State v Singh [1997] FJHC 142; HAC0017D.1996S (29 September 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 0017 OF 1996

THE STATE

V

DAVENDRA SINGH

Counsel : Mr. W. Clarke for The State
Mr. A. Gates for Accused

Voir Dire Hearing: 23rd to 26th September 1997

Decision : 29th September 1997

ORAL DECISION OF PAIN J.
ON ADMISSIBILITY OF EVIDENCE

The Court has heard evidence and submissions relating to the admissibility of certain items of evidence. An urgent decision is needed as the assessors have now been absent for virtually a whole week. I have carefully considered all the evidence, legal submissions and numerous authorities cited. I have come to a clear decision on the various issues but with the time constraints it has not been possible to prepare a comprehensive judgment dealing with every argument and authority on all matters. However, all have been considered and taken into account.

The admissibility of the Post Mortem report and the additional evidence from Dr. Krishna were argued with other matters on a pre-trial application. In my decision of 17th September 1997 I dealt at some length with these two matters and reserved my final ruling until further information and argument was provided. I do not intend to repeat what I have already said. That earlier decision should be considered with and deemed a part of this final ruling.

There were originally 5 matters for determination by the Court. However, during the voir dire hearing counsel advised that they had reached agreement over the production of CWM Hospital Clinical Records. Also State Counsel, in view of the very unsatisfactory evidence of the proposed witness, abandoned an attempt to have that evidence admitted as a ‘dying declaration’ of the deceased. Rulings are required on the admissibility of 3 items of evidence. The post mortem report, the additional witness Dr. Krishna and the caution statement.

ADMISSIBILITY OF POST MORTEM REPORT

The State advanced 4 grounds for the production of this document in evidence. As a business record under the Evidence Act, as a public document, under the Court’s interest jurisdiction and at common law.

"Section 4 Evidence Act"

The argument for admission under the Evidence Act (CAP 41) is based on Section 4 which states:

"4. In any criminal proceedings where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, on production of the document, be admissible as evidence of that fact if -

(a) the document is, or forms part of, a record relating to any trade or business and compiled, in the course of that trade or business, from information supplied (whether directly or indirectly) by persons who have, or may reasonably be supposed to have, personal knowledge of the matters dealt with in the information they supply; and

(b) the person who supplied the information recorded in the statement in question is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or cannot with reasonable diligence be identified or found, or cannot reasonably be expected (having regard to the time which has elapsed since he supplied the information and to all the circumstances) to have any recollection of the matters dealt with in the information he supplied."

Also important is an extended definition given to the word "business" by Section 2(1) which states:

"2(1) In this Act –

"business" includes any public utility or undertaking carried on by any city or town council or by any other board or authority established under the provisions of any Act, and any of the activities of the Permanent Secretary for Posts and Telecommunications"

The record of the Preliminary Inquiry shows that the post mortem examination of the deceased was conducted in the Pathology Dept. at CWM Hospital by Dr. Alera who was employed in that Department as a consultant pathologist.

The State submits that details of Dr. Alera’s findings on the post mortem examination, as recorded in his post mortem report, is a statement tending to establish those facts. That report is a record relating to the business of CWM Hospital compiled in the course of that business from information supplied by Dr. Alera who had personal knowledge of the matter. Dr. Alera
is no longer in Fiji and the post mortem report is therefore admissible pursuant to Section 4 of the Act.

The defence submits that the CWM Hospital is not a "business" within S.4 of the Act. The extended definition of "business" in S.2 does not include a Minister or Government Department as an authority established under an Act. Further, the post mortem report was compiled for a Police Investigation and not for the business of the hospital.

Some preliminary issues can be quickly dealt with. The pre-requisite in section 4(b) that the person who supplied the information is "beyond the seas" has been satisfied. The evidence of Mr. Wilkinson, Deputy Director of Public Prosecutions (and presently acting Director) and Mr. Auld, Principal Legal Officer, proved conclusively that Dr. Alera has left Fiji, is residing in the Phillippines and is refusing to answer any communications. It is beyond dispute that the entries made in the post mortem report constitute a statement by Dr. Alera in a document which tends to establish facts. Those facts are the observations and findings of Dr. Alera on his post mortem examination of the body and he could have given direct oral evidence of them. Further, that information in the report was supplied directly by Dr. Alera who had personal knowledge of it. None of these matters has been challenged by the defence.

