R v I, CA (No 3)
[2013] SADC 119
•28 August 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v I, CA (No 3)
[2013] SADC 119
Judgment of His Honour Judge Slattery
28 August 2013
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
The accused sought and was granted leave pursuant to s34KA Evidence Act 1929 to tender in evidence a report of a now deceased orthopaedic surgeon who provided expert reports between 1999-2003 for the purpose of the accused's workers compensation claim about severe injuries incurred in the work accident in 1998 that was resolved in 2003. In a report of 27 January 2003, the orthopaedic surgeon recorded that for the first time he was informed by the accused that he was impotent and that he had suffered impotence since the work injury. The orthopaedic surgeon was not asked to opine on that condition which was the subject of a referral to a specialist urologist by the accused's general practitioner. The urologist provided reports for the workers compensation claim and in 2003 assessed the accused as having had a total loss of function of his sexual organs as a result of the work injury.The accused announced his intention to give evidence in the trial and to call the urologist and the referring general practitioner in evidence as part of the defence case.
The offending alleged against the accused the subject of the charge in the action is alleged to have occured between December 2002 to July/August 2003.
On an application by the accused that the statement by the accused to the orthopaedic surgeon in 2003 of his impotence then and since the 1998 work accident be admitted as proof of the fact of the accused's impotence without further proof of that fact.
Held: application refused; there was an absence of contemporaneity in respect of the past medical history of the accused; the accused is to give evidence as well as the treating urologist and general practitioner; and the deceased orthopaedic surgeon was not asked to opine on the alleged impotence in his capacity as an expert.
Criminal Law Consolidation Act 1935 s285BC ; Evidence Act 1929 s34KA ; Wills on Evidence (3rd Ed. 1938) pp. 209 ; Cross on Evidence (8th Australian Edition) [29065]-[37140] , referred to.
Ramsey v Watson (1961) 108 CLR 642 ; The Queen v Perry (No. 2) (1981) 28 SASR 95 ; Batista v Citra Constructions Pty Ltd (1986) 5 NSWLR 351, applied.
Elmer v Fassenden (1890) 151 Mass 359 (24 NE) ; Ratten v The Queen [1972] AC 378, discussed.
R v I, CA (No 3)
[2013] SADC 119
On 3 April 2013 the accused filed at Court and delivered to the Director a Form 18 Notice pursuant to s285BC Criminal Law Consolidation Act 1935 (CLCA). It read as follows:-
“NOTICE OF INTENTION TO INTRODUCE EXPERT EVIDENCE
Criminal Law Consolidation Act 1935 s285BC
To The Director of Public Prosecutions for the State
The defendant intends to introduce at the trial, expert evidence from
1. Professor Villis Marshal, Consultant Neurologist formerly of 92 Catille House Whyalla (now retired) as to the accused’s urinary symptoms and impotence from the 30th May 2001.
2. Dr M Patel, General Practitioner as to the history of the accused’s back condition and treatment for impotence from the 28th of January 1998 until December 2003.
3. Dr John Lipert, orthopaedic Surgeon formerly of Memorial Medical Centre, North Adelaide now deceased as to the condition of the accused’s left leg from the 18th August 1998 until the end of 2003.”
The Director challenged its content by alleging non-compliance with s285BC CLCA. That section reads as follows:-
“285BC—Expert evidence
(1) If a defendant is to be tried or sentenced for an indictable offence, and expert evidence is to be introduced for the defence, written notice of intention to introduce the evidence must be given to the Director of Public Prosecutions—
(a)in the case of trial, on or before the date of the first directions hearing, and, in the case of sentence, at least 28 days before the date appointed for submissions on sentence; or
(b)if the evidence does not become available to the defence until later—as soon as practicable after it becomes available to the defence.
(2) The notice—
(a) must set out the name and qualifications of the expert; and
(b)must describe the general nature of the evidence and what it tends to establish.
(3) The court may, on application by a defendant, exempt the defendant from the obligation imposed by this section.
(4) If the defence proposes to introduce expert psychiatric evidence or other expert medical evidence relevant to the defendant's mental state or medical condition at the time of an alleged offence, the court may, on application by the prosecutor, require the defendant to submit, at the prosecutor's expense, to an examination by an independent expert approved by the court.
(5) If a defendant fails to comply with a requirement of or under this section—
(a)the evidence will not be admitted without the court's permission (but the court cannot allow the admission of evidence if the defendant fails to submit to an examination by an independent expert under subsection (4)); and
(b)in the case of a trial by jury—the prosecutor or the judge (or both) may comment on the defendant's non-compliance to the jury.
