Supreme Court
Appeal No. 3 of 1980
30th March, 1981.
Barrington-Jones, J.

G.D. Godfrey, for the Appellant
G. Quallo, for the Respondent

Inferior Court Appeal against conviction - Magistrate admitting undated medico-legal form into evidence - Inadmissibility of Evidence - Evidence Ordinance.

J U D G M E N T

The Appellants were convicted of Grievous Harm contrary to Section 75 of the Criminal Code by the one of the Magistrates in Belize City on the 25th March, 1980.

Notice of Appeal dated the 14th July, 1980 discloses three grounds of appeal, but at the hearing leave was given to Counsel for the Appellants to add an additional ground so that the grounds argued before me were, as follows: -

(1) That the learned Magistrate erred in law in admitting into evidence an undated medical certificate;

(2) That the learned Magistrate erred in law in admitting evidence that the Appellant Edward Lord had been previously charged with an offence;

(2) (A) That the learned Magistrate erred in allowing the Prosecution to cross examine the Appellant on a previous charge when the said charge had been withdrawn or not proceeded with; and

(3) That the verdict is unreasonable and cannot be supported having regard to the evidence.

In dealing seriatim with the grounds of appeal advanced by Mr. Godfrey, I turn first to the medico-legal report exhibited in the trial below. It is common ground that this form was dated 17th February, 1980 at Part "A" by the police officer completing it. The Complainant gave evidence of handing the aforesaid form to the doctor and of the doctor completing it and returning it to him. The second (or Part "B") of the form was completed by the doctor and signed by him but he did not date it. So that the real question to be decided here is whether his failure to date the form rendered it inadmissible.

Now Section 36(3) of the Evidence Ordinance provides, as follows:-

"The provisions of this Section shall with the necessary modifications apply in the case of a document purporting to be a report by a registered medical practitioner on any injuries received by a person which are the subject of a prosecution in any trial or indictment, in any preliminary inquiry, or in any proceeding in a Summary Jurisdiction Court:

Provided that the report purports to have been written on the same day as, or on the day following that on which the examination was made by the medical practitioner."

Whilst Mr. Godfrey readily conceded that he was not saying that the failure of the doctor to date the form was fatal, he took the view that there was no other evidence to say that the doctor's examination was carried out on the 17th February, 1980; and posed the question - When was the report completed by the medical practitioner? Mr. Godfrey submitted that there was no witness to say when the form was completed by the medical practitioner. He said that the Magistrate had admitted the medico-legal report after he had objected to its admission and that the Magistrate admitted it refusing to give reasons; and he pointed out that the Magistrate does not deal with this particular matter in his reasons for decision. Mr. Godfrey submitted that the medico-legal report should not have been admitted in the Court below. He further submitted that without the medico-legal report there would be no evidence of grievous injury and thus the charge and conviction could not be sustained.

Mr. Quallo in dealing with this first ground submitted that the Magistrate had not erred in law in admitting the medico-legal report for the following reasons - (1) that there is a date at the head of the form, although he conceded that there was no date at the foot of it; (2) when the medico-legal report is read with the evidence it becomes clear that it is within section 36(3) of the Evidence Ordinance; (3) the Complainant said in evidence that he was chopped on the 17th and that he went to the police and was taken to the hospital to have a medical report made where he says he saw the doctor write the report. He submitted that when read together there is disclosed a clear inference sufficient for the Magistrate to be able to accept that the medico-legal report was written and signed on the same day, i.e. 17th February. He submitted that there was sufficient evidence to admit the medico-legal form and that the fact that the doctor did not enter the date should be seen as a slip by the doctor which was not fatal since it was saved by the supporting evidence.

Looking at the original report form it is clearly dated at its head as 17.2.80 by the police officer completing Part "A". Part "B" has been completed and signed by the doctor but he did not date it. The incident giving rise to the trial below clearly took place on the 17th February, 1980 and in this connection the Complainant's evidence is of some assistance. The relevant portion of what he said at this point is as fol1ows: -

…"The police took me to the hospital to have a medical report made and then they took a statement from me. I took a medico form to the doctor that the police gave me. I saw the doctor. The doctor filled out the form and gave it to me. I saw him do this. This is the same form I saw the doctor write on."

It was at this point that Counsel for the Appellants objected to the admission of the form, but the Magistrate thereafter admitted it.