The issues for determination are therefore whether:

1. The post mortem report is a record relating to a "business" within S.4 of the Act, and

2. Whether it was compiled in the course of that business.

"Business"

The special provisions in S.4 of the Act and this use of the word "business" have their origins in and are based upon the 1965 Criminal Evidence Act of England. That Act was passed in response to the House of Lords decision in Myers v D.P.P. [1965] AC 101 holding that the records of a car manufacturer showing serial numbers allocated to mass produced vehicles were inadmissible hearsay. It can be safely assumed that such records would have been rendered admissible by the Act as business records. Apart from that guide, the word business in both the English and Fiji Acts is given its ordinary meaning. That is a person’s regular occupation, profession or trade.

In this and other fields of law there has been some conflict as to whether a hospital is a "business". For instance, in Bramwell v Lacy [1879] UKLawRpCh 74; (1878-79) 10 Ch D 691 it was held that a hospital was a "business" in terms of a restrictive covenant in a lease prohibiting the lessee from carrying on any business. The Court said "It is in reality an apothecary’s business ... whether for profit or not is immaterial". Similar decisions were given in Portman v Home Hospital Association (1884) 27 Ch D 81 and Hills Ltd v University Hospital Board of Governors [1956] 1 QB 91. However, in R v Crayden [1978] 2 All ER 700 the Court of Appeal held that a national health service hospital was not a "business" within the 1965 Criminal Evidence Act of England because it provided a health service and did not have a commercial connotation.

Another case cited in argument was R v TJW 1989 1 Qd R 108. In that case the Royal Women’s Hospital in Brisbane was held to be a business for the purposes of a comparable criminal evidence Act of Queensland. However, that was because it came within the extended definition of business as being carried on by a statutory body.

Clearly there is some doubt as to whether CWM Hospital would be a "business" within the ordinary meaning of that word in S.4 of the Evidence Act. This argument was not pressed by counsel.

The issue that the Court has been asked to determine in this case is whether CWM Hospital is a "business" within the extended definition contained in Section 2(1) of the Evidence Act.

This part of the Evidence Act relating to admission of business records was enacted in 1965. It is clearly based on the English Criminal Evidence Act of the same year. Section 4 providing for the admissibility of such evidence is identical to Section 1 of the English Act.

The extended definition of "business" in S.2(1) has clearly been enacted to include certain enterprises that might not otherwise be aptly described as ‘businesses’. It enlarges the meaning of that word as used in Section 4. Again, the extended definition is based on the English Act but it has been further extended. The English provision included "any public transport, public utility or similar undertaking carried on by a local authority and the activities of the Post Office". Public Transport has been excluded from S.2(1) of our Act but a public utility or undertaking has been extended to include one carried on by any board or authority established under the provisions of any Act. The activities of the Post Office has been changed to the activities of the Permanent Secretary for Posts and Telecommunications .

The issue for determination in this case is whether CWM Hospital is a "public utility carried on by an authority established under the provisions of any Act".

"Public utility"

A "public utility" is the provision of an amenity or service for the public at large. It might include such a wide variety of undertakings as the provision of a port container terminal (Seatainer Terminals Limited v The Federal Commission of Taxation (1979) 79 ATC 4622), the provision of an electricity supply (Rich J in Renmark Hotel Inc. V Federal Commissioner of Taxation [1949] HCA 7; (1949) 79 CLR 10, 18) and the provision of accommodation and entertainment at an airport for travellers and air crew. (Top of the Cross Pty Ltd v Federal Commissioner of Taxation (1980) 80 ATC 4617). However, it is not necessary to define its limits. Perhaps the best known and widely recognized public utilities are in the fields of education and health. Schools and hospitals, especially those provided by the State, are undoubtably public utilities in this country. The purposes, functions and amenities of CWM Hospital in Suva and the services it provides for the public are well known. I have no hesitation in holding it to be a public utility. If confirming authority is required it can be found in the case of R v TJW (Supra - from which I have also drawn the other examples of public utilities mentioned above). Shepherdson J held that the Royal Women’s Hospital in Brisbane in so far as it relates to the public wards, in terms of patients in its public capacity, was a public utility within comparable Evidence Act legislation. In my view CWM Hospital and particularly its Pathology Department which inter alia conducts post mortem examinations, is providing a service of great public importance that is available to the public at large. It is a public utility.