(6) If the Director of Public Prosecutions receives notice under this section of an intention to introduce expert evidence less than 28 days before the day appointed for the commencement of the trial or submissions on sentence, the court may, on application by the prosecutor, adjourn the case to allow the prosecution a reasonable opportunity to obtain expert advice on the proposed evidence and, if a jury has been empanelled and the adjournment would, in the court's opinion, adversely affect the course of the trial, the court may discharge the jury and order that the trial be re-commenced.
(7) The court should grant an application for an adjournment under subsection (6) unless there are good reasons to the contrary.
(8) If it appears to the judge, from evidence or submissions before the court, that a legal practitioner has advised the defendant not to comply, or has expressly agreed to the defendant's non-compliance, with a requirement of this section, the judge may report the matter to the appropriate professional disciplinary authority.
(9) Before the judge makes a report under subsection (8), the judge will invite the legal practitioner to make submissions to the court showing why the matter should not be reported.”
The accused resisted the suggestion of the Director and I heard argument on the matter and I have delivered my reasons.[1]
[1] [2013] SADC 110.
On the day that I delivered my reasons, the accused indicated that he would file a fresh Rule 18 Notice and he did so on 13 August 2013. That Notice relevantly reads as follow:-
“The defendant intends to introduce at the trial, expert evidence from
1. Dr S McCappin, general practitioner, of Littlehampton Medical Centre, 89 North Terrace in the State of South Australia
The evidence sought to be led:
On 28 January the applicant sustained a work place accident which resulted in fractures to his 5th and 6th ribs, a fracture of the left distal fibula and a crushed fracture of the 12th thoracic vertebrae.
The applicant consulted Dr McCappin in respect of penile erectile impotence said to be caused by the accident, and contributed to by the accused’s diabetes/age on 14 November 2000, 16 January 2001, 26 February 2001, 9 April 2001, 7 May 2001, 28 May 2001, 7 November 2001, 21 February 2002, 22 May 2003, 25 July 2003 and 14 January 2004.
Dr McCappin prescribed the applicant the medications Viagra (100mg or 4 tablets with 2 repeats) or Cialis (20mg) on 6 September 2000, 14 November 2000, 16 January 2001, 26 February 2001, 7 May 2001, 7 November 2001, 21 February 2002, 22 May 2003, 23 July 2003, 14 January 2004.
Dr McCappin made no note and cannot depose as to the success of those treatments for impotency.
On 7 May 2001, Dr McCappin noted that the accused had been referred to an urologist Mr V Marshall in part for further treatment for penile erectile impotence.
Dr McCappin also treated the accused for leg cramps and back pain on 8 January 2003, 10 March 2003 and 22 May 2003.
The evidence tends to establish:
The witness’s evidence is relevant to contextualise the evidence sought to be lead from the urologist as to the accused’s erectile impotency and is relevant to whether the penile sexual intercourse took place the subject of counts 2-5.
The evidence of chronic back pain and leg cramps is relevant to the accused’s mobility at the time of the alleged offending.
2. Professor Villis R Marshall, Consultant Urologist, formerly of Castile House, 92 Wood Terrace, Whyalla SA, now retired.
The evidence sought to be led:
The accused consulted Professor Marshall on 31 May 2001 and 21 June 2001 and complained that he was impotent and unable to obtain an erection.
In July 2002, the accused reported he had started to commence Viagra but still was not able to sustain an erection.
The witness will depose as to the possible causes of the accused’s reported impotency including physical pain, diabetes, and restricted blood flow.
The evidence tends to establish:
The witness’s evidence is relevant to the accused’s erectile impotency and whether the penile sexual intercourse took place the subject of counts 2-5.
3. Mr John Lipert, orthopaedic surgeon, formerly of Memorial Medical Centre, 1 Kermode Street, North Adelaide, SA.
The evidence sought to be led:
The witness examined the accused on 18 August 1998, 19 August 1998, 6 September 1999, and 20 February 2003.
The accused’s workplace accident resulted in fractures of the 5th and 6th ribs, a stable crush fracture of the twelfth thoracic vertebra and an undisplaced fracture of the distal left fibula.
On 18th and 19th August 1998, the accused reported that he continued to be troubled by his left leg, both shoulders and lower back. The accused said he continued to suffer back pain which is made worse by sitting or standing or bending. The accused lacked power in his left leg. The accused had restricted movement of both shoulders. He also had restricted spinal movement.
