N9390

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 851 OF 2019
THE STATE
V
KELLY JOE
(NO. 2)

Waigani: Ganaii, AJ.
2021: 13th October

CRIMINAL LAW – Evidence – Charge of Sexual Penetration of A Child - Admissibility of Medical Report - Section 61 of the Evidence Act – Objection to State witness tendering Medical Report - Competency of State witness to tender Business Records – Objection Upheld – Refusal to admit Medical Report into evidence 

Held:

1.	For the purposes of tendering a Medical Report as a business record, pursuant to section 61 of the Evidence Act, a State witness who is the author of the medical report or a person who has had custody of the report, is a competent witness to tender the report: Naepe v State [2020] PGSC 144; SC2072 (25 August 2020) applied.

2.	Apart from being the author of the Medical Report, a competent witness is someone who is a custodian of the records, is a co-signatory to that report, who has had some knowledge of the conduct of the medical examination on the patient and who has dealt with the report in the regular course of the business of the clinic.  

3.	Where the State had not obtained an affidavit from the custodian of the business records, it had failed to show that the medical report was produced in the regular course of business. Consequently, the State had not fulfilled the requirements of establishing the authenticity and the trustworthiness of the medical report. 

4.	The court therefore, refuses to admit into evidence the medical report on the basis of non-compliance with section 61 of the Evidence Act.

Cases Cited

Naepe v State [2020] PGSC 144; SC2072 

Law Cited

Criminal Code, Sections 299A
Evidence Act, Section 61

Text

Carter’s Criminal Law of Queensland, Tenth Edition p. 620

Counsel

Ms Mercy Tamate, for the State
Mr David Kayok, for the Accused
 
RULING ON ADMISSIBILITY OF EVIDENCE
 
13th October, 2021

1.	GANAII, AJ:  This is a ruling on the admissibility of a Medical Report. The accused Kelly Joe stands charged with three counts of sexual penetration of a Child under the age of 16 years, contrary to section 229A (1) of the Criminal Code.  The accused denied the allegations. 

2.	In the course of the trial, State called a Health Extension Officer (HEO), Sister Waure, for the purposes of tendering a medical report from another HEO, Ms Gole. Since the making of the report, Ms Gole had left the employ of the Family Sexual Violence (FSV) Clinic of the Port Moresby General Hospital and moved to another province. She was unreached for trial. 

3.	State relied on Section 61 of the Evidence Act arguing that another medical officer can speak on the report and can tender it. Defence objected on the basis that Sister Waure is not the author of the report and the report is not trustworthy. 

Issue

4.	The issue for consideration is whether the medical report can be admitted into evidence through Sister Waure. The sub issue is whether the State had established the authenticity and trustworthiness of the report pursuant to the requirements of section 61 of the Evidence Act.
Law

5. 	Section 61 of the Evidence Act reads:

“61. 		BUSINESS RECORDS.

(1)	In this section, “writing” includes a photographic reproduction or photostatic reproduction of a document.

(2)	Subject to Subsection (3), a writing purporting to be a memorandum or record of an act, matter or event is admissible in evidence in a court as proof of the facts stated in it if it appears to the court that–

(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

(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.

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

(4)	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–

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

(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.

(5) In the exercise of the discretion of a court under this section, the court is not obliged to receive formal testimony but may inform itself in any way that it thinks fit and in particular by the affidavit, oath, affirmation or certificate of a person who professes to have knowledge of any of the matters to which the writing relates or of the circumstances relating to its preparation.”
Evidence of Sister Waure

6. 	A summary of the main aspects of Sister Waure’s evidence pertinent to ascertaining the issue of trustworthiness and admissibility of the medical report under section 61 of the Evidence Act is stated here:
1)	Sister Waure possessed the necessary qualifications, skills and experience 
as a Health Extension Officer. She has had many years of experience in dealing with patients who complained of being victims of sexual assaults. She said she is therefore qualified to speak on any report in her area of expertise.

2)	When asked if she had personal knowledge that the former medical 
officer, Ms. Gole had attended to a patient or victim of alleged sexual assault, subject of the medical report in this trial, Sister Waure said she had not and did not see the patient personally. 

