Supreme Court of Ireland Decisions

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2021:000014

O’Donnell C.J.,

MacMenamin J.,

Charleton J.,

O’Malley J.,

Woulfe J.

IN THE MATTER OF SECTION 34 OF THE CRIMINAL PROCEDURE ACT 1967

Between/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

- and -

A.C.

Appellant

Judgment of Chief Justice O’Donnell delivered the 3^rd day of November, 2021.

1.        I am happy to adopt the comprehensive account of the facts contained in the judgment of Woulfe J. and to come directly to the legal issue in this appeal. The issue is simply stated, although not necessarily easy to resolve: how, faced with the facts in this case, should a court interpret and apply s. 25 of the Non-Fatal Offences Against the Person Act 1997 (“the 1997 Act”)? I have read a draft of the judgment which Woulfe J. delivers today and agree with it and with his conclusion that the appeal in this regard must be allowed, and that the section must be held to be limited to certificates provided by the registered medical practitioner by whom, or under whose supervision, the examination has been carried out. Since, however, the issue raised is of more general importance in the approach to statutory interpretation, I wish to set out the reasons leading me to this conclusion.

2.        The Non-Fatal Offences Against the Person Act 1997 revised and updated the law relating to offences against the person which, for more than a century, had been governed by the provisions of the Offences Against the Person Act 1861. Section 25 deals with a matter of procedure, and provides:-

“25.(1) 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.”

3.        I agree that the basic approach to interpretation is the approach that gives primacy to the words used. I prefer to describe this as “the plain meaning approach” rather than a “literal approach”, because it may be that the literal meaning may, at its margin, have a connotation of strict or even artificial interpretation, and the two terms are used relatively interchangeably. It is important, however, that this approach does not invite a court to isolate the critical words, in this case, “a certificate purporting to be signed by a registered medical practitioner and relating to an examination of that person”, and consider if they have a plain or literal meaning in the abstract. A statute is a form of communication, albeit a formal and very particular one. The function of interpretation, whether officially by a court, by a professional lawyer or by an interested individual, is to understand what is being communicated. It may be that there are writers whose expression is so limpid that each individual sentence could, if placed upon a transparent slide, be understood immediately and without any doubt or hesitation, although I doubt it. But most language carries layers of meaning, which contributes to the richness of literature, and most communication does not occur in disjointed individual phrases. Instead, what is said occurs, and is understood, against a background created by what has gone before, the subject matter of the communication, assumed knowledge and shared assumptions, all of which assist in the understanding by one party of what is being said by another.

4.        Interpretation of a statute and considering if it has a plain meaning involves in every case considering the words in their context. This, indeed, is apparent from this extract from the judgment in DPP v. TN [2020] IESC 26 (Unreported, Supreme Court, McKechnie J., May 28^th, 2020):-

“Therefore, while the principle of strict construction of penal statutes must be borne in mind, its role in the overall interpretive exercise, whilst really important in certain given situations, cannot be seen or relied upon to override all other rules of interpretation. The principle does not mean that whenever two potentially plausible readings of a statute are available, the court must automatically adopt the interpretation which favours the accused; it does not mean that where the defendant can point to any conceivable uncertainty or doubt regarding the meaning of the section, he is entitled a construction which benefits him. Rather, it means that where ambiguity should remain following the utilisation of the other approaches and principles of interpretation at the Court’s disposal, the accused will then be entitled to the benefit of that ambiguity. The task for the Court, however, remains the ascertainment of the intention of the legislature through, in the first instance, the application of the literal approach to statutory interpretation.”

5.        A similar approach was taken in the context of taxation statutes by the same judge in Dunnes Stores v. Revenue Commissioners [2019] IESC 50 (Unreported, Supreme Court, McKechnie J., June 4^th, 2019):-

“As has been said time and time again, the focus of all interpretive exercises is to find out what the legislature meant: or as it is put, what is the will of Parliament. If the words used are plain and their meaning self-evident, then save for compelling reasons to be found within the instrument as a whole, the ordinary, basic and natural meaning of those words should prevail. “The words themselves alone do in such cases best declare the intention of the law maker” (Craies on Statutory Interpretation (7th Ed.) Sweet & Maxwell, 1971 at pg. 71). In conducting this approach “…it is natural to inquire what is the subject matter with respect to which they are used and the object in view” Direct United States Cable Company v. Anglo - American Telegraph Company [1877] 2 App. Cs. 394. Such will inform the meaning of the words, phrases or provisions in question. McCann Limited v. O’Culachain (Inspector of Taxes) [1986] 1 I.R. 196, per McCarthy J. at 201. Therefore, even with this approach, context is critical: both immediate and proximate, certainly within the Act as a whole, but in some circumstances perhaps even further than that.”