On 6 September 1999, the accused continued to report back pain. He said it was made worse by leaning at a bench or standing. He needs to lie down to relieve the pain. The accused was examined and had degenerative changes in joints of the lower spine and marked restriction of movement of his cervical spine. The accused continued to experience pain in his left leg. The accused stated if he kneels down he struggles to get to his feet again.
On 20 February 2003, the accused reported that his back symptoms had not changed since September 1999. The accused reported that his back aches all the time. The accused’s general mobility was considered markedly restricted. Walking causes him pain in the lower back and he also suffers from a left foot drop which can cause him to trip.
The accused reported to the witness he had been impotent since the accident and had been unable to obtain a penile erection.
The evidence tends to establish:
The evidence supports the accused’s erectile impotency and his restricted mobility at the time of the alleged offending.”
Mr John Lipert is deceased. The accused sought and obtained permission pursuant to s34KA of the Evidence Act to tender in evidence the reports of Mr Lipert.
At the time that the accused consulted Mr Lipert, he was in the process of pursuing a worker’s compensation claim for compensation for injuries that he sustained in a work place accident in 1998. As a result of that accident, the accused allegedly suffered crushed vertebrae in his spine, broken ribs, a fracture of the left tibia, shoulder, hip and back injuries and associated pain, and other consequential effects.
This appears to have been a significant work accident and there have been serious injuries suffered by the accused as a result.
The accused was admitted to and treated in hospital for his injuries and in respect of the assessment of his disabilities as a result of that accident. He remained admitted in hospital for over a month. He was later managed in his recuperation by his general practitioner, Dr Stephen McCappin in Whyalla. A portion of that management was in respect of the impotence and urinary problems complained of by the accused allegedly as a consequence of the accident.
In respect of those urological and impotence problems, the accused was referred to Professor Vilis Marshall, Consultant Urologist visiting the Whyalla Hospital. The accused was specifically referred to Professor Marshall by Dr McCappin for treatment of those two ailments which had not existed prior to the work place accident. Dr McCappin and Professor Marshall are both to be called in evidence in the trial.
Professor Marshall later provided written opinions about these urological and impotence problems and these opinions were taken into account in the settlement of the workers compensation claim. In those reports, Professor Marshall assessed the accused as having a total loss of function of his sexual organs as a result of the accident.
Mr Lipert also provided opinions for the same purpose and within his specialty as an Orthopaedic Surgeon. He made an assessment of the accused’s left lower leg. He identified that there was no record of weakness in that lower limb in 1998 and in 1999 but that such weakness was evident during Dr Marshall’s examination on 21 March 2001. Mr Lipert reported on the magnetic resonance imaging of the accused’s lumbar spine carried out on 19 August 1998 and said that there was a potential for nerve root compression as a consequence of the injury. Mr Lipert opined that consequently the weakness in the accused’s left lower limbs has developed as a direct consequence of the injury he sustained on 28 January 1998. In an earlier opinion (of 25 October 1999), Mr Lipert assessed the accused’s injuries as settled, that he had been left with a quite severe permanent residual disability as a result of the injuries sustained on 28 January 1998 and he assessed the disabilities as follows:-
1. 20% of the function of the neck and cervical spine;
2. 20% of the right upper limb at or above the elbow;
3. 15% of the left upper limb at or above the elbow;
4. 35% of the lower back and the lumber spine.
The issue for my consideration here is one sentence (underlined below) within the report of Mr Lipert of 27 February 2003 in a paragraph that reads in part: “Mr I told me that he has been having difficulty passing urine and his sleep was being disturbed frequently to do this. He also told me he had been impotent since the accident (and) had been unable to obtain a penile erection.”
As I outlined earlier in these reasons, in the workers compensation claim Professor Marshall opined that in the period between 1998 and 2002-3, the accused suffered a complete loss of use of his sexual organs.
The question for my consideration is the submission by Ms David that the sentence from the report of Mr Lipert, once admitted into evidence, should be accepted as more than a recitation of a historical fact given by a patient to a reviewing surgeon. The statement, on her argument, could be accepted as the truth of the fact without further proof.
In her argument, Ms David relied upon three authorities: the High Court decision of Ramsey v Watson (1961) 108 CLR 642 (Ramsey v Watson); The Queen v Perry (No. 2) (1981) 28 SASR 95 (Perry) and Batista v Citra Constructions Pty Ltd (1986) 5 NSWLR 351 (Batista).