3)	In her evidence, Sister Waure only said that in the course of her duties, 
she became aware generally that Ms. Gole attended to such cases and did such reports.

4)	Sister Waure also stated specifically that the practice at the clinic is 
that after the Medical Reports are done by the examining officer, they are perused, typed, edited, printed and signed by two officers. The two specific officers are the Medical Examining Officers themselves and the Co-ordinator in charge of the Family and Sexual Violence (FSV) Clinic. The Co-ordinator for the Port Moresby General Hospital, FSV Clinic is Ms. Tessie Soi, who was not called to give evidence and whose affidavit was not obtained and tendered. 

Submissions

7.  	State submitted that according to Sister Waure’s evidence, she is qualified and was in the employ of the FSV Clinic as a Health Extension Officer. She had done many reports similar in nature to the subject report. Although she had not been there when the patient or victim of the alleged sexual assault, who is the subject of this medical report, was examined by another examining officer, and a report was made to that effect, State submits that she can speak on the report due to her qualifications and experience in dealing with victims of sexual crimes. As such State submitted that the Medical Report could be tendered through Sister Waure.

8. 	Defence objected on the basis of trustworthiness of the report, arguing that Sister Waure was not the author of the report and is not the proper witness to tender the report for purposes of Section 61 of the Evidence Act. 

Application

9.	Section 61 of the Evidence Act, in my respectful view, requires the State to act in two ways.  Firstly, to demonstrate to the satisfaction of the court that the person whom the State relies on to tender a document as a Business Record is a competent person to do so; and secondly, in order for the court to accept into evidence the business record the competent witness is called to tender, the State must show that the witness is able to prove the authenticity and trustworthiness of the records. 

Competency of the witness

10.	On the competency of the witness, in tendering medical reports as business records, the state must show that the witness is the author of the medical report having conducted the medical examination and reduced their findings into a report; is a co-signatory or administrative head of the hospital or clinic; has dealt with the patient or report in the ordinary course of the hospital’s business and is a qualified medical expert. Principle in Naepe v State [2020] PGSC 144; SC2072 (25th August 2020), adopted and applied. 

Trustworthiness of the Medical Report

11.	On the trustworthiness of the Medical Report, the state must show through the competent witness that the Medical Report is a memorandum made in the regular course of the clinic’s business; the source of the information; the method and time of preparation of the memorandum or record were such as to indicate its trustworthiness and the document was made in the interest of justice. The principle of interest of justice connotes to fairness in the circumstance of the case. 

12. 	In considering the competency of a witness and the trustworthiness of a business record, the court is required to give due consideration to the source from which the writing is produced and the circumstance of receipt and custody of the report. The court is required to inform itself through oral or affidavit evidence from a person who professes to have knowledge of the record relating to its preparation.

13.	During Sister Waure’s evidence, she said she had not seen the patient the subject of the report State is seeking to tender. She said she only generally knew that Ms. Gole attended to such cases and did such reports.  There were no further questions asked by counsels to clarify the extent to which Sister Waure may or may have not dealt with the concerned patient or the report. The Court infers from her answers that it was highly likely that Sister Waure had not seen or has not had any first-hand information or personal knowledge about the patient. This means Sister Waure had not personally known that the former medical officer Ms. Gole had examined such a patient and had made such a report. Court also infers that she had not had any dealings specifically with the written report by Ms. Gole on the patient.  

14. 	In assisting the court on this issue, Sister Waure’s evidence, for the purpose of section 61 of the Evidence Act, goes to show that the Co-ordinator of the FSV Clinic, Ms. Tessie Soi is one of the two required signatories to every medical report that the clinic produces in the ordinary course of its business. As the Co-ordinator of the Clinic, it is highly probable that she is administratively responsible for records keeping, production of and preservation of the medical reports from the clinic. Ms. Soi, therefore, would have been the appropriate witness the State could have obtained an affidavit from or could have called to give the evidence on the authenticity and trustworthiness of the records held by the clinic. 
15. 	In the case of Naepe v State (supra), on an appeal against conviction, on a charge of manslaughter, the appellant argued that the trial court wrongly relied on the report tendered by another medical doctor other than the one that examined the victim and wrote it. The court held that:
“(1) A doctor through whom a medical report is tendered need not be the doctor who performed the autopsy and compiled the post-mortem records provided the doctor has some knowledge of the autopsy or is the custodian of the records or can give expert opinion on the findings of the autopsy.

