IN 1976, an alleged error in the construction of language ended with the Full Court wrongly setting aside a magistrate’s guilty decision in an unlawful assault case, and finding the respondent Hardatt, also known as ‘Ghandie’, not guilty.

The State appealed to the Guyana Court of Appeal. That appellate Court, finding that the trouble arose through construction of language that led to the wrong interpretation, set aside the ruling of the Full Court and ordered that the decision of the magistrate be restored.

The facts disclosed that the respondent was charged with the offence of unlawfully assaulting one Mari Muthoo so as to cause him actual bodily harm. During the course of the trial, the magistrate admitted in evidence the medical report of a registered medical practitioner issued within forty-eight hours of his examination of the injuries found on Mari Muthoo.

In order to rebut the story of Maria Muthoo that the assault on him was unprovoked, counsel for the respondent Hardatt tendered in evidence a document from the same doctor, which purported to be a report made by that doctor and issued within forty-eight hours of his examination of injuries found on the respondent. Proceedings were never instituted against Mari Muthoo.

The magistrate ruled that the document was inadmissible, because the injuries sustained by the respondent were not the subject of a prosecution for a criminal offence, and were thus not caught within the ambit of Section 43 (4) of the Evidence Act, Chapter 5:03. The magistrate therefore excluded from his consideration the contents of that report, and found the respondent guilty.

On appeal to the Full Court, it was held that the document was within the ambit of Section 43 (4), and the appeal was allowed and the conviction and order set aside. The State appealed this decision of the Full Court to the Court of Appeal.

That court held: (1) That only a document purporting to be a Post-Mortem report of a duly registered medical practitioner, and a document purporting to be a report made by a duly registered medical practitioner within 48 hours of his examination of any injury or condition of a person, and which said injury or condition is the subject of a prosecution for a criminal offence, can be admitted in evidence under Section 43 (4) of the Evidence Act Chapter 5:03. Accordingly, the ruling of the learned magistrate was right.

(2) That there is no ambiguity or lack of clarity in the words used in Section 43 (4), which must therefore be given their ordinary natural meaning.

(3) That although the court has the power to develop the Common Law in certain cases, this was not a case which would justify a judicial extension.

(4) That since the respondent’s injuries were not the subject of a prosecution for criminal offence, the respondent’s medical was inadmissible; and accordingly, the judgment and order of the Full Court would be set aside and the decision of the magistrate restored.

The Guyana Court of Appeal, constituted by Justices of Appeal Mr. Victor Crane, Mr. Ronald Luckhoo and Mr. Dhan Jhappan, ruled, as they allowed the appeal and restored the Magistrate’s decision.

The appeal was brought by DC 7294 Henry Chester against the decision of the Full Court setting aside the conviction and order by the magistrate of the respondent Hardatt, aka Ghandie. Assistant Director of Public Prosecutions, Mr. G.H.R. George Jackman, S.C., appeared for the appellant, while Mr. K.A. Juman-Yassin represented the respondent.

Justice of Appeal R.H. Luckhoo, who delivered the judgment of the Court, said: “The only point which calls for consideration in this appeal is one of construction of the language used in Section 43 (4) of the Evidence Act, Chapter 5:03 with respect to the admissibility in evidence of a document purporting to be a report made by a duly registered medical practitioner.

“The facts giving rise to this appeal are briefly these: The respondent was charged with the offence of having, on the 30th June, 1973, at Leonora, West Coast Demerara, unlawfully assaulted Mari Muthoo so as to cause him actual bodily harm, contrary to Section 30 (a) of the Summary Jurisdiction (Offences) Act, Chapter 8:02. During the course of the trial, the magistrate admitted in evidence the medical report of Dr.Sahai, a registered medical practitioner, issued by him within 48 hours of his examination of the injuries found on Mari Muthoo.

“During cross-examination of Sergeant of Police Primo, a witness for the prosecution, counsel for the respondent caused to be tendered in evidence through that witness a document, also uplifted by the police from the same doctor, which purported to be a report made by that doctor and issued within 48 hours of his examination of injuries found on the respondent.

“The object of the defence was to show that, far from the story of Mari Muthoo of an unprovoked assault on him being true, it was Mari Muthoo and his family who had unlawfully assaulted the respondent.

“Neither the police nor the respondent instituted proceedings against Mari Muthoo for any assault alleged to have been committed by him on the respondent. This document, tendered under cross-examination, was admitted by the magistrate in evidence and marked as Ex. ‘B’.

“The respondent was found guilty, and in his reasons for decision, the magistrate said, with respect to this latter medical report, EX. ‘B’, that it was inadmissible, as the injuries sustained by the respondent were not the subject of a prosecution for a criminal offence, and thus the document was not one caught within the ambit of the provisions of Section 43 (4) of the Evidence Act, Chapter 5:03.
The magistrate, therefore, excluded from his consideration the contents of Ex. ‘B’.”

According to Justice of Appeal Luchoo in the Full Court, on appeal, the learned judges there disagreed with the view taken by the magistrate, and held that he had misdirected himself when he stated that the medical report, Ex. ’B’ was inadmissible. The Full Court came to the conclusion that it was admissible in evidence under the section of the act, and that the exclusion by the magistrate from his consideration of the medical report relating to the injuries which the doctor had found on examination of the respondent amounted to a grave miscarriage of justice, rendering the entire trial a nullity.

“The appeal was accordingly allowed by the Full Court, and the conviction and order of the magistrate set aside.

“It is our view that the section under review is a statutory exception to the hearsay rule. At common law, a medical certificate was inadmissible to prove the facts stated in it, as the best evidence of those facts was the oral statement on oath of the person who gave the certificate. [See Richards vs. Sanders and Sons (1912) 5 BGWCC 352 C.A]

“As a general rule, hearsay evidence is not admissible. It is not given on oath, and cannot be subjected to the tests and safeguards provided by cross-examination, which alone can either confirm and enhance its cogency and value, or expose it as unworthy of credence and devoid of any probative value.”

In conclusion, the judgment added, “We regret we have to differ from the learned judges of the Full Court in their construction of the sentence under review. The appeal is allowed, the judgment and the order of the Full Court are set aside, and the decision and the order of conviction made by the learned magistrate are restored, save that we propose to set aside the penalty imposed and to substitute a reprimand and discharge in its place.”

 
By George Barclay