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HIGH COURT OF FIJI ISLANDS
THE STATE
v
DAVENDRA SINGH
[HIGH COURT, 1997 (Pain J) 29 September]
Criminal Jurisdiction
Evidence: Criminal- admissibility of post mortem report- whether CWM Hospital a “business”- whether an authority established under the provisions of an Act- whether report compiled in the course of business- Evidence Act (Cap 41) Secti (1) & 4.p; 4.
In the course of a criminal trial the prosecution sought to adduce a post mortem report, the maker of which had left Fiji. Thh Court HELD: that the report was admissible in evidence sice since: (i) the CWM Hospital is a business within the extended definition contained in Section 2 (1) of the Act and (ii) the report was a record of that business within Section 4.
Cases cited:
Bramwell v. Lacy (1878-79) 10 Ch D p>
p>Commissioner of Taxation v. Bank of Western Australia Ltd
Commissioner of Taxation (Commonwealth) v. Silverton Tramway
&
& Co0;Ltd /160;[1953] HCA 79;
Commissioner of Taxation v. State Bank of New South Wales Ltd
Federal Commissioner of Taxation v. Silverton Tramways Co. Ltd
&##160; &##160; [1953] HCA 79; (rd">(1953) [1953] HCA 79; 88 CLR 559
Hills Ltd v. University Hospital Boardovernors [1956] 1 QB 91
Myers v D.P.P. [1965] AC 101
Portman v. Home Hospital Association (188 Ch D 81
p>R vyden [1978] 2 All All ER 700
R v. TJW [1989] 1 Qd
p>R v. Wood (176 Crim. App3
R>Renmark Hotel Inc. v. Federal Commissioner of T of Taxation (199
ـ ټ0;#160; CLR 1CLR 1CLR 10, 18p>Seatainer Terminals Lals Ltd v. The Federal Commission of Taxation
#116060;¦ټ&#(1;&#(1979) 79 ATC 4622<4622
p>SmithSmith v. Australian National Line and Comm Commonwealth
Top of the Croy Ltdederal Commissioner of Taxation
#160;  ټ & <
( 880)TC A17
#160;
W. Clarke for the State
A. Gates for the accused.
b>Pa/b>:>
The >The Court has hevidend suions rela relating ting to thto the adme admissibissibility of certain items of evidence. Ace. An urgent
decision is needed as the assessove non absent for virt virtuallyually 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 sibility of the Pose 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 issues 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 roduction of CWM Hospital Clinical records. Also State Counsel, in view of the very unsatissatisfactory 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 Stdvanced 4 groundsounds for the production of this document in evidence. As a business record under the Evidence Act, as a pubocument, under the Courtrt’s interest jurisdiction and at common law.
The argument fmission uion under the ref="http://www.paclii.org/.org/fj/legis/consol_act/ea80/">Evidence Act is based on Section 4 of cte Act (Cap. 41) which stabr>
“4.
҈
In any cany criminal proceedings where direct oral evidence of a fact be aible, any statement contained
in a document and tand tending to establish that fact shall, all, on production of the document, be admissible as evidof that fact
if -
#160;
(b) ; the perhon wpp supplied thed 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.”
Alsortant is an extendetended definition given to the word “business” by Section 2(1) which states :
&;2(1)his Act ̵–
1.&##160; n&#The post mortem repm report is a record relating “business” within S.4 of the Act, and
#16>
2.   &
;d Wrether it was led i cour cour that busineusiness. “The word ‘authority’ has long been used to describ0;a body or person&#/u> exercising or command. No . No doubt this has come about by a transfer of meaning from the abstract ction of power or command
tond tothe body or person possessing 221; (emphasis asis added).
The special provisions in S.4 of the Act and this use of the word “business” have theirins ae bason the 1965 CrimiCriminal&#nal
<160;Evidence Act of England. That Act was passed in response to the House of Lords decision in Myers v D.P.P.
In tnd other fields of s of law there has been some conflict as to whether a hospital is a “business”. For instance, inBramwell v Lacy (187810 Ch1 it was held thad that a hospital was a “busineusiness” in terms of a restrictive covenant in a lease prohibiting
tssee from carrying on any business. The Court said “It is in reality an apothecaryry’s business ... whether for profit
or not is immaterial”. Similar decisions were given in Portman v Home Hospital Association (1884) 27 Ch D 81 160;HiHills Ltd v Universispital Board of Govf Governors [1d">[1956] 1 QB 91. However, in
Clearly there is doubt oubt as to whether CWM Hospital would be a “business” within the ordinary meaning of that word
in S.4 of the&#a href="http://www.paclii.org/fj/legis/consol_act/ea80/">Evidence Act. This argument want was not pressed by counsel.
This part of thehrea href="http://www.paclii.org/fj/legis/consol_act/ea80/">Evidence Act relating mission ofness recs recordscords was enacted in 1965. It is clearly based on the English Criminal Evidence Act ofsame year. Section 4 prov providing for the admisadmissibility of such evidence is identicaSection 1 of the English Act.
