EVIDENCE TUTORIAL 1

1. A witness is generally allowed to give evidence of facts only and not opinion. Discuss.

Introduction :

According to Section 60 of Evidence Act, The court can only accept evidence from a witness if it
is direct evidence pertaining to what the witness perceived, heard or saw with his own senses. A
witness may only provide evidence of fact which he or she can relate to personally. If a witness
interprets the facts which he perceived, he is considered offering his opinion to the court. ​The
leading authority is ​Hollington v Hewthorn1, in which the Court of Appeal ruled that a
defendant’s conviction for careless driving in a collision was inadmissible in a negligence claim
brought against him by those injured in the collision. The Court of Appeal described the opinion
of the criminal court as “irrelevant” in the trial of the issue in the civil court.

Definition of evidence of facts and opinion :

Facts evidence is admissible. It is a matter which is definitely true. Its what one perceives withhis
own senses is a fact, any other conclusion made is an opinion. Evidence of facts may be given by
anybody. Moreover, the court is bound to accept it.

Opinion evidence is inadmissible. In ​RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd2:
Evidence of a conclusion, usually judgmental or debatable, reasoned from fact. Suggestion of
answer or inference by a witness on a relevant fact. In other words, a witness’ perception. E.g:
Where a witness chooses to provide to the court more than what he had perceived (the facts), he
is providing his opinion.

Importance to distinguish between evidence of facts and evidence of opinion:

The distinction between evidence of fact and opinion is important as a different set of rules
applies with regard to its admissibility. If the evidence is one of facts then the ordinary rules of
admissibility would apply. However, where it is one opinion, then a different set of rules would
apply, namely one that governs the admissibility of evidence by expert evidence. In
Sathismoorthy A/L Ramakareshna V PP3, the courts stressed the need to distinguish direct factual
evidence, particularly because different rules regarding its admissibility are employed.

Exceptions:

1
​[1943] 1 KB 587
2
(1991) 34 NSWLR 129
3
​[2013] 2 MLJ 811
However, there a exceptions where evidence of opinion may be admissible. In the circumstances
where the matter is not within the judge’s common knowledge or experience, evidence may
come from an expert (as stated in Section 45) or non-expert (as stated in Section. 47, 48, 49, 50),
a person who is specifically skilled in any of the matters listed under the provisions.

Section 45 of the Evidence Act, expert opinion on foreign law, science or art, handwriting or
fingerprint. There are certain fields of knowledge which may be pertinent to a case and yet are
beyond the proficiency of the judge. In such instances, the court requires the assistance of
persons who are particularly familiar with or skilled in respect of the matters under the court’s
consideration.

In the case of ​Leong Wing Kong v PP4, An expert must be skilled and he need not be so by
special study, suffices if it is by experience. In Dato’ Mokhtar Hashim v PP, expertise is derived
from experience and not from formal training.

In the case of ​Chong Soo Sin v Industrial and Commercial Insurance Bhd5, the fact that a person
is a consultant chemist registered under the Chemists Act 1975 is sufficient to hold that he has
the necessary skill and experience to qualify as an expert. However, in certain instances, the
court may take judicial notice of the fact that an expert has previously given evidence.

In the case of ​Syed Abu Bakar Ahmad v PP6: Expert opinion is particularly necessary where the
court is not in a position to perform a correct judgment without the help of persons who have
acquired special skill or experience. In this case, the appellant, the Director of National Bureau
of Sarawak, was charged for criminal breach of trust. The judge misdirected himself in believing
that the handwriting made using a particular pen was that of the accused without calling an
expert.

4
​[1994] 2 SLR 54
5
​[1992] 1 MLJ 636
6
[1984] 2 MLJ 132