It is significant that Counsel for the Appellants did not choose to cross examine the Complainant in the Court below regarding his witnessing the doctor completing the form, his handling of it, and his subsequent identification of the medico-legal report in the Court below. That omission to my mind was fatal for on the authority of R v Hart (1932) 23 Cr App R., 202 -

…"Failure to cross-examine a witness on some material part of his evidence, ….. may be treated as an acceptance of the truth of that part …… of his evidence."

I, therefore, find that the learned Magistrate properly admitted the medico-legal report although it was undated by the doctor (which may be construed as a slip on his part) after giving proper consideration to the supporting evidence of the Complainant having taken the said medico-legal report form to the doctor on the 17th February, seeing the doctor complete it, and the doctor giving it back to the Complainant. That disposes of ground (1).

Turning to ground (2). This ground concerns the admission in evidence of part of what the Complainant told the Court below in evidence-in-chief, to wit: -

"I took Edward Lord to Court in connection with receiving stolen goods."

Mr. Godfrey told this Court that he had objected in the Court below to this being admitted in evidence, but there is no reference to any objection having been made in the Magistrate's record. Mr. Godfrey contended that this phrase should not have been admitted and in support he cited the case of Stirland v D.P.P. (1944) 2 ALL E.R.. In that case the accused, on a charge of forgery, in his evidence-in-chief clearly put his good character in issue. Counsel for the Prosecution then asked in cross-examination whether on the occasion of his leaving certain employment he had been questioned about a suggested forgery. The accused denied this and the House of Lords held: -

(i) the accused can only be asked whether he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged when one or other of the three conditions set out in the Criminal Evidence Act, 1898 S.I. (f) is fulfilled.

(ii) the accused may be examined as to any evidence he has given in chief including statements as to good character with a view to testing its veracity and his credit.

(iii) an accused who puts his character in issue puts his whole past record in issue.

(iv) an accused is not deprived of the protection of the Criminal Evidence Act, 1898 S.I (f) where the proper conduct of the defence necessitates the making of injurious reflections on the prosecutor or his witnesses.

(v) mere suspicion or accusation of crime is no disproof of good character and evidence thereof is inadmissible.

(vi) the fact that a question put to the accused is irrelevant is in itself no reason for quashing a conviction, though it ought to have been disallowed by the judge. If the question is not only irrelevant but also unfair as distracting the jury from the real issues and so likely to lead to a miscarriage of justice it should be disallowed, and, if not disallowed, is a ground on which an appeal may be based. An improper question should be disallowed by the Court whether or not objection is taken by Counsel.

(vii) conviction may be quashed on appeal on the ground of improper admission of evidence although no application has been made by Counsel for the prisoner for the trial to be begun before another jury.

(viii) the word "charged" in the Criminal Evidence Act, 1898 S.I (f) means charged before a Court and not merely accused without prosecution.

(ix) in deciding whether the jury, if properly directed, would have come to the same conclusion despite the reception of inadmissible evidence, it must be assumed that the jury is a reasonable one and would not give a perverse verdict.

(x) the questions put to the accused in the present case were inadmissible but there had been no substantial miscarriage of justice and the conviction would stand.

and he also referred the Court to R v Firth reported in the English and Empire Digest at paragraph 4025:-

"Evidence of pending charges. In the course of the accused's trial for breaking and entering a dwelling house and stealing jewellery valued at £200, a police officer in cross-examination by counsel for the accused gave certain evidence highly prejudicial to the accused relating to another case and to other police inquiries. The assistant recorder directed the jury that they should not consider this evidence, but refused to discharge them and begin the trial again before another jury. Held: the jury should have been discharged and the trial begun again."

Mr. Godfrey complained that the evidence so admitted in the lower Court was irrelevant and prejudicial, and submitted that the only proper way in which such evidence could have been tendered was in terms of section 51 of the Evidence Ordinance (evidence of character in criminal cases) and section 58(e) (ii) of the Evidence Ordinance (competency of accused person etc., in criminal cases).

Mr. Godfrey told this Court that in cross-examination in the Court below he had established that the charge referred to had been dismissed and did not go to trial.

