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URL: http://www.bailii.org/ie/cases/IESC/2021/2021_IESC_74_3.html
Cite as: [2021] IESC 74_3
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Supreme Court Record No.: 2021/14
Court of Appeal Record No.: 2019/229
MacMenamin 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 Mr. Justice Woulfe delivered on the 3rd day of November, 2021.
Introduction
1. This appeal concerns a decision of the Court of Appeal on a referral of a question of law pursuant to s.34 of the Criminal Procedure Act 1967, as amended, which 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.”
2. By way of background information, in February 2018 the appellant 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 (“the 1997 Act”), and one count of assault causing serious harm contrary to s.4 of the same Act. These provisions may be set out as follows:
“3-(1) A person who assaults another causing him or her harm shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable -
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding IR£1,500 or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both.
4-(1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or to both.”.
“Serious harm” is defined in s. 2 of the 1997 Act as follows:-
“‘Serious harm’ means injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of mobility of the body as a whole or of the function of any particular bodily member or organ.”
3. The trial related to events that had occurred on the 19th June, 2016 at a licensed premises in Dundalk. The prosecution case was that the appellant had struck the injured party in the head/face region with a bar stool, causing the injured party to suffer a significant eye injury. 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, which provides as follows:-
“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 be proved, be evidence of any fact thereby certified without proof of any signature thereon or that any such signature is that of such practitioner.”
4. The defence challenged the admissibility of the certificate in circumstances where it was clear from the certificate that the medical practitioner had not personally seen the injured party, and that his certificate was based upon the clinical notes collected in the Ophthalmology Department of the Mater Hospital on the dates in question. The certificate was challenged 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.
5. The trial judge in his ruling excluded the certificate as inadmissible hearsay. He felt that s.25 of the 1997 Act required that the certificate be prepared by the person who has carried out the examination of the injured party. The person signing such a certificate must have done more than simply engage in a review of records. Furthermore the certificate had moved beyond findings on examination to a stage where opinions were being given.
6. Arising from the exclusion of the certificate, the respondent 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?”
It appears that the late Judge Hannon was consulted, but did not have any observations on the question that was being referred.
7. The Court of Appeal (Birmingham P.; Donnelly J. and Ní Raifeartaigh J. concurring) 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.
8. By a determination dated the 26th April, 2021 this Court granted the appellant leave to appeal from the judgment of the Court of Appeal: [2021] IESCDET 45.
The Circuit Criminal Court Trial
9. The Circuit Criminal Court trial commenced on the 13th February, 2018. On that morning Counsel for the appellant raised an issue with the trial judge regarding a certificate served by the prosecution on the previous day. This was one of two medical certificates that featured in these proceedings, the defence not taking any issue with the first medical certificate which was signed by a medical practitioner who had examined the injured party, and which was confined to factual findings. The second certificate, which was signed by a Professor Colm O’Brien and dated the 12th February, 2018, replicated an earlier report of Professor O’Brien dated the 14th July 2017 and stated at the outset that “this report summarises the clinical notes collected in the ophthalmology department on the dates of 19th and 20th June 2016”. As well as summarising those notes, however, the certificate appeared to go further and to include a number of opinions at the end of the certificate as follows:-
“In summary, Mr. T. suffered severe blow out fracture to the left eye following major trauma resulting in considerable optic nerve damage to his left eye and enophthalmos and restriction of eye movement likely permanent long term damage.”
10. Counsel for the appellant asserted that it was clear that Professor O’Brien had never actually met the injured party and as a result the report/certificate had been garnered from other sources, it was entirely based on hearsay and was therefore not admissible. It would only be admissible under s.25 of the 1997 Act if Professor O’Brien had examined the injured party himself.