"Authority established under the provisions of any Act"

The next question to be determined is whether the public utility of CWM Hospital is carried on by an "authority established under the provisions of any Act" in terms of Section 2(1) of the Evidence Act.

CWM Hospital does not have its own empowering Act. It is governed by the Public Hospitals and Dispensaries Act (CAP 110). This applies to all public hospitals which are defined as hospitals "maintained out of public funds" (Section 2). In terms of Section 6 of the Act the responsibility for the government and management of public hospitals is vested in the Minister of Health who is empowered to make regulations in that behalf. These are the Public Hospitals and Dispensaries Regulations (CAP 110 Subsidiary Legislation). Regulation 4 empowers the Permanent Secretary for Health to "exercise general control and supervision over the organisation and management of all public hospitals". Finally, Section 2 of the Act creates a position of medical officer in charge who is a "medical officer appointed by the Permanent Secretary to supervise and control the management of a public hospital".

Thus the hierarchy for the control and management of all public hospitals starts with statutory responsibility being given to the Minister of Health under the Act. By Regulation, general control and supervision has been delegated to the Permanent Secretary for Health. Further, delegation is made by the Permanent Secretary under the Act by appointment of a medical officer in charge to a particular hospital.

This authority reposed in the Minister of Health to control public hospitals is confirmed upon his appointment as Minister by the President of Fiji. By notice under Section 86(1) of the Constitution the President assigns to the Minister responsibility (inter alia) for the conduct of the "business of medical services" and responsibility for all written law regulating that business including the Public Hospitals and Dispensaries Act (See, for example, Legal Notice No.87 in Fiji Republic Gazette Supplement No.32 of 1997). A further illustration of the Minister’s authority in respect of the conduct of a public hospital is contained in S.10 of the Public Hospitals and Dispensaries Act. The Board of Visitors appointed for the hospital is required to report to the Minister on the state and condition of the hospital.

Considering this situation of control of public hospitals in relation to the extended definition of business in S.2(1) of the Evidence Act, it can be said that the Government has enacted legislation for the control and management of public hospitals. It could have provided for individual hospitals to be run by a Board which is common in some other countries (and compare by way of example the Pharmacy and Poisons Board created by S.5 of the Pharmacy and Poisons Act (CAP 115) and the Board of Directors of the Reserve Bank created by S.9 of the Reserve Bank of Fiji Act (CAP 210). If specific legislation had been enacted to provide for a Hospital Board then, in terms of S.2(1) of the Evidence Act, that would have been a Board established under the provisions of an Act to run the hospital. However, the Government determined not to create such Hospital Boards. Instead it chose, by the provisions of the Public Hospitals and Dispensaries Act, to vest the control and management of public hospitals in the Minister of Health, to be exercised through the Permanent Secretary for Health and the Department of Health. That control in respect of CWM Hospital has been established under the provisions of an Act as required by S.2(1) of the Evidence Act.

Counsel for the State further argues that the Public Hospitals and Dispensaries Act established the Minister as an authority within S.2(1) of the Act. The defence submits that a Minister or his Department cannot be such an authority.

"An authority"

The question to be determined is whether a Minister (and, through him, his Department) can be as an "authority" falling within the provisions of S.2(1)of the Evidence Act.

Counsel for the State relied on two Australian authorities extracted from a computer data base for which he was unable to give conventional law reports citations. These are Commissioner of Taxation v Bank of Western Australia Limited and Commissioner of Taxation v State Bank of New South Wales Limited (Judgment 15.12.95 of the Federal Court of Australia at Sydney) and Smith v Australian National Line and Commonwealth (Judgment 27.8.96 of the Supreme Court of Western Australia).

