Be impartial, independent, Federal Court reminds expert witnesses

Judge Vernon Ong Lam Kiat says it is the duty of an expert witness to assist the court.

PETALING JAYA: A nine-member Federal Court bench has reminded expert witnesses, such as forensic pathologists, to be impartial, objective and independent, irrespective who calls them to give evidence.

Judge Vernon Ong Lam Kiat said an expert witness was a person whose level of specialised knowledge or skill in a particular field qualified him to present his opinion about the facts of a case during legal proceedings.

He said the fact that the expert witness was called by one party did not detract from the overriding duty to the court.

“It is the duty of an expert witness to assist the court on the matters within his expertise. This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid,” he said.

Ong said the bench was taking this occasion to stress, in passing, that the outcome of a prosecution on a charge for murder did not turn solely on the testimony of the forensic pathologist.

“The forensic pathologist does not carry the burden of the case. His testimony is a factual and objective presentation of his autopsy findings and his opinions on the correlation of the autopsy findings with other case information,” he said.

Ong made the remark in a separate judgment he wrote to reduce the murder charge of security company proprietor P Pubalan to culpable homicide not amounting to murder against his brother-in-law D Murali in 2013.

The bench instead sentenced him to 15 years in jail.

Counsel Hisyam Teh Poh Teik, who represented Pubalan, had submitted that evidence given by the pathologist was not sufficient to convict his client for murder.

Ong said in this case, the important question to be determined was whether Pubalan had intended to cause such bodily injuries as he knew likely to cause death or such as was sufficient in the ordinary course of nature to cause death.

“Unfortunately, in the present case, the critical question remains unanswered. In our view, the forensic pathologist should have been asked to give his opinion on the nature of the injuries and its likely and natural effects, but he was not asked any questions on this crucial point,” he said.

As a whole, Ong said the evidence was skimpy, sketchy and devoid of any further elaboration because the deputy public prosecutor did not ask any questions in re-examination of the forensic pathologist.

Accordingly, Ong said, the evidence in this respect was lacking and Pubalan should have been convicted for culpable homicide for causing such bodily injury as was likely to cause death and not murder.

Pubalan, Peruvian national Jorge Crespo Gomes and South Africans Letitia Bosman and Benjamin William Hawkes had also challenged the constitutionality of the mandatory death penalty but that was dismissed in an 8-1 majority ruling .

Their lawyers had submitted that judges should be given the discretion whether to impose the death sentence or jail term based on the facts and circumstances of each case.

Court of Appeal president Rohana Yusuf led the bench with Chief Judge of Malaya Azahar Mojhamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and judges Ong, Abdul Rahman Sebli, Zaleha Yusof, Zabariah Md Yusof, Nalini Pathmanathan and Hasnah Mohammed Hashim.

Azahar , who delivered the Aug 13 majority ruling on the constitutionality of the death penalty, held that since the legislature made laws for offences, it must also determine the measure of punishment for the court to impose.

Nallini, who dissented, said the mandatory death penalty imposed for drug trafficking and murder was unconstitutional because the right to life and to equal protection in law was violated.

The majority maintained the death sentence against Bosman and Hawkes for drug trafficking on the grounds that the trial judge did not err in law and facts.

However, Crespo also escaped the gallows but was sentenced to 10 years’ jail for possessing 779gm of cocaine at KLIA in 2013.