The sentence in the report of Mr Lipert records a statement made to him by the accused. On one view it is a hearsay statement and the relevant enquiry as to admissibility involves a search for an exception to the rule against admission of hearsay statements and thus there is the question of a discretionary judgment. On another view, it forms part of the res gestae and there is a question of the exercise of judicial discretion. On another view, it is to be considered by having regard to what may be described as an unnamed, uncircumscribed general principle of convenience that recognises questions of practicality – a person is less likely to tell an untruth in an unguarded moment and questions of a fair necessity for lack of other better evidence or reasoning to a person’s own contemporary statements of his mental or physical conditions (the necessity principle).
It was upon the necessity principle that Ms David heavily relied although she did rely upon the other authorities generally, particularly insofar as they refer to and rely upon the necessity principle.
The facts upon which the High Court decided Ramsey v Watson fall within a narrow compass. The plaintiff, a former employee of a Government printing office, contracted Bright’s Disease (a condition of the kidneys). He asserted that this condition was contracted as a result of his contact with lead at work. He was involved in the printing industry that had significant contact with lead and lead dust.
The specialist physician who treated the plaintiff opined that the contact by the plaintiff with lead in the workplace was causative of the Bright’s Disease suffered by the plaintiff. There are a number of known initiators of the disease, one is lead poisoning, another is hypertension in combination with other circumstances. The plaintiff suffered a form of hypertension.
A Government medical officer gave evidence for the defendant and unsurprisingly, in light of the known initiators of the disease, adopted an epidemiological approach. He examined 21 other employees who worked in largely similar conditions to the plaintiff and gave evidence that none of them have suffered from or disclosed any symptoms of Bright’s Disease. The jury received this evidence but found for the plaintiff.
The appeal issue in this case was that the same medical officer took a history of each of the 21 employees including their state of health in the past (to strengthen the case that, if these employees had no past condition and no present condition, causation was in doubt). The trial Judge rejected that evidence even though, on one view, it may very well fall within the necessity principle. The High Court upheld the decision of the trial Judge and of the Full Court of the Supreme Court of New South Wales to reject the evidence.
The objection that was upheld was that the evidence proposed to be given by the doctor (on the history taken from each of the 21 people of their state of health in the past) could not be proven by hearsay and that the men must be called to give evidence. The argument (that was rejected) was that the evidence of what the 21 men told the medical officer of their past health would have been admissible as being a statement made by a person out of Court concerning his bodily sensations. The High Court accepted that this pronouncement is not recognised as part of the fabric of the settled principles of the law of evidence: the High Court referred to the discussion on the topic in Wills on Evidence (3rd Edition 1938) at page 209 as follows:-
“Whenever there is an issue as to some person’s state of health at a particular time, the statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms are admissible in evidence. This medium of proof does not appear, like most of those which are known as declarations, to possess any special sanction of credibility; like declarations accompanying acts it would seem to have been admitted on the ground of necessity and convenience.”
The High Court then discussed the genesis and development of the doctrine and identified its application in cases concerning deceased persons. The High Court considered whether such statements were admitted as relevant facts because of their spontaneity and so forming part of the res gestae. The Court did not necessarily accept this approach and said (at page 648):-
“…but it seems better to regard such statements as evidence of the facts they recount and thus as exceptions to the general rule excluding hearsay; see the remarks of Dixon J in Adelaide Chemical and Fertiliser Company Limited v Carlyle (1940) 64 CLR 514 at 530.”
The Court then described one rationale of the rule as being the best or only evidence available – where, if bodily feelings were relevant and a man could not be called as a witness, this may be the only method of proving a fact. The Court did not apparently accept this as the basis for the principle. That is understandable, because the “best evidence” rule, where the likely witness is dead or incompetent is of a long standing status. It is not the springboard for the development of a new principle.
That contention is made good when it is known that the High Court then said (at page 648):-
“A sounder argument for admitting evidence of what the men have told the examining doctor might have been that it was part of the material on which he formed the opinion that he gave in evidence. When a physician’s diagnosis or opinion concerning his patient’s health or illness is receivable, he is ordinarily allowed to state the “history” he got from the patient. This practice accords with what seems to be the better opinion in the United States: see Wigmore on Evidence s688. It matters not whether the person whose health is in question was a regular patient of the doctor or whether the doctor saw him for the purpose of qualifying as a witness. This, of course, is quite a different matter from the rule last discovered. That, in cases where it applies, makes statements made to anyone concerning present symptoms and sensations admissible as evidence that those symptoms and sensations in fact existed. This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician’s opinion may have little or no value, or part of the basis of it has gone. Each case depends on its own facts.”
