Supreme Court of Mauritius, 20 février 2020, 2020 LPW 18 – Police v. Mamode N Moraby

1

Police v. Mamode N Moraby

2020 LPW 18

IN THE DISTRICT COURT OF LOWER PLAINES WILHEMS

CN: 11748/15 In the matter of:

POLICE

v/s

Mamod Nazim MORABY

RULING The accused is charged with the offence of assaulting a person entrusted with a public duty in breach of sections 158 and 159 of the Criminal Code. The prosecution was represented by Me Peerally.. The accused is represented by Me V.Ramchurn. The trial started and the prosecution called its witnesses. During the course of trial, the prosecution moved to have the medical records of the declarant i.e the medical file from Moka Eye Hospital, more specifically the records as from 14.04.2013 to 30.04.2013 to be produced. Counsel for the defence objected to same being produced. Submissions by the defence Counsel for the defence submitted that it is trite law that the prosecution has to prove its case beyond reasonable doubt. In order to do so, the prosecution has a legal burden cast upon it to prove the charge and adduce evidence. After evidence is adduced, the Court will decide whether the case has been proved against the accused. At this stage, Counsel invited

the Court to consider what lies at the heart of the case, that is the information. It was submitted that the accused is being prosecuted for “assaulting a person entrusted with a public duty.” It is a case of simple assault and the prosecution has adduced evidence by producing PF 58 and PF 58A of the declarant i.e witness no. 2. Doc A reveals that the declarant bore “soft tissue injury scalp” and that it is not of a dangerous character. Doc B signed by Dr Dhunnoo dated 2.2.15, past 2013/2014, relates to the nature of the injury. It is stated therein that same is “not related to injury.” Dr Dhunnoo gave a detailed version of his observations therein and must have had a look at the file, which is the file that the prosecution intends to produce. Dr Dhunnoo stated that this is not related to the injury. Counsel questions the use of producing a document which relates to the treatment followed by the declarant. and its relevance. It is the contention of the defence that the declarant has a past history and it has been established during cross- examination that the latter has a pathology. Counsel is of the view that if same is allowed to be produced, a multiplicity of issues will arise, which are not relevant to the facts in issue. The facts in issue is an assault and whether that assault has been perpetrated by the accused, is an issue for this Court to determine. It is the contention of the defence that producing or attempting to produce this document will cause prejudice to the accused as the its prejudicial effect outweighs its probative value. Reply by the prosecution Counsel submitted that the prosecution wishes to adduce the medical file for a specific period of time i.e 14.04.2013 to 30.04.2013. The purpose of the medical file is to establish whether the declarant has suffered injury to the eye at the material time. It is an important piece of evidence for the Court to determine whether the prosecution has proved its case beyond reasonable doubt. It was submitted that the Court has the discretion to exclude evidence whether the prejudicial effect will outweigh its probative value. In the present case, no prejudice will be caused because the defence has had ample opportunity to cross- examine the two doctors called by the prosecution Dr Dhunnoo and Dr Juggoo. Dr Juggoo deposed under solemn affirmation and since she had the original file with her, same could not be produced. It was further submitted that since defence Counsel has had the

opportunity to peruse the file, no prejudice will be caused to the accused. The list of witnesses has been amended to add the records officer and there was no objection from Counsel. To conclude her submissions, Counsel stated that the records should be allowed to be produced to establish the nature of the injury and the charge. In reply, Learned Counsel for the defence submitted that the Court has a duty and an inherent power to protect its process from being abused by the prosecution. In reply, Learned Counsel for the prosecution submitted that she is only referring to the court record as stated by the doctor and whether the file can be put in. The question is whether its prejudicial effect will outweigh its probative value. Analysis The issue for this Court to determine is whether the prosecution can produce the medical records of the declarant from 14.04.2013 to 30.04.2013. As per the information, the present offence occurred on or about 14.04.2013. Counsel for the defence objected to same being produced and questioned the relevance of same. Having heard submissions on behalf of the prosecution and of the defence, I will now turn to consider whether the production of the relevant part of the medical records is (i) relevant and (ii) whether its prejudicial effect outweighs its probative value. The concept of relevance In Blackstone’s Criminal Practice 2007 edition, it is noted at paragraph F1.9 that: “The cardinal rule of the law of evidence is that, subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible, and all, evidence which is irrelevant or insufficiently relevant to the facts in issue should be excluded. As to the former, however, evidence which is relevant may nonetheless be excluded if it is such, that no reasonable jury, properly directed as to its defects, could place any weight on it (Robinson [2006] 1 Cr App R 221, a case concerning voice recognition evidence)….” Lord Steyn in Randall [2004] WLR 56 at [20] explained this as follows:

