IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC0004 of 2005S

STATE

v.

JOSUA NATAKURU

Hearing: 4th October 2005
Ruling: 5th October 2005

Counsel: Mr. D. Prasad with Ms S. Puamau for State
Accused in Person

RULING

The prosecution applies to call a doctor to tender the medical report of the complainant. The doctor was not the examining doctor. The examining doctor no longer lives in Fiji. The doctor whom the prosecution intends to call, would simply read out the report and the findings of the examining doctor, and venture his/her opinion on the cause of the injury found on the complainant. The Accused objects to any doctor, other than the examining doctor being called, saying that he wishes to cross-examine the examining doctor.

In principle, the medical report is a memory-refreshing document for the doctor who wrote it. I doubt that any other doctor could refresh his/her memory from another doctor’s report except to venture an opinion or the accuracy of the record-keeping. Thus the weight of such evidence in substance would be of doubtful value.

The prejudicial effect of the report, which states that the injury (bruising) around the complainant’s vagina was causes by forced entry by a blunt object far outweighs its doubtful probative value. It would have had probative value had the examining doctor been called. In the circumstances the prosecution’s application must fail.

An alternative course of action for the prosecution might have been to tender the report under section 191 of the Criminal Procedure Code. However to my knowledge the Accused was never sent a section 191 notice that the report would be tendered without the doctor. If he had been sent a notice, it is likely that he would have informed the DPP’s Office that he objected to it being tendered. Certainly his position now is that he wishes to cross-examine the examining doctor.

In the absence of a section 191 notice, the mere service of the report with all the other disclosed material, is insufficient to satisfy the requirements of section 191. The Accused must have been put on notice that the prosecution would use the section 191 procedure to tender the medical report.

The report may not be tendered in evidence.

Nazhat Shameem
JUDGE

At Suva
5th October 2005