Kerua v The State [1981] PGNC 78; [1981] PNGLR 357 (9 September 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 357 - Doa Kerua v The State 

[1981] PNGLR 357

N361(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DOA KERUA

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

Pratt J

9 September 1981

EVIDENCE - “Business” records - Admissibility - Hospital records - Drug charts - Business includes public administration - Proof of system required - Trustworthiness of document to be established - Evidence Act 1975, s. 30.

Section 30 of the Evidence Act 1975 provides:

Proof of certain business records.

N1>(1)      Subject to Subsection (2), a writing purporting to be a memorandum or record of an act, matter, or event is admissible in evidence as proof of the facts stated therein if it appears to the court that:

N2>(a)      the memorandum or record was made in the regular course of a business at or about the time of the doing or occurrence of the act, matter or event; and

N2>(b)      the source of information, and the method and time of the preparation of the memorandum or record, were such as to indicate its trustworthiness.

N1>(2)      Subsection (1) does not require a court to admit a writing in evidence if it appears to the court that the interests of justice would not be served by the admission of the writing.

N1>(3)      For the purposes of this section, a court, in considering whether a writing should be admitted in evidence, shall have regard to all relevant circumstances, including (but without prejudice to the generality of this subsection):

N2>(a)      the source from which the writing is produced; and

N2>(b)      the circumstances of its receipt and custody by the person producing it or by any person from whom it has been obtained for the purpose of producing it in evidence ...

On an application to admit drug sheets being hospital records of drugs administered to patients:

Held

N1>(1)      The term “business” in s. 30(1)(a) is to be interpreted in its extended sense and covers, inter alia, public administration;

R. v. Crayden [1978] 2 All E.R. 700 distinguished.

N1>(2)      Accordingly, a hospital record can be a business record for the purposes of the section;

N1>(3)      A business record is not however admissible unless there is proof:

N2>(a)      of how the documents are made in accordance with s. 30(1)(a); and

N2>(b)      of the trustworthiness of the source of information and the method of preparation.

Ruling on Admissibility of Evidence

This was a ruling on the admissibility of hospital drug charts sought to be tendered to show that on certain occasions a hospital patient had not received medication.

Counsel

P. Formosa, for the petitioner.

M. Fitzsimmons, for the defendant.

9 September 1981

PRATT J:  Four drug charts covering specific periods in 1977 are sought to be tendered through the male nurse Keoti-El who was the officer in charge of Wards 1 to 4 on the night of the fire. The purpose of tendering these documents I gather is to show that On Parak was deprived of some of his medication on occasions prior to that on which the fire took place and thus the evidence that he did not engage in acts of aggression already given by Dr. Beavis prior to 16th August, 1977, even despite the lack of medication, makes his act on this particular night even more surprising. The tender is sought under s. 30 of the Evidence Act 1975 though some of the entries may be in the witness’s own hand. The tender is objected to on the basis that the documents are not business documents within the meaning of that term in the Evidence Act.

Considerable weight was placed by learned counsel for the plaintiff on R. v. Crayden[dxcii]¹. I do not propose to deal individually with the submissions made for and against the proposal. Certainly Crayden’s case (supra) is highly persuasive but the first test is whether or not we are dealing with an interpretation of the same piece of legislation. It is clear that Crayden was much concerned with interpretation of the word “business” within the context of the United Kingdom legislation. With great respect to their Lordships, I have some little difficulty in following the logic of their reasoning but I agree with the author of an article appearing at p. 18 of Vol. 5, Queensland Lawyer, that perhaps there exist assumptions arising out of the National Health Scheme of which we are ignorant. Perhaps also the term “public utility” has some special meaning of which we are not aware. Whether or not the decision in this case adds to the common law of the United Kingdom, and is therefore directly applicable to the underlying law of Papua New Guinea, is unnecessary for me to decide. What I must first do is examine the words of our own section which is considerably different both in matters covered and requirements of proof to that in the United Kingdom. I do not have the same difficulties as Mr. Formosa with the interpretation section in our Act covering the term “business”. The first thing which strikes me is that such term covers, inter alia, “public administration” in Papua New Guinea as opposed to the Queensland and United Kingdom section which refers to “public transport, public utility or similar undertaking etc. by the Crown”. Furthermore, the Court of Criminal Appeal in Crayden[dxciii]² laid special emphasis on the long title to the Act “to make certain trade or business records” available, but we have no long title of any relevance to the present problem to render assistance. It seems to me that the term “public administration” is a very wide one indeed, in fact far wider than the government may some day wish. Perhaps the term is properly recast as, “anything to do with the administration of the various arms of the public service” — at least while performing its functions vis-à-vis members of the public as opposed to documentary material covering matters exclusively between various members of and within the Public Service of which I need make no observations or ruling in this case.

