & strangling her, and was 26

himself found injured with multiple stab wounds at the scene of the crime •

A sought to rely on the defences of private defence, provocation & sudden fight

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P’s expert 1 testified that as to the causes of death & position of the wounds o

During XX, he was brought through opinions of the other experts, in particular on whether there had been a struggle & whether A’s wounds could have been self-inflicted

o

“These questions did not fall directly within his area of expertise or the scope of the investigations he carried out in the instant case; nevertheless, [the expert] stated that he shared both of his fellow experts’ opinion” about the lack of violent struggle and defensive wounds.

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P’s expert 2 visually examined A’s injuries after A was operated on – identified scratches & 9 abdominal wounds consistent with stab wounds resulting from a knife. The wounds were not deep and expert was of the opinion that they did not indicate the likelihood that they were self-inflicted

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P’s expert 3 testified that the knife was found in an awkward position in V’s hands – her thumb was not curled around the handle in the opposite direction as her fingers o

However, she only held a Bachelor & Masters of Science in Chemistry, and had no qualifications in either medical or forensic pathology

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D’s expert testified as to V’s cause of death – opined that the awkward positioning of her hand could be caused her changing her grip on the weapon. Furthermore, the lack of a disturbance in the room did not mean that there was no struggle – it was a small room and there was significant blood smearing on V & A’s clothes o

Expert was specialist forensic pathologic who holds the post of Chief Forensic Pathologist of the Department of Forensic Medicine, Sydney South West Area Health, Professorships.

/held/

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At [49]: Crime scene reconstruction is, by its nature, not an exact science. It invotes more conjecture than other forms of scientific & expert evidence o

Given this conjectural nature, the strength, accuracy, validity of the exvidence must be evaluated & weighed carefully

o

Same rules apply to the evaluation of expert testimony as with any other category of witness testimony – content credibility, evidence of partiality, coherence and a need to analyse the evidence in the context of established facts remain vital considerations, though demeanour more often than not recedes into the background as a yardstick ([56], citing Sakthivel)

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“In difficult cases such as this where the court cannot decide with any degree of certainty between alternate case theories, the benefit of the doubt has to be given to the accused. As this court has previously stated in Tan Chor Jin v Public Prosecutor [2008] 4 SLR(R) 306, at [34]: o

It is trite law that a scenario which favours the accused should be preferred in cases where multiple inferences may be drawn from the same set of facts (see Tai Chai Keh v Public Prosecutor [1948-1949] MLJ Supp 105 at 108 and PP v Chee Cheong Hin Constance [2006] 2 SLR(R) 24 ... at [85]).” [64]

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• Ending Gloss •

Perhaps the better solution would be the appointment of a neutral third-party expert pursuant to O40 r 1 of the Rules of Court, which would, in the event that the court rejects both parties’ expert testimony, cure the problem of partisan bias on the part of the expert witness, as well as expedite and lower the cost of the process

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