11. Counsel on behalf of the prosecution, in resisting the defence’s interpretation of s.25, stated that what his colleague was doing was inserting the words ‘by the practitioner’ into the section, that these words do not appear anywhere in s.25, and that the medical practitioner may certify a matter which relates to an examination of the injured party and it need not be an examination by the person who prepared the certificate. Counsel argued that the Oireachtas in framing this legislation in 1997 was doubtless conscious of the fact that a person may pass through the hands of a number of medica1 practitioners who would treat that person, meet with that person, and offer some kind of clinical opinion in relation to that person.
12. The prosecution acknowledged that there did not seem to be any specific decision on this s.25 point from either the Court of Appeal or the Supreme Court, and relied on the fact that the Oireachtas in its wisdom did not specify that the certificate's validity depends on the medical practitioner having examined the person concerned. It was submitted that what the defence were necessarily doing was inserting language into the statute that is not there, and that the correct interpretation of the section was to provide for a circumstance where a person of authority, a person of probity, a person of skill is in a position to certify the medical position from his or her skill and experience having examined the file, and/or having examined the individual patient concerned.
13. Counsel for the appellant stated in reply that the prosecution had pinned its hat on a section 4 charge, which requires proof of serious harm, and that at this stage, what we had was speculation on the part of the person preparing the report/certificate, where he says “likely long-term damage”. This person didn’t know and could not know because the injured party failed to show up for follow-up reports. The most recent review seemed to have been at some stage in 2016, which it was said was quite a long time ago.
14. The trial judge took some time to consider the above submissions and later ruled as follows on the point:
“In thinking about this decision during lunchtime, I wondered why was a certificate necessary, what purpose does it serve in the context of prosecutions under section 3 and 4? It seems to me that it is to certify what a registered medical practitioner found in order to help a jury to decide if there was any harm, if there was harm sufficient to satisfy section 3, or if there was serious harm sufficient to satisfy the requirements of section 4. What was found… on such an examination must relate to findings that are consequent to that medical examination having been carried out on the person who alleged the assault.
The language of the Act, it seems to me is clear and unambiguous, it says, "Related to the examination of that person." Does that therefore mean that the examination needs to be carried out by the person who was preparing the certificate? Well, it is a certificate that is required which begs the question why a certificate and not some class of a report. A certificate is to certify something. But in any event, in my view it does in the context of this particular trial require that the certificate be prepared by the person who has carried out the examination. What is set out… in Professor O'Brien's certificate is more akin to a report which is furnished for the simple purpose of avoiding the necessity of medics turning up to prove records and treatment up to a point. But then there comes a point where it moves into a stage where opinions are being given.
The certificate that’s required is a certificate relating to an examination of a person in the context of a jury being asked to decide if they have sufficient evidence to find that harm or serious harm was caused to a complainant. Findings on examination must therefore be important and central in a case such as this. It seems to me that in the context in which we find ourselves, the person signing such a certificate must have done more than simply engage in that review of records. They must have done more than simply… engage in a file review or a desk top study.
Furthermore in circumstances where they give an opinion sufficient to allow a jury to make a finding of serious harm. And in this case, the opinion being that there was likely permanent long-term damage and that satisfies one of the three strands of the serious harm definition, that third strand which says that serious harm can arise in circumstances where there is impairment of the function of any particular bodily organ or member. But in those circumstances, the person so certifying must surely have examined the person. So in [those] circumstances I'm acceding to [counsel for the then accused’s] application which I take it is not to permit that report go before the jury by way of section 25.”
15. The effect of this ruling 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. The accused was found guilty on the first count of assault causing harm and sentenced on the 22nd June, 2018 to a period of 14 months imprisonment, which was suspended for a period of four years on conditions.
The Court of Appeal
16. As stated above, arising from the exclusion of the medical certificate, the respondent 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?”