On the approach which seeks to ascertain the literal and plain meaning, the words must still be approached in their context and having regard to the subject matter of the legislation, and the objective to be discerned. 

6.        These statements are consistent with the approach of the Irish Courts over time. Howard v. The Commissioner of Public Works [1994] 1 I.R. 101 is often cited as a strong statement of the literal approach. There, however, Blayney J. quoted the passage from Craies on Statutory Law cited in part by McKechnie J. in the passage above, the last sentence of which deserves emphasis:-

“The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural meaning. The words themselves alone do in such a case best declare the intention of the law giver. ‘The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention expressed by the words used. And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view’”. (Emphasis added).

7.        If, when viewed in context, having regard to the subject matter and the objective of the legislation, a single, plain meaning is apparent, then effect must be given to it unless it would be so plainly absurd that it could not have been intended. I am reluctant in this case to agree that the words of s. 25 have a single, clear, precise and unambiguous meaning which leads to an absurdity, and must therefore be discounted. Rather, taking the approach set out above, I consider that there is no single precise and unambiguous meaning of the words used in the section, that they therefore require interpretation, and that on such interpretation, the meaning becomes reasonably clear.

8.        It is noteworthy that the learned Circuit Court judge came to one conclusion, the Court of Appeal to another, both courts considering that the matter was clear. This in itself is perhaps an indication that the meaning of the section is not clear and unambiguous. While the DPP lays emphasis on the fact that the section does not state in terms that the examination must have been carried out by or under the supervision of the person providing the certificate, that is only a very limited interpretive tool. In almost every case in which there is doubt as to the meaning of a section in circumstances which have arisen, it is possible to suggest a form of words which would have made an interpretation clearer, but to draw conclusions from the absence of such clarifying language would assume that the Oireachtas had considered the possible factual circumstances and deliberately chosen different language. This might occur where a section is amended removing words or phrases. If so, it might be appropriate to draw conclusions from the absence of that language. Otherwise, however, the fact that, in hindsight, the matter could have been expressed more clearly, or in words which resolve the particular issue found to arise, is rarely a decisive factor. Legislation is expressed necessarily in generalities; it is the task of courts to apply the general language in particular circumstances.

9.        On consideration, it is apparent, in my view, that the section is, in the present context, ambiguous and probably requires additional words to make its meaning clear beyond dispute. Thus, in this case, the section might have required that the certificate relate to the examination carried out by or under the supervision of the registered medical practitioner, or, conversely, that the certificate could be provided by a registered medical practitioner, whether or not the examination was carried out by or under that person’s supervision. In either case, the meaning of the section would be clear. But as it stands it cannot, in my view, be said to have only one clear meaning. It is true that the words are capable of being read to suggest that all that is required is a certificate by a registered medical practitioner that relates to an examination of a person without any requirement that the practitioner have any involvement in that examination. But, as observed by Woulfe J., the section provides for certification, and furthermore such certification becoming evidence in a criminal trial. To certify is to authoritatively state the truth of some fact or matter, and which can be relied on by others without further investigation. A certificate normally comprehends, therefore, that the person certifying is capable of authoritatively stating the truth of the “fact” so certified. It might also be said that on the strictly literal approach, the certificate provided in this case by reference to what was contained in the clinical notes might more accurately be said to be a certification relating to the notes of an examination rather than relating to the examination itself. Once approached with any degree of scrutiny, as required by the facts and circumstances of this case, it becomes apparent that, in the context of this case, the meaning of the section is neither plain nor clear and requires to be interpreted. 

10.    I agree that there is considerable difficulty in accepting that the Oireachtas intended to permit a registered medical practitioner with no connection to the examination to nevertheless provide a certificate in relation to it, and this is a compelling factor in the interpretation of the section. I do not think it is necessary to go to the lengths of determining that the section has a plain meaning which would, however, lead to an absurdity. As observed by Woulfe J., courts should be slow to find the product of the legislative process to be absurd and, moreover, to adopt a meaning contrary to what the Court considers the plain meaning of a provision. In any event, a finding of absurdity does not necessarily assist in deciding the case. Under s. 5 of the Interpretation Act 2005, where it is said that the section is either ambiguous or that the plain meaning would lead to an absurdity, the Court shall interpret the section in a manner which reflects the plain intention of the Oireachtas where that intention can be ascertained from the Act as a whole. However, in this case that is a circular inquiry. The whole question in this case is what was the intention of the Oireachtas, plain or otherwise, and in this context, virtually the only guide to that is the section itself. 