The evidence shows that the records sought to be tendered are normal hospital sheets to record what drugs are issued and administered to every patient who enters the hospital as an “in patient”. I do not think the obvious need be laboured. They are clearly part of the hospital system and were used as such by Dr. Beavis in his evidence for the plaintiff — or at least one sheet was so used and I restrict my comment for the moment to that one sheet. In the ordinary run of things, I can think of few documents which could be so important and which would require meticulous attention to detail. Prima facie one would think they are certainly more important than most business documents — I’m using the term there in its more restricted sense — and are reliable and accurate as to what they contain. They are obviously there for inspection at any time by senior personnel and drawn up by someone or other of some training, though how much so would really affect a finding under s. 30(1)(b). I am here dealing with a prima facie approach to such document. On the face of it, one could fairly assume that it contained accurate information. In the light therefore of the broad spectrum covered by the term “public administration” and bearing in mind that there is clear evidence that the hospital system is either entirely covered by government control or, in some instances, as in the case of the Kotna Health Centre, partly covered by government control, together with my interpretation of the phrase “public administration”, I cannot see how I could uphold an objection to admissibility of the day chart on the basis that it does not come within the definition of “business document”.

I had during consideration of this ruling become a little troubled by the fact that this Court has received evidence of medical treatment given to a patient who is not before the court — in short, whether medical privilege and medical confidence entered into the balance. In the circumstances of this case however, the patient having been dealt with by a court in 1978 for charges arising out of the fire and as Dr. Beavis made no indication of any reservations in giving his evidence to the court and further in the light of the wording of s. 77 of the Evidence Act covering privilege in medical matters, I do not think I need trouble myself further on this aspect.

Finally I do not agree with defence counsel that a person occupying some particular official position such as “keeper of the records” as for example in Crayden’s case[dxciv]³ is the only one entitled to produce documents before the court. Much will depend on the individual circumstances. In the present case the witness Keoti-El is the one who handles the documents himself and is in charge of them during each shift, at least the shift at the time of the fire. Reference to and compilation of these records is an ordinary part of his functions. The person responsible for keeping custody of all hospital records is normally the person who comes to court but there is nothing magical about it. The development in the law has kept pace with the complexities of huge city hospitals, whereas the person producing the document before me is the one who was directly responsible for supervising its compilation and indeed has entered one matter thereon in his own hand.

Whether the documents themselves are ultimately admissible will depend on compliance with the requirements of s. 30(1)(a) and (b). At present the evidence is somewhat meagre to say the least. Although this trial has gone for considerably longer than was originally anticipated, I do not think I have any alternative but to direct that a voire dire be held in order to establish whether or not these particular documents comply with the requirements set forth in s. 30(1)(a) and (b) of the Evidence Act. There is also the final question of whether or not I should exclude the documents in the interests of justice. I shall postpone my ruling until the conclusion of the voire dire. At present I can certainly see no basis for exclusion. I do not consider that because a piece of evidence merely works to the disadvantage of one party, that such result could by any stretch of the imagination be regarded as something against the interests of justice. There must be something much more tangible than that.

RULING AFTER VOIRE DIRE

Since giving my ruling on whether or not the documents sought to be tendered amounted to business documents within the meaning of s. 30, evidence has now been led in accordance with my direction to establish whether or not s. 30(1)(a) and (b) have been complied with. As I indicated at the close of Mr. Fitzsimmons’ submissions, the reason for the existence of this section in the Evidence Act is to overcome the rule against hearsay, an area of the law which is undergoing a considerable amount of change at present. There are always dangers of course when allowing hearsay evidence into a trial in order to establish the existence of a fact which is relevant to the proceedings. However the legislature and those persons examining the existing state of the law have considered it necessary to cut down the ambit of the hearsay rule and if I might say with great respect to both those authorities, justifiably so. But in so doing, they have endeavoured to ensure as much as possible that the material put before the court is reliable and trustworthy and can be acted upon to establish the facts in dispute. For that reason it is not surprising that the sections incorporated into the various pieces of legislation set down fairly stringent prerequisites. Our own section is perhaps not quite as stringent as the United Kingdom section which was also adopted in Queensland. I have not had the advantage of reading the New South Wales section but I understand that also is quite a complex section and covers a number of areas. I mention this only because it indicates the care with which the legislature considers it necessary to treat such material, whether the proceedings be criminal or civil.

