Supreme Court: medical certificate of injuries declared inadmissible in criminal assault case

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The Supreme Court ruled that a medical certificate of injuries allegedly suffered by an assault victim was inadmissible evidence because the certifying doctor failed to examine the victim.

It was held that section 25 of the Non-Fatal State Offenses Act, 1997 required that a doctor issuing a certificate had personally examined the victim.

The DPP had argued that the provision made no specific reference to an attending physician and, in addition, that several medical staff would attend to an injured person in a given case. However, the court rejected it, saying the certificate was intended to replace verbally examination, so that a doctor should have personal experience of the case.

Background

The accused (known as AC) was tried by the Circuit Criminal Court in 2018 on one count of assault causing damage and one count of assault causing serious harm. It was alleged that the accused hit the victim in the head / face with a bar stool. As a result, the victim suffered a serious eye injury.

At trial, the prosecution sought to produce proof of a certificate issued by a consultant ophthalmic surgeon in accordance with the provisions of the 1997 law. Section 25 provided that such a certificate could be produced as evidence concerning the injuries of the victim. Such a provision prevents a medical expert from appearing in court to prove a victim’s injuries.

However, the defendant objected to the medical certificate which dealt with the count of assault causing serious harm. It was argued that the medical expert had not personally examined the victim and that his certificate was based on clinical notes collected from other doctors on the dates in question.

It was said that a section 25 certificate required the certifying physician to personally examine the victim in order for the evidence to be admissible. The Circuit Court judge reviewed the legislation and refused to admit the certificate. It was said that the wording of section 25 was clear and that only a doctor who examined the victim could issue the certificate. As such, the court returned a verdict of not guilty on the second count.

The matter was remitted to the Court of Appeal by way of stated case. The specific question posed was whether the trial judge was correct in his interpretation of section 25.

The Court of Appeal reversed the decision, stating that there was no provision in the law that the certificate had to be issued by an attending physician. The court ruled that the section was unqualified and this was not surprising given that a large number of medical staff can treat a patient and take notes.

The decision was appealed by the defendant to the Supreme Court.

Supreme Court

In rendering the principal judgment in the case, Judge Seamus Wolfe began by noting that the Court of Appeal adopted a literal interpretation of the legislation. However, it was said that the Court of Appeal failed to consider the inherent nature of the certificates and their admissibility as evidence under section 25.

A certificate was held to be an official documentary statement of the truth or facts. From the present certificate, it was clear that the doctor had only examined the clinical notes of other treating doctors and had not taken care of the victim himself. Under these circumstances, the court asked how the doctor was able to ascertain the victim’s injuries in fact.

The court ruled that section 25 was ambiguous and that there was “considerable doubt as to the scope of the intended application of the provision”, as evidenced by the difference of judicial opinion. Applying section 5 of the Interpretation Act 2005, the court said that the Oireachtas’ obvious intention was “to avoid the need for doctors to come to court and testify orally to prove their own medical records which in most cases are likely to be routine and non-controversial in nature ”.

As such, the court concluded that the trial judge was correct in excluding the certificate from the evidence. Chief Justice Donal O’Donnell wrote a concurring judgment, saying he had “considerable difficulty” with the idea that an independent practitioner could certify a victim’s injuries without examination.

Justice O’Donnell said the purpose of the legislation was to allow a doctor to replace verbally proof with the certificate and nothing in the legislation suggested any other purpose beyond this. The Chief Justice noted that if the doctor was required to appear in person, he could not have testified based on someone else’s notes.

Furthermore, it was “inconceivable” that the Oireachtas did not place limits on such a broad certifying power where any doctor could technically certify any examination. Finally, the fact that the certificate was evidence, and did not lend itself to cross-examination, also required a narrow interpretation of the provision.

Although not the subject of the appeal, Justice O’Donnell also considered the point of disagreement between Justice Woulfe and Justice Peter Charleton as to whether a certificate could express an opinion on the nature of the damage suffered by the injured party. This occurred in a context where the certificate stated that the victim had suffered “probably permanent long-term damage”.

It has been said that a review can involve an element of both opinion and experience. However, the fact that a certificate could not be challenged as evidence meant that it had to be limited to essential factual elements. The certificate had to contain enough detail for the jury members to understand. Justice O’Donnell agreed with Justice Woulfe that a statement of the seriousness of the harm was an opinion which was not capable of being certified.

Conclusion

The court allowed the appeal and upheld the trial judge’s decision to exclude the certificate.


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