Langford v Reginam [1974] FJLawRp 4; [1974] 20 FLR 11 (22 February 1974)

(1974) 20 FLR 11

SUPREME COURT OF FIJI

COLIN OLIN RAYMOND LANGFORD

-v-

REGINAM

[SUPREME COURT, 1974 (Grant Ag. C.J.), 22^nd Febru/p>

Appellate Jurisdiction

Criminal law – traffic offence – driving under the influence of drink – Traffic Ordinance (Cap. 152) s.39(1) 1; whether reports of doctodoctor and government analyst properly admitted evidence.

Criminal law – practice and procedure – whether medical textbooks evidence per se – whether magistrate entitled to have recourse to such textbooks.

Road Traffic – driving under the influence of drink – Traffic Ordinance (Cap 152) s.39(1) – whether reports of doctor and government analyst properly admitted in evidence.

Criminal law – evidence and proof – evidence of expert witnesses to be subject to same scrutiny as lay witnesses.

At the trial for driving a motor vehicle whilst unfit through drink, the doctor who examined the appellant was called to give evidence. He was permitted by the magistrate to put in evidence his written medical report in which he gave as his opinion that the appellant was so affected by drink as to be unfit to drive. In the same way, the government analyst put in evidence his written report of a urine test carried out on the appellant. The latter report was ignored by the magistrate because, having consulted a medical textbook, he held that the contents of the report should not be relied on.

Held on appeal:

1. Although the reports, if contemporaneous, could certainly have been used to refresh their makers’ memories, they should not have been produced in evidence unless they came within the exceptions under p>3. Evid Evidence of expert witnesses should be treated to the same careful scrutiny as, and compared with, the evidence of all the other witnesses in the case.

Cases referred to:
Boys v Blenkinsop [1968] Crim. LR 513.
Davie v Edinburgh Magistrates [1953] SC 34.
Abinger v Ashton [1873] UKLawRpEq 185; [1873] LR 17 Eq. 358.
A v McMeckaneckan [1895] UKLawRpAC 8; [1895] AC 310.
R v Matheson (1958) 42 Cr A 145;8] 2 R 8 ER 87.

Appeal against the conviction iion in the Magistrate’s Court for driving whilst under the influencerink.

GRANT Ag. C.J.nd Februarp>

On then the 20he 20^th November 1973 after trialuvt Suva Magistrate’s Court on a charge of driving a motor vehicle whilst under the influence of drink contrary to se 39(1the Traffic OrdinOrdinance and a charge of dangerous driving contrary to section 38(1) of t of the Traffic Ordinance the appellant was acquitted of dangerous driving but convicted of driving a motor vehicle whilst under the influence of drink to such an extent as to be incapable of having proper control of the vehicle.

The appellant appealed against conviction on the grounds that:

(i) the learned Magistrate was wrong in law in allowing a written report of a urine test to be admitted in evidence;

(ii) the learned Magistrate was wrong in law in holding that the evidence of a doctor proved the case against the appellant beyond all reasonable doubt.

On the hearing of the appeal the Crown conceded that the written report of the urine test was wrongly admitted in evidence, as indeed was a written medical report; that the trial Magistrate simply adopted the opinion of a doctor without critically examining his testimony and that evidence, which accordingly to the trial Magistrate clearly indicated that the appellant was not responsible for a traffic accident, indicated no less clearly that the appellant was capable of having proper control of a motor vehicle.

In those circumstances, I do not consider it necessary to set out the facts but will confine myself to commenting on particular points raised on the hearing of the appeal.

After a traffic accident in which the appellant was injured he was examined by a doctor at the request of the police to ascertain whether or not he was under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle. This doctor was called as a witness by the prosecution and was permitted by the trial Magistrate to put in evidence his written medical report in which he gave as his opinion that the appellant was so affected. This report if contemporaneous could certainly have been used by the doctor to refresh his memory but it should not have been produced in evidence unless, as a statutory exception to the best evidence rule, section 184A of the Criminal Procedure Code ad, under the provisions ofns of which certain documents may be produced in evidence in lieu of, but not in addition to, the evidof a witness and and subject to the requirements of that section being complied with, whic which was not the case here.

