Ordinary witnesses cannot express opinions in a court of law.
This rule emanates from article 650(1) of the Criminal Code.
Opinion evidence not tendered by court-appointed experts in criminal proceedings is rendered inadmissible simply because in criminal proceedings (as opposed to civil proceedings) ex-parte expert witnesses find no place.
A court-appointed expert delivers opinions only because he/she is appointed and specifically authorised to so do by a court decree.
The expert’s opinion is accepted on the grounds that it is an informed opinion as it is based on the study and evaluation of the facts by a person who is specialised on the technical matter at stake.
Logically, therefore, if the court has chosen and appointed a specific individual as court expert to carry out a specialised task, one would expect that specific individual appointed to carry out the assigned task himself and not to delegate or otherwise entrust the task to someone else.
That ‘someone else’ – even if equally specialised and trained – is not backed by a court appointment and the resultant findings are reduced to ex-parte expert findings and, consequently, inadmissible as evidence in criminal proceedings.
This issue surfaced in the judgment delivered on January 28, where the Court of Criminal Appeal fully acquitted a man who was at First Instance found guilty of defiling an eight-year-old minor and sentenced to three years’ effective imprisonment.
The minor victim in this case never took the witness stand, neither during the criminal proceedings before the Court of First Instance nor throughout the preliminary investigative phase, i.e., throughout the magisterial inquiry.
Given that the minor was afflicted with severe autism, the prosecution refrained from producing the minor as a witness in view of the fact that she was not fit to testify.
At an earlier stage, during the magisterial inquiry, the inquiring magistrate appointed a forensic psychiatrist as a court expert (hereinafter referred to as Dr NC) to examine the victim in question for the purposes of determining and establishing whether she had actually been sexually abused or not and this by describing her mental state and, in particular, to determine whether in his expert opinion it could have been the case that allegations made to the police by the minor were fabricated and untruthful.
At this juncture, one ought to point out that court-appointed experts typically present a report (in practice referred to in Maltese as ‘relazzjoni’) in support of their opinions and findings.
Dr NC, in his capacity as court expert, testified in the course of the magisterial inquiry and exhibited his report.
Remarkably, however, the preamble of this report read as follows:
“I am Dr AS, a basic specialist trainee who carried out this assessment as part of my training in psychiatry under the supervision of Dr NC [i.e. the actual appointed court expert], currently employed by the Mental Health Services, Malta as a full-time substantive child and adolescent psychiatrist with a special interest in Adolescent Forensic Psychiatry. I have the training qualifications and expertise to diagnose and treat mental illness in young people.”
A court-appointed expert delivers opinions only because he/she is appointed and specifically authorised to so do by a court decree
The Court of Appeal, quoting this same preamble of the report exhibited by Dr NC, held that the Court of First Instance was wrong in taking cognisance of the findings contained in this report since it appeared to be prepared, wholly or in part, by an individual who was at no point nominated as a court expert and, therefore, qualified as an ex-parte report – rendering it completely inadmissible.
The Court of Appeal, in fact, remarked that court expert Dr NC was not endowed with the power at law to delegate his assigned task to a third-party, namely to Dr AS in this case and if he intended to do, the least he could do was to acquire due authorisation from the inquiring magistrate preventively.
To make matters worse, Dr AS was at no point in the proceedings summoned as a witness to confirm on oath the contents of the report exhibited by court-appointed expert Dr NC. Given therefore that the report itself indicated that Dr AS had, in fact, examined the victim and not Dr NC, whatever Dr NC declared on oath, the Court of Criminal Appeal held, was tantamount to “hearsay evidence”.
The Court of Criminal Appeal also proceeded to point out that, as a rule, in criminal proceedings (emerging from article 646(1) of the Criminal Code), a witness – especially the direct victim – is to be examined in court and viva voce.
The remaining sub-articles of article 646 mention select scenarios that serve as an exception to this general rule.
One of these is that a person may be exempt from testifying viva voce if it is apparent to the court that appearing for viva voce examination may cause the witness to suffer psychological harm.
The Court of Criminal Appeal criticised the fact that the prosecution had arbitrarily decided that the ‘star witness’ in this case was not fit to testify without first requesting the Court of First Instance to exempt the minor from testifying viva voce as per article 646 of the Criminal Code.
It in fact argued that the applicability or otherwise of the exemptions mentioned under article 646 were within the court’s remit not the prosecution’s.
Moreover, the Court of Criminal Appeal pointed out that the victim’s account was only reflected in the testimony of the several social workers that took the witness stand.
Although such testimony was in itself admissible, its probative value was lacking since such testimony could only have been used to effectively corroborate the victim’s version of events – something which in this case was totally missing.
All these reasons left the Court of Criminal Appeal with a ‘lurking doubt’ as to whether an injustice may have been done and quashed the appellant’s conviction. This case is now res judicata (matter cannot be raised again).
Jacob Magri is a junior associate at Azzopardi, Borg & Associates Advocates.