17. The respondent contended that the trial judge fell into error in excluding the certificate, and pointed out that the transcript records the trial judge referencing s.25 of the Act of 1997 and stating that the section provided for a certificate relating to the examination of the person, whereas in fact the language of the section provides for a certificate “relating to an examination of that person” (emphasis added). It was acknowledged that it may be that the transcript is not 100% accurate, or it may be that there was an error on the part of the judge and, if so, whether that error had any significance on his thinking on the subject remains uncertain. The respondent submitted that what the section allows for is the admission into evidence, in essence, of a medical report which would otherwise be inadmissible hearsay. She argued that the purpose of the section is clear; that it obviates the necessity for medical practitioners to attend Court in order to give oral evidence which, in many instances, may be of a routine and uncontroversial nature. The point was made that individuals who are the victims of an assault will often be seen, when they first present in an emergency department of a hospital, by a senior house officer or a registrar, and by the time it comes to obtaining a report in respect of the injuries, the original examining doctor may no longer be working in that particular hospital.
18. The appellant pointed out that, ordinarily, a document such as the certificate would not be admissible per se and that it is admissible only because of the existence of a statutory enactment. However, he argued that just because there is a certificate which contains evidence that is relevant, that does not mean that it is automatically to be admitted into evidence. He says if an issue is raised, it is for the prosecution to satisfy the trial judge that it is admissible, while acknowledging that in most cases, there will be a presumption that the certificate will be admissible. However, in the present case, there was the obvious difficulty that it was entirely based on hearsay and also involved a blend of fact and opinion.
19. The Court of Appeal, in coming to their decision, stated at paragraph 13 of their judgment that there was in s.25(1) of the 1997 Act:
“[…] 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 then continued as follows:
“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. 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.
14. On the face of it, the section is unqualified in its terms. Had the Oireachtas wished to confine valid certificates to those created by particular categories of medical practitioners, it was open to them to do so. They did not. We do not find it surprising that the Oireachtas decided to approach the matter in the way that it did. Most medical examinations and treatments of individuals who have suffered injuries as a result of an assault will involve multiple medical professionals, such as nurses, doctors, junior hospital doctors, registrars, sometimes consultants, radiographers and radiologists, to mention just some. In a situation where numerous professionals are involved, no doubt individuals will be making their own notes and adding their own contributions to the medical file. We find it not at all surprising, and on the contrary, entirely understandable, that provision would be made for the production of a single certificate.
15. As was pointed out on behalf of the DPP in her written submissions, the provision is not at all unique. Attention is drawn to the terms of s. 10 of the Misuse of Drugs Act 1984, as amended, which provides:
“10. — In any proceedings for an offence under the Principal Act or section 5 of this Act, notwithstanding section 169 of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 the production of a certificate purporting to be signed by an officer of Forensic Science Ireland of the Department of Justice and relating to -
(a) the receipt, handling, transmission or storage, or
(b) an examination, inspection, test or analysis, as the case may be, specified in the certificate of a controlled drug or other substance, product or preparation so specified shall, until 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 officer.”
What is provided for is a certificate purporting to be signed by an officer of Forensic Science Ireland. There is no requirement that the officer should have personally carried out the examination, inspection, test or analysis; still less, there is no requirement that the examination, inspection, test or analysis should have been carried out by the certifying officer and the officer alone. However, the Court would like to take the opportunity to draw attention to the fact that it is for the party seeking to introduce the s.25 certificate to ensure that the medical evidence being presented by certificate is readily understandable to a jury.
16. In the circumstances, we are satisfied that the judge erred in excluding the certificate. Accordingly, we 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 Non-Fatal Offences Against the Person Act 1997, on the ground that the medical practitioner who had prepared the said certificate had not personally performed the examination referred to in the certificate.”
Submissions in the Appeal
The Appellant’s Submissions
20. The appellant asks this Court to have regard to the context in which a s.25 certificate became relevant. The appellant had been charged with causing serious harm contrary to s.4 of the Act of 1997. Therefore, the prosecution was obliged to prove that the injured party had sustained serious harm. The Act defines serious harm as “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”. The appellant submits that the injury in this case fell between a s.3 (assault causing harm) and a s.4 (causing serious harm) offence, and that as a result of the prosecution attempting to substantiate the more serious charge (a s.4 conviction) the trial was repeatedly delayed in order that the prosecution could secure a medical report that could substantiate such a charge. In the current case opinion had been inserted into the certificate to the effect that the injured party may suffer “likely permanent long term damage”. It is submitted that s.25 does not include opinions within the ambit of the provision and, for that reason, the provision is fundamentally different from the other certificate provisions.
