067-NLR-NLR-V-67-THE-SOLICITOR-GENERAL-Appellant-and-W.-M.-PODISIRA-Respondent.pdf
1905Present: Manicavasagar, J.
THE SOLICITOR-GENERAL. Appellant, and W. M. PODISIRA,
Respondent
S. G. 189j65—M. G. BaduUa, 4,543
Excise Ordinance—Charge of unlawful sale of an excisable article—■Evidence of expert—
Burden of proof as to whether a witness is an expert and as to identity of excisable
article.
In a prosecution for unlawful sale of an excisable article, namoly, Governmentarrack, the Preventive Officer, who identified the article as Government arrack,made the following statement to establish his qualification as an expert :—“ Ihave been in Service for the last 7 years, I had undergone special training toidentify excisable articles. ”
Held, that the evidence was not sufficient to prove that the witness was anexpert. The burden lay on the prosecutor to elicit relevant material on thismatter. Further, it was the duty of the Court to satisfy itself that thewitness was specially skilled on the subject on which he was called to testify.
In order to prove the identity of the excisable article, the prosecutor relied onthe following evidence of the Preventive Officer :—“ I examined the contents ofthe bottle. … I am of opinion that it contained Government arrack. ”
Held, that the evidence was not sufficient to identify the excisable article.Here again the burden was on the prosecutor to elicit the facts on whichthe witness based his opinion ; if he had not done so, it was the right and theduty of the Magistrate to question the witness. The Court ought not to act onthe nude opinion of an expert.
Ap
PEAL from a judgment of the Magistrate’s Court, BaduUa.
V. S. A. Pullenayegum, Crown Counsel, for Complainant-Appellant.No appearance for Accused Respondent.
Gur. adv. tndf.
August 27, 1966. MAmoAVASAOAR, J.—
The accused-respondent was acquitted at the conclusion of the tidal onthe charge of selling an excisable article, namely, Government arrack,without a licence from the Government Agent, Badulla District, toPolice Constable 549 Ayupala. The Magistrate in his judgment said thatGurudevan, the Preventive Officer, who identified the article as Govern-ment arrack did not give any reasons as to how he came by his opinion.The Solicitor-General appeals from the order of the Magistrate.
The accused-respondent was not present at the hearing, nor was herepresented.
Mr. Pullenayegum for the appellant contended that the Magistrateshould have accepted the opinion of the Preventive Officer, once he hadsatisfied himself that he was competent to testify as an expert, unless hisopinion had been demonstrated to be unreliable. In this case he submitsthat the Magistrate had regarded the witness as an expert, and not aquestion was put to him either in cross-examination or by the Magistratein regard to the opinion he had expressed ; in this state of the evidence heargued that the Magistrate should have accepted the opinion of thewitness though he had not given any reasons for his view.
Two questions arise in my opinion for determination. Is the witnessan expert ? In other words, has he a specialised knowledge on the matterhe was called upon to testify by reason of special study and experience ?The Magistrate has not expressed a direct opinion in regard to this, but itis implicit in his judgment that he regarded him as an expert. If I washearing this case I would have probed further into the competency of thewitness as an expert before I regarded his evidence as that of a personspecially skilled on the subject. I think it is not sufficient to say “ I havebeen in Service for the last 7 years. I had undergone special training toidentify excisable articles. ” The witness should have been questioned inregard to his experience, the special skill which he claimed to haveacquired, the number of instances where he had given his opinion as anexpert in Court or elsewhere, the number of cases and the period duringwhich he had testified in Court, and whether there were any cases wherehis opinion had not been accepted. The burden lay on Oe prosecutor toelicit relevant material on this matter in order to satisfy the Court that heis what the prosecutor represents him to be ; this, however, does notexclude the duty cast on the Court to satisfy itself that the witness isspecially skilled on the subject on which he is called to testify. Thoughthis particular matter was not argued at the hearing of this appeal, I amof the view that the Magistrate should have satisfied himself on this aspectof the matter before he embarked on a consideration of the questionwhether the evidence of the witness on the identity of the excisable articleshould be accepted or rejected The evidence that has been recorded onthis question is not sufficient to hold that the witness is an expert.
In regard to the issue on which Counsel for the Crown made his sub-mission, I am unable to accept his argument that the opinion of anexpert should be accepted, though he has not given the reasons therefor,unless the Court is of the view that his evidence cannot be relied upon.In this case the witness stated, “ I examined the contents of the bottle
I am of opinion that it c on tained Government arrackI certainly
think this will not suffice ; the Court must be satisfied that the contentswere Government arrack and ought not to act on the nude opinion of anexpert; his evidence should be tested by questions as to the opinion hehad expressed ; here again the burden is on the prosecutor to elicit thefacts on which the witness has based his opinion ; if he had not done so,it is the right and the duty of the Magistrate to question him, because it ishe who has to be satisfied. Mr. Pullenayegum submits, “ Well, all that awitness if questioned further would say is that he identified the contentsto be Government arrack by its smell, taste and colour, and no one woud beany the wiser by questioning him any further in regard to these matters.”It is not for me to anticipate what questions may be put to the witness incross-examination or by the Court on these matters, and I would not beso bold as to say that no useful purpose would be served by questioningthe witness on these matters. Crown Counsel’s submission is tantamountto saying that the bare opinion of an expert should be accepted withoutquestion ; if this view be right, and I certainly do not accept it, the Courtwould be surrendering its fundamental duty of satisfying itself on amatter of which the burden of proof lies on the prosecutor.
On the evidence that is before me, my judgment is that the appealshould be dismissed. I have given thought to the question whether Ishould send the case back for a fresh trial, but on reflection I have decidedagainst taking that course.
Appeal dismissed.