It is not possible for me to review these decisions in detail. The joint hearing of the cases Commissioner of Taxation v Bank of Western Australia Limited and Commissioner of Taxation v State Bank of New South Wales Limited concerned the liability for payment of sales tax. One of the issues was whether State controlled banks were "authorities" within the meaning of that word in an exemption provision. Smith v Australian National Line and Commonwealth concerned the determination of preliminary questions of law on a personal injury action. One of the issues, in relation to a Limitation Act defence, was whether the first defendant, a State shipping line, was a public authority.

It will be sufficient for me to quote an observation from each case regarding the ordinary meaning of the word "authority".

In Smith v Australian National Line and Commonwealth Ipp J cited with approval the words of Dixon CJ in Commissioner of Taxation (Commonwealth) v Silverton Tramway Company Limited (1953)88 CLR 559 (565):

"The word ‘authority’ has long been used to describe a body or person exercising power or command. No doubt this has come about by a transfer of meaning from the abstract conception of power or command to the body or person possessing it" (Emphasis added)

In Commissioner of Taxation v Bank of Western Australia Ltd. and Commissioner of Taxation v State Bank of New South Wales Limited, Hill J. Said:

The word "authority" is an ordinary English word. It signifies a body which has the right or power to exercise authority or command. It is an example, as Dixon CJ observed in Federal Commissioner of Taxation v Silverton Tramways Company Limited [1953] HCA 79; (1953) 88 CLR 559 at 565, of a word the meaning of which has come about by a transfer of meaning from the abstract concept of power or command to the body or person possessing it. The Macquarie Dictionary (2d ed) contains the following relevant definitions:

"1. The right to determine, adjudicate, or otherwise settle issues or disputes; the right to control, command or determine. 2. a person or body with such rights."

Generally, then, an "authority" is the person or body in whom particular authority or power is vested. It does not require formal legislative investiture with the title of authority. It is the function of exercising power or authority that is important and not the name given to the person or body exercising it. It can be a single person, a common occurrence in some areas such as licensing.

When "authority" is interpreted in this way the Minister of Health can be an authority within the extended definition of business in Section 2(1) of the Evidence Act. There is no reason for the interpretation to be restricted because the Government has chosen to keep the control of such an important public utility as a hospital within the purview of one of its Ministers and his Department.

The provisions of Section 2(1) of the Evidence Act do not exclude the appointment of such an authority. The original English version included only public utilities carried on by a local authority and the activities of the Post Office. A local authority is a more embracing term in England than in Fiji. Such a restriction on public utilities would have been inappropriate for Fiji where most public utilities are provided by Government. The definition was extended to include public utilities carried on by any other board or authority which left the way clear for the inclusion of authorities which are agencies of Government.

I do not see, as suggested by the defence, that the retention of the activities of the Permanent Secretary for Posts and Telecommunications as a further category of business under Section 2(1) affects the interpretation of public utilities under that section. The clear intention was that whether or not all the activities of the Permanent Secretary for Posts and Telecommunications were a public utility within the section, all were to be included within the definition of business.

I am satisfied that, for the purposes of Section 2(1) of the Evidence Act, the Minister of Health is the authority established under the provisions of the Public Hospitals and Dispensaries Act to manage and control the CWM Hospital. It is not unique to appoint a Minister as an authority. The Minister of Immigration is, for example the authority for the hearing of appeals under S.18 of the Immigration Act (CAP 88).

In my view CWM Hospital is a business within the extended definition in S.2(1) of the Evidence Act. The post mortem report is a record of that business within Section 4.

"Compiled in the course of the business"

The final matter for determination is whether the post mortem report was compiled in the course of the business of CWM Hospital as required by Section 4 of the Evidence Act.