11.    An important part of the context is the objective of the provision, if that can be deduced from the provision and the surrounding sections. As Judge Learned Hand said:-

“[I]t is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” (Cabell v. Markham, (1945) 148 F. 2d 737)

12.    Here, it is clear that the section has one obvious purpose at least. That is to permit the evidence of a registered medical practitioner to be given by certificate rather than viva voce which would necessarily require their attendance in court. Without a statutory provision, that could not be achieved. Once, however, this objective is recognised, it becomes apparent that the question in this case becomes whether the section had a further objective: to facilitate proof by a person other than the person who carried out the examination in that regard. Once the issue is approached in this way, the question becomes the following: accepting that the Oireachtas intended by s. 25 to permit the giving of evidence by way of certificate rather than by viva voce testimony, did the Oireachtas also intend - by the same language - to permit the giving of evidence that was not within the personal knowledge of the witness and which otherwise would be inadmissible hearsay? There are, in my view, a number of indications that such a further objective was not intended.

13.    First, nothing in the section itself indicates any further objective. If its application is held to be limited to the situation of removing the necessity of requiring the personal attendance of the witness, it will not only effect a change in procedure but also one of some obvious general benefit. Economy of expression is to be admired but it would, at a minimum, be unusual if a dual purpose was intended, and that the Oireachtas would not make that clear, or that such an intention would not emerge from the language and the structure of the section. 

14.    Part of the context must be the pre-existing law which it is to be presumed the section was intended to change. There is no doubt that even if Professor O’Brien conducted the examination, he would, prior to 1997, have been required to attend court to give evidence because the standard form of proof in criminal trials is by viva voce testimony. But if Professor O’Brien had attended court in person prior to 1997, he would not have been able to give evidence of an examination conducted by others in which he had no involvement and of which he had no direct knowledge. It is, even at the outset, somewhat implausible that such a significant change would be made, dealing with two different areas of law and addressing two separate issues, but would nevertheless be achieved by a single short general statement. This leads to the answer to the question posed by the DPP in this case; viz. if the section was intended to be limited to the provision of a certificate by a person with direct knowledge, why was that not stated? The question, it seems to me, commits the error of seeking the intention of the Oireachtas retrospectively through the lens of the facts of this case, rather than considering what was within the contemplation of the Oireachtas at the time the legislation was considered and enacted. If there was no intention to also change the hearsay rule, then it would follow that only a person with direct knowledge could provide such evidence whether orally or now by certificate, and there would be no need to so state.

15.    It is certainly the case that the fact that the interpretation advanced by the DPP leads inevitably to acceptance that the section was capable of permitting a GP in the west of Ireland to provide a certificate in respect of an examination conducted by a neurosurgeon in Dublin (and vice versa) is itself a reason to doubt that this could have been the intention of the Oireachtas, and that is a powerful consideration in interpreting the section. But the matter goes further. Had that possibility been within the contemplation of the Oireachtas, it is surely inconceivable that it would not have sought to set out some qualifications on the power thereby granted by, for example, requiring the person concerned to have some direct connection in relation to the examination and/or some basis for certifying matters of which they had no direct knowledge. Should such a certificate be provided only by a person with certain seniority, or a defined connection with or authority for the person or persons actually conducting the examination? Could it be provided by a person in relation to a matter not within their speciality? While, in this case, the report is made by reference to clinical notes, this is not a requirement of the section, and in theory if the interpretation advanced by the DPP is correct, Professor O’Brien could simply have given a narrative of the examination. In such a case, should the section require that the clinical notes be provided? If the section was intended to permit any registered medical practitioner to provide a certificate in relation to any examination, it is almost inconceivable that the Oireachtas would not have defined in great detail the circumstances in which that could occur. By way of comparison, s. 5 of the Criminal Evidence Act 1992 provides for the admissibility of documentary evidence compiled in the ordinary course of business, but sets out a number of qualifications, exceptions and safeguards. The absence of any provisions controlling the degree to which hearsay evidence could be proved by use of a certificate is in itself a telling indication that this was not intended by this section.