In this passage, it appears that the “…rule last discussed…” was the rule concerning the admission to evidence of any relevant statements previously made by dead persons or persons who have become incompetent.
The approach in this respect is to be distinguished from that approach, under which evidence given by the expert about the history given by the person and so, being the statements about present symptoms and sensations, made by the person to the expert is admissible if it is the foundation or forms part of the foundation of the expert opinion. This is also a principle of long standing duration. No new pronouncement or principle appears to be involved here.
However the question here, in light of the judgment of the High Court, is what is the “first rule” to which reference is made. Is it the rule “last discussed” (making admissible statements to the expert of a witness now dead or incompetent), or is it a rule that applies to make relevant and admissible any statement made to an expert by a person about that person’s present symptoms and sensations.
The resolution of that question is not made any easier when the High Court then used the phrase: “…but, except they be admissible under the first rule, (query: which first rule) such statements are not evidence of the existence in fact of past (and so not present) sensations.”
Thus it may be said that the Court was making a distinction about statements made by a medical examinee about past symptoms and sensations (hearsay) and statements about present symptoms which may be received into evidence as both relevant and admissible.
However, in one sense, almost every complaint in one form or another is about past sensations, experience and symptoms. The case here is in point. There was an accident in 1998; severe injuries were suffered; there was a long period of hospitalisation and recuperation; urological symptoms developed; impotence allegedly developed; a complaint was made to treating medical practitioners and expert urological help was sought three years after the accident. A number of important questions arise: how, as a matter of principle (and its application) is a line to be drawn between a past and a present complaint and how is that to be done with sufficient certainty as part of the application of principle?
The High Court then went on to say that if a man whom the physician examined refuses to confirm in evidence what he said to the expert physician, the opinion of the expert may have little or no value: “…for part of the basis of it has gone…” The High Court made no delineation (deliberately it must be assumed) between what the “man” said to the physician about past or present symptoms. The expert would have expressed a view but it is to an extent “in the ether” because it is unsupported by the material facts. It is not excluded from the evidence, but it has no weight.
And the High Court said that each case depends upon its own facts.
In my view, that is a very important observation because as must be the case, the question of the admission of the factual foundation of the expert opinion/medical diagnosis and prognosis would depend upon a number of variables. In the end, the High Court has apparently deliberately used comparative language and not absolute language; viz: “the… opinion would have little or no value… for part of the basis of it has gone” (emphasis).
The second case referred to by Ms David was the decision of Justice Cox in Perry.[2] Mrs Perry was charged with having twice attempted to kill her husband (in 1978 and 1979) by giving him arsenic. The husband attended his family GP and made certain complaints about the state of his health. These were consistent with the symptoms of arsenic poisoning. The husband was completely “in the camp” of the accused at trial. The prosecution informed the trial Judge that the husband would not be called as a prosecution witness because he was not accepted as a witness of truth.
[2] R v Perry (No. 2) (1991) 28 SASR 95.
The prosecution sought to lead in the trial evidence from the doctor to whom Mr Perry gave information when various consultations took place about an illness that he was apparently suffering.
The objections to the admission of the evidence in the particular facts of this case were overruled. At page 96 of the decision in Perry, Cox J said:-
“There is plenty of authority in the books for the common law rule that a person’s statements about his health or bodily feelings are admissible evidence of the facts stated. There is a requirement as to contemporaneity and nothing may be added as to the declarant’s opinions or as to his beliefs about how he became ill but the rule itself is well entrenched.”
By the reference by Cox J to the aspect of contemporaneity, it may be understood that his Honour accepted the distinction about past and present symptoms. In the medical sense, the reason for making that distinction is clear. The treating doctor does not necessarily have any way of verifying what the patient says occurred in the past. A patient presenting with current symptoms discloses a quite different position and the complaints of the plaintiff may be objectively verified.
