Judge’s exclusion of some medical evidence upheld by Supreme Court

Supreme Court, Ireland

7 December 2021

The Supreme Court has upheld a lower court judge’s decision to exclude certain medical evidence about injuries sustained by a person who was struck in the head with a bar stool from a criminal trial.

In a case which has implications for many criminal trials, the Supreme Court held that a Circuit Court judge was correct to exclude the evidence because the medical practitioner who provided the evidence had not personally performed the examination on the alleged victim.

A five judge Supreme Court, comprised of the Chief Justice Mr Justice Donal O’Donnell, Mr Justice John MacMenamin, Mr Justice Peter Charleton, Ms Justice Iseult O’Malley and Mr Seamus Woulf unanimously upheld the Circuit Court judge’s decision.

The accused man at the centre of the case, who cannot be named for legal reasons, was charged, and has come before the Circuit Criminal Court, with two offences, one count of assault causing harm, and one count of assault causing serious harm.

He was accused of striking another person in the head with a bar stool, at a licenced premises in 2016. 

The DPP said that the injured party sustained injuries including a fractured eye socket.

As part of its case the DPP had sought to have evidence from a doctor concerning the alleged eye injury admitted as evidence before the man’s trial by way of a certificate, pursuant to Section 25 of the Non-Fatal Offences Against the Person Act 1997.

This particulae evidence was provided by a consultant ophthalmic surgeon. 

Section 25 of the 1997 Act provides that in cases where charges of causing harm or serious harm to a person are alleged, a certificate signed by a registered medical practitioner, relating to an examination of an injured person, shall be evidence of fact.

The defence objected to the admission of this medical evidence on the grounds that the doctor who had signed the certificate had not personally seen the injured party.

It also claimed that the certificate was based upon the clinical notes collected in the hospital on the dates in question.

four courts, dublin

In a ruling the Circuit Court judge excluded the certificate as inadmissible hearsay and held that Section 25 requires the certificate to be prepared by the person who had carried out the medical examination of the injured party.

The accused man was ultimately found guilty of the charge of assault causing harm and received a suspended jail sentence.

He was acquitted, following a direction by the judge, of the charge of assault causing serious harm.

Arising out of that decision to exclude the evidence the DPP referred a question of law to the Court of Appeal, which held that the trial judge was incorrect in excluding the certificate.

The Supreme Court agreed to hear an appeal against the Court of Appeal’s finding on the grounds the matter raised an issue of public importance that required to be determined.

Giving the Supreme Court’s decision Mr Justice Woulfe said the Court of Appeal had failed to give adequate consideration to the inherent nature of the certificate.

The certificate must involve the medical practitioner having “certified” certain facts relating to an examination of the injured party. 

To certify, one must be in a position to state that something is true, the judge said.

In this case the medical practitioner could not be in a position to state that the facts recorded in the clinical notes by another practitioner, relating to that other practitioner’s examination of the injured person, are a true record of the findings on examination.

In those circumstances, the Oireachtas could not have intended that such a statement would be evidence, but not open to cross-examination. 

In his concurring judgement the Chief Justice Mr Justice Donal O’Donnell said that the section was when put in context, was “ambiguous.”

He was also of the view that a number of indicators suggested a narrow scope for the application of the section.

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