Report No. 185

Sections 45 to 51

The sections deal with the subject 'opinions of third persons, when relevant'. Section 45 refers to 'opinions of experts' and reads as follows:

"45. When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting, or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art or in questions as to identity of handwriting or finger impressions, are relevant facts.

Such persons are called experts."

There are three illustrations set out below Section 45. One deals with an opinion as to 'poisoning', the other as to 'unsoundness of mind' and third as to 'identity of handwriting'.

In the 69th Report, after an elaborate discussion, the Commission recommended (end of para 17.44) to include 'footprints, palm impressions or typewriting, as the case may be' in Section 45 and further recommended insertion of Section 45A in regard to the duty of an expert witness to supply copy of his report to all parties, along with the grounds for opinion.

It may be noted that in State (through CBI v. S.J. Choudhary AIR 1996 SC 1491, while holding that experts could be examined with regard to 'typewriting', the 69th Report of the Law Commission was quoted.

Section 45B was proposed to cover expert opinion on 'foreign law' as in the British statutes of 1859, 1861 with two subsections.

Section 45 has to be read along with Section 11 (when facts not otherwise relevant become relevant), Section 38 (relevancy of statements as to any law contained in law books), and also the proviso to Section 60 which deals with a situation where because no expert is available, treatises can be quoted.

Section 45 deals with expert evidence and not with mechanical evidence such as automatic photographs, computer printouts etc.

In UK, the relevancy of expert evidence is contained in the Civil Evidence Act, 1972, and the recent Civil Procedure Rules, 1995 (based on Lord Woolf's Report on 'Access to Justice') (which impose an overriding duty on the expert to give his opinion, irrespective of whether he was being examined by one party or the other. (LPR PC 35 R3); and in criminal cases, by the Police and Criminal Evidence Act, 1984 and Criminal Justice Act, 1988 (see Phipson, 15th Ed, 1999, para 37.09).

Section 45 speaks of experts on points of "foreign law, science or art, or as to identity of handwriting or finger impressions".

Phipson (15th Ed, 1999, para 37.53 to 37.63) includes one more item of 'trade' in this list. He says (referring to case law):

"The opinions of shopkeepers are admissible to prove the average waste resulting from the retail sale of goods, those of persons conversant with a market, to prove market value; those of accountants, to prove what losses are chargeable to capital; and those of businessmen, to prove the meaning of trade terms. So, though formerly doubtful, it is now well-settled that the opinions of underwriters are receivable as to what facts are 'material' in a policy of marine insurance. The opinions of medical men are similarly admissible as to what maladies are in an insurance proposal."

However, he states:

"The opinion of tradesmen is inadmissible on the question of whether or not a trade name is calculated to deceive, whether for the purposes of a passing off action or in proceedings under the Trade Descriptions Act, 1968. It is equally inadmissible on the question of whether or not tradesmen would in fact be or be likely to be deceived."

It is also pointed out:

"Where there is a question as to whether or not a covenant in restraint of trade is reasonable, evidence may be given by those engaged in the trade of the nature of the trade, what is usual in it, of any particular precautions required to be taken but their opinion is inadmissible as to the reasonableness or otherwise of the restraint."

[And ]

"Similarly, definition of the nature of a trade or of the terms used in the trade may be subject to expert evidence from those engaged in the trade. There is a good deal of ancient learning on the evidence what is admissible to prove trade customs and trade usages; but it is probable that no modern court would exclude expert evidence on these topics unless precluded by authority directly on the point and binding on the court. In income tax inquiry, the commissioners may, but are not bound to receive expert evidence."