(2)Where the trustworthiness of the medical report is called into question, it is legitimate and often desirable and not uncommon for a party to test the opinion of an expert witness by probing cross-examination as to the basis for the formation of that opinion and to adduce expert opinion from a medical practitioner regarding the State’s medical evidence.” 
16.	On the question of whether the Doctor was a competent witness, the Supreme Court said this at paragraph (11):
“A medical report is admissible evidence under s. 37 of the Evidence Act, as a record of scientific examination, or as a business record under s. 61 through the author of the public document or through a second person having the custodian of the record. As the learned authors of Carter’s Criminal Law of Queensland Tenth Edition, relevantly stated at p. 620:
“In modern times it is no longer always possible for an official charged with recording matters of public import in a document for public use to have personal knowledge of their accuracy. It is sufficient if the function originally performed by one man has been fulfilled by two different officials, the first having knowledge of the facts and being under a statutory duty to record that knowledge and forward it to the second who in his turn is under a duty to preserve the document for public inspection””.
17. 	In summary, the Supreme Court went on to say that at trial, the Doctor possessed two important qualities the trial judge was satisfied with. Firstly, he co-signed the autopsy report as the Director of Medical Services at Goroka General Hospital. It is highly probable, his duty included supervision, production and preservation of medical records as public documents. Secondly, the subject matter the doctor was called to give evidence on was within his area of expertise. He was also skilled through study and has vast experience in that area. These attributes qualified the Doctor as the proper person through whom the medical report can be tendered and to testify his expert opinion on the forensic findings on the cause of death.

18.	For reliance on section 61 of the Evidence Act, in the tendering of medical evidence as business records, Naepe v The State (supra) pronounced the basic requirements the State must fulfill to demonstrate that its witness is competent in establishing the competency of the witness and the authenticity and trustworthiness of a medical report done by another medical officer. These requirements are that in the regular course of business, the Doctor has had some knowledge of the medical examination conducted on the patient; they must have dealt with the report containing the findings; they were the custodian of the record as the Administrative Head of the hospital, they had co-signed the report; and they are qualified to give their expert opinion on the report. 
19.	In Naepe v State (supra), the Doctor was called not only as an expert witness to speak on the contents of the report, but also as the administrative head of the hospital, having the administrative function of among others ensuring the preservation and production of the medical records kept by the hospital as and when required as public documents. The Doctor was therefore, a competent witness having custody of the records as well as an expert witness who was able to speak on the contents of it.
20.	In this present case, Sister Waure did possess the required and necessary qualifications, skills and experience to speak on the contents of the report from the clinic’s records. However, where the defence has denied sexual penetration and has raised objections arguing the trustworthiness of such a report and therefore, raising issues of authenticity, the interest of justice requires that the source of such a record must firstly be established by an appropriate custodian of that record. 
21. 	Section 61 ss (5) of the Evidence Act anticipates that this can be done by calling someone or obtaining an affidavit from such a qualified person. In this instance, Ms. Soi, being the Co-ordinator of the clinic, a co-signatory to all the medical reports and thus bearing the administrative function as custodian of the records for supervision, preservation, and production of such records, would have been the competent witness to tender the report by. Sister Waure could then speak on the contents of it where her qualifications, skills and experience will enable her to competently do so. 
22. 	Consequently, where she was not competent to speak on the authenticity of the report, the State had failed to establish the trustworthiness of it so as to fulfill the requirements of Section 61 of the Evidence Act. 
23.	I uphold the objection on the basis of lack of authenticity and trustworthiness. In the interest of justice, and where legal requirements under section 61 of the Evidence Act had not been complied with, I refuse the application by the State in seeking to tender the Medical Report into evidence. The consequential order is that this Court will not allow the admittance of the Medical Report into evidence through this witness.
Order

24.	The court refuses to allow the admittance of the medical report into evidence. 
________________________________________________________________
Public Prosecutor: 	           Lawyer for the State              
Public Solicitors:		Lawyer for the Accused