“A judge ruling on a point of admissibility involving an issue of relevance has to decide whether the evidence is capable of increasing or diminishing the probability of the existence of a fact in issue. The question of relevance is typically a matter of degree to be determined, for the most part, by common sense and experience.” (Emphasis added) Are the medical records relevant in this case? The Court is alive to the fact that the PF 58 and PF 58 A have been produced by the prosecution. Afterwards, the officer in charge of Moka Hospital was added to the list of witnesses by the prosecution, to come and produce the medical file of witness no. 2 pertaining to the incident of 14.04.2013. (pg 62 of the Court record refers). Defence Counsel had no objection to this. Dr Jugoo, a consultant of Moka Eye Hospital, deposed to that effect. The Court notes that when witness no. 8, Dr Jugoo, consultant at Moka Eye Hospital, deposed in Court, she referred to the said medical records. The court record at pg 73 reads as follows: A: I am giving answers based on the medical record. At the material time, there was no objection from Counsel for the defence for the witness to depose according to the said records. Furthermore, the question of relevance did not arise. On the next Court sitting, Counsel for the defence moved for communication of the said file. It follows that Defence Counsel had ample opportunity to peruse the file in question. Counsel for the prosecution submitted that the purpose of the medical file is to establish whether the declarant has suffered injuries to the eye. Therefore, on the question of relevance, I find that the said records as from 14.04.2013 to 30.04.2013 are relevant to the facts in issue in as much they pertain to charge and to the injury sustained by the declarant. The charge against the accused is not one of simple assault but one of assaulting a person entrusted with a public duty in breach of sections 158 and 159.

True it is that in the PF 58A dated 02.02.15, Dr Dhunnoo stated that “not related to the injury”. The relevant part reads as follows: “not related to injury – Has been following treatment for retinal & laser due to vascular problems….” Nevertheless, should Counsel have any further questions after perusing the file for the doctor, he may move to recall the witness. At this stage, I find it apposite to refer to the following excerpt from Archbold Digital version 2018 edition, at paragraph 8-303 where the Court may allow witnesses to be recalled as follows: “The judge has a discretionary power to recall, or allow the recall of, witnesses at any stage of the trial prior to the conclusion of the summing up and of putting such questions to them as the exigencies of justice require, and the Court of Appeal will not interfere with the exercise of that discretion unless it appears that an injustice has thereby resulted: R. v. Sullivan , 16 Cr.App.R. 121, CCA; R. v. McKenna , 40 Cr.App.R. 65, CCA. If a witness for the Crown is recalled by the judge or by leave of the judge, the defendant’s counsel is allowed to cross-examine him on the new evidence given: R. v. Watson (1834) 6 C. & P. 653. It is highly irregular in a trial before a jury to recall a witness who has already given evidence merely for the purpose of giving the evidence again, see R. v. Sullivan, ante; cf.Phelan v. Back , 56 Cr.App.R. 257, DC, post. Where a witness is recalled to give evidence in rebuttal, it would appear that the judge's discretion should be exercised within the framework of the relevant principles, see ante, §4-404, and R. v. Sullivan, ante. …” I will now turn to consider whether the prejudicial effect of the evidence which the prosecution is seeking to adduce outweighs its probative value. Does the prejudicial effect outweigh its probative value? A. The discretion to exclude the evidence At this stage, I find it apposite to refer to Murphy on Evidence, Seventh Edition at 3.7:

“ 3.7. Exclusionary discretion: criminal cases 3.7.1 Common Law In criminal cases, the judge has both the power and an overriding duty to secure a fair trial for the accused. While the power may be exercised in ways unrelated to the admission of evidence, for example, in restraining oppressive prosecution or prosecutorial conduct, there is an important exercise of it in respect of the admissibility of evidence tendered by the prosecution. This takes the form of excluding or limiting technically admissible evidence on the ground that its probative value is outweighed by its potential for unfair prejudice to the accused. By ‘unfair prejudice’ in this context is meant the potential for unfair prejudice to shock or inflame the jury, or to predispose them against the accused for reasons unconnected with the legitimate probative value of the evidence….. The power may be properly described as discretionary because the judge is not ruling on the admissibility of evidence as a matter of law; indeed, the admissibility of the evidence as a matter of law is to be assumed if the discretionary power is invoked. The judge should consider the probative value of the evidence, the likely extent of the unfair prejudice, and the circumstances of a trial as a whole, and, in a necessarily subjective manner, do what appears necessary in those circumstances to secure a fair trial. For this reason, the test for the exercise of the common law discretion is often referred to as a balancing of the admissibility of the evidence and the prosecution’s interests in having it admitted, on the one hand, and the overriding duty of the court to secure a fair trial for the accused, on the other. “ ( Emphasis added) The author laid emphasis on the fact that “…the right course seems to be for the judge to ask himself whether, starting with the proposition that relevant and admissible prosecution evidence should in general be admitted, it is nonetheless necessary to exclude it in order to secure a fair trial for the accused. ( Re: Murphy on Evidence, Seventh Edition) ( Emphasis added) The following extract from Blackstone’s Criminal Practice 2007 edition, is also of relevance.

