Lord et Al v Requena

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Barrington-Jones, J.
• Judgment Date: 30 March 1981
• Docket Number: Appeal No. 3 of 1980
• Date: 30 March 1981

Supreme Court

Barrington-Jones, J.

Appeal No. 3 of 1980

Lord et al

and

Requena

G.D. Godfrey, for the appellant

G. Quallo, for the respondent

Practice and procedure - Appeal against conviction — Grievous harm — Evidence — Admissibility — Evidence Ordinance — Magistrate admitted undated medico-legal form — Whether the magistrate had erred in admitting the undated medical certificate — Whether the magistrate had erred in admitting evidence that the appellant had been charged with a criminal offence — Finding that the magistrate had properly admitted the medical certificate after giving consideration to the evidence that the complainant had taken the report to the doctor and had seen the doctor complete it — Finding that though the evidence of the previous charge may have been prejudicial or irrelevant, no substantial miscarriage of justice resulted from the inclusion of the evidence — Appeal dismissed.

Barrington-Jones, J.

1 The appellants were convicted of grievous harm contrary to Section 75 of the Criminal Code by the one of the magistrates in Belize City on the 25th March, 1980.

2 Notice of appeal dated the 14th July, 1980 discloses three grounds of appeal, but at the hearing leave was given to counsel for the appellants to add an additional ground so that the grounds argued before me were, as follows:–

• (1) That the learned magistrate erred in law in admitting into evidence an undated medical certificate;

• (2) That the learned magistrate erred in law in admitting evidence that the appellant Edward Lord had been previously charged with an offence;

• (2) (A) That the learned magistrate erred in allowing the prosecution to cross examine the appellant on a previous charge when the said charge had been withdrawn or not proceeded with; and

• (3) That the verdict is unreasonable and cannot be supported having regard to the evidence.

3 In dealing seriatim with the grounds of appeal advanced by Mr. Godfrey, I turn first to the medico-legal report exhibited in the trial below. It is common ground that this form was dated 17th February, 1980 at Part “A” by the police officer completing it. The complainant gave evidence of handing the aforesaid form to the doctor and of the doctor completing it and returning it to him. The second (or Part “B”) of the form was completed by the doctor and signed by him but he did not date it. So that the real question to be decided here is whether his failure to date the form rendered it inadmissible.

4 Now Section 36(3) of the Evidence Ordinance provides, as follows:–

“The provisions of this section shall with the necessary modifications apply in the case of a document purporting to be a report by a registered medical practitioner on any injuries received by a person which are the subject of a prosecution in any trial or indictment, in any preliminary inquiry, or in any proceeding in a Summary Jurisdiction Court:

Provided that the report purports to have been written on the same day as, or on the day following that on which the examination was made by the medical practitioner.”

5 Whilst Mr. Godfrey readily conceded that he was not saying that the failure of the doctor to date the form was fatal, he took the view that there was no other evidence to say that the doctor's examination was carried out on the 17th February, 1980; and posed the question - When was the report completed by the medical practitioner? Mr. Godfrey submitted that there was no witness to say when the form was completed by the medical practitioner. He said that the magistrate had admitted the medico-legal report after he had objected to its admission and that the magistrate admitted it refusing to give reasons; and he pointed out that the magistrate does not deal with this particular matter in his reasons for decision. Mr. Godfrey submitted that the medico-legal report should not have been admitted in the court below. He further submitted that without the medico-legal report there would be no evidence of grievous injury and thus the charge and conviction could not be sustained.

6 Mr. Quallo in dealing with this first ground submitted that the magistrate had not erred in law in admitting the medico-legal report for the following reasons - (1) that there is a date at the head of the form, although he conceded that there was no date at the foot of it; (2) when the medico-legal report is read with the evidence it becomes clear that it is within section 36(3) of the Evidence Ordinance; (3) the complainant said in evidence that he was chopped on the 17th and that he went to the police and was taken to the hospital to have a medical report made where he says he saw the doctor write the report. He submitted that when read together there is disclosed a clear inference sufficient for the magistrate to be able to accept that the medico-legal report was written and signed on the same day, i.e. 17th February. He submitted that there was sufficient evidence to admit the medico-legal form and that the fact that the doctor did not enter the date should be seen as a slip by the doctor which was not fatal since it was saved by the supporting evidence.

7 Looking at the original report form it is clearly dated at its head as 17.2.80 by the police officer completing Part “A”. Part “B” has been completed and signed by the doctor but he did not date it. The incident giving rise to the trial below clearly took place on the 17th February, 1980 and in this connection the complainant's evidence is of some assistance. The relevant portion of what he said at this point is as follows:–

…“The police took me to the hospital to have a medical report made and then they took a statement from me. I took a medico form to the doctor that the police gave me. I saw the doctor. The doctor filled out the form and gave it to me. I saw him do this. This is the same form I saw the doctor write on.”

8 It was at this point that counsel for the appellants objected to the admission of the form, but the magistrate thereafter admitted it.

9 It is significant that counsel for the appellants did not choose to cross examine the complainant in the court below regarding his witnessing the doctor completing the form, his handling of it, and his subsequent identification of the medico-legal report in the court below. That omission to my mind was fatal for on the authority of R v Hart (1932) 23 Cr. App. R., 202 - …“Failure to cross-examine a witness on some material part of his evidence, ….. may be treated as an acceptance of the truth of that part …… of his evidence.”

10 I, therefore, find that the learned magistrate properly admitted the medico-legal report although it was undated by the doctor (which may be construed as a slip on his part) after giving proper consideration to the supporting evidence of the complainant having taken the said medico-legal report form to the doctor on the 17th February, seeing the doctor complete it, and the doctor giving it back to the complainant. That disposes of ground (1).

11 Turning to ground (2). This ground concerns the admission in evidence of part of what the complainant told the court below in evidence-in-chief, to wit:–

12 “I took Edward Lord to court in connection with receiving stolen goods.”

13 Mr. Godfrey told this court that he had objected in the court below to this being admitted in evidence, but there is no reference to any objection having been made in the magistrate's record. Mr. Godfrey contended that this phrase should not have been admitted and in support he cited the case of Stirland v D.P.P. (1944) 2 ALL E.R.. In that case the accused, on a charge of forgery, in his evidence-in-chief clearly put his good character in issue. Counsel for the prosecution then asked in cross-examination whether on the occasion of his leaving certain employment he had been questioned about a suggested forgery. The accused denied this and the House of Lords held:–

• (i) the accused can only be asked whether he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged when one or other of the three conditions set out in the Criminal Evidence Act, 1898 S.I. (f) is fulfilled.

• (ii) the accused may be examined as to any evidence he has given in chief including statements as to good character with a view to testing its veracity and his credit.

• (iii) an accused who puts his character in issue puts his whole past record in issue.

• (iv) an accused is not deprived of the protection of the Criminal Evidence Act, 1898 S.I (f) where the proper conduct of the defence necessitates the making of injurious reflections on the prosecutor or his witnesses.

• (v) mere suspicion or accusation of crime is no disproof of good character and evidence thereof is inadmissible.

• (vi) the fact that a question put to the accused is irrelevant is in itself no reason for quashing a conviction, though it ought to have been disallowed by the judge. If the question is not only irrelevant but also unfair as distracting the jury from the real issues and so likely to lead to a miscarriage of justice it should be disallowed, and, if not disallowed, is a ground on which an appeal may be based. An improper question should be disallowed by the court whether or not objection is taken by counsel.

• (vii) conviction may be quashed on appeal on the ground of improper admission of evidence although no application...