Jersey Unreported Judgments

 2001/203

ROYAL COURT

(Samedi Division)

1^st October, 2001

The Attorney General

-v-

Uwe Gerhard Eichner

Assize Trail.

Preliminary application to exclude

evidence on ground of inadmissibility.

A.D. Robinson, Esq., Crown Advocate.

Advocate P.C. Sinel for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Objection has been taken by defence counsel to the admissibility of certain evidence which the Crown wishes to tender in relation to medical records kept both by the accused and by hospitals and nursing homes where the three patients in question were being treated.

2.        In the main the evidence is to be elicited from Dr. Saywood but the same principles seem to me to apply to all the evidence to which exception is taken by the defence.  I shall therefore refer primarily to Dr. Saywood, although, as I say, the same principles seem to me to apply to other witnesses for the prosecution tendering this evidence.

3.        Defence counsel queried whether Dr. Saywood was an expert witness.  Dr. Saywood is a qualified medical practitioner and a Member of the Royal College of Surgeons.  He has very extensive medical experience in a number of different fields and has practised as a general practitioner.  I shall not recount his many achievements; I am quite satisfied that he has the necessary expertise to give the evidence sought of him in this case.

4.        Mr. Sinel submitted that it was inappropriate for Dr. Saywood to offer opinion and comment on the medical notes furnished to him by the police in relation to the three patients named in the indictment.  It is also submitted that the medical notes obtained from the General Hospital, Clarkson House, St. Helier House and Cranworth Residential Home constitute inadmissible hearsay evidence.

5.        What the Crown Advocate seeks to elicit in evidence from Dr. Saywood may be summarised as follows:

Firstly he seeks to have evidence given as to the general standard of care provided by the accused to the three patients in question and the standard of note keeping of the accused.

Secondly Dr. Saywood would introduce evidence of the alleged failure by the accused to record in his own notes the disputed prescriptions and the administration of the drugs in question to the patients concerned.  He would also be asked to draw attention to omissions from the hospital records as to the administration of such drugs at the material times to the patients concerned.

Thirdly, the prosecution seeks to elicit evidence as to the nature of diconal and diamorphine and to an extent the appropriate level of administration of those drugs, if any, to the patients concerned.

6.        The principal issues in this case are in relation to count 1 whether the accused made a false declaration that he had made a number of home visits to Mr. Henry Reid and in relation to counts 2-11 whether the accused made a false pretence that the diconal and/or diamorphine had been prescribed for the patients in question and would be administered to them.

7.        Dr. Saywood did not treat any of the patients named in the indictment.  His only knowledge of them derives from the medical records which have been seized by the police.  It is clear that he cannot testify as to the specific treatment received by each patient as indicated by the records because such evidence would be hearsay and inadmissible.

8.        The records themselves will, however, be put in evidence by the witness or witnesses who produce  them.

9.        As to the first area of evidence which the Crown seeks to elicit from Dr. Saywood - that is the general standard of care provided by the accused to the three patients - this is, in my judgment, irrelevant to the prosecution's case and is inadmissible.  The medical abilities of the accused are not in issue.  It is his honesty that is in issue.

10.      So far as the accused's standard of note keeping is concerned, this is in my judgment relevant to the extent that it goes to the question of honesty.  In other words was the standard of note taking generally so good that the absence of certain notes is suggestive of a dishonest intent?  To that extent only questions may be put to Dr. Saywood.

11.      As to the second area, that is the alleged failure to record certain matters in notes kept by the accused, that also in my judgment goes to the question of honesty and is admissible.  The same principle applies to the medical records kept by the hospitals and nursing establishments.  While it is not open to Dr. Saywood to give evidence as to the content of those notes it is open to him to give evidence as to any omissions from such records because they will in that context be his factual observations. It is true that the jury themselves might be able to make such deductions by study of the medical notes in question but the evidence of Dr. Saywood will not be hearsay evidence and will ensure that the notes are not misinterpreted by lay people.

12.      I turn to the third area that is evidence as to the nature of the drugs and the appropriate level of administration, if any, to the patients concerned.  In submission the Crown Advocate narrowed the contentions set out in his skeleton argument and indicated that it was only in the case of the patient Jacqueline Mauger that Dr. Saywood would be invited to comment on the contra indication of prescribing diamorphine for her.

13.      It is clearly open to Dr. Saywood to give his expert opinion as to the nature of diconal and diamorphine and as to the kind of medical condition which might legitimately involve the administration of such drugs.  It is not permissible, as I have said, for Dr. Saywood to give evidence as to the detail contained in the medical records to which he has been referred.  It seems to me to be equally impermissible for him to rely upon the detail in those records as the factual matrix upon which to express an opinion in relation to the individual patient.  An expert witness can only express an opinion on the basis of facts proved by admissible evidence.  On the other hand if there is admissible evidence before the jury drawn from some other source that a patient was suffering from such and such a disease it would be open to the prosecution to ask Dr. Saywood to express an opinion based upon that admissible or admitted evidence.  For example in relation to Mrs. Jacqueline Mauger there may be evidence from the proprietor of a nursing home as to the illness from which she was suffering.  It will be for the Crown Advocate to consider carefully in the light of this ruling how far it would be prudent to go and it remains open to defence counsel as the trial progresses to object to particular questions if he thinks that the Crown Advocate has over-stepped the mark.

14.      I turn finally to an objection that the defence was given insufficient notice of the Crown's intention to call six witnesses, namely Dean Godfray, Lynn Grieve, Sarah Turner, Anne Audrain, Tania Paul and Karen MacFirbhisigh.  Notice was given to the defence that the Crown intended to call these witnesses on Friday, 28^th September.  Article 60 of the 1864 Law on criminal procedure provides in translation that the Attorney General shall notify the accused or cause the accused to be notified three days at least before the Assize of the name of prosecution witnesses with their address if they have not been heard before the Magistrate.

15.      The Crown Advocate has conceded that the notice given to the defence in relation to these additional witnesses was given out of time.  Mr. Robinson submits, however, that I have a discretion nonetheless to admit the evidence and that this discretion ought to be exercised in favour of the Crown because the suggestion that the patients named on the indictment might have been temporarily discharged from hospital during the relevant periods was only raised at a directions hearing in chambers a few days ago.  On the other hand defence counsel submits that this suggestion was implicit from certain answers given by the accused at question and answer interviews conducted by the police.

16.      It is not necessary for me to decide whether the Court has a discretion, although I would be inclined to the view that the words in Article 60 are directory rather than mandatory.  On the assumption that I have a discretion I am not, however, persuaded that it should be exercised in favour of the prosecution.  The point does not seem to me to have arisen ex improviso.  As a matter of general principle the defence should be given adequate notice of evidence to be given by witnesses for the prosecution so that consideration can be given by the defence to the calling of other witnesses in rebuttal.  Adequate notice was not given in this case and I therefore exclude the evidence of those six named witnesses.

17.      The Judicial Greffier will make arrangements for this ruling to be transcribed as soon as possible and as soon as it has been transcribed it will be made available to both counsel to assist in examination and cross-examination.

Authorities

Loi (1864) réglant la procédure criminelle: Article 60.