If that be correct then (on this reading of the approach of the High Court in Ramsey v Watson) no further considerations have application. The evidence is admissible without more. But this was not the approach adopted by Cox J. In Perry at page 97, his Honour said:-
“It is necessary to consider whether the Crown may make use of the rule where, as in this case, the medical patient concerned is a competent and willing witness who could, if called, give the evidence about his symptoms for himself. The fact is that the Crown does not intend to call Mr Perry; at the outset of the trial I was told that it does not accept him as a witness of truth. While the origin of the rule is commonly said to lay in considerations of necessity and convenience, the typical occasion for its application being one in which the declarant is dead at the time the civil or criminal cause comes to be tried, the authorities have not confined it to cases in which the witness was dead or was legally incompetent to give evidence or was for some reason not available at the hearing. No such limitation is stated or implied in the textbooks.”
If no such limitation is stated in a textbook the question becomes the application of authority. Cox J refers at page 97 of Perry to the same well knows evidence texts as the High Court referred to in Ramsey v Watson when discussing the genesis of the rule. In respect of Ramsey v Watson, his Honour said at pages 97-98 as follows:-
“Ramsey v Watson dealt with the question asked of a medical witness about the past medical history given to him by a person he had examined. The proposed evidence thus failed to conform with the qualification regarding contemporaneity. However, the nature of the rule was discussed in the joint judgment of the High Court and while it was pointed out that most, if not all, of the cases in which the question had arisen were cases in which the declarant was dead before the trial or was not legally competent to give evidence, it was nowhere suggested that the application of the rule was strictly confined to such circumstances. If there is such a limitation, it is remarkable that none of the authorities expressly acknowledges it.”
It is a little difficult to know what his Honour intends here. As I have already discussed above, on one view, the High Court did not absolutely distinguish between the receipt of evidence of contemporaneous complaint and a past complaint when assessing the value of the physician’s opinion when the patient can but refuses (i.e. is not dead or incompetent) to give evidence (my emphasis). Cox J does not dicuss the matters that may arise as considerations depending on the (different) view(s) that may be taken of the decision of the High Court in Ramsey v Watson.
Cox J placed considerable emphasis upon the well-known judgment of Justice O.W. Holmes in Elmer v Fassenden (1890) 151 Mass 359 (24 NE) (Fassenden). That judgment emphasised what I have earlier described as the necessity principle (see Perry at page 98). Having identified this principle, Cox J continued (at page 98): -
“One can readily imagine cases in which consistently with the doctrine that underlies the basic rule, such evidence ought to be led in the interests of justice even though the declarant is available. He might be very ill, for instance, or have lost his memory or he might for one reason or another be hostile to the point of untruthfulness towards the party who needs the evidence to support his case. It is always important to remember, I think when these evidentiary rules are called in question, that too narrow a definition of them may work an injustice to an accused person no less than to the Crown… in my opinion the evidence is not to be excluded in this case as a matter of law simply because Mr Perry is able to give evidence of these matters for himself.”
Cox J found that the evidence was not to be excluded as a matter of law; on that basis his Honour’s view was consistent with the decision of the High Court in Ramsey v Watson. But it is as well to recall that at page 649 in Ramsey v Watson, the High Court said that each case depends on its own facts. Cox J held that as a matter of discretion, he would not exclude the medical evidence because he was of the view that it was not unsafe or unfair to admit it. His Honour could conceive of cases where it may be unsafe or unfair but this was not such a case.
The third authority referred to by Ms David is the New South Wales Court of Appeal decision in Batista. The Court of Appeal (Hope, Glass and Mahoney JJA) considered an appeal from a jury verdict before Justice Rodin. This case (a work injury claim) concerned observations made by a treating medical practitioner of an accident victim’s emotional/psychological condition consistent with a severe depression suffered by that victim.
The victim had not led any evidence of this condition in the trial before a civil jury and for reasons unexplained, the trial Judge did not give leave for him to give further evidence on this issue. The trial Judge refused to allow this aspect of the doctor’s evidence to go to the jury. The victim appealed and the appeal was upheld.
Glass JA agreed with the judgment of Hope JA who said at page 354 F-G as follows:-
“There is a long established exception to the hearsay rule that makes admissible statements made outside Court by a person to the witness giving the evidence. Relevantly the rule is that whenever there is an issue as to a person’s state of health at a particular time, the statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms are admissible in evidence: Ramsey v Watson.”
The case turned on the opportunity to give evidence (not taken) and the question of the contemporaneity of the complaint discussed as: “contemporaneity of the related facts with the relevant sequelae.”