What was elicited on this subject in the cross-examination of the Complainant was:-

"Regarding Edward Lord charge in February, 1979 my wallet was stolen from Caribbean Trailer Park. Edward Lord came to me saying that I could get the wallet if I would pay a reward for it. He brought it back without the money in it. The charge was dismissed because I had to leave the country. I was not disappointed that the matter did not get to trial. I guess that's just the way the case went. I never told him that I was disappointed and would see him in jail, as a matter of fact I was relieved that he didn't go to jail. I'm not trying to see him in jail on this occasion. I believe justice had been done on that occasion..."

In this Mr. Godfrey submitted that there was no attack or imputations against the Complainant.

Mr. Quallo after referring to Archbold 40th Edition at paragraph 581A conceded it was the duty of a Judge to stop irrelevant evidence being led before a jury. He submitted, however, that relevance was a matter of commonsense and experience. He further submitted that the question of identity arose in the trial below, that it was a complaint by a stranger (a tourist) and said that the Complainant had made mention of the charge in connection with identification, i.e. that he had known the Appellant Edward Lord since the time he had taken him to Court in February, 1979. Mr. Quallo drew attention to the strictures placed on the Courts by R v Turnbull in regard to identification evidence. He said further that the passage complained of was very short - a mere sentence, and drew attention to the fact that it had been Counsel for the Appellants who had chosen to bring out the details of that matter in his cross-examination of the Complainant. It was Mr. Quallo's contention that this was raised to suggest that the Complainant was lying and was malicious; and/or to suggest that there was bad blood between the Complainant and Edward Lord. He therefore submitted that the evidence was relevant and that the Magistrate was well within his discretion in admitting this particular piece of evidence.

In attempting to deal with this ground objectively I do not know, of course, whether the phrase complained of tripped off the Complainant's tongue or whether it was in answer to a question by the Prosecutor. However, I find that I cannot accept Mr. Godfrey's contention that there was no attack or any imputations against the Complainant for very plainly there was. Mr. Godfrey in his cross-examination of the Complainant certainly sought to suggest that the Complainant was biased and vindictive against the Appellant Edward Lord, and there is an implied suggestion in that cross-examination that the Complainant had some sort of grudge against Edward Lord.

So whilst I would concede that the phrase complained of might in some circumstances be considered prejudicial and/or irrelevant I think that I must keep in mind that this trial was conducted by a professional Magistrate sitting alone in a Summary Court and because of this I feel quite sure that in evaluating this particular portion of the evidence he would have excluded from his mind any aspect of it which might otherwise be considered prejudicial; and would probably have simply taken note that the Complainant had averred that he had known the Appellant Edward Lord since an incident in February, 1979. However, in saying this I do accept that the position might have been different if this had been a trial before a judge and jury. In addition I take particular note that it was Counsel for the Appellants who chose to closely cross-examine the Complainant on this particular matter and thus cause further details of the February 1979 incident to be disclosed to the Lower Court.

I have thus come to the conclusion that no substantial miscarriage of justice resulted from the inclusion of the phrase "I took Edward Lord to Court in connection with receiving stolen goods" in the Complainant's evidence-in-chief in the Court below. It therefore follows that this ground of appeal must fail.

Ground (2) (A) concerns a complaint that the Magistrate erred in law in allowing the Prosecution to cross examine the Appellant Edward Lord on a previous charge when the said charge had been withdrawn or not proceeded with. I take it that the passage which is the subject of this objection arises in the cross examination of Edward Lord, as follows: -

"I found the purse in front of the "A", Barracks of the hutment. I knew it belonged to this Parker as he told some people about a reward he was giving. The name Ronald Parker was on it. I knew it was his because he told some guys he would give them $100 for the wallet but for the cheque that was in the wallet. These guys told me and I heard it also when those guys were talking about it. I went and asked if there was any Ronald Parker that live at the Caribbean trailer park. When I asked if there was a Ronald Parker living there I had the purse with me. When I saw Parker I knew it was Parker as I saw his picture on his driving permit in the wallet. I asked Parker if this belongs to him. Parker said yes he was giving $100 reward for wallet as he lost $600 and a cheque. Parker called the police saying I must have known who took the wallet."

On this ground Mr. Godfrey submitted that there was ample authority for the proposition that an accused cannot be cross examined regarding previous charges which have not been proceeded with and referred to the case of R. v Savory 1942-44 Cr App R., 1, where it was held (inter alia)-

"that the cross examination of the Appellant offended against the rule laid down by the House of Lords in Maxwell v D.P.P. 24 Cr App R., 152."