16.    A further part of the context is that the section is addressed to procedure in certain criminal trials. It is noteworthy that the section only occurs in the context of the 1997 Act and does not permit such certificate evidence more generally, and, moreover, is limited to proceedings “for an offence alleging the cause of harm or serious harm to a person”. The effect of this section is also to make the fact certified evidence. There can be no cross-examination as to the certificate, and there is no provision for any application to the Court to require the attendance of the witness providing the certificate. All of this suggests a narrow scope for the application of the section, and, moreover, that the evidence should itself be likely to be uncontroversial. In cases of assault causing harm or causing serious harm, it is to be expected that evidence of injuries will rarely be the point of contest in the case. Instead, most cases turn on whether the defendant can be proved to have carried out the assault or, if so, whether he or she has a justifiable excuse. It is consistent with this that it would not be problematic to permit such evidence to be given without requiring the physical attendance of the doctor in question. If evidence that was likely to be controversial could be given by certificate, it is surely unlikely that the Oireachtas would have established a mechanism that had the effect of putting the particular evidence beyond direct challenge, and would have left the accused with only the possibility of adducing contradictory evidence, perhaps by his or her own s. 25 certificate from a registered medical practitioner, itself to be trusted as evidence and beyond direct challenge, something that would be a recipe for confusion, and worse.

17.    These considerations are strengthened when the issue is approached against the backdrop of the Constitution. The compatibility with the Constitution of a statutory provision permitting proof by certificate was considered in in Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321 where, in the judgment delivered by Hamilton C.J., it was stated :-

“Proof by way of certification is an interference with the norm of a trial viva voce. A certificate is an appropriate form of proof when it is proportionate to the ends to be achieved. It is a justifiable method of proof when the process is, for example, of a technical nature …”.

It is noteworthy that this statement does not confine the use of certificate evidence to technical matters, but observes rather that proof by certificate must be proportionate to the ends to be achieved. It would take little to justify the use of a certificate if the section was limited to permitting evidence to be given without requiring the attendance of the medical practitioner, but if a much more significant alteration of the law was contemplated, permitting the giving of evidence by unchallengeable certificate by a witness who might have no direct knowledge, or means of knowledge, of the matters certified, then that would raise questions of compatibility with the Constitution and certainly require more by way of justification than what is suggested. But if it is considered both useful and permissible to permit evidence to be given on this basis it is curious, to put it at its lowest, that such permission is limited to proceedings under sections 3 and 4 of the 1997 Act and not more generally. These considerations tend against giving the section the broad and far-reaching interpretation contended for by the DPP. 

18.    A further consideration is that this section is addressed to procedure in a criminal trial, which procedures have been developed over time and in the light of experience as establishing a fair process for determining guilt. Although framed in neutral terms, the section will clearly normally be utilised by the prosecution, and constrains and reduces avenues by which a defendant may seek to defend the proceedings. The capacity to demand the attendance of a professional witness, to provide evidence that is rarely in contest, and when the attendance may be personally inconvenient and disruptive to medical practice, is hardly a serious unbalancing of the traditional criminal trial. However, if it is contended that a further change in procedure and evidence was also sought to be achieved, it is, I think, appropriate to expect that any such change would be effected by clear language.

19.    It is plain from a consideration of the section that the Oireachtas had in mind the difficulty posed by requiring the attendance of doctors to give largely non-controversial evidence, and, moreover, the limited detriment to an accused person permitting such evidence to be given by certificate. It is argued on behalf of the DPP, however, that the Oireachtas must also have been aware that most medical examinations and treatments of individuals who suffered injuries as a result of an assault would involve multiple medical professionals such as nurses, doctors, junior hospital doctors, registrars, sometimes consultants, radiographers and radiologists, some of whom may not be available and therefore it is not surprising that provision would be made for the production of a single omnibus certificate. However, there is simply no basis for speculating that this particular issue was within the contemplation of the Oireachtas. Furthermore, the focus on medical records and the medical file is perhaps misplaced. Although the file was the basis of the certificate provided in this case, as already observed, that is not referred to or contemplated by the Act. It is not necessary to avail of the provisions of s. 25 to refer to, or have regard to, notes or the file. The purpose of the certificate is not to produce the file and to seek to make that evidence. Instead, it is to give an account of the examination. Since the relevant question is the nature of injuries caused to the victim rather than the steps taken and treatment provided, it is not apparent that there is, or has been, a significant difficulty in providing a certificate from a registered medical practitioner in this regard. Certainly, if this is a difficulty, it is of a different magnitude and significance to the manifest difficulty proposed by requiring busy health professionals to attend courts around the country to prove uncontroversial matters. It is, it seems to me, a rationalisation after the fact to suggest that the Oireachtas must have been aware of the possible difficulty posed by multiple health professionals being involved in a particular case and to have sought to solve it by permitting evidence to be given by a single certificate and without in any way specifying who could provide such a certificate except that it be from a registered medical practitioner.