After assessing the authorities and having identified that the rule has an independent operation and does not depend upon the absence of better or more available evidence (page 355 A-C) Hope JA considered the issue of contemporaneity and found for the plaintiff appellant on questions of fact. Hope JA did not mention the question of the exercise of discretion as that task had been undertaken by Cox J in Perry but referred with approval to that decision generally. Cox J discussed contemporaneity at the commencement of his reasons.
Mahoney JA agreed with the judgment of Hope JA but then added his own observations. After discussing the authorities which are above described, his Honour said at page 358 F-G as follows:-
“In the present case, the doctor said that the plaintiff said that he had entertained ideas of self destruction. What is in issue is whether, from the fact that that was said to the doctor, it is permissible to infer that what was said was true, viz, that the plaintiff did entertain such ideas. If the inference can be made, then the rule here in question is one which constitutes an exception to the hearsay principle. This is the view adopted by the High Court in Ramsey v Watson.
On this basis, the issue is whether such an exception to the hearsay rule can be justified. And that depends upon, or at least is affected by, the reasons advanced to justify the creation of such an exception.
Insofar as consideration has been given to this question, no single justification or rationale of it has been accepted.” (Emphasis).
I respectfully agree with his Honour’s views.
Mahoney JA then referred (page 358 F-G) to the passages in Wigmore that the High Court referred to in Ramsey v Watson (at page 649). For the sake of completeness I think it is necessary to reproduce the whole of that text. It is as follows:-
“In the present and the two ensuing Exceptions, this Necessity principle presents itself in still a third and different form, viz, relative value of the evidence. It rests on the consideration that, though the person's testimony on the stand may still be both actually and conveniently practicable, yet the probability of there receiving from him testimony which shall be in value equal or superior to certain hearsay statements is small; thus, while there is hardly a necessity in the strict sense, there is at least a desirability of resorting also to the hearsay statements.
Applied specifically to the present Exception, the judicial doctrine has been that there is a fair necessity, for lack of other better evidence, for resorting to a person's own contemporary statements of his mental or physical condition. It is indeed possible to obtain by circumstantial evidence (chiefly of conduct) some knowledge of a human being's internal state of pain, emotion, motive, design, and the like; but in directness, amount, and value, this source of evidence must usually be decidedly inferior to the person's own contemporary assertions of those conditions. It might be argued, however, that the person's own statements on the stand would amply satisfy the need for his testimonial evidence. The answer is that statements of this sort on the stand, where there is ample opportunity for deliberate misrepresentation and small means for checking it by other evidence or testing it by cross examination, are comparatively inferior to statements made at times when circumstances lessened the possible inducement to misrepresentation.
For the use of such statements, then, made out of court and without any obvious motive to misrepresent, there is a fair necessity, in the sense that there is no other equally satisfactory source of evidence either from the same person or elsewhere. It follows that the death, insanity or nonresidence of the declarant is not a condition precedent; and this has not been questioned.”
In this matter, two aspects arise, the contemporaneity issue and what I have described (see Holmes J in Fassenden) as the necessity principle. After identifying (at page 359 E-G) that the English view of the justification or rationale of the rule is not settled (a view with which I respectfully agree) Mahoney JA then considered the passages in Phipson on Evidence, Taylor on Evidence, Wills on Evidence and Cross on Evidence that identify the inconsistency of approach of the exception or guidance for the application of principle or the definition of what are the limits of this principle of law.
Mahoney JA held that there was a distinction to be made between the admission of statements made as to feelings or symptoms and the admission of the kind of evidence dealt with in Ratten v The Queen [1972] AC 378. In that case, a telephonist received a phone call from a woman who was near hysterical asking for the police. She was dead within the hour. The evidence of the telephonist about her observations of the state of the caller as it appeared to her was admitted as a fact – that is how it appeared to the telephonist. An inference could be drawn of what may have caused the caller to be in that state.
Mahoney JA then said:-
“However, in so far as a view has been adopted in England as to the basis of admission of this evidence, it appears to be one of “necessity and convenience”. That basis would not be available where the patient himself could have given evidence or, a fortiori, where he did give evidence.” (Emphasis)
After referring to the same passages as Ramsey v Watson, as I have set out above, but where his Honour did not identify the comparative positions that I have outlined above (see page 360 C-G of Batista), Mahoney JA then said at page 360 G and following as follows:-
“If the basis of the admissibility of the evidence be, in the strict sense, the best evidence rule, then the evidence should not be admissible where better evidence, viz, that of the patient himself, is available. If the basis be that of necessity or convenience, in the ordinary sense, the admission of the evidence is not warranted where the patient is conveniently available. In such a case, admission of the evidence is to be justified only if there is, as is suggested by Wigmore, but apparently denied by Wills, a particular “relative value” or “credibility”, to be attached to what the patient has said to the doctor as against what he can or does say on oath before the court.”