A short part of the headnote in that decision reads:-

"As a general rule it is not permissible to cross-examine a prisoner who has put his character in issue on a previous charge which has resulted in an acquittal. In most cases the fact of such a charge having been made is irrelevant, in that it neither goes to show that the prisoner did the act of which he is being tried, nor does it go to his credibility."

Mr. Godfrey said that this also applies in a case where the previous charge has been withdrawn, and referred to R v Nicoloudis 38 Cr App R., 118 where the Appellant was cross-examined on having been charged with forging a cheque on a previous occasion where the charge had subsequently been withdrawn.

Held: that such cross-examination might well have been admissible if the issue in the case had been whether the Appellant knew the cheque named in the indictment to be forged; but no such issue having been raised, cross-examination on a previous charge which had not resulted in conviction was inadmissible, and the conviction must be quashed.

I must confess that at first blush I had thought that there was some substance in this ground of appeal but that was before I had carefully taken note of what it was the Appellant had said in his evidence-in-chief in the Court below on the matter: -

"The Complainant brought charge for receiving his wallet (sic). Last February one Sunday I took back a wallet (sic) to Parker. Parker said he would give me $100 if I told him who stole the wallet (sic)

So that here was an accused person (being led through his evidence-in-chief by his counsel) electing to refer to an incident which had occurred in 1979 where he chose to put his character in issue; and now, as I understand him, Mr. Godfrey is submitting that the learned Magistrate erred in allowing the prosecution to cross examine Edward Lord on his own testimony regarding his version of having earlier found the Complainant's wallet, returning it to the Complainant, and subsequently being charged by the Police; as well as his testimony that he did not steal the wallet.

It is at this point that I find the case of Stirland v D.P.P., which learned counsel had referred to me in respect of ground (2) to be of assistance for in that case the Lord Chancellor very helpfully summarised the rules which should govern the cross-examination of an accused person. What he said was this.

"It is most undesirable that the rules which should govern cross-examination to credit of an accused person in the witness box should be complicated by refined distinctions involving a close study and comparison of decided cases, when in fact these rules are few and can be simply stated. The following propositions seem to cover the ground …….

(2) He may however be cross-examined as to any of the evidence he has given in chief, including statements as to his good record, with a view to testing his veracity or accuracy, or to showing that he is not to be believed on his oath.

(3) An accused who "puts his character in issue" must be regarded as putting the whole of his past record in issue. He cannot assert his good character in certain respects without exposing himself to inquiry as to the rest of his record so far as this tends to disprove a claim for good character.

(4) An accused is not to be regarded as depriving himself of the protection of the section, because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witnesses.

(5) It is no disproof of good character that a man has been suspected, or accused of a previous crime. Such questions as 'Were you suspected?' or 'Were you accused?' are inadmissible because they are irrelevant to the issue of character, and can only be asked if the accused has sworn expressly to the contrary.

(6) The fact that a question put to the accused is irrelevant is in itself no reason for quashing the conviction, though it should have been disallowed by the judge. If the question is not only irrelevant but is unfair to the accused as being likely to distract the jury from considering the real issues, and so lead to "a miscarriage of justice", it should be disallowed, and if not disallowed, is a ground on which an appeal against conviction may be based."

In the light of (1) (supra) one must consider the relevant portion of the Criminal Evidence Act, 1898 which is, as follows: -

(1) Every person charged with an offence………..shall be a competent witness for the defence at every stage of the proceedings………. Provided as follows: -

(e) A person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged;

(f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless-

(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or

(iii) he has given evidence against any other person charged with the same offence.

As I see it the situation in this case is completely covered by S. 1 (f) (ii) and thus the cross-examination of Edward Lord in the lower Court was rendered admissible. Edward Lord having elected to give his version of the earlier incident was properly cross-examined by the prosecution; that is to say cross-examination directed to the credibility of the Appellant as a witness and to the facts to which he had deposed in chief.

It is in these circumstances and on the authority of the Rules set out in Stirland v D.P.P. as read with S. 1, (f) (ii) of the Criminal Evidence Act, 1898 that I find that ground (2) (A) must fail.

That being so I do not find the verdict was unreasonable and cannot be supported having regard to the evidence. This disposes of ground (3).

It follows from all this that the appeals against conviction must be dismissed.

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