DPP v A. C

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 21 December 2020
• Neutral Citation: [2020] IECA 362
• Court: Court of Appeal (Ireland)
• Docket Number: [229/19]

In the Matter of Section 34 of the Criminal Procedure Act 1967 as Amended

Between

The People at the Suit of the Director of Public Prosecutions

Applicant

and

A.C.

Respondent

[2020] IECA 362

The President

Donnelly J

Ni Raifeartaigh J

[229/19]

THE COURT OF APPEAL

Question of law – Exclusion of evidence – Assault causing serious harm – Applicant referring question of law to Court of Appeal – Whether the trial Judge was correct to exclude evidence tendered by way of a certificate pursuant to s. 25 of the Non-Fatal Offences Against the Person Act 1997 on the grounds that the medical practitioner who prepared the certificate had not personally performed the examination referred to in the certificate

Facts: The respondent, in February 2018, stood trial in Dundalk Circuit Criminal Court charged with two offences: one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997; and one count of assault causing serious harm contrary to s. 4 of the same Act. The prosecution had intended to rely on two certificates from medical practitioners. One of the reports was prepared by a consultant in Emergency Services at Our Lady of Lourdes Hospital in Drogheda. That certificate was not the subject of any controversy and was admitted in evidence. However, at trial, the defence challenged the admissibility of a second certificate which had been provided by Professor O’Brien, Consultant Ophthalmic Surgeon, at the Mater Hospital in Dublin. The challenge was advanced in circumstances where it was clear from the certificate that Professor O’Brien had not personally seen the injured party and that his report, and therefore the certificate, was based upon “the clinical notes collected in the Ophthalmology Department [of the Mater Hospital] on the dates of the 19th and 20th June 2016”. The certificate was challenged on the basis that it was hearsay and that it could not be admitted in evidence in a situation where Professor O’Brien had not examined the injured party. The judge upheld the challenge to the certificate. The effect of this was that there was a directed verdict of not guilty in respect of count two on the indictment. Arising from the exclusion of the certificate, the applicant, the Director of Public Prosecutions, pursuant to statute, referred the following question of law to the Court of Appeal: “Was the learned trial Judge correct to exclude evidence tendered by way of a Certificate pursuant to Section 25 of the Non-Fatal Offences Against the Person Act, 1997 on the grounds that the medical practitioner who prepared the said Certificate had not personally performed the examination referred to in the said certificate?”

Held by the Court that, having considered the actual wording of s. 25(1) of the 1997 Act, there is a clear and unqualified statement that in any proceedings for a relevant offence, “the production of a certificate purporting to be signed by a registered medical practitioner and relating to an examination of that person, shall unless the contrary is proved, be evidence of any fact thereby certified”. The Court noted that there is no stipulation that the certificate must emanate from a practitioner who has treated the injured party or has had a direct involvement in the treatment of the injured party; what is required is that the certificate relate to an examination of the injured party. The Court held that there is no requirement that the examination should be carried out by the person providing the certificate, or that it should have been overseen by that person, or that that person should have had any involvement.

The Court held that it would answer the question that was referred for determination as follows: the trial judge was incorrect in excluding the evidence tendered by way of a certificate, pursuant to s. 25 of the 1997 Act, on the ground that the medical practitioner who had prepared the said certificate had not personally performed the examination referred to in the certificate.

Appeal allowed.

JUDGMENT of the Court delivered on the 21st day of December 2020 by Birmingham P.

1 In February 2018, the respondent, A.C., stood trial in Dundalk Circuit Criminal Court charged with two offences: one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997; and one count of assault causing serious harm contrary to s. 4 of the same Act. The trial related to events that had occurred on 19th June 2016 at a licensed premises in Dundalk. The prosecution case was that the respondent had struck the injured party in the head/face region with a barstool, causing the injured party to suffer a significant eye injury.

2 The prosecution had intended to rely on two certificates from medical practitioners. One of the reports was prepared by a consultant in Emergency Services at Our Lady of Lourdes Hospital in Drogheda. That certificate was not the subject of any controversy and was admitted in evidence. However, at trial, the defence challenged the admissibility of a second certificate which had been provided by Professor Colm O'Brien, Consultant Ophthalmic Surgeon, at the Mater Hospital in Dublin. The challenge was advanced in circumstances where it was clear from the certificate that Professor O'Brien had not personally seen the injured party and that his report, and therefore the certificate, was based upon “the clinical notes collected in the Ophthalmology Department [of the Mater Hospital] on the dates of the 19th and 20th June 2016”. The certificate was challenged on the basis that it was hearsay and that it could not be admitted in evidence in a situation where Professor O'Brien had not examined the injured party. The judge upheld the challenge to the certificate. The effect of this was that there was a directed verdict of not guilty in respect of count two on the indictment, the count of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997.

3 Arising from the exclusion of the certificate, the DPP has, pursuant to statute, referred the following question of law to the Court of Appeal:

“Was the learned trial Judge correct to exclude evidence tendered by way of a Certificate pursuant to Section 25 of the Non-Fatal Offences Against the Person Act, 1997 on the grounds that the medical practitioner who prepared the said Certificate had not personally performed the examination referred to in the said certificate?”

4 It appears that the late Judge Hannon was consulted, but did not have any observations on the issue that was being referred. Section 34 of the Criminal Procedure Act 1967, as amended, provides as follows:

• “34.–(1) Where a person tried on indictment is acquitted (whether in respect of the whole or part of the indictment) the Attorney General in any case, or if he or she is the prosecuting authority in the trial, the Director of Public Prosecutions may, without prejudice to the verdict or decision in favour of the accused person, refer a question of law arising during the trial to the Court of Appeal for determination or, in the case of a person who is tried on indictment in the Central Criminal Court, make application to the Supreme Court under Article 34.5.4° of the Constitution to refer a question of law arising during the trial to it for determination.

• (2) Where a question of law is referred to the Court of Appeal or the Supreme Court, as the case may be, under subsection (1), the statement of the question shall be settled by the Attorney General or the Director of Public Prosecutions, as may be appropriate, after consultation with the trial judge concerned, or, in the case of a Special Criminal Court, with the member of that Court who pronounced the decision of the Court in the trial concerned following consultation by that member with the other members of the Court concerned and shall include any observations which the judge or that member, as may be appropriate, may wish to add.”

5 Before dealing with the arguments that were advanced in support of excluding the certificate at trial, and which have been repeated before this Court in opposition to the Director, it is probably helpful to provide a little more detail by way of background.

Background

6 The respondent was originally charged with an offence...