Perhaps the best way I can approach the evidence which has been adduced before me is to look at the requirements of the two sub-sections and see whether the material measures up to those requirements or not. Looking first of all at sub-s. (a), the memorandum or record must be made in the regular course of business. Now it may be true in this instance I could perhaps infer that a document (and I have not seen the document itself), produced in respect of drugs administered in a hospital is compiled in the regular course of business. But when I look at the material before me, there is really no evidence from which I can make such an inference. There is nothing to indicate to me that these documents are circulated in the first place as a result of general instructions from the hospital superintendent to his nursing staff. There is nothing before me which indicates the manner and method which is to be used in filling up the documents. There is nothing before me which shows how the completion of these documents fits in with the regular hospital routine. There is some evidence, if I go over to the next point, that they were completed generally speaking within about half an hour of the act being done. However the major difficulty I find with the evidence at the moment is that I have little or no evidence as to how these documents form part of the business (in its extended sense) of the hospital. On that basis alone I think I would be in some difficulty in permitting the material to come in as proof of the facts that certain drugs were or were not administered on certain dates.

It is, however, when I go to sub-s. (b) that I have my greatest difficulties. I will deal with “the source” of the information first. Mr. El has given evidence that he asks the nurse whether or not he has administered the drug. Immediately we have a hearsay on hearsay. Mr. El himself in the vast majority of instances did not administer the drug. The document therefore is evidence of what somebody else did who is not present in this Court. Mr. El compounds that position by saying that he checks the document by asking that person whether or not he gave the drug. The document records what the compiler has been told. Now of itself I do not say that that would necessarily rule the document out, but the nature of this source of information gives me reason to pause. One assumes that these drugs are dispensed under a system, that there is some system whereby one acquires the drugs in the first place in order to administer them to the patient, that there is some checking which goes on to see that proper drugs are issued in accordance with doctor’s directions, that there are in fact doctor’s directions in existence. One would also assume that there would be evidence that the checking officer checked the drugs had in fact been issued and that the drugs had in fact been administered. At the very least, I suppose, one would say that the only way of really doing that is to check both with the nurse and with the patient. But there may be some other means of checking that the drugs have been administered. Of course I do not think that I would be entitled to assume that where drugs are issued, they are purloined by the nurses who have to administer them. And indeed it would defeat the whole purpose of this section if it were necessary to bring those nurses along to prove that this had not in fact occurred. But I feel sure there must be a system within the hospital which ensures that only proper drugs are issued in proper quantities and that there is a further system which shows that at the end of the day those drugs are no longer on the patient’s table either because they have been returned to the central stock or they are in the patient’s stomach and nowhere else. Had there been evidence covering these matters, I do not think it would have been essential for this particular witness to have been present each time the drugs were issued. He would be giving evidence of general system and he would be able to say that what appeared on the face of the documents was, both because of that general system and a compliance with instructions, quite reliable. In the upshot, what I am really saying is that because of my doubts as to the source of information and the method of the preparation of the record, I have doubts as to the trustworthiness of the document. [That’s nothing to do with what I feel may or may not be the position concerning Mr. El himself.] As I appreciate the requirement of the section, it is the trustworthiness of that piece of paper when examined in the light of the evidence concerning the nature of the system and its reliability which I must have regard to. What all this reduces itself to is that the defence has unfortunately found itself in the position at the moment where, through this witness anyhow, it is unable to establish an adequate system before me. True it is the witness has mentioned one way in which he checks on whether the drugs are administered, but one instance does not create a system and in any case I would suspect that there is a great deal more in the system than merely a verbal checking by the witness with one of the persons who administered the drugs.

Having come to the view therefore that the evidence before me does not establish sufficiently that (a) the documents were made in the regular course of business at or about the time of the occurrence of the act and, (b) that the source of information particularly, and to some extent the method of preparation, of the memorandum are trustworthy, it is therefore unnecessary for me to go on to decide whether I should exercise my discretion one way or the other under sub-s. (2). For these reasons I uphold the objection of plaintiff’s counsel and reject the tender of these documents.

Ruled accordingly.

Solicitor for the petitioner: A. Amet, Public Solicitor.

Solicitor for the defendant: B. Emos.

[dxcii][1978] 2 All E.R. 700; 67 Cr. App. R. 1.

[dxciii][1978] 2 All E.R. 700; 67 Cr. App. R. 1.

[dxciv] [1978] 2 All E.R. 700; 67 Cr. App. R. 1.