One other aspect alluded to by Phipson in para 37.56 refer to "technical terms". Local or technical terms may always be explained by experts, unless they are equally intelligible to ordinary readers; thus the opinions of engineers are not admissible to show what matters are "delineated" upon statutory plans, nor those of surveyors and auctioners as to the meaning of 'nominal rent' in a statute. But, in Patent cases, experts obviously have a good deal of experience and may be called upon

(1) to explain the technical terms employed;

(2) to instruct the court in the relevant scientific principles;

(3) to show the state of scientific knowledge at the time of the grant;

(4) to explain the nature, working, characteristic features and probable mechanical results of an invention, together with what is old or new in the specifications, and how far any scientific advance has been made thereby, as well as

(5) in the case of rival inventions, to point out the similarities or differences therein and how far these are material or unimportant."

On the other hand:

"They may not however give evidence as to the construction of the specification, or as to whether there is or is not a want of novelty, or whether the defendant's invention infringes the plaintiff's patent or not, because these are matters for the court to decide."

Coming to questions of identity, the relevance of identity has been dealt with in Section 9. (see also Section 112) Here we are, however, concerned with the opinions of experts and the relevance of the said opinion on the questions of identity.

Again, 'identity' of persons, today, is a matter of expert evidence according to Phipson (ibid, para 37.62). Fingerprint evidence has long been available for this purpose and evidence of blood tests has been admissible (especially in paternity suits) for many years. In recent years, other types of scientific processes have been put before the court by appropriately qualified experts. Evidence of facial mapping has been admitted, both by a more or less sophisticated method (see R v. Stockwell (1993) 97 Crl. App Rep 260 (CA) and R v. Clarke (1995) (2) Crl App Rep 425 (CA). Similarly, voice identification by a person experienced in the task is admissible even though the expert relies on audatory impression and not on acoustic measurement (R v. Robb) (1991) 93 Crl App R 1GL (CA).

There can also be expert evidence in relation to identity of animals. Such a question may arise, for instance, when somebody's pet dog is stolen allegedly by an accused.

DNA evidence is yet another one. We have dealt extensively with DNA in Section 9. But here the question is about experts in DNA. It is known as 'genetic printing by DNA analysis'. See R v. Gordon (1995 (1) Crl App Rep 290) (CA). However, so far the English Court has "set its face squarely against supplementary expert evidence on the probabilities involved." (R v. Adams No.1 1996 (2) Crl. App Rep 467 (CA); R v. Adams No.2 1998(1) Crl App Rep 377 (CA) In R v. Dohoney and Adams 1997 (1) Crl App Rep 369 (CA), the Court of Appeal laid down guidelines for dealing with DNA evidence (at pp. 374-375 of that case).

So far as DNA is concerned, an expert can give evidence only in regard to providing the "random occurrence ratio" and if he or she has the necessary data, it may indicate how many people with matching DNA characteristics are likely to be found in (say) UK or in a limited relevant subgroup of which the perpetrator is, in all likelihood, a member. It is inappropriate for an expert to expound a statistical approach to evaluating the likelihood that the accused left the unknown sample (see R v. Dohoney and Adams: 1997 (1) Crl App Rep 369).

DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not 'match', then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000: This is described as the 'random occurrence ratio' (Phipson 1999, 15th Ed, para 14.32).

Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law.

In this connection, reference may be usefully made to the Report of the Australian Law Reform Commission, referred to in our discussion under Section 9. That deals with the problems relating to expert evidence on DNA. The law is still developing.

We think that apart from adding the words "footprints, palm impressions and typewriting" in Section 45 as recommended in the 69th Report, we shall make some more additions. We, therefore, propose to recommend addition of the words "trade, technical terms and identity of persons or animals" also in Section 45.

We recommend that Section 45 be amended as follows:

For the portion beginning with the words "When the court has to form an opinion" and ending with the words "Such persons are called experts" the following shall be substituted, namely:-

"When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to the identity of handwriting, or finger impressions or, footprints or, palm impressions or typewriting or usage of trade or technical terms or identity of persons or animals, the opinions, upon that point, of persons specially skilled in such foreign law, science or art, or as to the identity of handwriting, finger impressions, footprints, palm impressions, typewriting, usage of trade, technical terms or identity of persons or animals, as the case may be, are relevant facts. Such persons are called 'experts'."

[Illustrations as at present are not disturbed]