Finally, Mahoney JA summarised the views expressed by him at page 361 B-C as follows:-
“In practice, trials appear to proceed in many instances upon the basis that the patient's statements to the doctor, as narrated in the medical reports, may be accepted as evidence of the truth of what the patient said. Whatever be the justification in law for this, it often reduces the time and cost of trials. And it would be undesirable to introduce, in this area of practice, new distinctions. I therefore agree that this Court should adopt the view which, on this matter, has been stated by Hope JA.” (Emphasis).
In light of the fact that immediately prior to this passage, Mahoney JA had identified the apparent uncertainty of the basis of the admission of the evidence (as a matter of law); it is a little difficult to comprehend what significance a trial Judge in my position is to place upon the matters of practical significance referred to by his Honour.
In the 8th Australian Edition of Cross on Evidence, the learned author at paragraphs [29065]-[37140] discusses the decision of the High Court in Ramsey v Watson in a number of contexts. At paragraph [37130], in a discussion of the res gestae rule, the learned author discusses the admission of statements of contemporaneous physical sensations (at [37140]) and the requirement of contemporaneity (at [37135]-[37140]). After identifying the basis for the exclusion of the evidence of the doctor in Ramsey v Watson, the learned author says the following (see at page 1409 at [37140]):
“…the statements were held to be properly excluded because it was clear that it was not intended to call the workman and thereby support the very basis of the doctor’s opinion. Evidence of a person’s statements to a third party about the person’s health or bodily feelings are admissible and deposed to by that third party. This is the case even where the person is an available witness or where the person gives evidence but not of the matters of health referred to in the statements deposed to by the third party (references omitted).”
The authorities relied upon are Perry and Batista. The learned author does not discuss what fell from Mahoney JA in Batista as I have set out above.
In this case, Mr John Lipert (now deceased) was retained by the accused’s solicitors as an Orthopaedic Surgeon to give an opinion on the sequelae of the injuries suffered by the accused in a crush injury at work. There was a relevant workers compensation claim on foot at that time and Mr Lipert’s evidence was to be used to support the accused’s claims. Mr Lipert provided at least 4 reports: 21 July 1999, 25 October 1999, 21 March 2000 and 27 February 2003. It was only in the consultations relative to the 27 February 2003 report that Mr Lipert reported on the history given to him by the accused of the alleged impotence, a matter that is important in this trial. During that same period, Professor Marshall on referral from the accused’s treating General Practitioner, Dr McCappin, treated the accused for his urinary problems and for his impotence. Professor Marshall also provided reports in the workers compensation claim. He assessed the accused as having a total loss of function of his sexual organs in 2002-2003, a time adjacent to which the charged counts are alleged to have taken place.
The only mention of impotence in the reports of Mr Lipert is the single sentence in the 27 February 2003 report that I have already set out above. The matter is not referred to again by Mr Lipert. He was not asked to opine on that matter. It was not within his area of expertise, apart from any connection between damage to the nerves of the lumbar spine and the impotence but Mr Lipert did not opine on that matter. Therefore, the sentence stands alone in this report.
Ms David urges upon me that as a matter of law, upon the receipt of Mr Lipert’s report under s37KA of the Evidence Act, that the sentence may be accepted as proof of the fact of the impotence of the accused without further proof.
I am unable to accept that submission. There is an absence of contemporaneity of the statement said to cover a period of some 5 years. The question of impotence was not a matter for the opinion of Mr Lipert. The accused is available and willing to give evidence on his own behalf on this topic and so will be cross examined on the topic; Professor Marshall will give evidence on the issue and be cross examined. The jury will hear the whole of the relevant evidence on the matter.
And in the event that the matter comes to the exercise of a discretion, I would exercise my discretion against the admission of the evidence on the basis as urged upon me by Ms David and for the same reasons.
One matter that is of considerable concern to me is that Mahoney JA in Batista spoke (at page 361) of an uncertainty of the justification in law for this identified principle of law that appears to be accepted and forms part of the fabric of the law of evidence. Cox J in Perry entertained no such doubts. It would be very helpful if the identified uncertainty, if it exists, was resolved as soon as possible.
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