The issr determination tion in this case is whether CWM Hospital is a “public utility carried on by an authority established
unde provisions of any Act”.
A “public utility” is the provisionision 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 Tals Limited v The Federal Cral Commission of Taxation (1979)TC 4622), the provisiovision of an electricity supply (Rich J in Renmark Hotel Inc. v. Federal Commissioner of Taxation
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.
Thus the hierarch the cthe 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 supervisio been delegated to the Perm 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 ed in thin the Minister of Health to control public hospitals is confirmed upon his appointment by the President. He
is assigned responsibility (inter alia) forconduct of the “business of medical services” a21; and responsibility for
all written law regulating that business including the Public Hospitals and Dispensaries Act (See for example Legal Notice No.74 in Fiji Republic Gazette Supplement No.27 of 1996). 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.
It is not possibl me tome to review thecisio detail. 0;The Commissioner of Taxation v Bank of Western Australiaconcernederned the liability for payment of sales tne of the issues was whether State controlled banks were &#re “authorities”
withi meaning of that what word in an exemption provision. Smith vralian National Lnal Line and Commonwealthconcerned the determination of preliminary quns of law on a personal injury action. One of the issues, ies, in relation to a Limitation Act defence, was whether the first defendant, a State shipping line, was a public authority.
It wi sufficient for meor me to quote an observation from each case regarding the ordinary meaning of the word “authority”:
In Smith v Auiaralational Lnal Line and nwealth Ipp J cite cited with approval the words of Dixon CJ in Comoner of Taxation (Com (Commonwealth) v Silverton ay Co Limited (1953)88 CLR 559 (565):
>
In Commissioner of TaxatiBa v Bank of Western Australia Ltd., Hill J. said:
“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 pers 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 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.
Whe220;authority”8221; 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 oh an important
public utility as a hospital within the purv purview of one of its Ministers and his Department.
The provs of Section 2(on 2(1) of the
I d see, as suggested bted by the defence, that the retention of the activities of the Permanent Secretary for Posts and Telecommunications
as a third category of public utility affects the intertion of the other two. The 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 the Minister of Health is the authority established under the provisions of the Public Hospitals and Dispensaries Act to manage and co the CWM HoWM Hospital. It t unique to appoint a Minister as an authority. The Minister of Immigration is, for exampleample
the authority for the hearing of appunder S.18 of the Immigration Act (Cap 88).
In ey viM Hospital is a 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 Shin Sectioection 4.
The final matter foermination is whether the post mortem report was completed eted in the course of that business of CWM Hospital.
The defeubmitt the post post mortem report was not compiled by the pathologist at CWM Hospital in t in the course of the business
of the hosp It was compiled for the purposes of this Police investigation. A parallel is drawn with thth the decision in R v Wood޿) 76 C 76 Criminal Appeal R 23. In that case it was held that computer printouts prepared by a firm LSM regarding the chemicalysis
of metals which involved complicated calculations programmed through a computer were were not admissible under the Evidence Act. They had been prepared for the prosecution of the appellanthow that the chemical composition of metal found in his possession corresponded
to the chem chemical composition of parts of a consignment of metals stolen from LSM. (The computer printouts were, however, admissible
as an item of real evidence).
Thuation in the presentesent case is quite different. The Pathology Department is an integral part of CWM Hospital. The provision
thological services is an essential part of the hospital’s business. That includes poes 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 hospitals 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 t most mortem examination in cases of sudden or unnatural death. Further, if a patient dies in hospital from
unknown or uncertaises the hospital would be expected to perform a post mortem examination to ascertain the cahe cause of death if
the relatives agree.
Having regard to al cire 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.
I have nalt with all thll 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 rule that the report is admissible under that section.
It is ecessor me to rulo rule on the other grounds submitted for for production of the report.
The, however, one qualiqualifin to be made. It relates to a matter that was referred to in general terms by counsel but wbut was not
made the ground for any specifbmission. That is that, in terms of Section 4, the documentument 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 mortem
examination containntained in the report.
Admility of Evidencedence of Dr. Krishna
The contents oearlier dier decision of 17.9.97 in relation to the calling of Dr. Krishna as an additional witness pursuant to S.288
of th0;Criminal Procedure Code r160;remainvant and pertinertinent. I will not repeat them.
The chaince that earliearlier decision was given is that a brief of the evidence of Dr. Krishna ha been provided by the prosecution.
It is not as extensive aive as the prosecution memorandum of 11th September 1997 foreshadowed. He refers to the hospital clinical
roles 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 ociapecial 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 lengths in my earlier deci What I said in relation toon to the circumstances under
which the prosecution determined to call Dr. Veilogavi and Dr. Kumar apply equally to Dr. Krishna. A final decision 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 careonsidensideration 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
he record e Preliminary Invy Investigation for this case includes a deposition by a Police lice officer, Uday Chand.
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