21. The appellant submits that the Court of Appeal erred in the manner in which it compared the different types of certificate at paragraph 15 of its judgment. The type of fact that is proved (for evidential purposes) by the certificates is different. The Court failed to consider that s.10 of the 1984 Act authorises a suitably qualified witness to certify a particular fact that is capable of being ascertained and proven as a matter of science; namely, that a particular material is or contains a particular controlled drug. This type of fact is more limited or focused than the type of fact envisaged by s.25.
22. The appellant relies on the rule against hearsay and submits that the certificate in this case offends the rule in that the practitioner who issued the certificate had not personally examined the injured party and was relying on someone else’s notes. In circumstances where the medical practitioner relied on documents that had been prepared by others to prepare the certificate, the prosecution cannot rely on observations purportedly made by others to create this item of evidence. It is submitted that this Court should treat the trial judge as having a discretion to exclude the certificate, arising under the normal rules relating to the admissibility of evidence during a criminal trial.
23. The appellant asks the Court to have regard to the final sentences in paragraph 15 of the Court of Appeal judgment. It is submitted that the Court of Appeal erred in concluding that s.25 did not specifically direct that a certificate had to be issued by a registered medical practitioner who had examined the injured party, and that this finding could lead to the result that any registered medical practitioner can issue a certificate without ever examining the person in respect of whom it is issued. The appellant contends that this conclusion goes further than could be considered fair in a criminal trial, as the accused would be deprived of his usual right to have such expert opinion evidence tested.
24. It is submitted by the appellant that s.25 can create a reverse burden of proof putting an evidential burden on the accused which may put the accused at a disadvantage. The adducing of evidence by certificate is a significant intrusion on the normal rules of evidence that apply in a criminal trial. This is all the more so where, as in the present case, a “fact” certified is not a “fact” simpliciter which can be established by observation or scientific analysis.
25. It is further submitted that the Court of Appeal failed to address the issue of whether a medical practitioner can issue a s.25 certificate in respect of matters that are opinions rather than “facts”. While the respondent argued that the trial judge's ruling required an impermissible insertion of words into the section, the Court failed to acknowledge that the respondent was also, in effect, arguing for the insertion of the word "opinion". If a s.25 certificate contains comments that are opinion-based, factors in the case, such as the nature of the injury or the long term prognosis, may require an in-person examination of the injured party. There may be cases where the injury is so significant that it defies logic to state that they are not "serious harm", but equally there may be cases where that conclusion is not as obvious. The appellant submits that the present case falls into the latter category and in all such cases the trial judge is best placed to reach a determination and rule on the question of admissibility.
26. The appellant relies on the decision in Re the Employment Equality Bill 1996 [1997] 2 IR 321. In respect of proof by certificate the Supreme Court noted that:
"Historically trials, whether in summary form or on indictment, have proceeded viva voce although documentary evidence and inferences therefrom may be part and parcel of the trial. It is a fundamental principle in our system that, in general, criminal trials are conducted on viva voce evidence. In Re Haughey [1971] I.R. 217 at p. 261 O’Dalaigh C.J. stated:-
"In a criminal trial, evidence must be given orally; a statute may authorise otherwise ... "
Whereas viva voce evidence is the norm in the majority of cases, proof by written statement is allowed in certain circumstances but with the consent of the accused, and, in other cases, certificates may provide prima facie evidence of specific issues of a scientific or technical nature. Such limitation of viva voce evidence is reasonable in circumstances where the nature of the evidence is, for example, technical and by its form appropriate in a certificate, as such form means that, for example, many technicians and officials are not required to be called to Court in each case. A reasonable balance is obtained."
