BHUNU J: The accused is charged with the murder of his wife which
allegedly occurred in the course of domestic violence on 3 October
2008. Dr N Gonzalez examined the deceased's remains on 9 October
2008 where upon he compiled a post mortem report.
The doctor has since left the country and is unavailable to give
evidence. The State however seeks to rely on and has tendered the
postmortem report as evidence against the accused notwithstanding the
unavailability of the doctor who compiled the report.
The defence has vigorously challenged the admissibility of the post
mortem report in the absence of its author.
Section 278 of the Criminal Procedure and Evidence Act provides for
the admission of documents of this nature as follows:
“278
Admissibility of affidavits in certain circumstances
(1) In any criminal proceedings in which it is
relevant to prove—
(a)
any fact ascertained by an examination or process requiring
knowledge of or skill in bacteriology, chemistry, physics,
microscopy, astronomy, mineralogy, anatomy, biology, haematology,
histology, toxicology, physiology, ballistics, geography or the
identification of finger-prints, palm-prints or footprints or any
other knowledge or skill whatsoever;
(b) any opinion relating to any fact
ascertained by an examination or process referred to in paragraph
(a);
a document purporting to be an affidavit relating to any such
examination or process and purporting to have been made by any person
qualified to carry out such examination or process who in that
affidavit states that such fact was ascertained by him or under his
direction or supervision and that he arrived at such opinion, if any,
stated therein shall, on its mere
production in those proceedings by any person, but subject to subss
(11) and (12), be prima facie
proof of the fact and of any
opinion so stated.
(2) In any criminal proceedings in which it is
relevant to prove—
(a)
any fact ascertained by a medical practitioner in any examination
carried out by him which is proper to the duties of a medical
practitioner;
(b)
that any treatment, including the performance of an operation, was
administered by a medical practitioner;
(c)
any opinion of a medical practitioner referred to in paragraph (a)
or (b)
relating to any fact or treatment referred to in that paragraph;
a document purporting to be an affidavit
relating to any such examination or treatment and purporting to have
been made by a person who in that affidavit states that he is or was
a medical practitioner and in the performance of his duties in that
capacity he carried out such examination and ascertained such fact in
such examination or administered such treatment, and, in either case,
arrived at such opinion, if any, stated therein shall,
on its mere production in those proceedings by any person, but
subject to subss (11) and (12), be prima
facie proof of the facts and
of any opinion so stated.
(11) An
affidavit referred to in this section shall not be admissible unless
the prosecutor or the accused, as the case may be, has received three
days' notice of its intended production or consents to its
production.
(12) The court
in which any affidavit referred to in this section is produced in
evidence may, of its own motion or at the request of the prosecutor
or of the accused, cause the person who made the affidavit or any
other person whose evidence the court considers to be necessary to
give oral evidence in the proceedings in question in relation to any
statement contained in the affidavit or may cause written
interrogatories to be submitted to such person for reply, and such
interrogatories or any reply thereto purporting to be a reply from
such person shall, on their mere production in those proceedings by
any person, be admissible in evidence.
(13) Nothing in this section shall be
construed as affecting any provision of any enactment under which any
certificate or other document is made admissible in evidence, and
this section shall be deemed to be additional to, and not in
substitution of, any such provision.”
The import of the above section is to render any affidavit purporting
to have been made by a medical practitioner in the course of his
duties admissible upon its mere production by any person. The post
mortem report intended to be produced by the State fits squarely
within the family of documents admissible upon their mere production
by any person in terms of s 278 of the Act. That being the case I
find that the objection is unsustainable.
It is accordingly ordered that the postmortem report tendered by the
State be and is hereby admitted in this case in terms of s 278 (2) of
the Criminal Procedure and Evidence Act [Cap 9:07].
The Attorney General's Office, the State's Legal
Practitioners.
Chikumbirike and Associates, the accused's Legal Practitioners.