“The classic description of the discretion is that of Lord Parcq, delivering the reasons of the Board in Noor Mohamed v, R [1949] AC 182. Referring to cases in which the prosecution seek to admit similar-fact evidence, his lordship said (at p. 192): …in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directly, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case has only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. ” In short, this Court must carry out a balancing exercise by weighing on one hand, the probative value of the evidence, why the prosecution seeks to have it produced and on the other hand, the overriding duty of the Court to secure a fair trial for the accused. At this stage, I also find it apposite to refer to the case of Nunkoo v. the State [ 2001] SCJ 77, where the Court laid emphasis on the following: “The legal position concerning the Judge’s discretion in a criminal trial to exclude evidence which is otherwise legally admissible is well explained in the following passage from A. Keane’s “The Modern Law of Evidence” 4th Edn. (1996): “That a judge in a criminal trial has a discretion to exclude legally admissible evidence tendered by the prosecution has been accepted for some time and was confirmed by the House of Lords in R v Sang. The House was of the unanimous albeit obiter view that the judge, as a part of his inherent power and overriding duty in every case to ensure that the accused receives a fair trial, always has a discretion to refuse to admit legally admissible evidence if, in his opinion, its prejudicial effect on the minds of the jury outweighs its true probative value. Exercise of the discretion is a subjective matter, each case turning on its own facts and circumstances. The judge must balance on the one hand the prejudicial effect of the evidence against the accused on the minds of the jury and on the other its weight and value having regard to the purpose for which it is adduced. Where the former is out of all

proportion to the latter, the judge should exclude it. In one sense, of course, all relevant evidence adduced by the prosecution is prejudicial to the accused and the greater its probative value, the greater its prejudicial effect. In some cases, however, there will be a serious risk that the jury will attach undue weight to an item of evidence which is, in reality, of dubious reliability or of no more than trifling or minimal probative value, and in these circumstances the judge should exclude. In the words of Roskill J in R v List: ‘A trial judge always has an overriding duty in every case to secure a fair trial, and if in any particular case he comes to the conclusion that, even though certain evidence is strictly admissible, yet its prejudicial effect once admitted is such as to make it virtually impossible for a dispassionate view of the crucial facts of the case to be thereafter taken by the jury, then the trial judge, in my judgment, should exclude that evidence.’

What is the purpose of this evidence? Counsel for the prosecution submitted that the purpose is to establish whether the declarant has suffered injury to the eye at the material time. True it is that the Court is in presence of the PF 58 and PF 58A of the declarant; however, the said medical records show that the declarant was also examined at Moka eye hospital on the material day.

B. The prejudicial effect v/s the probative value Defence Counsel submitted that if the said records are allowed to be produced, a multiplicity of issues will arise, which are not relevant to the facts in issue. It was also submitted that producing or attempting to produce this document will cause prejudice to the accused as the its prejudicial effect outweighs its probative value. However, the defence did not submit on how this will cause prejudice to the accused and thus lead to an unfair trial. As noted above, at the time, reference was made to the said records i.e whilst witness no. 8 deposed under solemn affirmation, defence Counsel did not have any objection for the records to be referred to. It is also noted at pg 62 of the Court record that the prosecution

moved to amend the information, by adding as witness no. 8, the officer in charge of Moka hospital to produce the medical file of witness no. 2 pertaining to the incident of 14.04.2013. There was no objection from Defence Counsel at that point in time. In the light of the above, having found the said medical records are relevant to the facts in issue and thus admissible, I am of the view that the said records are not of an insignificant value. I also do not find that admitting such evidence will cause prejudice to the accused at this stage of the proceedings since witness no. 8 relied on this to depose in Court and there was no objection from the defence. Consequently, the Court rules that the said medical records as from 14.04.2013 to 30.04.2013 are admissible and the motion of the defence is set aside.

N.Seebaluck Acting District Magistrate 20.02.2020