It is submitted that, in the circumstances of the present case, the s.25 certificate would have infringed the ordinary rules of evidence and would have been unfair to the appellant.
27. The appellant also notes the decision in McGonnell v A.G. [2007] 1 IR 400 where the Supreme Court held that proof of intoxication by intoxilyser machine was not contrary to the right to fair procedures in a criminal trial. The Court noted that the use of certificates to prove intoxication was proportionate and that it was evidence that was technical in nature. It is submitted that the decisions in these cases show that trial Courts can receive evidence by certificate in criminal trials where the evidence is technical in nature. However, the information contained in the s.25 certificate in the present case went beyond being technical in nature in that elements of the certificate contained opinions that were subjective by their nature and were not precise in the manner in which an intoxilyser certificate or a s.10 certificate contain precise evidence.
28. The appellant has had regard to the provisions of s.5 of the Interpretation Act, 2005, and to the decision of the Supreme Court in People (DPP) v T. N. [2020] IESC 26, where the law relating to the interpretation of criminal statutes was stated in the following terms:
"119. …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 to 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."
29. The appellant submits that this judgment is not inconsistent with the arguments already advanced by him in relation to s.25 of the 1997 Act, and reiterates that the circumstances in each case will determine the admissibility of certificate evidence and this is a matter best left to the discretion of the trial judge.
The Respondent’s Submissions
30. The respondent submits that the issue on this appeal is one of statutory interpretation, namely whether s.25 requires the medical practitioner who signs a certificate under that provision to have personally examined the patient. The starting point is to look at the plain language of the words in s.25. The respondent relies on Craies on Statute Law (7th edition, 1971, page 65) wherein it states:
“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 expand these words in their ordinary and natural sense”
31. The respondent submits that it is clear that s.25 does not expressly stipulate that an examination must have been carried out by the author of the certificate. She notes that the appellant appears to accept that this is correct but argues that it is ''reasonable to infer that the certificate should be issued by a medical practitioner who has some personal knowledge of the injured party”, particularly in a case where the certificate relates to a case which "lies on the margins between harm and serious harm”. The respondent submits that the proper construction of the provision in question cannot depend upon the nature of the injury and whether it “lies on the margins” between s.3 and s.4. The section either requires the maker of the certificate to have examined the patient or it does not, it cannot depend on whether it is a marginal case.
32. The respondent suggests it is significant that the section merely refer to “an examination of that person”; giving these words their ordinary meaning, this clearly admits of the possibility of the certificate being provided by a doctor other than the one who has performed the examination. Under s.18(a) of the Interpretation Act, 2005 reference to the singular imports the plural, which in the respondent’s submission means that a certificate under s.25 may deal with findings from more than one examination. The respondent submits that if the Oireachtas intended the certificate to deal only with examination by the author thereof the Act would have said so, and to have done so would have led to all sorts of difficulties such as multiple certificates needing to be issued.
33. The respondent contends that s.25 is not an unusual provision, and that there are other examples where statute creates an exception to the hearsay rule to allow for certain matters to be proven by certificate. They refer to the example mentioned in the Court of Appeal’s judgment, i.e. s.10 of the Misuse of Drugs Act, 1984. They refer also to s.20(1) of the Road Traffic Act, 2010 which provides for the admissibility into evidence of a certificate generated by a machine as to the concentration of alcohol in specimens of breath. The respondent notes that the appellant seems to argue, based upon dicta from Re the Employment Equality Bill, 1996, that proof by way of certificate in a criminal trial should be limited to evidence that is technical in nature and that in this case, the s.25 certificate went beyond that by the insertion of opinion. The respondent observes that even where the maker of such a certificate has examined the patient, it is likely to contain an element of opinion regarding the injuries sustained.
