INTERNATIONAL CONGRESS ON RECENT ADVANCES IN SCIENCES AND TECHNOLOGY - Kuala Lumpur - Malaysia (2019-02-20)

THE POSITION OF DNA EXPERTS IN MALAYSIA
THE POSITION OF DNA EXPERTS IN MALAYSIA Ramalinggam Rajamanickam1, Mohd Safri Mohammed Na’aim2, Tengku Noor Azira Tengku Zainudin3, Zainunnisaa Abd. Rahman4& Mohd Zamre Mohd Zahir5 1Senior Lecturer, Faculty of Law, Universiti Kebangsaan Malaysia, Bangi, Selangor, Malaysia. 2Lecturer, Faculty of Law, Universiti Teknologi Mara, Shah Alam, Selangor & Ph.D Candidate at Faculty of Law, Universiti Kebangsaan Malaysia, Bangi, Selangor, Malaysia. 3Associate Professor, Faculty of Law, Universiti Kebangsaan Malaysia, Bangi, Selangor, Malaysia 4Senior Lecturer, Faculty of Law, Universiti Kebangsaan Malaysia, Bangi, Selangor, Malaysia. 5Ph.D Candidate at Faculty of Law, Universiti Kebangsaan Malaysia, Bangi, Selangor, Malaysia * Ramalinggam Rajamanickam: (Phone: +60 017 715 7174; E-mail: rama@ukm.edu.my) Abstract In criminal cases, the proof lies on the Public Prosecutor to prove its case beyond reasonable doubt. One of the most common forms of evidence that has been used by the Public Prosecutor in courtroom to prove its case is DNA evidence. Examples of cases where DNA evidence has commonly been used are rape and murder. For DNA evidence, the process started when the police collected the physical evidence which is relevant to the alleged offence at crime scenes. Once the evidence is collected, it will be marked for the purpose of maintaining the chain of custody. The collected evidence then usually will be sent to the Department of Chemistry Malaysia (hereinafter “Chemistry Department”) for DNA analysis. The chemist will extract the DNA from the relevant physical evidence by using specific techniques. The outcome of the analysis will be used to complete the investigation of the case. Being an independent organization, the Chemistry Department strives to provide impartial forensic science analysis. Thus, from the analysis, sometimes DNA evidence does not necessarily implicate the accused with the alleged offence but may also disclose the involvement of a third party in the alleged offence that may cast doubt in the prosecution’s case as can be seen in the Federal Court’s case of Public Prosecutor v. Hanif Basree Abdul Rahman [2008] 4 CLJ 1. Thereafter, the evidence will be presented by the prosecution before the court to assist judges in making right decisions. This indicates the important role played by an expert in court decision making process. Having said that, in this context, the following questions always arise as to the probative value of the DNA evidence given by the expert in the courtroom. What is the actual probative value of DNA evidence in a case? Can the court convict a person solely on DNA evidence? Objective 1. To investigate the actual probative value of DNA evidence in a case? 2. To examine whether or not the court can convict a person solely on DNA evidence? Scope of the study The research will focus on the position of of DNA experts in Malaysia under section 45 of the Evidence Act. Important/ significant of the study 1. This research is fundamental because it examines the scope of section 45 of the Evidence Act 1950 in light of decided cases. 2. This research can be a reference to the judiciary and legal practitioners as to the current position of DNA experts in Malaysia. Conclusion The research found that although the DNA evidence is given by the experts, but the probative value depends on the nature of the evidence itself. The evidence of the experts is in the form of opinion on the findings based on the analysis conducted in the laboratory. This is clearly illustrated in section 45 of the Evidence Act 1950 when the provision uses the words “opinion of experts” as heading. Furthermore, the probative value of the expert evidence was discussed in several cases. Particularly, in the case of Public Prosecutor v. Samundee Devan Muthu Kerishnan [2006] 3 CLJ 161 at p. 173 where the court opined that it is trite law expert do not decide, the ultimate decision with the judge. Evidence of the experts is only opinion. It is not conclusive. The expert opinion should be of corroborative nature to the facts and circumstances of the case. If the expert opinion contradicts an unimpeachable eye witness or documentary evidence then it will not have an upper hand over direct evidence. Keywords: DNA evidence; expert evidence; probative value; Evidence Act 1950
Dr. Ramalinggam Rajamanickam, Mr. Mohd Safri Mohammed Na'aim, Assoc. Prof. Tengku Noor Azira Tengku Zainudin, Mrs. Zainunnisaa Abd. Rahman, Mr. Mohd Zamre Mohd Zahir