20.    Finally, the DPP drew attention to the provisions of s. 10 of the Misuse of Drugs Act 1984, as amended, which provides that if a certificate signed by an officer of Forensics Science Ireland relating to the (a) receipt, handling, transmission or storage, or (b) an examination, test or analysis should be evidence until the contrary is proven. It is suggested that this section does not require that the certifying person has carried out the examination, inspection, test or analysis. This may be so, in that a person may provide a certificate in relation to matters carried out under their supervision. It is perhaps noteworthy that the amended section appears to separate “receipt, handling, transmission and storage” from “examination, testing and analysis”, suggesting, perhaps, that on occasions at least these matters may, and may require to, be separately certified. I am reluctant, however, to offer a definitive interpretation of this provision which was not in issue in these proceedings and is a matter to be addressed in the context of the application of that section in a concrete case. However, I do not think the section supports the DPP’s argument here. Under s. 10, the officers providing the certificate must plainly be in the position to certify the truth of the matters specified in the section. It is, for example, inconceivable that the certificate could be proffered and become evidence in relation to an examination, inspection, test or analysis which was not carried out by Forensic Science Ireland. That section must be read on the basis that it is obviously limited to a certificate in respect of the receipt, handling, transmission or storage, or inspection, test or analysis by Forensic Science Ireland, even though that is not expressly stated in the section. By the same token, in my view, the section here must be read as requiring that the certificate here must be provided either by the person carrying out the examination or under whose supervision the examination was carried out.

21.    One other issue discussed in this case in passing, although not the subject of the appeal, is whether even had Professor O’Brien carried out the examination, a certificate could express an opinion as to the nature of the harm suffered by the injured party and on which Woulfe and Charleton JJ. express different views. In this case, the certificate challenged was not produced to express an opinion on the nature of the harm suffered by the injured party. Rather, as is clear from the certificate itself, it addressed the examinations of the injured party carried out at the Mater Hospital on the evening of the 19^th and 20^th of June, 2016, and which contained at the bottom of the second page the phrase “likely permanent long term damage” which has been treated as an expression of Professor O’Brien’s opinion as to the nature of harm suffered. The certificate was not, therefore, a report of Professor O’Brien’s opinion. Indeed, if it were, it is hard to see how it could be argued to come within the statutory provision at all, since it would be difficult to say that it was related to an examination. The certificate sought instead to prove the facts ascertained on examination of the injured party on the 19^th and 20^th of June, although Professor O’Brien had not carried out the examinations or been present when they were carried out. The section contemplates a certificate being given and becoming evidence “of any fact”. An examination conducted by any qualified practitioner may involve an element of both opinion and experience. However, the certificate becomes evidence which cannot be challenged or cross-examined. The only option is to seek to prove the contrary. I consider, therefore, that such certificates should be limited to essentially factual matters. However, I would not limit the certificate to a simple reproduction of the clinical notes. On the contrary, since oral evidence is not being given, the certificate should be capable of being understood by the lay members of the jury and therefore some expansion upon, or explanation of, the clinical note may be necessary, permissible and, in some cases, required. However, I agree with Woulfe J. that an expression of an opinion in relation to the severity of the harm, which is after all central to the distinction between s. 3 and s. 4 assaults, is not a “fact” which is capable of being certified and becoming evidence under s. 25. I do not think a witness can form an opinion and then certify that as a fact. That is rather the single thing the jury must determine on foot of the evidence adduced. It is, I think, consistent with the approach to interpretation of this section that it should be confined to matters which are facts observed on examination and which allow the jury to perform the task it has always done of coming to conclusions on that evidence, provided here in written form rather than by oral testimony.

Result:     Allow Appeal