34. The respondent contends that s.25 does not in itself engage the principle that penal statutes should be strictly construed, and that it simply provides for a method of proof of one of the ingredients of an offence under s.3 or s.4 of the 1997 Act. It should be regarded as similar to s.16 of the Criminal Justice Act, 2006 concerning the admissibility of witness statements which, when considered by the Court of Appeal in DPP v Rattigan [2013] IECCA 13, was found to be merely “procedural and evidential”. The respondent submits that s.25 falls into the same category and does not therefore engage the principle concerning the strict construction of penal statutes. The respondent refers to what was stated by this Court in DPP v TN [2020] IESC 26 where it was stated that the principle of strict construction, even where it applies, “cannot be seen or relied upon to override all other rules of interpretation”.
35. The respondent submits that the plain meaning of s.25 is that it is not limited to cases in which the medical practitioner concerned has personally examined the patient. Insofar as the provision might be said to be ambiguous on that question, regard should be had to the provisions of s.5 of the Interpretation Act, 2005, subsection 1 of which provides that in construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) that is ambiguous, the provision shall be given a construction that reflects the plain intention of the Oireachtas, where that intention can be ascertained from the Act as a whole.
36. The respondent submits that the statutory context for s.25 is one of prosecutions under s.3 or s.4 of the Act and that the section can only be invoked as a method of proof in prosecutions under those provisions. She gives the example of injured persons presenting to an A&E department where their treatment would typically involve input from a number of professionals. In her submission it would be entirely appropriate that a medical practitioner of consultant status should provide an overview of the patient's history. The efficacy of s.25 would be significantly undermined if a Consultant was precluded from providing an overview simply because he had not personally examined the patient. That is not to say that there would not be cases in which a particular medical practitioner would not be in a position to provide such an overview or give a meaningful opinion without carrying out such an examination.
37. In response to the appellant appearing to raise a question of whether admitting a certificate such as that involved in this case is compatible with the right to trial in due course of law guaranteed by Article 38.1 of the Constitution, the respondent relies on the words of Hamilton C.J. in Re The Employment Equality Bill, [1997] 2 IR 321 where he 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 and there are other issues before the Court".
38. The principal impact which s.25 has on the right to trial in due course of law lies in the fact that the section permits the prosecution to tender medical evidence otherwise than on a viva voce basis. This arises regardless of whether or not the medical practitioner who signs the certificate carried out the examination(s) referred to therein. The certificate is only tendered as a form of proof of one of the ingredients of an offence under s.3 or s.4. The certificate is not treated as being either prima facie or conclusive proof of that ingredient, be it "harm' or "serious harm". The Defence are not precluded from putting the content of the certificate in issue by, for example, calling their own medical evidence.
39. The respondent states that the appellant appears to submit that the question of admissibility of a certificate under s.25 is a matter for the discretion of the trial judge. The respondent disagrees and their position is that a trial judge must make a determination as to whether or not a particular certificate comes within the terms of s.25. If it does, then it is admissible as a statutory exception to the hearsay rule. That is not to say that there may not be circumstances in which some other rule of evidence may be engaged.
40. The respondent accepts that s.25 refers to “evidence of any fact thereby certified”, but contends that the word “fact” must be given ‘a sensible meaning’ which reflects the plain intention of the Oireachtas, having regard to the Act as a whole, as otherwise the provision would be ‘almost unworkable’ if the certificate had to be strictly confined to objective findings on an examination and could not contain any opinion based upon those findings. The respondent submits that it is clear that the certificate may be tendered as proof of "serious harm' which is defined under s.1 of the Act as ''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”. She argues that it is difficult to see how a substantial loss or impairment of the function of a particular bodily member or organ could be established without some element of expert opinion except in the most obvious of cases such as, for example, the loss of a limb. There may well be circumstances where it would be preferable that a certificate containing an opinion would be based upon a personal examination of the patient. Indeed, there may be many circumstances in which a medical practitioner would not certify a particular opinion without conducting an examination. However, that is not the test for admissibility.
