The People (at the suit of the DPP) v AC

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Chief Justice O'Donnell,Mr. Justice Woulfe
• Judgment Date: 03 November 2021
• Neutral Citation: [2021] IESC 74
• Court: Supreme Court
• Docket Number: [2020] IESC 000 Supreme Court appeal number: S:AP:IE:2021:000014 Court of Appeal record number: 2019/ 120 PP Circuit Criminal Court Bill number: LHDP0035/2017

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)

Prosecutor/Respondent

and

AC

Accused/Appellant

[2021] IESC 74

O'Donnell CJ

MacMenamin J

Charleton J

O'Malley J

Woulfe J

[2020] IESC 000

[2020] IECA 362

Supreme Court appeal number: S:AP:IE:2021:000014

Court of Appeal record number: 2019/ 120 PP

Circuit Criminal Court Bill number: LHDP0035/2017

An Chúirt Uachtarach

The Supreme Court

Exclusion of evidence – Statutory interpretation – Non-Fatal Offences Against the Person Act 1997 s. 25 – Respondent seeking to adduce evidence of a certificate – Whether the certificate was inadmissible hearsay

Facts: The appellant, in February 2018, stood trial at 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. At the trial the prosecution sought to adduce evidence of a certificate provided by a Consultant Ophthalmic Surgeon and relied on s. 25 of the 1997 Act. The defence challenged the certificate on the basis that it was hearsay and that it could not be admitted in evidence in a situation where the medical practitioner had not examined the injured party. The trial judge in his ruling excluded the certificate as inadmissible hearsay. The respondent, the Director of Public Prosecutions, referred the following question of law to the Court of Appeal pursuant to s. 34 of the Criminal Procedure Act 1967, as amended: “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?” The Court of Appeal held on the 21st December, 2020 that the trial judge erred in excluding the certificate ([2020] IECA 362). The Court construed s. 25 of the 1997 Act as meaning that what is required is that the certificate relate to an examination of the injured party. The Court felt 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. By a determination dated the 26th April, 2021 the Supreme Court granted the appellant leave to appeal from the judgment of the Court of Appeal: [2021] IESCDET 45. A question of statutory interpretation regarding the ambit of s. 25 of the 1997 Act arose for decision on the appeal: the range of registered medical practitioners who may sign a certificate relating to an examination of an injured person, and thereby certify any fact relating to that examination, so that the production of the certificate is deemed by s. 25 to be evidence of any fact thereby certified unless the contrary is proved.

Held by the Court that s. 5 of the Interpretation Act 2005 Act required that s. 25 be given a construction that reflected the plain intention of the Oireachtas, where that intention could be ascertained from the 1997 Act as a whole. It seemed to the Court that the plain intention of the Oireachtas could be ascertained from a harmonious reading of ss. 3, 4 and 25 of the 1997 Act. The Court considered that the Oireachtas intended to allow certificate evidence to be given of factual matters arising on an examination of an injured person, and this would normally involve certifying the medical records or clinical notes, but only to the extent of certification by the medical practitioner who had carried out the examination and who was therefore in a position to certify the facts as recorded or noted. The Court held that the trial judge was correct to exclude the evidence tendered by way of the certificate, on the grounds that the medical practitioner who prepared the said certificate had not personally performed the examination referred to in the said certificate.

The Court allowed the appeal. O'Donnell C.J., Charleton J, and Woulfe J. all handed down judgments in the case, with the Court agreeing with all 3 judgments.

Appeal allowed.

Mr Justice Peter Charleton, judgment delivered on Wednesday 3 November 2021

1 Section 25 of the Non-Fatal Offences Against the Person Act 1997 enables a limited exception to the rule against the admissibility of hearsay evidence in criminal trials. The course of this appeal, however, has extended beyond the issue of whether the trial judge correctly admitted evidence under that section by way of a certificate. Argument has been made as to the nature of, and admissibility of, opinion evidence generally and, furthermore, the disturbing notion that the admissibility of evidence is not based on the rule of law but is somehow at the discretion of the trial judge. While Woulfe J in the main judgment takes a different view, and while this judgment concurs with his reasoning on the central issue, it is here considered prudent also to address those matters, though the remarks following on the distinction between opinion evidence and testimony as to fact are not determinative of the appeal.

The issue

2 In February 2018, the accused was tried in Dundalk Circuit Criminal Court on what were alternative counts arising out of an incident in a bar on 19 June 2016. That incident involved him taking up and swinging a bar stool into the face of the victim, causing him facial fractures and an eye injury. As between the charges, the issue for the jury, once convinced that the victim had been attacked in that way, was how badly had the victim been hurt. Some crimes are event offences, such as assault or dangerous driving, and some may be event and consequences offences, such as dangerous driving causing death or assault causing a particular degree of harm. Sections 2, 3 and 4 of the 1997 Act classify assaults as to gravity as between: applying force, or making the victim reasonably apprehend same, the basic definition under s 2, carrying on summary prosecution a Class C fine with a possible sentence of 6 months imprisonment; an assault causing harm to the victim under s 3, carrying on summary prosecution a Class C fine with a possible sentence of 12 months imprisonment or on indictment to a fine or imprisonment not exceeding 5 years; and an assault causing serious harm to the victim, which is triable only on indictment and carries a fine or imprisonment of up to a life term. Section 1(1) provides that harm is defined as “harm to body or mind and includes pain and unconsciousness” while serious harm is “injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ”.

3 Essentially, once the assault evidence was accepted, the choice for the jury was as between assault causing harm and assault causing serious harm. Proof of harm or of serious harm does not necessarily depend upon a scientific analysis, though a prosecution may be more secure with expert assistance. The definition of the cascade of these three offences requires a jury to find that there was an assault and that the result was either harm to the body or mind, which could also cause pain or unconsciousness or both, or that the assault brought about a substantial risk of death or seriously disfigured the victim or left him or her with substantial loss or impairment of body mobility as a whole or that any organ of the body was substantially impaired. These are ordinary words and subject to a commonsense analysis by a jury.

The certificates produced

4 Here, the prosecution produced two certificates in pursuit of their contention that this was a serious harm assault. One came from an emergency medicine practitioner in Our Lady of Lourdes Hospital in Drogheda. That was admitted without controversy. This consultant had seen the victim and, in the ordinary way of a doctor reviewing a patient and writing up a report, had reviewed the test results and clinical notes. All of these are admissible as part of that witness's narrative as to fact. Essentially, that report detailed the injuries of the victim. In addition, a second certificate came from a distinguished professor of ophthalmology in Dublin. He had never seen the patient. What he had done, as this seems to have been his brief, was to give an opinion as to the nature of the harm done. In doing so, he had reviewed the clinical notes and reports. In good faith he set out his view that the injury had left the victim with substantial impairment of the eye and eye socket that took the impact of the heavy stool.

The context of s 25

5 What s 25 of the 1997 Act does is to enable, not require, the prosecution to dispense with the necessity to call a doctor, someone on the General Register of Medical Practitioners under s 26 of the Medical Practitioners Act 1978, and instead to rely on an evidential certificate which the legislation admits as an exception to the rule against hearsay. Thus:

In any proceedings for an offence alleging the causing of harm or serious harm to a person, 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 without proof of any signature thereon or that any such signature is that of such practitioner.

6 The choice is on the prosecution as to what proofs are produced at the trial. Live evidence from an expert may have more impact and, furthermore, an expert may usefully explain the methodology in science, or any arcane discipline outside the general scope of everyday human experience, whereby a conclusion...