The same wrong procedure was followed in respect of the written report of a urine test carried out by a government analyst who was called to give oral testimony, but so far as this report was concerned the trial Magistrate, after incorrectly admitting it, stated in his judgment that he proposed to ignore it because, having consulted a certain medical textbook which he cited, he did not consider that the contents of the report should be relied upon. While a medical witness may refer or be referred to medical textbooks to refresh his memory or to correct or confirm his opinion, and may adopt particular passages as accurately representing his views thereby making those passages part of his own testimony, medical textbooks are not evidence per se and a court is not entitled to have recourse to them. Phipson on Evidence 11^th Ed. At para 1301 does“#8220;Magistrates are entitled to and should consult textbooks if they are referred to them” but this, of course, relates only to legal textbooks coing propositions based on case law (Boys v Blenkinsop [1968] Crim. LR 513).

Turning to the main ground of appeal, the doctor like any other expert witness was called to assist the court on technical matters, but the court is not entitledccept an expert’s opinion blindly nor does an expert&pert’s opinion relieve the court from coming to its own conclusions based on all of the evidence, including the evidence of the expert witness. An expert gives evidence – he does not decide the issue. No one is infallible and no expert, however specialized his knowledge, would claim to be. The opinion of an expert is only as reliable as his reasons for reaching that opinion and the methods employed to establish his reasons. If the methods employed consist of tests, the court must look at the nature of the tests and the qualifications and experience of the person administering them. If the tests are themselves inadequate or the qualifications and experience of the person interpreting the results are limited, this must affect the weight to be attached to the reasons based on those tests and to the opinion reached.

The duty of expert witnesses, as succinctly expressed by Lord President Cooper in Davieinburgh Magistratesrates [1953] SC 34 , &#8s to sh the judge or j or jury with the necessaryssary scientific criteria for testing the the accuracy of their conclusions, so as able the judge or jury to form their own independent judgment by the application of these cese criteria to the facts proved in evidence.” In that case the Court of Session rejected the proposition that a judge or jury is bound to adopt the views of an expert, even if they should be uncontradicted, as “The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.” (ibid).

Indeed, there have been occasions when the courts have approached the testimony of expert witnesses with some degree of suspicion. As was stated by Sir George Jessel, MR in Abinger v Ashton[1873] LR 17;Eq. 358 at 374:

“Suppose a person wants to sell a house, and as he wants a ve a very high value put upon it, he sends to ten valuers, and out of these he selects the three who have put the highest value on the house. The purchaser wants a very low value, and selects out of a number of valuers three of the lowest. Each set of valuers values high or low according to the requirements of the person who employs them. I have known the same sort of thing done even as regards medical evidence. The consequence is, you do not get fair professional opinion, but an exceptional opinion by evidence selected in this way.

Thatg so, when I ha I have expert evidence I am, as I said before, very distrustful a priori; and I am anxious to ascertain the char of the experts, and to see the position they occupy.”

I do not suggest that that the evidence of an expert witness should necessarily be viewed with distrust, but it should be treated with caution and subjected at least to the same careful scrutiny as, and compared with, the evidence of all the other witnesses in the case. Verdicts may be set aside as against the weight of evidence if insufficient medical evidence is accepted in preference to direct and convincing testimony of witnesses to facts (e.g. Aitken v McMeekan[1895] AC 310). Conversely, where there is unchallenged medical evidence in no way rebutted and there are no facts or circumstances which would justify a rejection of the opinions of medical men, a verdict contrary to their opinion would be against the weight of evidence (vide R v Matheson&#19580 9580 42 Cr App R 145, in which it is stressed by the Court of Criminal Appeal (at p.152) that its decision “in no way departs from what has been said in other cases, that the decisi for the jury and not for tfor the doctors; it only emphasizes that a verdict must be supported by evidence.”)

In the circumstances of this case the opinion of the doctor, which was adopted indiscriminately by the trial Magistrate, was patently against the weight of evidence. The direct and convincing testimony of witnesses to facts which satisfied the trial Magistrate that the appellant was not driving dangerously could not fail but to raise more than a reasonable doubt as to whether he was under the influence of drink to such an extent as to be incapable of having proper control of the motor vehicle which he was driving.

The appeal is accordingly allowed, the conviction quashed and the sentence including the order of disqualification set aside.

Appeal allowed.

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