The defence submits that the post mortem report was not compiled by the pathologist at CWM Hospital in the course of the business of the hospital. It was compiled for the purposes of this Police investigation. A parallel is drawn with the decision in R v Wood (1983) 76 Crim. App. R 23. In that case it was held that computer printouts prepared by a firm LSM regarding the chemical analysis of metals which involved complicated calculations programmed through the computer were not admissible under the Criminal Evidence Act. They had been prepared for the prosecution of the appellant to show that the chemical composition of metal found in his possession corresponded to the chemical composition of parts of a consignment of metals stolen from LSM. They had not been prepared in the course of the business of LSM. (The printouts were, however, admissible at common law after proper proof of the function and programming of the computer).

The situation in the present case is quite different. The Pathology Department is an integral part of CWM Hospital. The provision of pathological services is an essential part of the hospital’s business. That includes post mortem examinations and I suspect that the hospital provides the only facility for this public service in Suva. They are part of the everyday work of the Department whether for an Inquest, a police investigation or the hospital’s own purposes. The post mortem examination in this case was conducted on the body of a patient who died in CWM Hospital. The report is expressed to be issued under Section 6 of the Inquests Ordinance 1967 (now the Inquests Act CAP 46) which requires a post mortem examination in cases of sudden or unnatural death. Further, if a patient dies in hospital from unknown or uncertain causes the hospital would be expected to perform a post mortem examination to ascertain the cause of death if the relatives agree.

Having regard to all the circumstances, I have no hesitation in holding that the post mortem report in this case was compiled in the course of the business of CWM Hospital, Pathology Department.

Ruling

I have now dealt with all the issues raised on the admissibility of the post mortem report under Section 4 of the Evidence Act. For the reasons I have given, I rule that the report is admissible under that section.

It is not necessary for me to rule on the other grounds argued for production of the report.

There is, however, one qualification to be made. It relates to a matter that was referred to in general terms by counsel but was not made the ground for any specific submission. That is that, in terms of Section 4, the document is only admissible as evidence of a fact in respect of which direct oral evidence could be given. In my view the clinical findings of Dr. Alera on post mortem examination of the deceased as set out in his report are facts about which he could have given direct oral evidence. However, his opinion as to cause of death is not a fact. It is an expert opinion which he could have given in oral testimony. However, it is not a fact but an opinion. It cannot be admitted under the provisions of S.4 of the Evidence Act. Of course, that does not prevent another medical expert from giving his opinion of the cause of death based on the findings on post mortem examination contained in the report.

ADMISSIBILITY OF EVIDENCE OF DR. KRISHNA

The contents of my earlier decision of 17.9.97 in relation to the calling of Dr. Krishna as an additional witness pursuant to S.288 of the Criminal Procedure Code remain relevant and pertinent. I will not repeat them.

The change since that earlier decision was given is that a brief of the evidence of Dr. Krishna has now been provided by the prosecution. It is not as extensive as the prosecution memorandum of 11th September 1997 foreshadowed. He refers to the hospital clinical notes of the deceased and counsel have confirmed that there is no objection to that. He also mentions the epileptic fit of the deceased in hospital and death being certified at 11.20 p.m. These matters are included in the proposed testimony of Dr. Kumar who is to give direct evidence of them. Dr. Krishna’s brief then sets out the findings on post mortem examination. I have now ruled the report of those findings to be admissible. Finally, Dr. Krishna is to give evidence of his opinion in relation to those findings and, presumably, cause of death. That evidence would have been given by the pathologist Dr. Alera if he was available.

There are a number of special facts and circumstances leading up to the State giving notice of its intention to call additional medical witnesses. I have already canvassed these at some length in my earlier decision. What I said in relation to the circumstances under which the prosecution determined to call Dr. Veilogavi and Dr. Kumar apply equally to Dr. Krishna. A final ruling on the calling of Dr. Krishna was deferred because no statement of his proposed evidence had been provided. This has now been done but there was further unavoidable delay caused by the serious illness of a member of Dr. Krishna’s family. The evidence to be given by him is simply a substitution for evidence that would have been given by others, particularly the pathologist Dr. Alera. The nature and content of that evidence is included in the record of the Paper Preliminary Inquiry. The defence would have been aware from that record of the intention of the prosecution to call such evidence.

I have given careful consideration to the unusual facts of this case and to the criteria set down in Section 288 of the Criminal Procedure Code. Having regard to the nature of Dr. Krishna’s evidence and the time when and circumstances under which the prosecutor became acquainted with it and determined to call him as a witness, I am satisfied that the defence has received reasonable notice.