41. The respondent submits that, in the context of a certificate under s.25, the absence of an examination by the medical practitioner goes to the weight to be attached to the practitioner’s opinion, and not to the admissibility of that opinion as set out in the certificate. The absence of such a medical examination may take on particular significance in a case where the defence have engaged their own expert who disagrees with the opinion of the prosecution expert. In such a case, the prudent course for the prosecution may well be to call their own expert rather than relying upon the certificate.
Discussion
42. It seems to me from the appeal submissions that two questions of statutory interpretation regarding the ambit of s.25 of the 1997 Act may arise for decision on this appeal:-
(i) 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;
(ii) the nature of the evidence which is rendered admissible by the production of a valid certificate pursuant to s.25, and in particular whether any such evidence is confined to certified facts as opposed to evidence of opinion.
The First Question
43. As regards the first question, the net issue appears to be whether the correct interpretation of s.25 is that such a certificate must emanate from the registered medical practitioner who carried out the examination of the injured person, or alternatively whether it can emanate from any such practitioner even if that practitioner had no involvement in the examination.
44. It is frequently said that in interpreting Acts of the Oireachtas, the Court seeks to ascertain the intention of the Oireachtas: see Crilly v. T. & J. Farrington Limited [2001] 3 IR 251. Crilly also emphasised that what the Courts in this country have also sought to ascertain is the objective intention of the legislature, as expressed in the language under consideration, and Crilly re-affirmed the literal approach to the meaning of the words used, as previously approved in cases such as Howard v. Commissioners of Public Works [1994] 1 I.R. 101.
45. In the present case the Court of Appeal sought to adopt a literal approach to the construction of s.25, in highlighting that there is no express 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. The Court felt that what is required is that the certificate relate to an examination of the injured party. This approach also underlies the Court’s comments that, on the face of it, the section is unqualified in its terms, and that had the Oireachtas wished to confine valid certificates to those created by particular categories and medical practitioners, it was open to them to do so, and they did not.
46. While this literal approach of the Court below appears to have some merit as far as it goes, upon further reflection I respectfully consider that it does not go far enough. In particular, it fails to give any or any adequate consideration to the inherent nature of the certificate to be admitted into evidence by virtue of s.25, which certificate must involve the medical practitioner having “certified” certain facts relating to an examination of the injured person.
47. To certify something, according to the Oxford English Dictionary is “to state officially, especially in writing, that something is true”. In the present case, therefore, the registered medical practitioner was purporting to state officially in writing that the facts relating to an examination of the injured person on the two dates in question were true, for example that examination showed swelling and bruising of the left eye lids. While the first paragraph of the certificate stated that he had “prepared the statement from a review of my notes/attending on the below patient”, and one wonders if this reflected the more typical basis for him furnishing such a certificate, the next paragraph makes it clear that in this particular case the certificate purports simply to summarise “the clinical notes collected in the ophthalmology department on the dates” in question. The summary of the clinical notes arises in circumstances where the practitioner in question did not author any of the clinical notes, as he was not involved in any of the examinations. In those circumstances how can this practitioner 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? And could the Oireachtas have intended that such a statement would be evidence, but not open to cross-examination?
48. Section 5 of the Interpretation Act 2005 can, in my opinion, be viewed as largely codifying the pre-existing common law approaches to statutory interpretation. While retaining the literal rule as the primary rule of statutory interpretation, it also provides that in construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) that is ambiguous, the provision shall be given a construction that reflects the plain intention of the Oireachtas, where that intention can be ascertained from the Act as a whole.
49. The next question, therefore, is whether s.25 is an ambiguous provision or not? Dodd, Statutory Interpretation in Ireland, suggests at para. 2.62 that where a Court states that a provision is ambiguous, what is typically meant is that there is some linguistic doubt as to the meaning attributable to the words used because a number of possible meanings exist. This may be caused by syntactic ambiguity (the structure or grammar of a sentence can be read in two or more ways) or semantic ambiguity (i.e. a word or expression having two or more meanings). He later adds at para. 2.65 that:
“A provision may also be described as ambiguous where there is doubt as to the scope of its intended application”.
