Evidence in the formation

2. 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.

3. 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)]

4. 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.”

5. 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)]

6. 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.

7. 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)

8. 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

9. • 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

10. • 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

11. • 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

12. 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

13. 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.

14. 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.

15. 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.

16. 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.

17. • 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

18. 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

19. • 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

20. • 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