-Sets aside Magistrate’s ruling, but…
– Appellate Court restores decision
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, aka Ghandie, not guilty. The State took the matter to the Guyana Court of Appeal, which  found that the trouble arose through the construction of language that led to the wrong interpretation.
The Appellate Court 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 Muthoo.
In order to rebut Muthoo’s story 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 Muthoo.
The magistrate ruled that the document was inadmissible,  as the injuries sustained  by the respondent  were not the subject  of a prosecution for a criminal offence,  and thus not caught  within the ambit of Section  43 (4) of the Evidence Act, Chapter 5:03.   The magistrate therefore excluded the contents of this report from his consideration 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 from this decision of the Full Court to the Court of Appeal.
That Court held that:

(1)  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, and that accordingly,  the ruling of the learned Magistrate was right.

(2)  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)  Although the Court has the power to develop the Common Law in certain cases, this was not such a case which would justify a judicial extension.

(4)  Since the respondent’s injuries  were not the subject of a prosecution  for a 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 Victor Crane, Ronald Luckhoo and  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. GHR George Jackman, SC, appeared for the Appellant, while Mr. KA Juman-Yassin represented the respondent.
Justice Luckhoo, in delivering 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 Exhibit ‘B’.
“The respondent  was found guilty,  and in his reasons for decision, the magistrate said with respect to this latter medical report, Exhibit  ‘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 Exhibit ‘B’.”
In closing arguments, Justice Luckhoo said: “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, Exhibit ’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 its 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 v 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.”