50. While the Court of Appeal highlighted that there is no express requirement in the language used in s. 25 that the examination should be carried out by the person providing the certificate, in my opinion, as stated above, the approach of the Court below fails to give any or any adequate consideration to the inherent nature of the certificate to be admitted into evidence by virtue of s. 25, which certificate must involve the medical practitioner having “certified” certain facts relating to an examination of the injured person. For the reasons set out previously at para. 47 above, there seems to me to be considerable doubt as to the scope of the intended application of the provision, in terms of the range of registered medical practitioners who may sign a certificate relating to an examination of an injured person. The provision may therefore be described as ambiguous, in my opinion.
51. Section 5 of the 2005 Act therefore requires that s.25 be given a construction that reflects the plain intention of the Oireachtas, where that intention can be ascertained from the 1997 Act as a whole. It seems to me that the plain intention of the Oireachtas can be ascertained from a harmonious reading of ss. 3, 4 and 25 of the 1997 Act. I consider 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. In other words, the intention was to obviate the necessity for medical practitioners to attend Court and give oral evidence to prove their own medical records which, in most cases, will probably be of a routine and uncontroversial nature, but not to allow one medical practitioner to certify another practitioner’s records.
52. This narrower scope of application of s.25 accords more closely with what was stated by this Court in Re the Employment Equality Bill 1996 about proof by certificate providing prima facie evidence of specific issues of a scientific or technical nature, and about obtaining a reasonable balance, as set out at para. 26 above.
53. In the present case, therefore, I consider that the learned 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 Second Question
54. As regards the second possible issue of statutory interpretation which might be seen as arising, this involves the nature of the evidence which is rendered admissible by the production of a valid certificate pursuant to s.25, and in particular whether any such evidence is confined to certified facts as opposed to evidence of opinion. While it does not appear that this issue comes directly within the scope of the question of law referred by the respondent to the Court of Appeal, the issue did feature in the detailed submissions made by both parties to this Court. In the circumstances I think it is appropriate that I should address the issue, although the following remarks are not determinative of this appeal.
55. On this issue of fact and opinion, it seems to me that the words used in s.25 are plain and unambiguous. What may be certified by the medical practitioner is “any fact” relating to an examination of the injured person. I would consider that this reflects the intention of the Oireachtas that factual matters in documents such as medical records or clinical notes can be adduced into evidence by way of certificate.
56. Documents such as medical records or clinical notes are normally confined to factual matters in terms of findings recorded on examination, the treatment prescribed etc, in contradistinction to medical reports which normally also include matters of opinion, such as a future prognosis etc. I appreciate that it may not always be easy to draw a bright-line distinction when it comes to evidence of fact and opinion in the context of medical practitioners, but nonetheless it seems to me that such a distinction was clearly intended by the Oireachtas, having regard to the plain language of s.25. I do not think it was the intention of the Oireachtas that evidence of opinion could be given by certificate, and not be subject to cross-examination. I note that s.25 did not provide that the certificate shall be evidence of any “matter” thereby certified, but provided only for certified facts.
57. In the present case the certificate in question purported to merely summarise the clinical notes of the examination on the two dates set out. However, the summary paragraph towards the end of the certificate moved into a stage where opinions were being given, as the trial judge put it in his ruling, and ended with the crucial opinion that there was “likely permanent long term damage”, which was an opinion sufficient to allow a jury to make a finding of serious harm.
Conclusion
58. In conclusion, I am satisfied that the learned trial judge was correct to exclude evidence tendered by way of a certificate pursuant to s.25 of the 1997 Act, on the grounds that the medical practitioner who prepared the said certificate had not personally performed the examination referred to in the said certificate. I would therefore allow the appeal.
Result: Allow Appeal