I rule that Dr. Krishna can be called as a witness for the prosecution at this trial.

ADMISSIBILITY OF THE CAUTION STATEMENT

The record of the Preliminary Investigation for this case includes a deposition by a Police officer, Uday Chand. He stated that he interviewed the accused on 26th December 1994 from 8.30am to 10.10am. The accused refused to sign that record of interview. The original notes of the interview were produced at the Preliminary Investigation and form part of the record.

Uday Chand has since died. The prosecution therefore intends to call another policeman, Maha Ram, to give evidence that he was present and witnessed the statement and to produce the statement as an exhibit.

I have already ruled that Maha Ram can be called as an additional witness pursuant to S.288 of the Criminal Procedure Code.

The defence objects to the admissibility of the caution statement. The ground submitted is that Maha Ram was not present when the interview took place and therefore cannot produce the record of that interview.

That is the only ground of objection. During the course of the voir dire hearing counsel for the accused confirmed on several occasions that the ruling on admissibility depends on the factual issue of whether Maha Ram was present during the interview. If he was, then the record of interview can be produced by him. If he was not, then he cannot produce the document.

The only witnesses on this issue have been Const. Maha Ram for the State and the Accused for the defence. The Court must determine the respective credibility of these two witnesses in determining whether or not the State has proved that Maha Ram was present and is therefore able to produce the document.

I do not need to review the evidence of these two witnesses at length. Maha Ram said that at 8.30 am on 26th December 1994 he was completing a 24 hour shift at Samabula Police Station. He only needed to write up his dockets and then he would go home. However, he was instructed by Uday Chand to witness the caution interview. This took place in a small crime office. Uday Chand and the Accused were seated at a table. Uday Chand asked questions and wrote down the answers given by the accused. Maha Ram said that he sat at another table in the room. He said that he watched the interview and did his dockets. He sometimes got up walked to the door and smoked a cigarette. He was in the room at all times. The Accused was asked to sign and refused. Maha Ram was then asked by Uday Chand to sign as a witness. This was done after each page of the interview was completed. Maha Ram said that after the interview was completed he finished his dockets handed them to the Crime writer and signed off.

The Accused gave very brief evidence. He said that during the interview he and Uday Chand were the only persons in the room. Nobody else was there and nobody came in during the interview.

Both these witnesses were extensively cross-examined.

It is not possible for me to deal with every facet of the evidence given by each witness. Some apparent inconsistencies have been highlighted by counsel. Recollections of minor details will be dimmed after the lapse of time. The issue is one of credibility. It is not a matter of misunderstanding or faulty recollection. Either Maha Ram was present or he was not.

On the basic element of credibility I was most impressed by Maha Ram. There was no subtlety or evasiveness about his testimony. In some ways he was quite ingenuous. His testimony was convincing. For instance, his natural umbrage came through very strongly when it was suggested to him that his signatures were applied some time after the interview and he replied "Thats not true".

In comparison the Accused’s testimony and demeanour were not impressive.

Not only was Maha Ram a credible witness but there are other matters that support his testimony. I mention just a few. Having just completed a 24 hour shift he would not be expected to be wanting to stay on longer at the Police Station. He would normally have completed his dockets and left about 9.30am. Instead he did not complete his duties and leave until 12.30pm. Something must have happened to keep him at the station until that time. Further, he made entries in his notebook which included an entry after the completion of the caution interview. The Accused refused to sign when the initial question was put to him of which language he wished to have the interview recorded in. It would have been customary to have a witness, but if there was not one, Uday Chand would have realized at that early stage that one was necessary. If, as suggested by the defence, he had waited until the end of the interview to find one, Maha Ram would no longer have been at the station. It is again most significant that Maha Ram did not finally leave the station until 12.30pm.

I do not find it necessary to elaborate further. Suffice it to say that I accept the evidence of Maha Ram and reject that of the Accused.

Accordingly the objection to the production of the record of caution interview by Maha Ram is dismissed

Justice D.B. Pain